THE
BULLETIN THE LAW SOCIETY OF SA JOURNAL
VOLUME 42 – ISSUE 5 – JUNE 2020
IN THIS ISSUE
Open justice during COVID-19 Court rules on media raids Should defamation laws be updated?
MEDIA & THE LAW
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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (5) LSB(SA). ISSN 1038-6777
CONTENTS MEDIA & THE LAW
FEATURES & NEWS
REGULAR COLUMNS
6 Open justice in the age of COVID-19: The case for he ongoing relevance of court reporters By Michelle Hamlyn
19 Court establishes the Family Law Property Arbitration List By Judge Joe Harman & Matthew Shepherd
4
From the Editor
5
President’s Message
10 Tendering social media content as evidence – By Dr Allison Stanfield
26 Dealing with nuisance cats under animal management legislation By David Robertson
23 Young Lawyers: How to navigate the transition from young lawyer to TikTok star – By Alexandra Douvartzidis & Caitlin Surman
12 Raids on reporters: How recent court decisions highlight the fragility of the free press – By Professor Rick Sarre
28 Young people develop plan for changes to youth justice system By Helen Connolly
27 Tax Files: Onus of proof in tax disputes – By John Tucker
16 Should defamation laws be updated in the digital age? – By Richard Bradshaw & Caitlin Walkington
30 Society monitors COVID-19 related legislation
32 Risk Watch: beware the Land tax changes – By Harry Patsias & Grant Feary
35 SACAT’s response to Burns v Corbett provides new pathways to access justice – By Dr Sarah Moulds
38 Family Law Case Notes By Rob Glade-Wright
22 Should the court allow media to publish visual evidence? By Mitch Mott
Executive Members President: T White President-Elect: R Sandford Vice President: J Stewart-Rattray Vice President: E Shaw Treasurer: F Bell Immediate Past President: A Nikolovski Council Member: S Hooper Council Member: V Gilliland Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich T Vozzo F Bell M Mackie M Boyle E Shaw J Marsh C Charles R Piccolo Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region) Junior Members M Rossi F Wambeti Ex Officio Members The Hon V Chapman, Prof V Waye, Prof M de Zwart, Prof T Leiman
36 Delivering accessible justice through innovation – By Alice Rolls
KEY LAW SOCIET Y CONTACTS Chief Executive Stephen Hodder stephen.hodder@lawsocietysa.asn.au Executive Officer Rosemary Pridmore rosemary.pridmore@lawsocietysa.asn.au Chief Operations Officer Dale Weetman dale.weetman@lawsocietysa.asn.au Member Services Manager Michelle King michelle.king@lawsocietysa.asn.au Director (Ethics and Practice) Rosalind Burke rosalind.burke@lawsocietysa.asn.au Director (Law Claims) Geoff Thomas gthomas@lawguard.com.au Manager (LAF) Annie MacRae annie.macrae@lawsocietysa.asn.au Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au Programme manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au
40 Bookshelf 41
Gazing in the Gazette
THE BULLETIN Editor Michael Esposito bulletin@lawsocietysa.asn.au Editorial Committee A Bradshaw P Wilkinson S Errington T Shueard D Sheldon J Arena G Mottillo B Armstrong D Misell R Scarabotti The Law Society Bulletin is published monthly (except January) by: The Law Society of South Australia, Level 10-11, 178 North Tce, Adelaide Ph: (08) 8229 0200 Fax: (08) 8231 1929 Email: bulletin@lawsocietysa.asn.au All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.
Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions. PUBLISHER/ADVERTISER Boylen Level 3, 47 South Terrace, Adelaide SA 5000. Ph: (08) 8233 9433 Fax: (08) 8212 6484 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Layout: Henry Rivera Advertising Email: sales@boylen.com.au Printer Lane Print Group 101 Mooringe Ave, Camden Park SA 5038. Ph: (08) 8376 1188
FROM THE EDITOR
The law & the media need each other MICHAEL ESPOSITO, EDITOR
I
t has been fascinating to witness the media cover the COVID-19 pandemic. While the media’s stock in trade is reporting on disasters, catastrophes and tragedies, the coronavirus pandemic has been an unprecedented event, creating unforeseen challenges even for journalists who have covered public health crises before. Not only that, the usual machinations of a “newsroom” have been necessarily jettisoned and replaced by virtual home office networks, forcing journalists to rapidly adjust to a new way of reporting while continuing to feed information to the public at the pace the modern consumer demands. Like the reporting of any other newsworthy event, there has been a mix of earnest and objective reporting, fearless and in-depth investigations, sensationalist fearmongering, and distorted, prejudicial representations of “facts”. With China recently stating support for a World Health Organisation investigation into the origins and handling of COVID-19, the role of the media will be more important than ever in informing the public about the investigative process and outcomes. It will require a responsible and probing press, as an investigation would not only be incredibly complex, but highly politicised and influenced by nationalistic sentiments. Reporters will be tasked with reporting on a complex legal process, which day in day out is one of the most important and routine tasks of the media. Open a newspaper, turn on the television, log in to Twitter, and it is likely you will be met with story after story of criminal investigations, prison sentences, commercial disputes, and civil protests played out in the court room. Open justice is a bedrock of a
4 THE BULLETIN June 2020
democratic society, and the media play a crucial role in ensuring the administration of justice is transparent. The media and the justice system both perform the vital duty of keeping Executive power in check. Both instruments need to be robust and impartial to perform this duty properly. But there are, naturally, tensions between the media and the law. The media naturally places the public’s right to know as the most noble principle of the Fourth Estate, but the law sees other principles of justice as just as important, in some cases more important, than complete transparency. A recent issue which highlights this has been around the introduction of legislation to amend s 71A of the Evidence Act (SA). The upshot of this amendment, which came into effect last month, is that the identity of alleged sex offenders can be disclosed almost from the moment they are charged. Previously, their names could only be reported if they were committed for trial or convicted of an offence. The Society opposed the law on the grounds that the stigma attached to sex offenders is so severe, so devastating, that a defendant found not guilty would never be able to recover from the reputational damage caused. In this regard the Society was invoking a competing principle – the right to be deemed innocent unless proven guilty. While it can be argued that both the legal profession and the media can be partly driven by self-interest in prosecuting their respective arguments, I am confident that both institutions truly believe in the moral supremacy of their position. It is a good thing that we can have these impassioned arguments in the full glare of the public, who, properly informed, should guide all socio-political decision-making. B
IN THIS ISSUE
10
SOCIAL MEDIA EVIDENCE How online communication can be used as evidence
19
SETTLING FAMILY MATTERS Family Court establishes arbitration list
22
VISUAL AIDS Should the media be allowed to publish visual evidence?
PRESIDENT’S MESSAGE
What is the Uniform Law all about? TIM WHITE, PRESIDENT, LAW SOCIETY OF SA
T
he Legal Profession Uniform Law (UL) endeavours to establish the uniform regulation of the Australian legal profession. The scheme has been in place in NSW and Victoria since 2015 and establishes Acts and Regulations that govern how we practise law. The UL is also due to come into effect in WA in early 2021. The Legal Services Council (LSC) and the Commissioner for Uniform Legal Services Regulation (Commissioner) oversee the implementation and set the core elements of the UL scheme. The LSC is primarily responsible for the implementation of the scheme and for establishing the relevant Rules. The LSC currently consists of five members drawn from participating jurisdictions and is chaired by The Hon Michael Black AC QC. The current Commissioner is Megan Pitt, whose predominant role is to ensure the discipline arrangements contained in the UL are implemented consistently across the relevant jurisdictions. The main objectives of the UL are: • Create consistency between States and Territories in the laws applying to the Australian legal profession • Ensure legal practitioners maintain high ethical and professional standards • Enhance the protection of the public and clients • Empower clients to make informed choices about their legal options • Provide efficient, effective, targeted and proportionate regulation • Provide a co-regulatory framework with appropriate independence from the legal profession
HOW DOES THE UNIFORM LAW APPLY? There are State-based Acts and Regulations that must be passed for the UL to operate. For example, in NSW The Legal Profession Uniform Law (NSW) contains the core elements of the UL scheme. It covers a range of topics including business structures, discipline and conduct aspects, trust accounts, legal costs, insurance and numerous other issues. The core UL is supported by various Uniform Rules which make
provisions for aspects such as admission, professional conduct and various regulatory matters. Each participating State also has its own local Application Act, to provide for certain local processes by which core provisions are to be observed. It could include aspects like practising certificates, the Fidelity Fund, insurance, admissions, and other important or unique aspects of the local legal profession.
WHAT ARE SOME OF THE MAJOR AREAS OF DIFFERENCE? If the UL was adopted in SA there would be fairly considerable changes in many aspects of your practice and interaction with clients. With regards to retainer letters provided to clients, a key concept of the UL is the requirement to disclose total legal costs. This requires communicating to your client not only the solicitor costs involved, but also disbursement fees like medical reports, barrister fees and other expert costs. Also, the UL does not allow for a range to be provided when total costs are disclosed as a single figure must be used. That figure can be revised and updated during the course of a matter, provided the correct procedure is followed. A failure to comply with cost disclosure obligations results in the retainer agreement being void, meaning cost cannot be recovered until they have been assessed. Currently a detailed retainer does not need to be provided in SA if the legal costs do not exceed $1500. Under the UL in NSW the threshold sits at $750. There is some reduction in the obligations relating to trust monies. For example, written authorisation is not required to remove trust monies, provided you have a note of the verbal instruction to do so. Multi-Disciplinary Practices are permitted, which allows non-legal practitioners to be partners or a director of a law firm. That of course is currently not permitted in SA. Under the UL scheme disciplinary procedures would change. As we are all aware many client complaints relate to solicitor costs. Such complaints under
the UL are referred to as a “consumer complaint”. These types of complaints can be dealt with by the Commissioner more informally and quickly. The clear objective of the Commissioner is to resolve consumer complaints through phone calls and/or conciliation. According to the Commissioner’s website, 55% of complaints are resolved within three months, and most consumer complaints are resolved within four months. A complaint regarding costs must also be made within 60 days of the legal cost becoming payable, which is a far shorter timeframe than is currently available in SA.
EXAMINATION AND FURTHER ENQUIRIES BY THE SOCIETY Extensive work was previously undertaken by the Society when joining the UL was considered back in 2016. Working groups have been established again recently to consider in more detail certain aspects of the UL. In due course those groups will in due course report their findings back to the Society’s Council. The Ethics and Practice Committee is also being asked to consider various aspects of the UL, and will also report back to the Council. Members can view a recording of a recent webinar held by the Society where the UL was discussed at length by a highly experienced panel. If you consider nothing further in relation to the UL, I strongly recommend you watch this webinar.
CONCLUSION It is by no means certain that SA will join the UL scheme. I wanted to make you aware that it is being considered by Council, highlight some of the main aspects of it, and indicate what steps are being taken in consideration of the scheme. Once additional information is obtained, there will be further communication with the membership on this very important topic. In the meantime, if you have questions, concerns or issues you wish to raise please make contact with me. I am certainly keen to know your thoughts on this scheme. B June 2020 THE BULLETIN
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MEDIA & THE LAW
A HEALTH CHECK ON OPEN JUSTICE IN THE AGE OF COVID-19: THE CASE FOR THE ONGOING RELEVANCE OF COURT REPORTERS MICHELLE HAMLYN, BARRISTER, MURRAY CHAMBERS “Publicity is the very soul of justice. It is the keenest spirit to exertion and the surest of all guards against improbity. It keeps the judge, while trying, under trial”.1
T
he requirement that courts administer their judicial functions “publicly and in open view” is central to common law. 2 It is an accepted characteristic of judicial function essential to the preservation of public confidence that justice not only be done, but be seen to be done. 3 Further, public hearings are a fundamental component of the right to a fair trial4 and the rule of law. It is through the transparent application by the courts of ascertainable laws passed by parliament, in a manner open to public and professional scrutiny, that society ensures the rule of law is being upheld fairly and impartially as a check on executive power.5 At its core, open justice requires courtrooms to be open to the public during proceedings, and that evidence be given and submissions made in open court.6 Of course, most private citizens do not regularly attend courtrooms to witness justice in action. Rather, they rely on reporting of proceedings of interest. As such, open justice also protects the right of a person present in court to publish a fair and accurate report of those proceedings.7 In that context, the news media play an important role in facilitating open justice by reporting on the workings of the court system to the broader public.
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LIMITATIONS ON COURT REPORTING – GETTING THE BALANCE RIGHT The principle of open justice is not unfettered. Because it exists in support of the proper administration of justice, exceptions arise even at common law, although confined to circumstances where insisting upon open justice would defeat the jurisdiction of the Court.8 The common law principles of sub judice contempt are an important source of limitation.9 Further limitations are also enacted by parliament.10 There are two key categories of statutory restrictions affecting open justice: 1. specific statutory prohibitions on publication of particular information in relation to certain types of proceeding or evidence (statutory restrictions); and 2. broader discretionary powers permitting courts to close the courtroom, or suppress publication of evidence, if relevant criteria are met (suppression powers);11
Statutory Restrictions Hundreds of different Acts impose statutory restrictions affecting open justice nationally, and the number is constantly increasing. Many seek to protect vulnerable parties to proceedings; for example, there are varying permissions to close court, and restrictions on reporting on or identifying parties to proceedings: • in the Family Court 12 or in relation to domestic partnerships;13 • involving sexual offences;14 • involving youth offenders;15 • under Mental Health and guardianship legislation;16 and • in some states, involving any child at all, whether as a victim, party, or witness.17
Such restrictions are often well accepted, particularly where they preserve the ability to report on the substance of court proceedings while protecting the identities of parties involved. However, they occasionally trigger difficulties in reporting on matters of genuine and broad public concern, and warrant regular review for overreach. For example, in South Australia, restrictions on reporting sexual offences previously prevented all reporting on sexual offence charges until the accused had either pleaded guilty or been committed for trial. This restriction caused significant difficulty in reporting on the case of former MLC Bernard Finnigan, who resigned from cabinet in April, 2011 after being charged with accessing child pornography, but whose charges could not be reported until September, 2012, when he was committed for trial.18 Following sustained media pressure, this restriction has recently been limited to prevent only identifying an accused before the first return of the matter in court. The prohibition on identifying victims of sexual offences also remains.19 This will align South Australia with most other states. A more contentious category of restrictions relates to reporting on the activities of bodies such as anticorruption and national security agencies. These restrictions can be so broad that they effectively suppress the fact of proceedings from publication altogether. In South Australia, the Independent Commissioner Against Corruption Act 2012 prohibits publication of any information tending to suggest that a person may be or have been subject of a complaint, report, assessment, investigation or referral under the Act, or has given or
MEDIA & THE LAW
may give evidence or information under the Act.20 The restrictions are much broader than those applicable to interstate equivalents,21 and impact the ability to report on court proceedings that flow from an ICAC investigation, whether criminal or administrative in nature. The impact is increased because such matters, by definition, involve “public officers” likely to be identifiable through even a high-level report on the nature of the case, often preventing any meaningful report on matters which are plainly of significant public interest, and of a character which invites rule of law considerations. Of greater concern is the matter of “Witness J”, who was sentenced in February, 2019 in the ACT Supreme Court for national security offences, having been tried and sentenced entirely in secret pursuant to orders made under the National Security (Criminal and Civil Proceedings) Act 2004 (Cth). While the matter is now subject to review by the National Security Legislation Monitor, at present it appears that the matter only became known to the public due to queries raised by several court reporters about a heavily guarded courtroom.22 This is the antithesis of open justice.
Suppression Orders and Court practice In South Australia, suppression powers were substantially amended in 2007, again following pressure by media interests. They now require recognition that “a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings”, and that orders ought only be made when justified by “a sufficiently serious threat” of prejudice to the proper administration of justice or undue hardship to a witness, child or victim.23
Since 2011, the Federal and NSW courts have similarly given primacy to open justice in equivalent regimes.24 These provisions imply a concept of proportionality; requiring that any suppression order made must be tailored to address the particular threat of prejudice or hardship, whilst minimising the impact on open justice (for example, by preventing publication of a particular piece of evidence, rather than imposing a blanket suppression).25 In addition, South Australia’s suppression powers expressly require the court to maintain a register of all suppression orders made, notify “authorised news media representatives” of them, and permit media representatives standing to be heard on, seek review of, and appeal, suppression orders.26 For that reason, it is not unknown for experienced practitioners to avoid seeking suppressions, and instead seek orders under rules 116 and 117 of the Supreme and District Court Civil Rules 2006 restricting disclosure of matters in the Cause List based on other applicable statutory restrictions. In 2014, the Victorian courts issued a practice direction regarding ‘’silent listings”, being those not included in the Cause List for various reasons.27 No such practice direction existed in the ACT, where the Witness J trial took place and was largely omitted from the Cause list. None exists here. However, it seems unlikely that the practice is unique to Victoria. This practice is problematic, resulting in there being no public record that a hearing even took place, and no opportunity for the public or media to attend, enquire, or scrutinise. It must be viewed as extraordinary, and guarded against.
Since the 2007 amendments, the number of suppression orders made annually in South Australia has decreased, but remains significantly higher than most other Australian jurisdictions.28
THE ROLE OF THE MEDIA: MAINTAINING THE BALANCE The greatest threat to principles as well established as open justice is by incremental erosion.29 Both increases in statutory restrictions, and trends in the practices of the Courts, have the potential to impact the overall balance struck. The role of traditional news media in society has changed substantially in the last two decades, but it continues to play an important role in facilitating open justice. The interests of the media in reporting on court matters do not equate entirely with the interests of public: there are frequently differences in opinion between the media and the legal profession as to what aspects of court proceedings are newsworthy, and judicial officers have been known to take umbrage at media submissions purporting to speak for the interests of the public.30 However, the news media remains the primary if not sole method of accountability on suppression orders, and its influence on law reform has been demonstrated. Further, the complexity of navigating the various restrictions on publication outlined mean that experienced court reporters with access to legal advice remain those best placed to facilitate open justice through fair and accurate court reporting, and there are significant risks of prejudice associated with options such as live streaming. The importance of the media’s role is heightened by the disruption to the June 2020 THE BULLETIN
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MEDIA & THE LAW
Law Society’s Criminal Law Committee Co-Chair Tony Kerin speaks to reporters outside the District Court building
courts’ usual processes wrought by COVID-19 public health directives. A review of the cause lists reveals hearings being conducted, variously, in physical courtrooms, in virtual courtrooms hosted on Webex or Teams, or by telephone. Pleasingly, the courts appear mindful of the requirements of open justice in this changing landscape. In most cases it remains possible for non-parties to obtain dial in details and observe proceedings, albeit at the court’s discretion, and with varying levels of ‘invitation’ versus requiring increased initiative by the nonparty. Some limited matters of substantial public interest are reportedly being livestreamed,31 and there are undoubtedly opportunities as well as risks associated with that. However, there remains at present a greater risk of persons who intended to observe a hearing being unable to do so due to lack of preparedness or technical difficulties. Most restricted are the increased number of civil procedural matters being determined on the papers, which would not be listed in the cause list at all. While those are not matters that would typically attract significant media attention in any event, they are now effectively occurring in a closed Court. While the papers involved could be sought from court registries, access is discretionary and a refusal is not amenable to appeal.32
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These are matters which only add to the value of experienced court reporters, capable of navigating the new normal, in facilitating open justice. B Endnotes 1 Jeremy Bentham, cited in Scott v Scott [1913] AC 417. 2 Scott v Scott [1913] AC 417, 441. 3 R v Tait (1979) 24 ALR 473, 477-478; Dickason v Dickason (1913) 17 CLR 50; Russell v Russell (1976) 134 CLR 495, 520; Hogan v Finch (2011) 243 CLR 506. 4 International Convenant on Civil and Political Rights (New York, 19 December 1966; Aust TS 1980 No 23; 999 UNTS 171) Article 14(3). 5 Hogan v Finch, [21]. 6 Scott v Scott; R v Tait at 489-490; Hogan v Finch at [21]; Russell v Russell (1976) 134 CLR 495. 7 Hogan v Finch, [22]. 8 For example, where the Court’s jurisdiction is invoked in relation to an alleged or threatened breach of confidence, or to avoid a threat of rioters. See, eg, R v Tait at 489-490; Hogan v Hinch, [26]. 9 Sub Judice contempt is the principle by which Courts may refer conduct, including publication, which carries a real and substantial risk of prejudice to the proper administration of pending Court proceedings, for prosecution as a contempt of Court, See, eg, Victoria v Australian Building Construction Employees’ & Builder’s Labourers’ Federation (1982) 152 CLR 25, 56. 10 Although the Courts have suggested that the principle of legality applies to interpretation of such provisions so that their intrusion upon the principle of open justice is kept to a minimum: Hogan v Hinch, [27]. Further, such restrictions may be unconstitutional where they are so broad
as to deprive a Court of its judicial character by mandating privacy: Russell v Russell (1976) 134 CLR 495. 11 In South Australia, by s69 of the Evidence Act 1929 in respect of closure Court, and s69A in respect of Suppression Orders. 12 Family Law Act 1975 (Cth), s121. 13 Family Relationships Act 1975 (SA) s13. 14 Evidence Act 1929 (SA) s71A. 15 Young Offenders Act 1993 (SA) s63C. 16 Mental Health Act 2009 (SA) s107; Guardianship and Administration Act 1995 (SA) s81; Children’s Protection Act 1993 (SA) s59A. 17 In NSW, the Children and Young Persons (Care and Protection) Act 1998 (NSW) s105 and Children (Criminal Proceedings) Act 1987 (NSW) s15A. 18 See, eg, https://www.abc.net.au/news/2015-1110/bernard-finnigan-timeline-of-events-leadingconviction/6904534?nw=0. 19 Evidence (Reporting on Sexual Offences) Amendment Act 2020 (SA), not yet proclaimed. 20 Independent Commissioner Against Corruption Act 2012 (SA), s56. 21 See, eg, Independent Commission Against Corruption Act 1988 (NSW) ss31 and 112; Crime and Corruption Commission Act 2001 (Qld) s202. 22 See Andrew Probyn, https://www.abc.net.au/ news/2019-12-05/witness-j-revealed-secrettrial/11764676 23 Evidence Act 1929 (SA) s69A. Undue hardship to a party to proceedings is no longer a ground for suppression, though anecdotally it is frequently the basis for applications for suppression. 24 Federal Court of Australia Act 1976 (Cth), s37AE. 25 See, eg, Channel Nine SA Pty Ltd v Police (SA) (2014) 119 SASR 447. 26 Evidence Act 1929 ss69AB and AC. 27 Unsurprisingly, it was met with strong criticism by media interests: Mullins, L (2014) Open Justice versus Suppression Orders: A Battle of Attrition, Communications Law Bulletin, Vol 33.3. 28 To September 2019, South Australia had 117 suppression orders for the year; less than Victoria (251) and NSW (120) – though not on a per capita basis – and more than all other jurisdictions: NT (69), QLD (19), Cth (8), Tas (3), WA (1) and ACT (0). 29 See, for example, Scott v Scott at 478; Mullins, L (2014) Open Justice versus Suppression Orders: A Battle of Attrition, Communications Law Bulletin, Vol 33.3; Greste, P (2016) Journalism in the Age of Terror speech to the University of New South Wales https://www.youtube. com/watch?v=0feGhFEjgp0&list=ULrb_ zRbxPcwo&index=90 30 See comments on transcript in the matter of Advertiser Newspapers Pty Ltd v SA Health Commission (2007) 248 LSJS 335. 31 Eg, the Abdirahman-Khalif appeal in the Federal Court’s Adelaide registry. 32 Supreme Court Act 1935 (SA) s131(2); District Court Act 1991 (SA) s54(2); Magistrates Court Act 1991 (SA) s51(2).
Too many people fail to plan for the future of their pets. Under Australian law, pets are categorised as property. Their ongoing care, should we become incapacitated or die, is dependent on us including provision for them in our Wills. For many of your clients, the peace-of-mind they seek from you in drafting their Wills for them is dependent on their pets’ ongoing welfare being among the planning considerations.
That’s where RSPCA has the perfect solution. Including pets in estate planning plays a vital role in ensuring animal welfare at one of the most difficult times of life. As animals have the legal status of property in Australia, ensuring their future care requires careful and skilled planning. For many of your clients, I expect the peace of mind they seek from you in preparing their will includes assurance that their pets will be cared for should they pass away.
From there, our staff set about finding the animals a forever home suited to their needs. Our priority is to find the best match that we can, taking into account the animal’s care and temperament as well as their previous owner’s lifestyle. Any South Australian is automatically eligible to participate in this program upon leaving a gift in their will for the RSPCA South Australia.
Here at RSPCA South Australia, we understand that not everyone has someone in their life who is able to take over care of their beloved pet. In recognition of this, RSPCA has established the Home Ever After Program. This Program is designed to facilitate the transfer of animals into our care upon the death of an owner. Every animal is then assessed by an RSPCA veterinarian to identify any need for immediate medical attention.
We all know the benefits of pet ownership for our mental and physical health, but fear about what will happen to our pets once we die can discourage many of us from having animals in our lives as we get older. Our program is a safety net to allay those fears. My sincere hope is that the Home Ever After Program will achieve both peace of mind for South Australians, while also fostering a sense of pride for leaving a lasting legacy that helps thousands of animals get back on their feet again – sometimes literally – and into new, loving homes. For further information about Home Ever After, please give our team a call on 8205 8011.
Mr. Paul Stevenson
Chief Executive Officer RSPCA South Australia For further information about our program, please give our team a call on 8205 8011.
MEDIA & THE LAW
TENDERING SOCIAL MEDIA CONTENT AS EVIDENCE DR ALLISON STANFIELD, PRINCIPAL LAWYER, SG LEGAL SERVICES
S
ocial media, combined with cloud computing and mobile devices, is changing the evidentiary landscape. Generally, content on social media would be categorised as documentary evidence and would be required to be tendered in court through a witness so it does not contravene the rule against hearsay. Information such as the date and time of the post would be real evidence (as long as it was generated by the social media servers). Data residing on social media platforms is subject to the same duty to preserve as other types of evidence.
WHAT IS SOCIAL MEDIA? Social media is used by most of us everyday, and we all know it includes sites such as Facebook1, Twitter2, Instagram3 and LinkedIn4. Beach J in Comité Interprofessionnel du Vin de Champagne v Powell5 described social media as: “the contemporary phrase used to describe modern digital methods of communication having extensive reach and popularity; the forms of social media and the features thereof are continuously evolving”. Social media sites allow users to interact with each other online, and they are increasingly being used in business.
DISCOVERY OF SOCIAL MEDIA Chief Justice Bathurst6 has said new court rules are “not necessary for the discovery of social media”. His Honour is of the view that simply because a communication occurred over social media rather than traditional written form, “does not mean courts need to overcompensate”.
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Rather, the existing rules of procedure and evidence can be applied, and they are flexible enough to deal with this social media during discovery. Almost all Australian jurisdictions have practice notes on the use of technology in civil litigation. In the Federal Court, Technology and the Court Practice Note (GPNTECH) applies to electronic discovery and encourages the use of Technology Assisted Review. In South Australia, under the Uniform Civil Rules 2020, a document is discoverable if it is directly relevant to an issue raised in the pleadings.Electronic documents may be discovered in their native electronic form.
SOCIAL MEDIA AS EVIDENCE There are now several cases which have considered social media as evidence before the courts. In the Federal Circuit Court in Dautry & Wemple7, Neville J said that: “the Court regularly warns litigants about the use of social media and the ready access by others to it ... making information available through social media necessarily involves, if not invites, others having access to it.”8 The Hon. Justice Stephen Estcourt AM posits the answer to the question of how to prove a document which comprises a screenshot or a photograph or printout of a Facebook post or page is to simply “tender it”.9 His Honour refers to Perram J’s decision in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1)10 in relation to business records, but which Justice Estcourt was of the view applies equally to Facebook evidence. In essence, a document only needs to
be shown to be relevant in order to be admissible, and this is a question of law. Once the document has been tendered as evidence, if there is any question regarding its authenticity, then that is a question of fact, that is whether the document is authentic and whether the fact is proved. Justice Estcourt stated: “In a nutshell, when you tender a Facebook screenshot or printout no question of its authenticity arises as a threshold question. The only question at this stage is relevance. At no time does the judge as the judge of law determine that the document is or is not authentic because that is not a question for him or her. The question for the judge as the judge of law is only relevance. The question of authenticity is for him or her, after the document has been admitted into evidence, and that is for him or her as the judge of fact.” His Honour goes on to say: “As to the ultimate question of fact, if a person in his or her evidence denies that the post is his or hers, or claims that it is not genuine, then the issue will play out like any other disputed issue of fact. If the person denies he or she posted it, then that claim will be tested by cross-examination. ‘Who had access to your account? How was your account hacked? Who knew your password? When was it hacked? What about the posts either side of that post?’ If the tribunal is a judge alone, then he or she will decide the question of authenticity and the weight to be given to it.” In Bauer Consumer Media Ltd v Mamamia.com.au Pty Ltd11, Bauer sought an interlocutory injunction restraining Mamamia from launching under the name “Debrief Daily”, as it was similar
MEDIA & THE LAW
to its publication “Debrief ”. Evidence from Google Analytics, Twitter, YouTube and the results of Google searches were tendered and considered by the court. In Lawrence & McCormick12 the Federal Circuit Court accepted evidence that “there are prospective benefits to the children in having their photographs posted on their social media sites by reason of increased and meaningful contact with members of their extended family and also their friends”.13 There have also been a number of Fair Work Commission cases, which have considered posts on social media; generally, these cases have been used to demonstrate whether or not an employee has been unfairly dismissed.14 A number of Refugee Tribunal cases have also considered evidence on social media.15 In the United States, judges have privately reviewed the information in advance to determine if it should be disclosed;16 courts have conducted in camera reviews17 and judges have become “friends” with a party to determine if private Facebook posts were relevant.18 Judges have also required parties to turn over physical access, that is, usernames and passwords, for social media accounts to the other party.19
LEGAL REQUIREMENTS TO RETAIN EVIDENCE The legal requirements for organisations to retain evidence can be found in a number of places, for example in legislation, industry codes of conduct, in contracts, or there may be ethical requirements (such as the legal professional regulations which prohibit destruction of documents). Further, there may be criminal
liabilities for the wilful destruction of documents or common law sanctions. At common law, there is a duty to retain documents when potential litigation is “reasonably anticipated”, and this applies to all relevant documents, even those which may be damaging to a respondent’s case (subject to privilege).20 While there do not appear to be any Australian cases that deal with the requirement to retain social media, in the United States of America, courts have made it clear that sanctions will be imposed if posts on social media are “cleaned up”.21 It is clear that individuals have “an actual and immediate ability to examine the information contained on their own social media pages and have the power to obtain information stored on their own social media accounts, even if they do not have ownership of this information”.22 Bathurst CJ has said that “pictures and comments are put online and deleted frequently, often without any effort or thought and courts must strike a balance between the significant interest in preserving evidence that may be relevant to litigation and reducing the burdens associated with preserving electronic evidence of this nature. Sanctions should only be considered where conduct amounts to an attempt to pervert the course of justice”.23 For the purposes of discovery, “custody” means the mere actual physical or corporeal holding of a document, regardless of who has legal possession.24 “Power” means an enforceable right to inspect or obtain possession or control of a document from the person with custody over it.25 “Possession” can include the act or fact
of possessing, ownership, legal holding or occupancy, either with or without rights of ownership or a thing possessed. The case law looks at “control”26. When offsite records are involved, data may be in a third party’s possession and control, such as an Internet Service Provider and such records may need to be subpoenaed. A subpoena would be directed to the Internet Service Provider.
SUBPOENAS If a subpoena is issued to Facebook, then it needs to be appropriately worded, that is, to ask for what is relevant. Facebook on its website, says it will provide its data in response to a valid subpoena, court order or search warrant. In Mohareb v Palmer,27 an unrepresented litigant issued a subpoena to Facebook Australia. Facebook responded, clearly stating its information was kept on servers in the Republic of Ireland so therefore, it did not need to pay attention to a subpoena issued in Australia. Jurisdictional issues are also highlighted by the recent “Microsoft Ireland” case, where Microsoft was ordered by a court in the United States of America to make available documents stored on servers in Ireland. The Court of Appeal stated Congress did not intend for the provisions of the Stored Communications Act (USA) to apply extraterritorially.28
CONCLUSION Social media is here to stay, and the courts have now had some opportunity to consider social media as evidence. It is certain that the law will continue to evolve as courts consider more matters. B Endnotes on page 39 June 2020 THE BULLETIN
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MEDIA & THE LAW
Raids on reporters: How recent court decisions highlight the fragility of a free press RICK SARRE, ADJUNCT PROFESSOR, UNISA JUSTICE AND SOCIETY
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n June last year the Australian Federal Police undertook two raids. The first, on 4 June, was on the Canberra home of News Corporation journalist Annika Smethurst. The second, a day later, occurred at the offices of the Australian Broadcasting Corporation in Sydney. The two raids were not linked to the same alleged transgression. They were, however, linked by virtue of the fact that both involved the federal police targeting investigative journalists. The High Court and the Federal Court have now ruled on the legalities of each raid, and their determinations link a wide-ranging field of inter-connected themes: the power of the state versus freedom of the press; the current status of the implied freedom of political communication, and the reach of statutory shield laws for journalists. As Julie Andrews used to sing, let’s start at the very beginning. Ms Smethurst was investigating whether or not the Federal Government was attempting to expand the power of the Australian Signals Directorate (an intelligence agency) to spy on citizens without the benefit of a warrant. Whatever Ms Smethurst was digging up, therefore, was always going to be sensitive if not classified. Relying upon a general warrant (granted by a magistrate) the AFP raided and stayed seven hours at Ms Smethurst’s home, seizing her computer and copying data from her mobile phone on to their USB stick. The warrant alleged that Ms Smethurst (and her employer, the Sunday Telegraph) had “communicated a document or article to a person, that was not in the interest of the Commonwealth, and permitted that person to have access to the document,
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contrary to section 79(3) of the Crimes Act 1914, Official Secrets.” The warrant stated that there were reasonable grounds for suspecting that the search would afford evidence of the commission of a Commonwealth indictable offence. Let’s pause here to remind ourselves of the famous rule emerging from in Semayne’s Case four centuries ago.1 The scope of this rule was restated in Tomlins’ Law Dictionary2 thus: “It is laid down as a general rule in our books, that the sheriff, in executing any judicial writ, cannot break open the door of a dwelling-house; this privilege, which the law allows to a man’s habitation, arises from the great regard the law has to every man’s safety and quiet, and therefore protects them from the inconveniences which must necessarily attend an unlimited power in the sheriff and his officers in this respect; hence every man’s house is called his castle.”(sic)3 As highlighted in an iconic Australian film,4 this principle is not easily trifled with. So, Ms Smethurst (and her employer, Nationwide News) commenced proceedings5 seeking to have the warrant quashed and to obtain an injunction requiring the delivery up (or destruction) of the material copied from her mobile phone. On 15 April this year, the full bench of the High Court unanimously found that there was not enough precision in the drafting of the warrant for it to be valid. It was, they said, ambiguous and failed to state the substance of section 79(3). The High Court declared that the entry, search and seizure which occurred on that day were consequently unlawful. In passing, it chastened South Australian legislators
for not reforming the law regarding the use of general search warrants, as every other jurisdiction has done.6 Chief Justice Susan Kiefel, along with Justices Bell and Keane, said that general warrants go against the principle that a person’s house is inviolable. General warrants, they wrote, are “totally subversive of the liberty of the subject” and “were infamously used for the purposes of controlling the writing and printing of seditious and radical political works.”7 Sadly, because the matter was resolved on a technicality, the Court did not need to consider whether the raid infringed upon the implied freedom of political communication, a determination which would have been highly pertinent. Moreover, and somewhat surprisingly, a slim majority of the Court 8 said that the material that had been seized need not be returned to Ms Smethurst, nor was it to be destroyed.9 A day after the raid on Ms Smethurst’s home,10 the AFP entered and searched the ABC’s Sydney headquarters regarding matters emerging from a 2017 documentary, The Afghan Files, by investigative journalists Dan Oakes and Sam Clark, which alleged that Australian special forces troops had committed war crimes in Afghanistan. The material presented was based upon leaked Department of Defence documents. The ABC thereupon launched proceedings against both the AFP and Mr Martin Kane (a registrar of the Local Court in Queanbeyan, who had signed off on the warrant) seeking to have the warrant set aside and the thousands of documents they had seized returned. On 17 February this year, Federal Court Justice
MEDIA & THE LAW
ABC editorial director Craig McMurtrie speaks to reporters outside ABC’s Sydney headquarters following the AFP raid at the broadcaster’s premises. Photo by coolloud (Flickr) / CC BY-NC-ND
Wendy Abraham ruled that the raid on the ABC offices was legal.11 She took the view that the warrant was clearly drafted and thus the raid had been carried out in a manner protected by law. The ABC had argued, amongst other things, that the ‘shield laws’ that appear in Commonwealth legislation12 and in most Australian jurisdictions13 protected their sources. The ABC also argued that the implied freedom of political communication had been flouted. Justice Abraham dismissed these arguments. She ruled that shield laws were irrelevant to the question of the validity of the warrant. Moreover, she ruled that the purpose of section 3E of the Crimes Act, which underpinned the warrant, justified any burden on the implied freedom. She wrote:
“There is no reasonably practical alternative available for investigating these serious breaches of the offence provisions.”14 Respected legal journalist Chris Merritt places no criticism with the courts but rather cites the problem with the political imperatives of governments that have passed the pieces of legislation that allow such raids. “Last year’s police raids on the media did have one benefit: they have shown just how little comprehension some agencies of the Morrison Government have about the principles that underpin civil society in Western democracies.”15 In a similar vein, the Law Council of Australia has responded to both the High Court and Federal Court judgements by calling for legislative reform. A press
release from its president, Pauline Wright, on 16 April, 2020 stated: “The Law Council believes that any similar case in the future could be avoided through law reform measures to protect and recognise the importance of public interest journalism and to incorporate greater accountability mechanisms. Protections might include contested hearings, the involvement of a Public Interest Advocate to test the warrant process, and a requirement that warrants may only be issued by a judge of a superior court of record.”16 Let’s look briefly at one typical piece of current legislation that falls into the relevant category. The Australian Security Intelligence Organisation (ASIO) Act 1979 (Cth) was amended in 2014 with the addition of section 35P that extends
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MEDIA & THE LAW
existing State and Federal prohibitions on the disclosure of information regarding anti-terrorist measures. The section imposes substantial jail terms (five years) upon anyone who discloses information relating to a ‘special intelligence operation’ (SIO). The term of imprisonment doubles if there is evidence that the disclosure would endanger the health or safety of any person, or prejudice the effective conduct of an SIO. There is no ‘public interest’ defence. There is no defence that a journalist was not even aware that an SIO was in progress. What are the dangers of this type of legislation? Respected criminologist Professor Peter Grabosky writes: “While hardly anyone would suggest that national security should be managed in an environment of complete transparency, there are many who suggest that citizens of a democracy are entitled to know about acts of questionable propriety that have been committed by their government on their behalf. And prospectively, it is important for citizens to be party to informed discussion about whether the policies that may lead to these acts are misguided or not.”17 Alice Drury of the Human Rights Law Centre reflects upon these same concerns in her statement of 15 April, 2020. “The Government might not like scrutiny or having wrongdoing exposed, but we all have a fundamental right to know what our Government is doing in our name and journalists must be able to do their jobs without fear of being prosecuted or having their homes raided.”18 The difficulty for any government that invokes a cloak of secrecy under the claim of ‘national security’19 is that it invites suspicion that the real agenda is to conceal a blunder, to justify a violation of the law, or to pursue a political end. Into this debate come investigative journalists, those whose natural inquisitiveness aids their scepticism. Are there any ulterior purposes? Are
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governments exaggerating a threat in order to justify excessive countermeasures in response? The fact remains that no-one is able to assess whether claims are valid, and whether certain operations are a legitimate use of state power, unless the information is put under public scrutiny. As celebrated journalist Peter Greste put it in commenting upon these recent legal developments: “Our press might look free and fearless, but without significant reforms that remains a dangerously fragile illusion.”20 We could, of course, simply accept that we need to trust governments to do their job, and tell naysayers to desist. But we need to remember that, when officials are confident that they are not under scrutiny, it is not unfair to suspect that some will exercise their power inappropriately. And when that occurs, we need transparency, not silence nor obfuscation. Governmental zeal, however justified by the pressures of the day, must be kept in check by the curiosity of a free press. Note: On 27 May 2020, the AFP determined that they were not going to take any further action against Ms Smethurst or her sources. B Endnotes 1 (1604) 77 ER 194 2 4th edition (1835), Volume I, under the title ‘Execution III’. 3 This case and the dictionary definition were discussed in Plenty v Dillon (1990–1991) 171 CLR 635, per Mason CJ, Brennan and Toohey JJ at 640. 4 The Castle, released in1997, directed by Rob Sitch https://www.imdb.com/title/tt0118826/ 5 In the original jurisdiction of the High Court. 6 Mitch Mott (Advertiser 22 April 2020 “High Court singles out South Australia’s search warrant laws”) quotes co-chair of the SA Law Society’s Criminal Law Committee, Craig Caldicott, as agreeing, saying that the use of general search warrants leads to the potential abuse of police powers. 7 Smethurst v Commissioner of Police [2020] HCA 14 https://www.hcourt.gov.au/cases/case_s1962019 8 A 4-3 determination. 9 The majority considered that since Ms Smethurst was still under investigation, the AFP could
examine the material. A discussion of this conclusion is outside the scope of this article. 10 At the time there was a suggestion that the two raids, one after the other, were somehow timed deliberately to coincide. Given that the offending stories were first published in July 2017 (ABC) and April 2018 (Smethurst), why it took until June 2019 for the raids to occur virtually simultaneously remains unclear, but Acting AFP Commissioner Neil Gaughan said, at the time, that it was purely coincidental. “The timing of these investigations or these activities was influenced only by the progress of the investigation to date, and sufficient information being available to support the application of a search warrant.” https://www.abc.net.au/ news/2019-06-06/abc-raids-what-they-tell-usabout-press-freedom/11187364 11 ABC v Kane (No. 2) [2020] FCA 133. https:// www.judgments.fedcourt.gov.au/judgments/ Judgments/fca/single/2020/2020fca0133 12 Section 126K Evidence Act 1995 (Cth). Generally speaking, they require a court to consider whether information from a source that was passed contrary to law should be admitted in evidence, or whether a source should be revealed, and whether there will be potential harm to the source (or the journalist to whom the source revealed the information) if the evidence be admitted. 13 Queensland is the outlier. 14 https://www.theaustralian.com.au/business/ legal-affairs/ruling-over-afp-raids-on-abcexposes-problem-with-secrecy-laws/news-story/ adfe541fd2ca1246b429929c09cd9a74 15 https://www.theaustralian.com.au/business/ legal-affairs/federal-police-bid-would-trampleon-press-freedom/news-story/468238110d5430 d1d12870fdace37dde 16 https://www.lawcouncil.asn.au/media/mediareleases/high-court-decision-highlights-ongoingvulnerability 17 https://papers.ssrn.com/sol3/papers. cfm?abstract_id=2482170 18 https://www.hrlc.org.au/news/2020/4/15/ press-freedom-remains-under-threat-despitehigh-court-ruling 19 On the grounds of ‘national security’ the Australian government continues to refuse to discuss allegations that it engaged in eavesdropping on cabinet ministers of the government of Timor-Leste during sensitive oil and gas negotiations. Canberra lawyer (and former Attorney-General for the ACT) Bernard Collaery continues to fight a conspiracy charge that he liaised with the former spy known as Witness K to reveal classified information about this secret operation. 20 https://theconversation.com/the-high-courtrules-in-favour-of-news-corp-but-against-pressfreedom-136177
WELLBEING & SUPPORT
Put on your own oxygen mask first WELLBEING & RESILIENCE COMMITTEE
A
s you wait for the plane to take off the flight crew remind you of the emergency procedures and in particular they highlight to “put on your own oxygen mask first before assisting others”. This is equally true when it comes to your own mental health and that of those around you. Writing this article in early May for the June publication, it is difficult to crystal-ball gaze on how this fast-changing situation may evolve. It is safe to say though that COVID-19 has depleted the energy stores of many. For some months now we’ve worried about our health, the health of our loved ones, the ability to find food (and toilet paper!), our financial security and, well, we’ve just worried. Unsurprisingly, normal levels of wellbeing have suffered significantly in the South Australian community over recent months according to the analysis of visits to South Australian Health and Medical Research Institutes Wellbeing and Resilience Centre (SAHMRI) “Be Well” plan website. It is more important than ever to find compassion for our families and colleagues – but how can we do this when we are emotionally depleted? Many of us may have returned to the office, either entirely or in part, and we may have some mixed feelings about that. Be honest, how are YOU feeling? A common response is to dilute your situation as compared to another person’s as a coping mechanism. “I should not be feeling like this, I still have full time employment, poor Susan has lost her job”. Do not compare suffering. Your situation is yours and your feelings are yours. Our recommendation is to acknowledge that the worry is reasonable and not a sign of not coping but a legitimate psychological response to this time. Try to unpack what the worries are and consider what solutions can be put in place to help support them. So what can you do? Lean into selfempathy and self-compassion. Monica Worline, a research scientist at Stanford Centre for Compassion and Altruism
Research and Education shared this insight in a recent Harvard Business Review article (2020): the more you can have compassion for yourself and your failings at being the person you want to be, the more you can lower your stress. In short, be kind to yourself. Now might be a good time to consider whether you’ve been able to retain those elements of working from home that were favourable. What changes did you make to your lifestyle or working arrangements that made a difference? Did you make any resolutions about continuing that exercise or that bike ride with the kids or developing your cooking skills? Have you continued these things or have they fallen away again? How can you make sure they are embedded in your life? Accepting that we are all doing the best we can at any given time is a positive way to reduce the constant tension of wondering if your decision is the right one. Recognise the achievements you are making. There are silver linings to this epidemic but one must stop to recognise them. Beyond ourselves, the risk in this transition time is to cease the connection we have achieved with each other and revert to operational priorities. The temptation is there but do not let it overcome the need to stay connected. People have anecdotally said they now know more about their colleagues and employees than they did in the ‘in-office’
environment. They have virtually met children and partners, seen pets walk across the laptop and had an insight into their homes. Video-conferencing provided a platform to connect and to look out for each other. It is important to continue to look out for each other, both as colleagues and supervisors, as restrictions continue to lift. It is important to recognise that COVID-19 has impacted each person differently - health concerns, isolation and re-entry concerns, financial and operational pressures - all have been forced upon many in our industry. For supervisors especially, on a practical level, look out for the following in your staff: 1. Are they participating like they usually would in the office environment? 2. Are they engaging in social/ professional ‘contact’ with the team? 3. Are they able to talk about silver linings of COVID-19 or things they are looking forward to in the future with ease? If your oxygen mask is not working, it is okay to not be okay. Recognise it, be kind to yourself and embrace the opportunity for some self-care. As a Law Society member you have access to a range of services and resources; from LawCare (confidential counselling service) to a wealth of self-care options listed here. Take care of yourself, then you can help take care of others. June 2020 THE BULLETIN
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MEDIA & THE LAW
Should defamation laws be updated in the digital age? RICHARD BRADSHAW, SPECIAL COUNSEL, AND CAITLIN WALKINGTON, SENIOR LAWYER, JOHNSTON WITHERS
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ntuition suggests that the remarkable features of the Internet (which is still changing and expanding) makes it more than simply another medium of human communication. It is indeed a revolutionary leap in the distribution of information, including about the reputation of individuals. It is a medium that overwhelmingly benefits humanity, advancing as it does the human right of access to information and to free expression. But the human right to protection by law for the reputation and honour of individuals must also be defended to the extent that the law provides.1 These were the observations of Kirby J in Dow Jones & Company Inc v Gutnick and are as true today as they were in 2002. At the time of Kirby J’s remarks, and even at the enactment of the (Uniform) Defamation Act three years later in 2005, Facebook, Twitter or Instagram did not yet exist, and social media was in its relative infancy. Since then, social media and the use of the Internet have evolved in a manner that neither the legislators nor Kirby J could have foreseen, allowing defamatory material to be published and accessed in unprecedented ways. In more recent times, Judge Gibson in Rothe v Scott described “defamation actions in relation to social media allegations of an extreme nature, generally without any basis and driven not by mere malice but some kind of Internet ‘road rage’”.2 She attributes this to “the anonymity, instantaneousness and wide-ranging reach of the Internet and social media makes it a dangerous tool in the hands of persons who see themselves as caped crusaders or whistleblowers, or alternatively want to humiliate or ‘troll’ other members of the community for the purpose of gratifying their own wishes or fears or for the purpose of gaining attention”.3
WHO IS A PUBLISHER? In the pre-digital age those participating knowingly in the creation and/or dissemination of written, graphic
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or broadcast material were all held to be publishers of that material to a third party. In addition to authors, they included print and broadcast media publishers, editors, printers, newsagents, booksellers and librarians. Those not engaged in a publishing enterprise or process, for example the owner of a bus shelter4, would not ordinarily be considered the publisher of material which another had glued to it — unless and until aware of that material and approving its continuing to be so affixed. As the High Court plurality in Gutnick indicated: Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act —in which the publisher makes it available and a third party has it available for his or her comprehension.5 In a defamation case, having determined that a person was a publisher (A) of material defamatory of another (B) to a third party (C), the Court would then, where relevant, consider whether that publisher was a primary publisher or a secondary publisher. This requirement for a bilateral act where a third party (C) has downloaded in comprehensible form material defamatory of another (B) before an apparent “publisher” (A) of that material may be treated as having published it to that third party (C) has been emphasised again and again in subsequent decisions relating to electronic communications.6 Further, each such downloading to a third party comprises a discrete potentially actionable defamatory publication. Where an electronic communication (eg email or the posting of material on a website or webpage) is downloaded by a third party in comprehensible form, its author/sender is (unremarkably) a primary publisher of that communication.
Less obvious perhaps is the status of internet service providers (ISPs), website hosts and search engines in relation to material compiled or authored by a third party commentator. It seems that, where (as in the case of an ISP)7 the service provided is merely the facilitation of direct electronic communication between sender and one or more recipients to whom that communication is directed, without having the capacity to exercise control over content (in a similar way to that in which a telecommunications company facilitates telephonic communication), the provider of that service is not a publisher. On the other hand, where the provider hosts (or owns) a website on which third party commentators are invited to post blogs or comments and has the capacity (whether before or after such posting online) to exercise editorial control over content, eg by removing or “hiding” material, then the Courts have found such provider to be a publisher of that material, in addition to the author/sender of the post. Publishers who have the capacity to remove or “hide” third party content from their site but only after it has been posted and become accessible for downloading by others have generally been held to be secondary publishers.8 However, where website hosts (such as in the case of Voller9) have the capacity to exercise editorial control before such publication e.g. by “hiding” the defamatory material before it becomes accessible for downloading by others (apart from Facebook “friends” of the author/sender), they may be held to be primary publishers. 10 Indeed, on 1 June 2020, the NSW Court of Appeal handed down a judgment dismissing the media organisations’ appeal in Voller, holding that they had “accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments... It was [they] who provided the vehicle for publication to those who availed themselves of it.”
MEDIA & THE LAW
The distinction is important, because secondary publishers of defamatory material may rely on the common law or statutory defence of innocent dissemination where they prove they “neither knew, nor ought reasonably to have known, that the matter was defamatory”11. Primary publishers are irrebuttably presumed to have such knowledge and to be responsible for the defamatory material they have published: the defence is not open to them12. The onus is on the secondary publisher to prove the defence and, where (and for as long as) the defence would otherwise apply (e.g. in the case of a search engine in respect of defamatory search results algorithmically generated) the secondary publisher will not be liable for any publication of such defamatory material until put on specific notice of it by the defamed person and given reasonable time to consider and remove it.
COMMON DISTINCT FEATURES OF ONLINE PUBLICATIONS Before considering whether defamation laws need to be updated in light of this new environment, it is important to note
certain characteristics that distinguish publications in the digital age of social media and the Internet generally from those in more traditional forms. In Brose v Baluskas & Others13 Judge Muir pointed to six propositions in considering “the more general and commonly known characteristics of social media”. 1. It is relatively unregulated14 Most online platforms require users to accept standard terms of service on how the forum is to be used. However in practice these providers rarely want to get involved and intervene if there is a breach of their terms of service. 2. It has similarities to “pub chat”15 Online forums and social media are perfect platforms to allow people to make ill-informed, false or exaggerated allegations and air specific personal grievances in obnoxious manners. Eady J distinguished online discussions from more traditional, journalistic outlets by noting they resemble “contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate
know this and expect a certain amount of repartee or ‘give and take’… People do not often take a ‘thread’ and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contribution if they feel inclined, and think no more about it”.16 3. It has the capacity to change the interpretation of the ordinary reasonable reader17 The ordinary reasonable reader will likely be aware of the potential for unreliability and false or exaggerated claims in social media posts. This may result in their not attaching too much credence to many such posts. This will lead to a more critical review of not just who the ordinary reasonable reader is in the specific circumstances but of what they may have understood from their experiences. Careful consideration of these cues is not unfamiliar to defamation: eg case law suggests that the placement of a publication in the editorial section or gossip column of a newspaper will identify to readers that it contains more assertions or opinion than facts.18 The difficulty in scrutinising publications in the digital age is
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MEDIA & THE LAW
not only identifying the ordinary reasonable reader but how that reader would interpret the reliability of that information, especially where the same information can appear on different forums. 4. It is difficult to identify the ordinary reasonable reader19 Publications online can vary drastically in terms of scope of publication eg some online publications are capable of being viewed by a global audience, others by a relatively small community group dedicated to a particular topic. The test established by case law is: “the hypothetical reader is taken to be representative of those who would read the publication in question”.20 5. It has unique features which impact the interpretation21 Online publications allow for the author to post a number of pictures, non-standard characters and emojis which affect the manner in which the publication is to be understood and interpreted. 6. It is multi-dimensional22 This is perhaps the most challenging aspect of online publications. Publications are very rarely read in isolation especially when the reader is interested and has information available at the touch of a button. The interpretation of one particular comment can be greatly affected by others, even ones posted later. This means that the meaning can change over time and makes the subtle task of assessing any defamatory imputation of a particular publication even more difficult.
WHAT CHANGES SHOULD BE MADE TO DEFAMATION LAWS? The Defamation Working Party established by the Council of AttorneysGeneral is currently undertaking a review of the Model Defamation laws in Australia (including South Australia’s Defamation Act 2005) to identify areas for national reform. It published the first set of recommended legislative changes late last year. These include replacing the existing defence of triviality23 (where the onus is on the defendant) with a “serious harm” threshold test for claimants to satisfy.24 This seems a reasonable change in current circumstances and should have the desired effect of reducing, if not eliminating, the many claims of (generally online)
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defamation (eg of limited circulation, of a domestic nature or between neighbours) which come before the Courts where the harm caused to reputation is quite minor. Significantly the proposed test will be as to whether the defamation has actually caused serious harm (or is likely to do so) and, it seems, will operate at the time of instituting proceedings (or perhaps of the trial itself) rather than predictively at the time of publication, as with the triviality defence (“the circumstances of publication were such that the plaintiff was unlikely to sustain any harm”). Also of particular relevance to online publications is the recommended introduction of a “single publication rule” (more correctly, a first publication rule), where the one year limitation period25 for instituting proceedings for defamation will ordinarily be calculated from the date of first publication of the defamatory material (rather than, as at present, applying separately from the date of each discrete bilateral publication). Other recommendations include changes to certain existing defences (eg contextual truth,26 honest opinion,27 statutory qualified privilege28) and the addition of the new defences of “reasonable communication in the public interest”29 and of “scientific or academic peer review”. These changes will apply to both traditional and online forms of publication, but may be expected to have relatively limited application to social media platforms. It will however not be until the second stage that we will know of the Working Party’s recommendations as to possible changes in the responsibilities and liability of digital platforms for online defamatory content. There is already pressure from the traditional media following Voller, as well as from Google, Facebook and commercial interactive websites, to be excluded from responsibility for third party commentator posts. This pressure should be largely resisted. Otherwise persons with justifiably good reputations will have no effective remedy for the serious harm caused by posts made by persons of straw (and/or resident overseas) which, but for the global or widespread reach provided by these platforms (for their commercial advantage), would have very limited, if any, impact.
We take the view that it is premature for other changes to defamation laws to be made beyond those already recommended. As the six propositions advanced by Judge Muir in Brose indicate, the Courts are alive to the distinct characteristics of online publications and their implications for determining defamatory meaning. We consider the Courts should be allowed for the time being to develop this aspect without legislative interference. B Endnotes 1 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, [164] 2 Rothe v Scott (No 4) [2016] NSWDC 160, [141] 3 Ibid, [142] 4 Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81 5 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, [26] 6 eg Sims v Jooste No 2 [2016] WASCA 83 7 Bunt v Tilley [2007] 1 WLR 1243 8 See, for example,Google Inc v Duffy (2017) 129 SASR 304, [141] to [146] per Kourakis CJNote: Google was found to be publishers of search results, including hyperlinked material, at least where search result snippets repeat the defamation in that material [160] to [170], but compare Defteros v Google LLC [2020] VSC 219, [48] to [55] where Richards J held Google to be publishers of ‘content neutral’ hyperlinked material 9 In Voller (Voller v Nationwide News Pty Ltd & Others [2019] NSWSC 766), the hosts (in that case, print media publishers) post provocative material on their public Facebook page with the obvious intention (as part of their business model) of generating interest and controversy for articles in their print and online editions (and advertising revenue) through potentially defamatory comments posted by third party users 10 Voller v Nationwide News Pty Ltd & Others [2019] NSWSC 766, [228] 11 Defamation Act 2005 (SA) s30 12 “Voller [194], [228] 13 [2020] QDC 15 14 Ibid, [68] 15 Ibid, [69] 16 Smith v ADVFN [2008] EWHC 1797 (QB) at 14-16 per Eady J 17 Brose v Baluskas & Others [2020] QDC 15 [71] 18 Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139 19 Brose v Baluskas & Others [2020] QDC 15 [72] 20 Jeynes v News Magazines Ltd [2008] EWCA Civ 130 [14] 21 Brose v Baluskas & Others [2020] QDC 15 [76] 22 Ibid, [74] 23 Defamation Act 2005 (SA) s31 24 This is in line with section 1 of the UK Defamation Act 2013 25 Limitation of Actions Act 1936 (SA) s37 26 Defamation Act 2005 (SA) s24 27 Defamation Act 2005 (SA) s29 28 Defamation Act 2005 (SA) s28. We have some concerns about the proposed changes to the reasonableness requirement. 29 This goes beyond simply providing for a ‘responsible journalism’ defence.
FAMILY LAW
Court establishes the Family Law Property Arbitration List JUDGE JOE HARMAN, FEDERAL CIRCUIT COURT OF AUSTRALIA, AND MATTHEW SHEPHERD, ACCREDITED FAMILY LAW SPECIALIST
T
he Family Court of Australia and the Federal Circuit Court of Australia have established a new specialist National Arbitration List. The list will be managed by dedicated National Arbitration Judges being Justice Wilson in the Family Court, Judge Harman in the Federal Circuit Court and Justice Strickland being the coordinating Appeals Judge for Arbitration Appeals. All matters referred to arbitration will be placed in the National Arbitration List. Any application for interim orders sought to facilitate the Arbitration by arbitrators or parties will be dealt with by the relevant National Arbitration Judge electronically. Applications for registration of arbitral awards issued by Arbitrators will be dealt with by the same National Arbitration Judge. Similarly, applications for review of an Arbitral Award will be conducted by the relevant National Arbitration Judge. Chief Justice Alstergren said “The Courts have long supported the use of alternative dispute resolution as a quicker and more affordable option for litigants to resolve their disputes, rather than continuing to trial. The introduction of the Arbitration List will ensure consistency and timeliness and the determination of such applications will be given considered priority. While arbitration has traditionally and commonly been used in commercial litigation, our Courts are very keen to support the wider use of arbitration in family law for property matters.”
UPTAKE OF FAMILY LAW PROPERTY ARBITRATION Each author has undertaken separate research since the 2016 arbitration amendments to the Family Law Act and Regulations. An anonymous survey of arbitrators
conducted by Matthew Shepherd identified that at February, 2019: a. No less than 107 arbitrations had been completed by 62 different arbitrators. Responses were not received from all arbitrators. b. There were court proceedings underway in 80 of the 107 cases and none in the remaining 27. The survey did not identify whether proceedings were in the Family Court or the Federal Circuit Court. c. In 78 cases, the arbitrator issued an arbitral award, and the remaining 29 cases were settled during the arbitration process. d. 26 cases were heard “off the papers” without any formal hearing; 22 involved a short hearing (one day or less) for submissions but no oral evidence or cross-examination; and 50 involved oral evidence, crossexamination and submissions. e. 65% involved a hearing of one day or less. A few involved hearings of two or three days, with one going into a fifth day. The average hearing length was 1.4 days. f. Arbitral awards were issued by the arbitrators within seven days or less of the hearing in 32% of cases, between eight to fourteen days in 44%, and between fifteen and twenty-eight days in 24% g. Time taken from the commencement of the 107 arbitrations (defined as the signing of the agreement to arbitrate) to the issue of the award was more variable. 28% of cases took four weeks or less, 26% took between four and eight weeks, 23% took between two and three months, 16% took between three to four months and a few took over four months.
At 31 January, 2020, as best as can be ascertained, not less than 141 cases had been referred to arbitration by the Judges of the Federal Circuit Court.
ARBITRATION – A FLEXIBLE DISPUTE RESOLUTION OPTION Arbitration is private and confidential. It occurs away from court and closed to the public. Arbitral awards are not published. Arbitration happens as quickly as the diaries of clients, lawyers and the arbitrator allow. It is not delayed by overburdened court lists. Time from the commencement of the arbitration process to issue of the arbitral award is significantly less than the waiting time for final hearings in court. Parties can fix a date for an arbitral hearing and know it will proceed on that day. They avoid the risk of a Court hearing being deferred due to the listing of other matters – especially parenting matters which are likely to be given priority by the Court. Arbitration hearings can be flexibly designed including: • “Off the papers” without a hearing. • Short hearing for submissions. • Full hearing with cross-examination which might be limited to agreed issues and duration. Parties can agree on some matters and seek an arbitral award in respect of discrete issues. For example, parties might be able to agree on the balance sheet and whom should retain the home but be unable to agree on a percentage division and whether the superannuation should be split or not. The flexibility and speed of arbitration can result in lower costs for clients. Costs of updating pleadings or valuations due to court delays and adjournments are avoided. June 2020 THE BULLETIN
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FAMILY LAW
CGT AND STAMP DUTY In South Australia, the Stamp Duties Act is being amended and is expected to come into effect later in the year. The amended Act will provide for a stamp duty exemption on transfers of property between married and de facto couples pursuant to arbitration awards. In the meantime, transitional arrangements are in place whereby the property transfers that are lodged pursuant to arbitration awards will be exempted by Revenue SA. Any issues arising with Revenue SA should be notified to the Treasurer who has given a personal assurance to Australian Institute of Family Law Arbitrators and Mediators he will resolve them. Capital gains tax roll-over relief applies to “something done under an award made in an arbitration referred to in s13H”.1
STARTING AN ARBITRATION Arbitration can be conducted with or without court proceedings being underway. Both parties must consent. Parties choose the Arbitrator from the list on the AIFLAM website, or AIFLAM can be asked to appoint the arbitrator. If proceedings have been commenced, parties enter into consent orders referring the matter to arbitration which will then be placed in the National Arbitration List for assistance if needed. The order for arbitration is provided to the agreed Arbitrator who will conduct an Arbitration Planning Meeting to clarify the arbitration model to be used, documents to be relied on, arbitrator’s fees, dates etc. These matters comprise the “arbitration agreement” (which should, ideally, be in writing, and which define the arbitrator’s powers and the manner in which those
20 THE BULLETIN June 2020
powers will be discharged. AIFLAM provides a useful precedent or template arbitration agreement. If proceedings have not been commenced, parties simply enter into an Arbitration Participation Agreement and the arbitration proceeds as agreed between the parties and the arbitrator. At the conclusion of the arbitration the Arbitrator will issue the Arbitral Award and their reason on the agreed date. Either party may then proceed to register the Arbitral Award. Both authors have previously written at length on the ability to seek review of Arbitral Awards.2 In short, review can only be sought on questions of law, or lack of procedural fairness or bias. One of the attractions of Arbitration (compared to negotiations or mediation) is therefore the certainty and finality of an outcome.
DISCUSSING DISPUTE RESOLUTION OPTIONS WITH CLIENTS Approximately 95% of family law cases commenced are settled through some dispute resolution process other than a final defended hearing. The question is not “will this matter settle?” but “when and how will it settle?” From a judicial perspective, the matters which should be before the Court are those which involve a public interest. Whilst the community has a general interest in the care and wellbeing of children, the financial affairs of individuals are not generally matters in which there is a public interest.3 Public interest might arise from allegations such as fraud, criminal conduct or impact upon the rights of third parties. All other financial proceedings issues are well suited to arbitration.
Family lawyers have obligations to discuss dispute resolution with clients.4 They are obliged to advise clients about arbitration both before commencing proceedings and as an alternative to judicial determination of the proceedings once commenced. On the basis of frequent court room disclosure by legal practitioners that “I don’t have instructions with respect to arbitration”, this would appear to be a duty that is poorly complied with. Merely providing a list of process choices does not assist clients in making the best choice for themselves. Lawyers should avoid beginning the process selection discussion with what they personally perceive the advantages to be which may have no relevance to the parties’ experience of the dispute. If lawyers are too directive, clients might feel obliged to go along with what they perceive the lawyer’s preferences to be but without real motivation reducing subsequent engagement in the process. A better approach to process selection is to ask the individual client about how they are experiencing the dispute, and the dispute resolution processes tried unsuccessfully to date. Clients will respond with a litany of complaints. Each of those complaints contain an aspiration for a better process. Through ‘double listening’ these negative complaints can be flipped by the lawyer to make clearer to the client their positive aspirations. For example, a. “Its been so slow” can be reframed by the lawyer to “So you would like a process that will be quick and resolve the dispute now?” b. “She doesn’t listen to what I think … I don’t know what she really thinks” can be reframed “Would you like a process by which we all get to sit in the same
FAMILY LAW
room and she listens to what we say, and you hear what she and her lawyer have to say?” c. “I don’t know how much this all going to cost and how I am going to pay” becomes “Would you like to hear about other processes where the two of you can decide the steps involved and therefore the cost?” d. “I hate those court appearances, all that sitting around, not knowing how much time to take off work and all those people sitting in court rooms waiting their turn’ can become ‘Would you like to discuss some other confidential processes that happens privately at times agreed by us?” e. “How do I know what judge I will get, how do I know if they will get it right?” becomes “So would you like to have a say in the choice of the decision maker,
and know that they their decisionmaking is guided by the established legal principles of fairness and equity?” The client’s affirmative answers to these questions give the lawyer permission to explain the range of processes in a way that will resonate with the client. The inquiry into the client’s experience of the dispute should start from the first consultation and continue. It should not be commenced at court whilst waiting for the client’s matter to be called in a busy list. At the end of a well-run arbitration, the parties on receiving the award should not just have saved time and money compared to litigating at court. The clients should also feel heard and respected. Parties whose needs for procedural fairness and psychological recognition are met, will have a high level of satisfaction even if their substantive needs are not met
as much as they may have liked. Research “shows that parties are more likely be satisfied with the outcome of a dispute resolution procedure and be more likely to view the overall experience as just, if it was generated by a fair procedure.”5 B Endnotes 1 S126.6(e) ITAA 2 Including LSJ December 2018 and LSJ June 2019 3 See Fulham Football Club (1987) Ltd v Richards and another [2012] Ch 333 4 See, Family Law Act 1975 (Cth) ss 12A, B & E; Practice Direction 1 of 2020 applicable in both the FCC and Family Court; Family Law Council and Family Law Section of the Law Council of Australia, Best Practice Guidelines for lawyers doing family law work (October 2010) Part 2. 5 Jill Howieson, ‘Family law: the lawyer–client relationship, procedural justice and the dispute resolution process,’ (2007) 10(2) ADR Bulletin Article 6 <http://epublications.bond.edu.au/cgi/ viewcontent.cgi?article=1422&context=adr>.
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OPINION
Should the court allow the media to publish visual evidence? MITCH MOTT, COURT REPORTER, THE ADVERTISER
T
he age-old adage goes that a picture tells a thousand words. Other than being extensively worn out, the saying has changed in the era of modern media to a picture draws a thousand clicks, a thousand video views or a half dozen new subscribers to an online outlet. But as the media has become increasingly visual, both in terms of television news and online articles, court reporting has struggled to keep up. Some of the most complicated, but also important cases are difficult to portray in a visually impressive way and a dearth of imagery has been the death knell to many a story. The question then becomes, and to return to the tortured phrase, can a picture illustrate what a thousand words of earnest court reporting cannot? Can a picture of a decrepit and faulty rifle at the heart of a lengthy trial into the negligent shooting of a young man illustrate why prosecutors continued with a difficult to prove manslaughter charge? Can dashcam footage of a young man running over a police officer at a random breath test show an audience why a court is considering an immediate term of imprisonment, rather than a suspended sentence?
The final, and perhaps most debatable question, is should the courts change their own practices when it comes to releasing photos and videos in the knowledge that the media landscape has also changed? There is already case law which acknowledges that the release of documents to the media is a pillar of open and informed justice. In September 2003 Justice John Perry ruled that denial of access to the proceedings of a court “promote illinformed and damaging speculation”. The court identified a nexus between journalists having access to as much information which could be released in good conscience and the accuracy of the resulting article.
The links between open justice and accuracy are self-explanatory, but can open justice be linked with the size of an audience? Is open justice best achieved when the workings of the court go before as many members of the community as possible? This is a larger issue than a single column and it would be self-serving for any journalist to say that the courts should always allow the release of photos and videos within hours of them being tendered. However, the larger issue of reader or viewership and open justice is one that is only now coming to the fore as traditional media grapples with less personnel on the ground and in the courts and a soaring demand for content. B
Proposed code to redress imbalance between news outlets and internet giants
T
he ACCC is due to present a draft mandatory code to address bargaining imbalances between Australian news outlets and Google and Facebook by the end of July. A concepts paper released by the ACCC in May sets out a range of issues for which the ACCC is seeking feedback and information, including what should be included in the draft bargaining code, how particular issues should be
22 THE BULLETIN June 2020
addressed, and how the code should operate. The Law Council of Australia has made a submission in response to the concepts paper. Submissions are due by 5 June. ACCC Chair Rod Sims said. “Our digital platforms inquiry highlighted the acute need to address the imbalance in bargaining position between news media and particular digital platforms, and that is what the code will do.”
The Government has asked that a draft mandatory code be released for public consultation before the end of July 2020, with a final code to be settled soon The ACCC’s digital platforms inquiry examined the impact digital search engines, social media platforms and other digital content aggregation platforms have on competition in media and advertising services markets. B
YOUNG LAWYERS
facebook.com/YLCSA
Flipping the switch: How to navigate the transition from young lawyer to TikTok star ALEXANDRA DOUVARTZIDIS, SOLICITOR, AND CAITLIN SURMAN, ASSOCIATE, HWL EBSWORTH
I
f you were born after 1985 and haven’t been living under a rock, you’ve probably heard of “TikTok”. If, prior to reading this article, you hadn’t heard of TikTok, we’d hazard a guess that by the time you read the last line you’ll wish that you never let your curiosity get the better of you. Unfortunately, “TikTok” is not a reference to the tasty Arnott’s creations that occasionally found their way into the biscuit tins of firms and government departments alike before COVID-19 made communal snacks a health hazard. Rather, “TikTok”, for the purpose of this article, is the latest social media app to take the world by storm. Developed by Bytedance Ltd, it was the most downloaded nongame app worldwide for March, 2020 with more than 115.2 million installs.1 Prior to the COVID-19 epidemic, the majority of TikTok users were children and teens. However, in these difficult times of socialdistancing and self-isolation, anecdotal evidence suggests that young lawyers have also jumped on the TikTok bandwagon. Following in-depth research and analysis, we formed the opinion that TikTok is best described as a “massive waste of time”. However, others describe it as a platform on which users can create and upload short dance, lip-sync and comedy videos set to an audio track. Like most lawyers, we are completely supportive of learned friends (particularly Patrick Kerin) who have a desire to post embarrassing videos of themselves on the internet for our collective entertainment.2 So, in light of all of that, what does a young, risk-averse lawyer need to be mindful of before you reach for your phone on a lonely Saturday night, download the TikTok app, and waste hours trying to “flip the switch”?
DEFAMATION We assume that you have better things to do than use TikTok to defame another person, but you’ve probably finished streaming “Tiger King”, and 2020 has proven that anything is possible. As a starting point, it’s important to remember that it’s not the words actually spoken that form the basis for a cause of action in defamation, but the meaning conveyed by those words (as pleaded by the Plaintiff). It’s relatively easy to determine if a statement is objectively defamatory it’s generally when the meaning conveyed tends to damage a person’s reputation, or would lead to their exclusion by society. For example, stating words to the effect that Carole Baskin is “not an experienced tiger handler” won’t necessarily be defamatory, but stating words to the effect that “she fed her husband to a tiger” can give rise to the imputation that she’s a murderer - which is far more likely to see Carole shunned from society.
Another important element in establishing a cause of action in defamation is the “publication” of the defamatory material. Under existing laws, “internet publication” will be taken to have occurred whenever a third party actually downloads3 the offending content. This is called the “multiple publication rule”, the effect of which is that if you post a video to TikTok that is potentially defamatory, you are under a perpetual threat of being sued because the limitation period within which a Plaintiff must commence a defamation action (being one year from the date of “publication”) effectively resets each time a new download occurs. However, the new Model Defamation Amendment Provisions announced in late 2019 will give TikTok users some relief by introducing a new “single publication” rule, which means that the one year limitation period will begin to run when the matter is first posted or uploaded.4 June 2020 THE BULLETIN
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YOUNG LAWYERS
COPYRIGHT INFRINGEMENT Copyright laws are also applicable to the music you use in your TikTok video even in the netherworld of social media. Conveniently, TikTok recently entered into a “multi-territory” licensing deal with “Merlin” (Merlin Agreement), a digital rights agency which represents over 15 percent of the global recorded music market.5 As a result of that deal, music from Merlin’s approximately 900 members (including more than 20,000 independent labels and distributors in over 60 countries)6 has been licensed for use on TikTok. This means that, in most cases, your poorly lipsynced cover of “Staying Alive” by the Bee Gees probably won’t result in the issue of a copyright infringement notice. Having said that, not all songs will be captured by the Merlin Agreement. So, if you’re tempted to upload a song that is not offered by the TikTok platform itself, there’s a risk you’ll be hit with a cease and desist letter by the artist; in which case you can kiss your virtual fame goodbye.
COPYRIGHT IN USER CONTENT On the flipside, in the event that you, for example, create an original dance on TikTok, there are arguments that it may attract copyright protection under the Copyright Act 1968 (Cth) (Copyright Act) as a “dramatic show” (which is defined to include a “choreographic show”), or as a “cinematograph film”.7 However, this has not yet been tested by Australian courts. In any event, the TikTok Terms of Service make it clear whilst you may own the content you post to TikTok, and the copyright therein, once that content is posted to TikTok for viewing by other members, you automatically grant Bytedance an unconditional irrevocable, non-exclusive, royalty-free, perpetual worldwide licence to use, modify, adapt, reproduce, make derivative works of, publish and/or transmit, and/or distribute that content.8 In short, Bytedance is free to exploit any content you post to the platform. Further, as a creator of copyright works, you are automatically granted “moral rights” in respect of those works under the Copyright Act. Where copyright is designed to protect the “economic rights”
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Video sharing app TikTok helped propel singer Doja Cat to mainstream success
of copyright holders, moral rights protect the reputation and integrity of creators.9 Accordingly, as a creator, you retain your moral rights even if you do not own the copyright in your work. The three types of moral rights granted are the right to be credited for your work,10 the right not to have your work falsely attributed to another person,11 and the right to prevent the derogatory treatment of your works in a manner that is prejudicial to your honour or reputation.12 These moral rights generally last as long as copyright (ie 70 years after the death of the creator).13 However, when you post content to TikTok you will be taken to have waived all of your “moral rights” in respect of that content,14 and to have granted Bytedance permission to effectively infringe those rights (which provisions are relatively common).15
PRIVACY If you are familiar with TikTok, you will also be familiar with the privacy concerns surrounding the platform. A review of TikTok’s Privacy Policy 16 demonstrates that the only information Bytedance doesn’t appear to collect is your blood type. Aside from your basic contact information, Bytedance also collects everything from your IP-address and geolocation data, the content of your messages to other users, device information (including the keystroke patterns you use on your iPhone), as well as behavioural information in respect of
your use of the app (so, in unfortunate news for a fellow colleague who shall remain nameless, Bytedance knows how many times you’ve practised the “Savage x Carole Baskin” dance routine). According to Bytedance, it uses the information collected to, among other things, understand how the app is used, to deliver customised content, and to send targeted advertising and promotional materials to users (including promotional materials from third parties). In terms of how your personal information is shared, the Privacy Policy states that Bytedance may share your personal information with a number of third parties, including third party service providers, business partners, advertisers, analytics, search engine providers and law enforcement agencies. Whilst the terms of the Privacy Policy may seem intrusive, the personal information of Australian TikTok users is ultimately protected by the Privacy Act 1988 (Cth) (Privacy Act) and Australian Privacy Principles (APPs) and can offer some form of redress in the event you consider your personal information may have been misused. The Privacy Act and APPs are the cornerstone of the privacy protection framework in Australia, and govern the standards, rights and obligations in respect of, inter alia, the collection, use and disclosure of personal information. The APPs are also technology neutral, which allows them to adapt to changing technologies - including TikTok.
YOUNG LAWYERS
The Privacy Act and APPs are likely to apply to Bytedance (as the entity behind TikTok) because they extend to an act done, or practice engaged in, outside Australia by an organisation that has an “Australian link”.17An organisation will be taken to have an “Australian link” where it “carries on business” in Australia and it collects personal information from an individual who is physically present in Australia.18 Whilst the phrase “carries on business” is not defined by the Privacy Act,19 the Office of the Australian Information Commissioner (OAIC) has identified a number of factors that can be taken into account for the purpose of making this assessment. Having regard to those factors, Bytedance arguably satisfies this particular requirement because it conducts a commercial enterprise for the purpose of profit (ie via its advertising revenue),20 has a registered trademark in Australia,21 and provides a service to users located in Australia.22 We also understand that TikTok is moving to establish a physical presence in Australia based on recent reports that it is building an Australian office.23 Accordingly, Bytedance will be held to the standards required under the Privacy Act and APPs, and can be held accountable in the event its use of personal information is non-compliant with those standards. In this respect, a breach of an APPs is
an “interference with the privacy of an individual” 24 and can lead to regulatory action and penalties following the making of a complaint to the OAIC.
CONCLUDING REMARKS Now that you are familiar with the legalities of TikTok, you should be able to avoid going viral for the wrong reasons. If you made it this far and still don’t understand what TikTok is, we’re envious. Endnotes 1 ‘Top Apps Wordlwide for March 2020 by Downloads’ (Web Page, 8 April 2020) <https:// sensortower.com/blog/top-apps-worldwidemarch-2020-by-downloads> 2 *judgment. 3 Dow Jones and Company Inc v Gutnick [138][2002] 210 CLR 575 at [26]; Sands v Channel Seven Adelaide (2009) 104 SASR 452 at [391] 4 Australasian Parliamentary Counsel’s Committee, ‘Model Defamation Amendment Provisions 2020’ (Consultation Legislation, 12 November 2019) <’https://www.justice.nsw.gov.au/justicepolicy/ Documents/review-model-defamationprovisions/consultation-draft-of-mdaps.pdf > 5 Christie Eliezer, ‘Why Aussie record labels are eyeing TikTok and Twitch to break acts” (Web Page, 17 February 2020) <https:// themusicnetwork.com/labels-eying-tiktok-andtwitch/> 6 Richard Smirke, ‘Merlin Inks Global Licensing Deal with TikTok (Web Page, 21 January 2020) <https://www.billboard.com/articles/ business/8548793/merlin-global-licensing-dealtiktok
7 Copyright Act 1968 (Cth), s 10; Luke Dale and Kelly Williamson, ‘Dancing in time: TikTok, Fortnite and the copyright protection of dance - do TikTok users own copyright in the dance moves they create?’ (2020) 32(1), Australian Intellectual Property Law Bulletin, 142 8 TikTok, ‘Terms of Service’ (Web Page) < https://www.tiktok.com/legal/terms-ofuse?lang=en> (Terms of Service) 9 Australian Copyright Council, ‘Moral Rights’, (Information Sheet G043v15, October 2019) <file://melfs2/users$/csurman/Downloads/ Moral%20Rights%20(G043v15).pdf> 10 Copyright Act, s 194 11 Ibid, ss 195AC - 195AH and ss 195AHA to 195AHC. 12 Ibid ss 195AI 195AL. 13 Ibid ss 33 and 195AM. 14 TikTok Terms of Service, cl 7. 15 Ibid. 16 TikTok, Privacy Policy’ (Web Page) <https:// www.tiktok.com/legal/privacy-policy?lang=en> 17 Privacy Act, s 5B(1A) 18 Ibid, s 5B(3); OAIC, Australian Privacy Principles Guidelines, July 2019, B.22 (Guidelines). 19 Guidelines, B.13 20 Guidelines, B.16 21 Guidelines, B.19; Australian Wool Innovation Ltd v Newkirk (no 3) [2005] FCA 1308 at [34]; see also Trade Mark No. 1949117 in respect of the words “TikTok”. 22 Guidelines, B.19. 23 Zoe Samios, ‘TikTok to build Local Operation, Sydney Morning Herald (online, 10 February 2020) <https://www.smh.com.au/business/ companies/tiktok-to-build-local-operation20200209-p53z2z.html> 24 Privacy Act, s 13.
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ANIMAL LAW
Dealing with nuisance cats under animal management legislation DAVID ROBERTSON, ADMINISTRATION LAW & ANIMAL LAW COMMITTEES
T
he Dog and Cat Management Board (DCMB) divides cats into three groups: owned cats, unowned cats and feral cats with some overlap between the three. Owned cats have owners, live in or around a particular house, may (or should) be microchipped and sterilised. Feral cats live in the wild and have no contact with humans. In between are the unowned cats, not claimed by anyone but often fed by one or more people. They are not registered, microchipped or sterilised. All three groups are protected by the Animal Welfare Act (1985) but otherwise come under different legislation. Outside Council areas cats in National Parks and Reserves (which represent 30% of the State) come under the National Parks and Wildlife Act 1972. The remainder of the State comes under the Natural Resources and Management Act 2004, to be replaced by the Landcare Act 2019 on 1 July, 2020. Amendments to the Dog & Cat Management Act 1995 (the Act) came into force on 1 July, 2018 making it mandatory for dogs and cats over the age of 12 weeks to be de-sexed, and microchipped. Cat breeders must be registered. There is a State-wide data base Dogs and Cats on Line (DACO). This replaces the previous system whereby cats were registered with the Council that it was in. Section 26 of the Act makes Councils responsible for stray cats within their area. Section 26A requires each council to have a Management Plan for cats. Section 90 of the Act empowers Councils to make by-laws for the control or management of cats within its area. The by-laws may limit the number of cats to be kept, fix times which cats must be confined to the premises and require cats to be registered with the Council. The Board has prepared ‘A guide to preparing a Cat By-Law’ (2019). The DCMB estimates that about
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one third of the 68 Councils have a cat by-law of some sort, mostly to do with registration and the number of cats to be kept and of these about five are investigating a by-law to confine cats to the house at certain times e.g. from 9pm to 7am. All proposed by-laws must be submitted to the Board for consideration. The Board may, if it wishes, comment on the proposed by law (to whom it is not stated) but may not alter the proposed by-law. The Board’s 2019 Report to Parliament states that there are 23,527 registered cats. Of these, 98% have been microchipped (mandatory) and 84% de-sexed (not required under 12 weeks old). However the Board estimates that there are 500,000 unowned cats in SA (not counting feral cats) which means that barely 5% are microchipped, de-sexed and registered. This is unfortunate because cats are
prolific breeders. The Board estimates that one female can produce 41 kittens in a year. If one cat in 50 is not de sexed a population of free-living cats will regenerate in 12 months. 98% of all cats (male and female) must be de-sexed before the cat population can be stabilised and this process has to be repeated. Cats that cause a local nuisance are usually the result of unowned cats, male or female, claiming and marking territory. Councils will lease traps for limited periods. However, unlike mouse traps, cat traps are not readily effective. It takes time and skill to lure an unwanted cat into a trap. If trapped the cat must within 12 hours be handed to a veterinary surgeon, a Council Cat Management Officer or to a prescribed cat shelter. There the cat will be checked for a microchip and attempts made to restore it to its owner. Unclaimed cats and cats without microchips may be suitable for rehoming. B
TAX FILES
Onus of proof in tax disputes JOHN TUCKER, DIRECTOR DW FOX TUCKER LAWYERS
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or taxpayers engaged in matters with the Australian Taxation Office (ATO) where facts are in dispute the ATO will point out that the taxpayer bears an onus to prove facts it asserts. This onus is well established through case law, the most often referenced being the Full High Court decision in Federal Commissioner of Taxation (FCT) v Dalco (1990) 168 CLR 614 (Dalco). The ATO have seen themselves as able, in audits where documentary evidence corroborating a taxpayer’s explanation of the source of receipts is not available, to rely on Dalco to treat the receipts as income from unexplained sources or, as in Dalco, as attributable to an individual, not an entity claimed to have derived the amounts, and consequently to add the receipts to the assessable income of the individual. This simply on the basis that the individual has been unable to discharge their onus to prove the receipts not to be assessable income of theirs. The application of this decision has recently been considered in the context of a dispute where the taxpayer sought to rely on the evidence of company financial statements by the Full Court of the Federal Court of Australia (Full Court) in FCT v Cassaniti [2018] FCFCT 213 (Cassaniti). In Cassaniti the taxpayer proffered in evidence company financial statements and sought to rely on them as supporting proof of his claims concerning the amounts they reported and their characterisation. In support of his position, the taxpayer relied on section 1305 of the Corporations Act 2001 (Cth) which provides that a book kept by a company under a requirement of that Act is considered prima facie evidence of its contents. The Commissioner, while not evidencing grounds for doing so, in submissions disputed the authenticity or the veracity of the financial statements and
relied on Dalco to assert that the taxpayer had failed to discharge their onus of proof. The Commissioner’s claim was rejected by the Full Court. In particular the Full Court: • rejected the notion that a taxpayer can be required to undertake a sisyphean task of recreating and corroborating individual transactions or components of transactions to prove amounts recorded in financial statements or evidenced by a recipient. • held that, for transactions such as loans recorded in the financial statements, it should suffice for them to have been shown as such in the financial statements and verified as such by the recipient. Cassaniti is important because prior to this decision the onus resting on the taxpayer was thought to include an onus to prove the authenticity and veracity of the taxpayer’s financial records in any case that came before the Court. Cassaniti makes it clear that, in the absence of a challenge based on more than mere submissions of the Commissioner, the Court should accept the taxpayer’s financial records which have apparently been kept pursuant to the Corporations Act as, for all intents and purposes, authentic. In other words the Commissioner cannot make out his case merely by asserting that he does not accept the evidence of the taxpayer, as supported by the taxpayer’s financial records, as either true or authentic. In this regard Steward J, at [65], followed what was concluded by Perram J in Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) (2012) 207 FCR 448, at [92], that the provenance of a document could be inferred from its contents. In addition he held, following the observation of Heerey J in Guest v Federal Commissioner of Taxation [2007] FCA 193; 65 ATR 815 at [25], that
business records may be admitted and used as proof of the truth of any facts they recite without the need to identify the author of the document. With respect to authenticity Steward J held that the terms of s 69(2)(a) of the Evidence Act 1995 (Cth) do not suggest that it is an essential precondition of admissibility that the “person” in question be identified. The ordinary meaning of the language is that it is sufficient that the person who made the representation, whoever he or she is, had or might reasonably be supposed to have had, personal knowledge of the asserted fact. The policy behind the provision was clear enough, that routine business records, made before any legal proceeding arises or is contemplated, have an inherent likelihood of reliability which outweighs the common law’s aversion to hearsay evidence where the maker of a statement cannot be tested by crossexamination. The utility of s 69 would be greatly diminished if it were necessary to locate among large organisations, perhaps over a long period of time, persons who made representations, often in circumstances where the practical needs of the organisation did not require any identification at the time the representations were made. Cassaniti accordingly tells us that if authenticity is not challenged then, absent evidence to the contrary, veracity should be assumed. Both the Judge at first instance and the Full Court accepted the veracity of the financial records because of the authenticity of the documents and the fact that the Commissioner did not seek to challenge the financial statements other than to make a submission that there was insufficient proof by the taxpayer of the veracity of the documents. Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B June 2020 THE BULLETIN
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YOUTH JUSTICE
Young people develop plan for changes they would make to SA’s youth justice system HELEN CONNOLLY, COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE
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s Commissioner for Children and Young People, I am responsible for ensuring South Australia fulfils its obligations under the United Nations Convention on the Rights of the Child (UNCRC). As part of my role, I am mandated to talk to children and young people about their experiences and how their lives could be improved. A number of UNCRC Articles relate to children and young people’s contact with youth justice. Articles 2 and 12 relate to ‘a child’s right to be heard’. Article 24 further states that if a child has been accused of an offence they have the ‘right to be heard directly and not only through a representative or an appropriate body at all stages of the process’. Article 40 states that ‘children’s rights in juvenile justice proceedings, include their right not to be discriminated against, the right to an interpreter (if they do not understand proceedings) and the right to privacy’. Article 40 also imposes obligations on State parties that include setting a minimum age (in-line with the recommendations of the UN Committee on the Rights of the Child), establishing a specialised court, laws, and procedures specifically designed to meet the needs of children and young people, taking into account their developmental capacity and including use of alternative methods to ensure they are kept out of ‘institutional care’. Further, General Comments 12 and 24 explicitly state that ‘the right to be heard is fundamental to a fair trial’. Since commencing in the role of Commissioner in 2017, I’ve met with a number of children and young people who have been in direct contact with South Australia’s youth justice system. They have told me during consultation sessions, focus groups, and one-on-one meetings that they have concerns about their experiences,
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and would like to see changes made. I have heard similar concerns through adult advocates. Advocates are well aware of issues associated with youth justice, including the social determinants of offending. They know the pathways into the system, the lack of therapeutic interventions, the criminalising of childhood, and the significant over representation of Aboriginal young people. However, very little of the formal reporting on these issues reflects the voices, views and opinions of young people themselves. In 2019, I devised a project that placed seven young people aged 16 - 21 years who had direct experience of SA’s youth justice system front and centre, to advise on system change. The project’s overall goal was to take a system problem solving approach working with young people to develop an advocacy plan that could build a better system. Project partner Australian Red Cross, provided individual support for each of the participants; this was crucial to ensuring participants could remain engaged throughout the six month period of the project. And to enable participants to feel confident in joining a group, the Australian Red Cross also delivered leadership development skills as well as advisory and advocacy knowledge. Each young person involved had faced considerable challenges throughout their lives. They had all experienced significant periods of detention as juveniles and young adults, and were well placed to share their views on what worked and what didn’t from their perspective. Few had ever been given an opportunity to have their views heard, let alone been asked for ideas and opinions on ways their experience of youth justice could be improved.
They told me that because of the circumstances that led to their offending behaviour, they felt they had been “written off ”. They believed that adults had assumed they had “nothing to contribute” and that “their rights didn’t matter as much as other people’s”. Their lives were transient and challenging, characterised by family conflict, personal mental health concerns, homelessness and financial difficulties. The Australian Red Cross supported each participant with referrals to mental health services, housing organisations, and mentoring services, as well as providing assistance completing Centrelink applications and access to food parcels when needed. The engagement process presented a steep learning curve for the participants. By stepping them through system mapping, problem identification, solution generation, and action planning, insightful issues were generated and prioritised for action in group sessions. They considered how the youth justice system had developed, its value to the community, and its long term benefits, including understanding how a society best operates within a system rather than outside it. This helped to reinforce the usefulness of rules, rule makers and rule enforcers as stabilising, rather than controlling elements.
YOUNG PEOPLE’S RECOMMENDATIONS At the project’s conclusion, the young people devised a set of actions and recommendations they felt would have a positive impact on children and young people coming into direct contact with the youth justice system. Their eight recommendations are: 1. Establish a youth court advisory process that provides information to young people on the whole youth justice process;
YOUTH JUSTICE
2. Review the current system of bail to ensure conditions set are realistic and goal orientated and meet individual needs and circumstances; 3. Use time spent waiting in a court cell more productively, including giving young people access to information and activities that can help them to remain calm; 4. Provide young people an opportunity to provide information to Police and the Court confidentially to ensure conditions are suited to individual circumstances; 5. Explain to young people what role each person in the court room plays prior to them entering; 6. Re-arrange court rooms so that they are less intimidating to young people; 7. Provide opportunities for young people to speak confidentially with police and court officials so that they are supported to comment, respond, and express themselves in the court environment without fear of intimidation; and 8. Those in positions of authority consider these recommendations within the context of Australia’s new National Child Safety Principles.
SETTING REALISTIC BAIL CONDITIONS Two key recommendations young people felt would make a significant difference to young people’s experience of youth justice is setting of bail conditions and use of fines. They see a one size fits all approach currently being applied – one that fails to take into account individual circumstances. Inevitably, this produces breaches that place pressure on young people and also on all other parts of the youth justice system, with the breaches then becoming the focus of interactions between young people, police and the
court. They believe a better youth justice system would use bail conditions as a way of supporting young people not to reoffend – setting individualised, achievable conditions informed by the young person’s situation, and determined in discussion with the magistrate. These conditions would include the capacity to participate in community activities that promote reintegration and rehabilitation of young people back into the community.
APPLYING MINIMAL USE OF FINES For some young people, being fined means they cannot afford to eat or buy credit for a mobile phone that would otherwise enable them to retain vital communication lines with important people in their lives. Participants expressed concern about fines not being universally or consistently applied, and how high they are in relation to typical levels of income available to young people. They said a better system would review the use of fines, look at the low income levels of young people and ensure that fines issued did not place young people under further financial stress.
CONCLUSION There is a growing body of developmental psychological research, that acknowledges the impact a child or young person’s individual circumstances, developmental capacity and background has on a their ability to understand and engage in the youth justice process. All who interact with young people who come into contact with the youth justice system – SAPOL Officers, Arresting Officers, Bail Sergeants, Courts Administrators, Judges and Magistrates – have their own critical part to play in adjusting their interactions to take each young person’s individual situation into account.
Research has shown that ‘limiting the autonomy of children has a consequence of being a self-fulfilling cycle of learned helplessness, which can result in behaviour becoming worse. Other studies show that active participation in decision-making processes helps children and young people understand and accept the final decision made in relation to their offence, making it easier for them to act on any ‘orders’ they receive. Active participation can also allow young people to see and experience their skills in reasoning develop and gain confidence in expressing their point of view. What matters most, is that the recommendations these young people have courageously and determinedly made be considered by those who have the authority to make change. If these changes were to be implemented the lives of South Australian children and young people who come into contact with South Australia’s youth justice system will benefit from changes young people themselves have told us need to be made. View the CCYP Making Change in Youth Justice three-minute video containing recommendations made by young people in their own words, via the link below:
https://www.youtube.com/ watch?v=9PqEXUD5uec Download and read the full ‘Making Change in Youth Justice’ User Guide via the following link: https://www.ccyp.com.au/reports/ccypreports/ B June 2020 THE BULLETIN
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COVID-19 UPDATE
Society monitors COVID-19 related legislation
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he Society is continuing to advocate on behalf on the profession with regards to legislative measures introduced in response to COVID-19.
substantial advice at short notice with respect to proposed regulations. The Society will maintain a watching brief with respect to this matter.
COMMERCIAL LEASES
ADVANCE CARE DIRECTIVES
The Society has called for urgent implementation of the National Cabinet Mandatory Code of Conduct with respect to small to medium-size enterprise (SME) Commercial Leasing Principles during COVID-19 (the Code) in South Australia. The purpose of the Code is to impose a set of good faith leasing principles for application to commercial tenancies (including retail, office and industrial) between landlords and tenants, where the tenant is an eligible business for the purpose of the Commonwealth Government’s JobKeeper programme. The Society’s Property Committee, who brought the matter to the Society’s attention, considered the initial regulations in place did not make any provision for, or give direction for rent relief to a tenant who is suffering financial hardship due to the COVID-19 pandemic. Following an initial submission bringing these concerns to the Government’s attention, legislation was introduced which allowed a number of changes to be made through regulations with respect to commercial leases. A subsequent provision was added to the regulations which directed parties to negotiate and agree on rent relief in accordance with the Code. The Society is pleased that one of its main concerns in the has been addressed by the amendments. The Society, in subsequent correspondence to the Government, submitted that the regulations introduced should be amended to direct the parties to negotiate and to agree upon relief in accordance with the Code. The Society’s Property Committee were pivotal to the Society’s advocacy with respect to the Code and provided
The Society has once again called upon the Attorney-General to amend the order of signing requirements under the Advance Care Directives Regulations 2014 (SA). One of the Society’s key concerns with the current process is the requirement under Regulation 8(1) that a person appointed as a substitute decision-maker (SDM) must sign their acceptance of the appointment prior to execution of the Advance Care Directive (ACD) by the person making the appointment. The Society’s Country Practitioners Committee reported that the difficulties caused by the current requirements have been further exacerbated due to COVID-19 and asked the Society to once again reagitate the issue. In the current circumstances, the requirements create a public health risk to both the public and the legal profession (particularly those whose health may be compromised) and a serious impediment to those located in rural areas, the current restrictions in place around travel, and quarantine make the requirements even more challenging and likely to cause serious delays. The Society warned such delays may be critical in the context of an ACD as there is an inherent and completely avoidable risk that the person making the ACD may lose adequate mental capacity between the date of giving instructions and the time the document is signed by substitute decision makers and returned for signing by the donor. This was a serious risk pre COVID-19, but of course is heightened in the current circumstances. The Attorney-General has responded to the Society, noting that she and the Minister for Health and Wellbeing will jointly consider whether any temporary
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amendments can be made during the COVID-19 emergency period.
PRESUMPTION AGAINST BAIL The Society strongly opposed amendments to the Bail Act 1985 (SA) introduced by the Government as part of the COVID-19 Emergency Response (Bail) Amendment Bill 2020. The Bill expanded upon the classes of offences where a presumption against Bail exists under section 10A of the Bail Act, including offences that are aggravated due to the victim falling into the category of a person who was acting in the course of a prescribed occupation (e.g. emergency workers, medical practitioners etc.). While the Society does not condone offences against persons acting in the course of their employment duties and understands that there are number of occupations who may be at a heightened risk during the COVID-19 pandemic. It questioned what, if any, impact the Bill will have in preventing such offences. In particular, that the reversal of the presumption of bail is unlikely to act as a deterrent in these circumstances. The Society raised concerns around the further erosion of judicial discretion around bail and the likelihood that the provisions would cause accused persons to spend extended periods in custody without trial. The Society considered that to implement such measures during the pandemic, where delays are inevitable due to public health precautions, is inappropriate and may lead to serious injustice for those caught under the amendments, not to mention the measures may exacerbate the risk of a COVID-19 outbreak in a South Australian correctional facility. The amendments to the Bail Act have passed. The Society will be monitoring to ensure these measures are not extended beyond the COVID-19 emergency period. B
DIALOGUE
A roundup of recent Society meetings & conferences ROSEMARY PRIDMORE, EXECUTIVE OFFICER 19 MARCH 2020 Meeting with the Attorney-General he President, Tim White, Chief Executive, Stephen Hodder and Policy Lawyer, Anna Finizio met (via teleconference) with the Attorney-General, the Honourable Vickie Chapman MP. Matters discussed included the Society’s ongoing work (via the Council) to consider whether to recommend to the Attorney-General that South Australia seek to join the Legal Profession Uniform Law; the Society’s establishment of a Space Law Committee; regulations under proposed amendments to the Legal Practitioners Act 1981 to enable foreign lawyers to practise the law of their relevant foreign country; aspects of the Society’s submission to the 2020-21 State budget; and various current Bills before the Parliament.
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23 MARCH 2020 Meeting with the Chief Justice
Matters discussed by Tim White and Stephen Hodder with the Chief Justice, the Honourable Christopher Kourakis at a teleconference meeting included the draft Legal Practitioners (Senior and Queens Counsel) Amendment Bill 2020; the possibility of delay in the commencement of the Uniform Civil Rules and CourtSA Civil in light of COVID-19 restrictions on law firms and the impact of those restrictions on the profession and the Courts, including measures for legal practitioner contact with clients in prisons and the use of judge-alone and summary trials.
16 APRIL 2020 Meeting with the CTP Regulator CTP Insurance Premium Determinations for 2020-21, a Regulator Rule re COVID-19 related measures for CTP insurers and claims; the Society’s preference for psychiatric/GEPIC
assessments to be done “in person” rather than via Audio-visual link; concerns that delays caused by physical Injury Scale Value assessments not being undertaken would have a detrimental impact on settlement negotiations; and issues relating to requirements and actions of insurers were amongst matters discussed by Tim White and Anna Finizio at a meeting with the CTP Regulatory, Ms Kim Birch.
22 APRIL 2020 Meeting with the Chief Justice and the Honourable Justice Blue Tim White attended a meeting with the Honourable Chief Justice Kourakis and the Honourable Justice Blue relating to the postponement of the commencement of the Uniform Civil Rules and CourtSA Civil until 18 May 2020 due to COVID-19 related issues with access to IT contractors for the project. B
RISK WATCH
Beware the Land Tax changes HARRY PATSIAS, WALLMANS LAWYERS AND GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS
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ost practitioners will be generally aware that there have been significant amendments1 to the Land Tax Act 1936 (SA) (the Act) which take effect from midnight 30 June, 2020. An overview of the changes together with an unofficial version of the Act may be found on RevenueSA’s website.2 In the main, these amendments: • Change the various threshold values upon which land tax applies; • Change the land tax rates in respect of the various thresholds; • To use the words of the Commissioner of State Taxation (Commissioner), introduce “improved aggregation of ownerships for land tax purposes”,3 whereby actual or deemed interests in land are aggregated; and • Impose notification obligations on trustees and subject fixed, unit and discretionary trusts4 to the higher trust rates of land tax unless certain qualifying notices are lodged with the Commissioner.5 The amendments raise some interesting landlord / tenant issues including whether a trustee landlord is able to recover from their tenant the higher trust rates of land tax assuming no qualifying notices are lodged, or where, by virtue of such qualifying notices, tenants have some reason to complain that their payment of land tax is ultimately benefiting someone other than the landlord as a result of the way the credit system. Such matters are outside the scope of this article. We expect most commercial landowners will have already sought advice as to how the amendments might apply to their circumstances and whether any action might be taken by them to manage any adverse financial outcomes of the same. Actions that some landowners might take in managing any adverse financial outcomes may include: • Restructuring their interests in land and landowning entities; • In the case of fixed or unit trusts with interests in land, contemplating
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whether the trustee voluntarily lodges a notice of beneficial / unitholding interests with the Commissioner; • In the case of discretionary trusts with interests in land at 16 October, 2019 (preexisting land),6 contemplating whether the trustee voluntarily lodges a notice nominating a single designated (adult) beneficiary of the trust, which nominee consents by statutory declaration, with the Commissioner by 30 June, 2021.
RESTRUCTURING In respect of advice involving the restructuring of interests in land and landowning entities, practitioners need to be mindful of various other matters arising from such restructure, including: • Tax consequences such as stamp duty, goods and services tax, income and capital gains tax; • Whether appointing a new trustee to a discretionary trust changes pre-existing land to non-pre-existing land (or is it measured by the trust rather than the trustee);7 • Triggering pre-emptive rights or defaults under commercial documents; • Commercial risk exposure; • Impact on succession / estate planning; and • The possibility that the land tax avoidance provisions might apply.8
FIXED OR UNIT TRUSTS Where the trustee is to lodge a notice of beneficial or unit holding interests (in the case of a fixed or unit trust) the general effect of such notice will be: • The trustee will be liable to the general rates and not the higher trust rates of land tax on their aggregated land holdings; • Each beneficiary or unitholder of the trust will: • Be attributed with the value of land attributable to the trust in proportion to their interest in the trust, which value will be aggregated with any other
interest in land which that beneficiary or unitholder owns; and • Receive a credit for the land tax otherwise paid by the trustee in proportion to their interest in the trust (so as to avoid double taxation); • Once lodged, the trustee must inform the Commissioner of any changes to beneficial or unitholding interests within one month of such change; • Once lodged, may be withdrawn noting the trustee may not avail itself of lodging any new notice in future. In respect of advice involving the provision by the trustee of a notice of beneficial or unitholding interests, practitioners need to be mindful of various matters, including: • Does the trustee have the power to make and lodge such notice? • Is the lodgement of such notice by the trustee in the interests of all beneficiaries/unitholders? In relation to these questions, the first is answered by reviewing the relevant trust deed and amending if required.9 The second is more fundamental, as there are likely to be situations whereby one or more beneficiaries or unitholders may be disadvantaged and others advantaged by the trustee’s lodgement of such notice. In that regard, practitioners will be well placed to advise trustees of their obligations to their beneficiaries / unitholders. As stated in Cowan v Scargill: 10 “The starting point is the duty of trustees to exercise their powers in the best interests of the present and future beneficiaries of the trust; holding the scales impartially between the different classes of beneficiaries. This duty of the trustees towards beneficiaries is paramount. They must, of course, obey the law; but subject to that, they must put the interests of their beneficiaries first. When the purpose of the trust is to provide financial benefits for the beneficiaries, as is usually the case, the best interests of the beneficiaries are normally their best financial interests”.
RISK WATCH
The primary duty is to the beneficiaries as a whole, even where fulfilment of the duty disadvantages one beneficiary and favours another, however, as discussed in Jacobs, it is also a duty of a trustee to act fairly by/between all the beneficiaries. How then does a trustee deal with a situation whereby the actions of the trustee may result in a benefit to the financial interest of one or more beneficiaries and a corresponding detriment to other beneficiaries? An answer may be found under a general power of management of property (to be read subject to its terms) or a more express power enabling the trustee to make such choice for the purposes of any tax or impost in the trustee’s uncontrolled and unfettered discretion (if it be stated in such terms), but otherwise such action would appear to require the consent of all beneficiaries / unitholders. Without such power or consent, the trustee may be found in certain circumstances to have failed in its duty to act impartially, for instance where it is in the interests of the majority but not the minority, to have the trustee lodge the relevant notice.
Further, where the power to amend the trust deed to provide for such action is held by the majority, query the ability to effect amendments to the trust deed to benefit that majority. There have, in some instances, been found to be duties owing as between beneficiaries themselves. Scott and Ascher on Trusts, a United States commentary often quoted favourably by the High Court, states: “25.3 Beneficiary’s Duty to Other Beneficiaries In the preceding sections, we have seen that a beneficiary owes a duty to the other beneficiaries not to participate in a breach of trust. It would seem that a beneficiary also owes the other beneficiaries a duty not to attempt to obtain a priority over them. … Although there is not the same fiduciary relationship between trust beneficiaries as there is between them and the trustee, there is enough of a fiduciary element in their relationship to make it inequitable for one to seek to obtain an advantage over another. …”
DISCRETIONARY TRUSTS Where the trustee is to lodge a notice nominating an adult designated beneficiary
(in the case of a discretionary trust) the general effect of such notice will be: • The trustee will be liable to the general rates and not the higher trust rates of land tax on their aggregated land holdings they owed at 16 October, 2019 (interests in land they acquire after 16 October, 2019 will be assessed at the higher trust rates of tax);11 • The designated beneficiary will: ∘ Be attributed with the value of land attributable to the trust and assessed at the general rates, which value will be aggregated with any other land interest which that designated beneficiary owns; ∘ Receive a credit for the land tax otherwise paid by the trustee at the general rates (so as to avoid double taxation); • It will not be possible to substitute the designated beneficiary under the notice until such time as that designated beneficiary either dies, becomes incapacitated, suffers a relationship breakdown, or such other event as may be prescribed by regulation;
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RISK WATCH
• Once lodged, the notice remains in force until it is withdrawn by the trustee or until the designated beneficiary notifies the Commissioner in writing that they no longer consent to being a designated beneficiary, and thereafter no new notice may be lodged by the trustee. With respect to advice involving the provision by the trustee of a notice nominating a single designated (adult) beneficiary of the trust, and the nominee accepting the same by statutory declaration, practitioners need to be mindful of various matters, including: • Does the trustee have the power to lodge such notice? • Is the provision of such notice by the trustee in the interests of all beneficiaries of the trust? • Is the acceptance of such notice by the proposed designated beneficiary in the best interests of that beneficiary, noting of course, that beneficiary needs to consent to that notice by statutory declaration? and • Is the designated beneficiary entitled to an income tax deduction for any land tax payable in surplus of any applicable credit? In regards to these questions: • The first is answered by reviewing the relevant trust deed, as previously discussed; • The second is answered by observing that the trust fund would not be diminished by the trustee providing such a notice as the trust would not incur the higher trust rates. The provision of that notice would therefore be in the best interests of the objects of the trust (other than perhaps the designated beneficiary who would in any case be required to consent by statutory declaration under the notice); • The third is answered by the proposed designated beneficiary, after having received proper and independent
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advice, consenting to be the designated beneficiary by statutory declaration. That there is a “safe guard” in that the proposed designated beneficiary is able to withdraw their consent in future, however such withdrawal may leave the trust and other beneficiaries, and perhaps the trust’s tenants, worse off as a result of the higher trust rates to be incurred; • The fourth appears problematic in the context of a discretionary trust as any additional land tax payable by the designated beneficiary in respect of the trust’s land interest would appear to be non-deductable under the income tax law as such an expense would lack the necessary nexus to any income that the designated beneficiary may receive, whether that be by trust distribution or an indemnity by way of a reimbursement payment from the trust – on such aspect, the designated beneficiary would need to seek their own tax advice; The answers to the third and fourth questions raise the critical risk management issue of acting in conflict of interest. The effect of the nomination of beneficiary notice may in some cases be in the interests of some beneficiaries but not others if, for example, those other beneficiaries have other land holdings which may be the subject of aggregation. The possibility for there to be differing interests of differing beneficiaries is clearly apparent. This clearly raises the necessity for separate advice to be given, especially to the entity the subject of the nomination. Any short-cuts where advice is given by the same lawyer to trustees / beneficiaries with differing interests, are dangerous and will be likely be productive of claims where the interests of a nominee are adversely affected. Further, if a
claim arises out of a transaction where an insured practice acts for more than one party whose interests are or may be in conflict, the PII Scheme Document provides that the excess payable by the insured practice in respect of the claim will be double the usual excess. Short cuts can therefore not only be dangerous, they can also be expensive.
CONCLUSION In advising on the above matters, practitioners need to be mindful of the various issues which may arise, as well as managing conflicts between trustees and their beneficiaries, between beneficiaries, together with tenants’ competing interests. Endnotes 1 As effected by The Land Tax (Miscellaneous) Amendment Act 2019 (SA) and Statutes Amendment and Repeal (Budget Measures) Act 2018 (SA). 2 See https://www.revenuesa.sa.gov.au/taxes-andduties/land-tax/land-tax-changes. 3 See page 3 of Land Tax Overview of the Land Tax (Miscellaneous) Amendment Act 2019 (SA) available at https://www.revenuesa.sa.gov.au/taxes-andduties/land-tax/land-tax-changes/Overview-ofLand-Tax-Changes-2019.pdf as at current date being Version 1 Released 16 December 2019. 4 The amendments provide definitions for different categories of trusts. 5 Superannuation funds and some special purpose type trusts are generally excluded from the higher trust rates. 6 This was introduced as a transitional measure. 7 A technical issue is understood to have been raised in that regard. 8 See section 18 of the Act. 9 There does not appear to be any power under the Trustee Act 1936 to make such choice. 10 Cowan v Scargill [1985] Ch 270 at 287-7 as quoted in Law of Trusts in Australia, 8th edition, JD Heydon & MJ Leeming (Jacobs) at [17-11]. 11 There is apparently an issue as to whether section 13B(1)(b) of the Act deems the unitholder the owner of land or an owner of pre-existing land. If the trustee is not deemed an owner of pre-existing land then the application of the nomination is limited. It is even more complicated if it is a fixed trust.
ADMINISTRATION LAW
SACAT’s response to Burns v Corbett provides new pathways to access justice DR SARAH MOULDS, SENIOR LECTURER, UNIVERSITY OF SOUTH AUSTRALIA
S
ince the High Court handed down its landmark administrative law decision Burns v Corbett 1 in April, 2018 administrative tribunals around the country have been grappling with the challenge of how to effectively respond to the ruling, which effectively bars state tribunals from exercising judicial power to determine a dispute between parties who are residents of different states (quarantining the resolution of such disputes to Chapter III courts). In South Australia, the role of the South Australian Civil and Administrative Tribunal (SACAT) in resolving disputes between residents of different states was further clarified in the case of AttorneyGeneral (SA) v Raschke2. In Raschke, the Full Court of the South Australian Supreme Court held that when exercising certain powers under the Residential Tenancies Act 1995 (SA) to enforce its orders or findings, SACAT was exercising judicial power, and SACAT was not a court. This meant that SACAT could not exercise these powers with respect to residential tenancies disputes involving parties who are residents of different states (typically, a local tenant and an interstate landlord). The decisions in Burns v Corbett and Raschke had immediate practical implications for how SACAT goes about resolving the 13,000 housing relating disputes it hears every year, roughly 10% of which involve local tenants renting houses owned by interstate landlords. The South Australian Parliament responded quickly by amending the Magistrates Court Act 1991 and the South Australian Civil and Administrative Tribunal Act 2013 to allow SACAT to transfer any implicated residential tenancy disputes to the Magistrates Court for determination and enforcement, thereby getting around the constitutional restrictions set out in Burns v Corbett and Raschke. It was then up to the members of SACAT to implement the process in practice, under the leadership of SACAT President Justice Judy Hughes and Executive Senior Member Barbara Johns, who has also since been appointed an Auxiliary Magistrate and has taken carriage of many of the implicated residential
tenancies disputes arising since these decisions. At first blush, it may seem that the response of the South Australian Parliament was to artificially “legalise” the process for resolving residential tenancies disputes between residents of different states. Concerns were raised that such a change could leave applicants exposed to more complex and costly legal procedures, and in greater need of legal advice. However, in practice this has not be the result in South Australia, primarily due to the practices and procedures adopted by SACAT, which offer important new opportunities to improve access to justice in other areas currently within the bailiwick of the Magistrates Court, such as small civil claims. This is because the approach authorised by the 2018 amendments to the Magistrates Court Act 1991 and the South Australian Civil and Administrative Tribunal Act 2013 and implemented by SACAT, effectively allow for proceedings transferred from SACAT to the Magistrates Court to be determined and enforced with the powers of a “court”, whilst continuing to provide applicants with a “tribunal experience”. The “court” is conveniently located at SACAT’s premises, and Auxiliary Magistrates provide the same fast, fair, low cost, informal and supported environment in resolving residential tenancy disputes as provided by Tribunal Members. “Fact sheet” information,3 developed in consultation with experts in this area including the Tenant’s Information and Advice Service (TIAS), is provided to applicants. Tenants involved in these disputes can continue to seek free support and assistance from TIAS or other support services without having to pay for legal advice or representation. To assist in this smooth transition, SACAT staff have been tasked with identifying housing matters that may involve interstate parties, although online application forms may not yet collect the full range of information necessary to quickly identify parties’ residential addresses, particularly when applications
or responses are lodged by local real-estate agents on behalf of interstate landlords. Similarly, changes could be made to the Hearing Notices issued to parties to make it clear that although the matter has been transferred to the Magistrate’s Court, the hearing will be conducted at the SACAT premises rather than in Victoria Square. This could avoid any potential confusion on behalf of unrepresented parties. Currently, this type of hybrid model - where Auxiliary Magistrates are housed within SACAT and utilise tribunal-type processes - extends only to those disputes implicated by the Burns v Corbett decision. However, given the smooth transition SACAT has been able to provide housing dispute applicants, it could be used as a model to extend to other disputes currently heard in the Magistrates Court. An alternative option would be to more closely align the powers and member appointments of SACAT with the South Australian Employment Tribunal, for example by explicitly conferring judicial power on the tribunal in court session, and making it clear that the tribunal is exercising non-judicial power in other proceedings. In Queensland4 and Victoria,5 small claims applicants already have the option to pursue a range of proceedings through the Tribunal process, with clear benefits particularly for vulnerable and selfrepresented parties. The effective response to the constitutional challenges arising from Burns v Corbett and Raschke indicates SACAT could - with the right resourcing take a leadership role in facilitating access to justice in new areas, giving more South Australians the chance to access justice in a low cost, fair, fast and informal way. B Endnotes 1 [2018] HCA 15. 2 [2019] SASCFC 83. 3 South Australian Civil and Administrative Appeals Tribunal Fact Sheet, Disputes where one party is interstate <http://www.sacat.sa.gov. au/upload/Disputes%20where%20one%20 party%20is%20interstate.pdf>. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) 2009, s 164. 5 Australian Consumer Law and Fair Trading Act 2012 (Vic) s188
June 2020 THE BULLETIN
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FEATURE
Delivering Accessible Justice through innovation ALICE ROLLS, PRINCIPAL, LIPMAN KARAS
T
he Law Council of Australia’s 2018 ‘Justice Project’ found that the Australian justice system is under-resourced and under extreme pressure. Consequently, many people are missing out on timely and effective help, increasing their risk and vulnerability. In particular, the Justice Project found that 14% of Australia’s population live below the poverty line, yet legal aid representation is only available to 8% of Australians. It also found there is almost no legal aid available for representation in civil matters, which accounted for just 2.3% of all legal aid grants in 2016-17. 1 Add to this the fact that community legal centres were unable to help nearly 170,000 people in 2015-2016 because of a lack of resources.2
THE MISSING MIDDLE The result is a sizeable group of ordinary Australians – the ‘missing middle’ – who are unable to access publicly funded legal assistance but cannot afford private legal services. How many people comprise this group is yet to be the subject of a comprehensive study. As a rough guide, it is estimated that on an annual basis, more than 490,000 Australians face this dilemma.3 The phrase ‘missing middle’ comes from a 2014 Productivity Commission Report into Access to Justice Arrangements. A significant focus of that report was the justice gap that exists ‘where people who have a meritorious case that warrants the services of a lawyer are not eligible for legal assistance or able to afford legal advice or representation’.4 Since then, addressing the lack of accessible justice for the ‘missing middle’ has been a focus of successive Presidents of the Law Council of Australia,5 but the plight of this growing cohort remains largely unaddressed.
36 THE BULLETIN June 2020
However, affordable justice will be within reach of the ‘missing middle’ when an innovative new South Australian law firm opens in August 2020.
THE ACCESSIBLE JUSTICE PROJECT The not-for-profit ‘low bono’ legal practice – The Accessible Justice Project – will aim to provide legal services at no more than a quarter of the cost of private lawyers. The project is the initiative of Lipman Karas and the University of Adelaide who, together, want to relieve pressure on Australia’s justice system and improve access to legal services. The new firm will be staffed by qualified lawyers enrolled in a new Access to Justice Master of Laws (LLM) program at the University of Adelaide. They will be managed by senior lawyers seconded from Lipman Karas. This collaboration between the private profession and a law school is an Australian first. Initially, the firm will focus on civil disputes, including debt recovery, consumer protection, property, tenancy, employment and estate disputes. Clients will pay an initial consultation fee of $80 and, if further advice is required, it will be priced transparently on a case by case basis. The new firm will endeavour to help anyone of limited means who has a civil legal problem and meets the eligibility criteria but will give priority to those in the greatest need. The new firm is registered as a charity with the Australian Charities and Notfor-profits Commission. Initial start-up costs will be met by Lipman Karas but the aim is for the not-for-profit firm to be self-sustaining over time. The ‘low bono’ fees collected will go toward meeting its operating costs, including the salaries of the LLM lawyers. An exciting aspect of the project is
the research component of the new LLM program, which will require students to complete a dissertation with a focus on innovation and access to justice. Lipman Karas and the University of Adelaide see the project as being an incubator for ideas to address factors inhibiting access to justice, a place where innovation and emerging technologies are part of the everyday conversation. Like most industries, technology is driving significant changes in law, helping lawyers to achieve substantive advantages for their clients and to do tasks more efficiently. The hope is that through innovation, collaboration and technology, justice will be more accessible to all Australians. B
Endnotes 1 Law Council of Australia, The Justice Project: Overarching Themes (Final Report, August 2018) 10. 2 National Association of Community Legal Centres, Submission to the Australian Government: Federal Budget 2018-2019 (21 December 2017) <http://www.naclc.orgn.au/cb_pages/ submissions.php>. 3 Richard Denniss, Josh Fear and Emily Millane, ‘Justice for all: Giving Australians greater access to the legal system’ (Institute Paper No 8, The Australia Institute, March 2012) 1-2: ‘Around 10% of Australians, or 1.7 million people, can expect to encounter a legal problem in any given year. In 29% of cases, or for 490,000 people each year, legal needs are likely to be unmet.’ 4 Productivity Commission, Access to Justice Arrangements (Inquiry Report No 72, 5 September 2014) Volume 2 640. 5 Morry Bailes, ‘Justice State of the Nation’ (Speech, Law Council of Australia, 14 March 2018) 3; Arthur Moses SC, ‘The hard-fought arc to justice: Opening Address to the National Access to Justice and Pro Bono Conference’ (Speech, Law Council of Australia, 14 March 2019); Michael Pelly, ‘Justice by postcode lets down the bush, says new Law Council chief ’, Australian Financial Review (online, 31 January 2020) <https://www.afr.com/politics/federal/ justice-by-postcode-lets-down-the-bush-saysnew-law-council-chief-20200130-p53vtr>.
AWARDS
Photo finish for Legal Services Commission
T
he Legal Services Commission of South Australia has been awarded first prize at this year’s national iTnews Awards ceremony in Sydney. The award was given to the Commission’s new PhotoLegal service. PhotoLegal defeated digital initiatives from New South Wales and Victoria when it won the category for Best State Government Project. PhotoLegal is a secure, on demand service for transmission of legal documents. It enables clients to securely send photos and short documents from their phones to the Commission’s Help Line staff. The development of PhotoLegal was funded by a grant from the Law Foundation and is the brainchild of the Commission’s Access Services Branch which provides
legal information and advice to members of the South Australian public. “PhotoLegal is available from any device including mobile phones. It is deliberately not an app, but a customised, encrypted, secure file transfer protocol which provides the option of preserving the anonymity of the client who is using the service,” said Mr Chris Boundy, Manager of Access Services. “Clients are guided in the use of PhotoLegal by Advisers on the telephone or in face to face appointments.” The new service has been embraced by Commission staff and clients alike, and enhances the Commission’s ability to provide immediate and directed legal information and advice to clients. Commission lawyer Ms Diana Thomas
Chris Boundy (centre) and Diana Thomas (right) after receiving the iTnews Award
has been delighted by the uptake of the service. “This original, smart digital product is designed with ease of use by clients and the protection of confidential material as the primary objectives,” she said. B
FAMILY LAW CASE NOTES
Family Law Case Notes ROB GLADE-WRIGHT CHILDREN – HAGUE CHILD ABDUCTION CONVENTION – RETURN ORDER SET ASIDE
I
n Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March, 2020) the Full Court (Ryan, Aldridge & Watts JJ) allowed the mother’s appeal from Ainslie-Wallace J’s order under the Family Law (Child Abduction) Regulations 1986 (Cth) to return to New Zealand (“NZ”) with her two children. The parties cohabited in NZ where the father had many convictions for assault and other offences for which he was imprisoned. He was violent towards the mother, was imprisoned again for assault and in 2012 for contravening a domestic violence order. Their first child was born in 2016 in Australia. The father was deported in 2017 to NZ where their second child was born. In 2019 the mother was granted orders for the children to live with her, whereupon she and the children returned to Australia. At the hearing of the father’s application for a return order, AinslieWallace J rejected the mother’s case that there was a grave risk that a return would expose the children to harm or place them in an intolerable situation pursuant to reg 16(3)(b). On appeal the Full Court set aside the return order. Ryan and Aldridge JJ (at [61]) adopted the dissenting judgment of Hale LJ in TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515: “44. … Primary carers who have fled from abuse and maltreatment should not be expected to go back to it … We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it … 57. But it cannot be the policy of the Convention that children should be returned to a country where … they are at grave risk of harm, unless they can be adequately protected from that harm. Usually, of course, it is reasonable to expect that the home country will be able to provide such protection. … 59. … [But it] would require more than
38 THE BULLETIN June 2020
a simple protection order in New Zealand to guard the children against the risks involved here … ”
PROPERTY – ORDER SET ASIDE FOR DENIAL OF PROCEDURAL FAIRNESS – UNWARRANTED JUDICIAL INTERVENTIONS In Finch [2020] FamCAFC 60 (20 March, 2020) the Full Court (Ryan, Aldridge & Tree JJ) allowed the wife’s appeal of a property order of the Federal Circuit Court. Her case was that excessive judicial intervention during the hearing denied her a fair trial. The Full Court agreed, at [14] eliciting from Galea v Galea (1990) 19 NSWLR 263 at 281-282 the following relevant legal principles: 1. T he test … is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. … 3. … whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”. … 4. … It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion … The Full Court said ([24]-[25]): “ … [I]f one deducts the 35 minutes which the impugned interventions took from the length of the cross-examination of one hour and 59 minutes, there was a total of no more than 84 minutes of cross-examination, but it was interrupted by impugned interventions 45 times, thereby meaning that counsel, on average, was interrupted nearly every two minutes. … [25] … Counsel for the wife was significantly impeded in conducting his cross-examination … ” In setting the order aside and remitting the case for rehearing, the Full Court said (from [59]): “ … [W]e conclude that [the] frequent …
interventions were … wholly unwarranted, unduly personalised, demonstrated an unfortunate entry by the primary judge into the arena, and did not adequately undo the consequences of the very forceful initial expression of a ‘preliminary view’ by the primary judge. … [66] … There is a real danger that the trial was therefore unfair, and hence miscarried.”
CHILDREN – UNILATERALLY RELOCATING MOTHER WITH INFANT ORDERED TO RETURN – UNACCEPTABLE RISK OF HARM REJECTED In Tandy & Eastman [2020] FCCA 541 (19 February, 2020) Judge Young heard the father’s application for the return of a 20 month old child (“X”) who was removed from Darwin to City B by the mother. The mother moved to Darwin to live with the father in 2015. They married in 2017, X was born in 2018 and they separated in 2019. The mother was the child’s primary carer although the father deposed that after separation he was spending “two or three nights a week with the child and some … times on the weekend” (at [9]). The mother alleged family violence. Judge Young said (from [23]): “ … [T]he mother has also annexed … SMS conversations between her and the father [in which] some of the father’s language is boorish, immature and angry and might be interpreted as him reflecting his feelings about the parties’ relationship breakdown. However, the language was not threatening. [24] … I consider that the mother’s family violence claims are not particularly forceful or compelling. … [25] … While I accept that there have been unpleasant and distressing … verbal exchanges … I am not satisfied that there is any unacceptable risk of harm to the mother or to the child resulting from family violence.” In ordering the mother to return with the child to Darwin, Judge Young concluded (at [40]-[41]): “I do not propose to make time orders.
FAMILY LAW CASE NOTES
I think it is appropriate that the parties discuss this themselves. But I would expect … that the child spend substantial and significant time with the father. Whether the material would justify an equal time arrangement … I am far from sure about: again I would expect the parties to discuss that. I don’t have any concluded view about that and I haven’t heard submissions. … [T]here was some reference … to whether … the mother had a car, should she return to Darwin. … [I]f the mother is to return I expect her to be provided with a motor car, and a serviceable one at that.”
CHILDREN – CONTRAVENTIONS FOUND PROVED BUT COSTS ORDER MADE AGAINST APPLICANT In Adam & Tan [2019] FamCA 964 (13 December, 2019) Carew J heard an application by a father against a mother alleging contraventions of a parenting order. The mother and their 11-year-old child lived overseas. The father (who lived in Australia and communicated with the child by app on Sundays) alleged that the
mother contravened the order by failing to facilitate telephone contact with him without reasonable excuse and not giving him 60 days’ notice of the child’s proposed travel from Country B (where the child lived) to Country D for a weekend. The mother emailed notice two hours before departure, despite obtaining a travel visa two weeks earlier. Those contraventions were found proved but other contravention applications were dismissed. Carew J said (from [40]): “I have found that the mother contravened … the … order without reasonable excuse by failing to provide the required notice prior to travel. However, I do not intend to impose any sanction … The application by the father was, in my view, petty and unwarranted. [41] I have found that the mother contravened … the … order without reasonable excuse on 2 June 2019 by failing to ensure the child was made available for the father’s communication. However, I do not intend to impose any sanction. The mother was told by the child that the father had not called her (although she was mistaken) and, upon becoming aware of the
father’s difficulties with contacting the child, the mother has taken steps … to remedy the situation. The child now calls the father on Sundays … In my view this application was also petty and unwarranted. … [43] The father has been substantially unsuccessful. While two counts … have been found in his favour I have not imposed any sanction or made any order. … [44] The father also opposed the mother giving her evidence by electronic means, which required a separate hearing and the father’s objection was dismissed. … [47] I consider that an order for costs against the father is warranted in the circumstances of this case. … [T]he father has been at least substantially and arguably wholly unsuccessful in that not only were most of the alleged contraventions dismissed, the two that were established did not attract any sanction against the mother nor variation to the … order. I have found the father’s conduct in relation to the proceedings to have been petty and unwarranted.” It was ordered that the father pay $2,750 towards the mother’s costs. B
Tendering social media content as evidence (cont from pg 11) Endnotes 1 Over 2.5 billion monthly active users in the fourth quarter of 2019, Statista, Facebook: <https:// www.statista.com/topics/751/facebook/> (accessed 30 March 2020). 2 Around 330 million monthly active users in the first quarter of 2019, Statista, Twitter: <https:// www.statista.com/statistics/282087/number-ofmonthly-active-twitter-users/> (accessed 30 March 2020). 3 Around 1 billion monthly actives in 2019, Statistica, Instagram: <https://www.statista.com/ topics/1882/instagram/> (accessed 30 March 2020). 4 Around 660 million users in 2020)LinkedIn website: < https://about.linkedin.com/?#> (accessed 30 March 2020). 5 [2015] FCA 1110 at [131]. 6 The Hon. T. F. Bathurst, Chief Justice of New South Wales, Tweeters, Posters and Grammers beware: Discovery and social media, 10th Information Governance & e.discovery Summit, 21 June 2016 7 [2015] FCCA 943. 8 Ibid at [28]. 9 The Hon. Justice Stephen Estcourt AM, “Social Media as Evidence”, New Technology and Trial Practice Workshop”, Supreme Court of Tasmania, Speeches, Port Moresby, 18-20 March
2019, https://www.supremecourt.tas.gov.au/ publications/speeches-articles/social-media-asevidence/ (accessed 13 October 2019). 10 [2012] FCA 1355. 11 [2014] FCA 1400. 12 [2017] FCCA 128. 13 at [39]. 14 Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186; Migliore Pty Ltd v Kelly McDonald (2013) 236 IR 160; Winship v Corporation of the Town of Walkerville [2015] SAIRComm 9; Starr v Department of Human Services [2016] FWC 1460); Remmert v Broken Hill Operations Pty Ltd [2016] FWC 6036; Little v Credit Corp Group Limited [2013] FWC 9642; and Banerji v Bowles [2013] FCCA 1052. 15 1412207 (Refugee) [2016] AATA 3813 (27 April 2016); 1420239 (Refugee) [2016] AATA 4018; AHL15 & Anor v Minister for Immigration & Anor [2017] FCCA 232; SZUMY v Minister for Immigration & Anor [2015] FCCA 1482. 16 Offenback v. Bowman, a No. 1:10-cv-1789, 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011). 17 Tomkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012. 18 Barnes v CUS Nashville, LLC 2010 WL 2265668 (M.D. Tenn. June 3, 2010). 19 Largent v Reed Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011).
20 British American Tobacco Australia Services Limited v Cowell (2002) 7 VR 524; [2002] VSCA 197; BC200207341. 21 Lester v. Allied Concrete Co., 2011 Va. Cir. LEXIS 245 (Va. Cir. Ct. 2011 Sept. 6, 2011); see also Scott McConchie, Social Media and Spoliation – Can a Client Delete Her Facebook Posts?, National Law Review, 29 September 2014; http://www.natlawreview.com/ article/social-media-and-spoliation-can-clientdelete-her-facebook-posts. 22 The Hon. T. F. Bathurst, Chief Justice of New South Wales, Tweeters, Posters and Grammers beware: Discovery and social media, 10th Information Governance & e.discovery Summit, 21 June 2016 23 Ibid. 24 Roux v Australian Broadcasting Commission [1992] 2 VR 577; Commissioner of Taxation (Cth) v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499; Reid v Langlois (1849) 1 Mac & G 627; 41 ER 140. 25 B v B [1978] Fam 181; [1979] 1 All ER 801; Psalidis v Norwich Union Life Australia Ltd (2009) 29 VR 123 26 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2001] QSC 259 (18 July 2001); note this matter was appealed to the High Court on another point. 27 [2015] NSWDC 411. 28 Microsoft Corporation v United States of America Case 14-2985, Document 286-1, 07/14/2016, 1815361.
June 2020 THE BULLETIN
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BOOKSHELF
LAWYER DISCIPLINE
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40 THE BULLETIN June 2020
Abstract from LexisNexis Written by experts in building and construction law, Brooking on Building Contracts provides litigators and contractors with reliable and practical information on disputed building and engineering contract matters. This sixth edition examines contemporary issues and practices and includes all the recent cases of
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GAZING IN THE GAZETTE
3 APRIL – 2 MAY 2020 ACTS PROCLAIMED Correctional Services (Miscellaneous) Amendment Act 2018 (No 28 of 2018) Commencement remaining provisions: 9 April 2020 Gazetted: 9 April 2020, Gazette No. 30 of 2020 Landscape South Australia Act 2019 (No 33 of 2019) come into operation on 9 April 2020: Commencement ss 28; 29; 36-39; 41; 51; 61; 66; 69; 71; 76; 88; 89; 93(3); 102; Sch 2 cl 1, 3, 4; Sch 5 cl 95(3)(6) Designated day for Sch 5, cl 94: 9 April 2020 Gazetted: 9 April 2020, Gazette No. 30 of 2020 Evidence (Reporting on Sexual Offences) Amendment Act 2020 (No 2 of 2020) Commencement: 7 May 2020 Gazetted: 23 April 2020, Gazette No. 34 of 2020
ACTS REPEALED Water Resources Act 1997 Repeal of Parts 1 and 8: 9 April 2020 Gazetted: 9 April 2020, Gazette No. 30 of 2020 Married Persons (Separate Legal Status) Act 2019 (No 48 of 2019) Commencement: 1 May 2020
A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA
Gazetted: 30 April 2020, Gazette No. 35 of 2020 Statutes Amendment (Legalisation of Same Sex Marriage Consequential Amendments) Act 2019 (No 46 of 2019) Commencement Part 7 (other than s 18) 1 July 2020 Commencement s 18: immediately before Sch 1 cl 10 of Surrogacy Act 2019 Commencement remaining paragraphs: 1 May 2020 Gazetted: 30 April 2020, Gazette No. 35 of 2020
Supreme Court of South Australia Puisne Judge Court of Appeal of South Australia Judge from 4 May 2020 Christopher David Bleby SC Gazetted: 30 April 2020, Gazette No. 35 of 2020 Solicitor-General commencing on 3 August 2020 Michael Jonathan Wait SC Gazetted: 30 April 2020, Gazette No. 35 of 2020
ACTS ASSENTED TO
REVOCATION OF APPOINTMENT
COVID-19 Emergency Response Act 2020, No. 7 of 2020 (amends Emergency Management Act 2004, Payroll Tax Act 2009 and South Australian Public Health Act 2011). Gazetted: 9 April 2020, Gazette No. 30 of 2020
Solicitor-General effective from 4 May 2020 Christopher David Bleby SC Gazetted: 30 April 2020, Gazette No. 35 of 2020
APPOINTMENTS Magistrates Court Judicial Registrar on a part-time basis for a term of seven years commencing on 10 April 2020 and expiring on 9 April 2027 Ashley David Files Joanne Bakas Gazetted: 9 April 2020, Gazette No. 30 of 2020
RULES Magistrates Court Rules 1992 Amendment 83 Gazetted: 9 April 2020, Gazette No. 30 of 2020
REGULATIONS PROMULGATED (3 APRIL 2020 – 2 MAY 2020) REGULATION NAME
REG NO. DATE GAZETTED
Freedom of Information (General) (SACAT Principal Officer) Variation Regulations 2020
39 of 2020
9 April 2020, Gazette No. 30 of 2020
Correctional Services (Drug and Alcohol Testing) Variation Regulations 2020
40 of 2020
9 April 2020, Gazette No. 30 of 2020
Landscape South Australia (Transitional Provisions) (Miscellaneous) Variation Regulations 2020
41 of 2020
9 April 2020, Gazette No. 30 of 2020
Development (Schedule 9) Variation Regulations 2020
42 of 2020
9 April 2020, Gazette No. 30 of 2020
Cost of Living Concessions (COVID-19 JobSeeker Household Payment) Variation Regulations 2020
43 of 2020
9 April 2020, Gazette No. 30 of 2020
Development (Public Health Emergency) Variation Regulations 2020
44 of 2020
9 April 2020, Gazette No. 30 of 2020
COVID-19 Emergency Response (Schedule 1) Regulations 2020
45 of 2020
14 April 2020, Gazette No. 31 of 2020
COVID-19 Emergency Response (Commercial Leases) Regulations 2020
46 of 2020
16 April 2020, Gazette No. 32 of 2020
COVID-19 Emergency Response (Section 16) Regulations 2020
47 of 2020
20 April 2020, Gazette No. 33 of 2020
COVID-19 Emergency Response (Section 17) Regulations 2020
48 of 2020
20 April 2020, Gazette No. 33 of 2020
Work Health and Safety (Prescription of Fee) Variation Regulations 2020
49 of 2020
30 April 2020, Gazette No. 35 of 2020
Gaming Machines Regulations 2020
50 of 2020
30 April 2020, Gazette No. 35 of 2020
Genetically Modified Crops Management (Designation of Area No 2) Variation Regulations 2020
51 of 2020
30 April 2020, Gazette No. 35 of 2020
LawCare
The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems. If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you. Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse. The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year. All information divulged to the LawCare counsellor is totally confidential. To contact Dr Jill 08 8110 5279 8am-8pm, 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher
June 2020 THE BULLETIN
41
CLASSIFIEDS
VALUATIONS
Providing practical, cost-effective investigation services in SA
MATRIMONIAL
Workplace Investigation General Insurance Workers Compensation Factual Investigation Surveillance Skip Tracing Process Serving
DECEASED ESTATES INSURANCE TAX REALIGNMENT INSOLVENCY FURNITURE ANTIQUES, COLLECTIONS BUSINESS ASSETS MACHINERY MOTOR VEHICLES CARS, BOATS, PLANES
6 Todd Street, Port Adelaide SA 5015 admin@hhriskservices.com.au 08 8440 2436 www.hhriskservices.com.au
VALUER Commercial & Residential Real Estate Matrimonial Deceased Estates Rentals etc. Experienced Court Expert Witness
CITY & COUNTRY ROGER KEARNS Ph: 08 8342 4445 FAX: 08 8342 4446 MOB: 0418 821 250 E: auctions@senet.com.au Certified Practising Valuer NO.346 Auctioneers & Valuers Association of Australia
Liability limited by a scheme approved under Professional Standards Legislation
JANET HAWKES
Forensic Accounting Simple, clear, unbiased advice, without fear or favour.
t. +61McPharlin 8 431 80 82 FCA Hugh
Andrew Hill Investigations
Andrew Hill Investigations
ABN 68 573 745 238 Investigating: • workplace conduct • fraud • unprofessional conduct • probity Support services: Andrew Hill • forensic computing analysis • transcription services • information sessions, particularly for HR practitioners on the investigative process • policy development. PO Box 3626
d m.+61 8139 1130 +618401 712 908 m +61 419 841 780 e. ahi@andrewhillinvestigations.com.au e hmcpharlin@nexiaem.com.au w nexiaem.com.au
NORWOOD SA t. 5067 +61
8 431 80 82 m. +61 401 712 908 e. ahi@andrewhillinvestigations.com.au Fellow AIPI
Consulting Engineers Australian Technology Pty Ltd for expert opinion on: • Vehicle failure and accidents • Vehicle design • Industrial accidents • Slips and falls • Occupational health and safety • Statistical analysis W. Douglass R. Potts MAOQ, FRAI, FSAE-A, FIEAust, CPEng, CEng, FIMechE
8271 4573 0412 217 360
Cert. Practising Valuer, AAPI 0409 674 122 janet@gaetjens.com.au
wdrpotts@gmail.com
Licensed Investigation Agents & Process Servers Servicing the Mid North, Yorke & Eyre Peninsula`s and Outback of South Australia with: • Process Serving • Property Lockouts • Investigations • Missing Persons
OUTBACK BUSINESS SERVICES
P.O. Box 591, PORT AUGUSTA. 5700 P: 0418 838 807 info@outbackbusinessservices.com.au
Family Law - Melbourne
CONSULTING ACTUARIES
LITIGATION ASSISTANCE FUND The Litigation Assistance Fund (LAF) is a non-profit charitable trust for which the Law Society acts as trustee. Since 1992 it has provided funding assistance to approximately 1,500 civil claimants. LAF receives applications for funding assistance from solicitors on behalf of civil claimants seeking compensation/ damages who are unable to meet the fees and/or disbursements of prosecuting their claim. The applications are subjected to a means test and a merits test. Two different forms of funding exist – Disbursements Only Funding (DOF) and Full Funding. LAF funds itself by receiving a relatively small portion of the monetary proceeds (usually damages) achieved by the claimants whom it assists. Claimants who received DOF funding repay the amount received, plus an uplift of 100% on that amount. Claimants who received Full Funding repay the amount received, plus 15% of their damages. This ensures LAF’s ability to continue to provide assistance to claimants. LAF recommends considering whether applying to LAF is the best course in the circumstances of the claim. There may be better methods of obtaining funding/ representation. For example, all Funding Agreements with LAF give LAF certain rights including that funding can be withdrawn and/or varied. For further information, please visit the Law Society’s website or contact Annie MacRae on 8229 0263.
42 THE BULLETIN June 2020
Estate & Downsizing Services • • • •
Packing Up Home Contents Rubbish Removal Donations Organised Auction sale of Contents Vehicles - Antiques
Servicing Metro and Regional South Australia
0411 554 262 ajcolman.com.au
Forensic Accountants We provide expert advice in: • Litigation Support • Business Valuations • Financial Investigations Contact: Michael Rosner (03) 9596 9101 or 0418 554 559 mr@experiencecounts.com.au www.experiencecounts.com.au
ABN 56 899 839 477
Marita Bajinskis
formerly of Howe Martin & Associates is a Principal at Blackwood Family Lawyers in Melbourne Marita is an Accredited Family Law Specialist and can assist with all family law matters including: • • • •
matrimonial and de facto property settlements superannuation children’s issues
3/224 Queen Street Melbourne VIC 3000 T: 03 8672 5222
Marita.Bajinskis@ blackwoodfamilylawyers.com.au www.blackwoodfamilylawyers.com.au
FOR PROFESSIONAL ACTUARIAL ADVICE ON
- Personal Injury - Workers Compensation - Value Of Superannuation Contact
Geoff Keen or Bruce Watson 08 8232 1333 contact@brettandwatson.com.au
Ground Floor 157 Grenfell Street Adelaide SA 5000
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