Law Society Bulletin - June 2022 by lawsocietysa

THE

BULLETIN VOLUME 44 – ISSUE 5 – JUNE 2022

THE LAW SOCIETY OF SA JOURNAL

IN THIS ISSUE

Travel insurance & covid Travelling with animals Space traffic management

TRAVEL

The Legal Practice Productivity Solution Law firms using LEAP enjoy all the benefits of a state-of-the-art practice management system, as well as legal accounting, document assembly & management, and legal publishing assets all in one integrated solution.

Document Assembly & Management

Legal Accounting

Practice Management

Legal Publishing

This issue of The Law Society of South Australia: Bulletin is cited as (2020) 44 (5) LSB(SA). ISSN 1038-6777

CONTENTS TRAVEL

FEATURES & NEWS

6 Travel insurance claims during Covid-19: An insurance lawyer’s guide By Marcus Vella

20 Increasing the Participation of Persons with Mental Health Disabilities in Involuntary Mental Health Treatment Decision-Making By Dr Susan Peukert

8 How will the new COVID management laws work? By Nathan Ramos 10 Travelling with assistance animals: can service be refused? – By Jillian Smith 14 Travelling with pets: what the law says By Jillian Smith 18

S pace traffic management: Essential yet elusive? – By Dr Matthew Stubbs

24 An Analysis of the Law Society of South Australia’s Cloud Computing Guidelines: Data Security By Mark Ferraretto 27 Lucinda Byers appointed Chief Legal Officer of Legal Services Commission

5 From the Editor

R Sandford M Mackie E Shaw

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

30 Young Lawyers: Justice Stein imparts career lessons at Young Lawyers’ Premium Breakfast By Adam Hamilton & Lungaka Mbedla 31 Wellbeing & Resilience: The burnout era – By Sarah El Sayed

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

Bookshelf

33 Tax Files: Trust reimbursement arrangements – By Stephen Heath

4 President’s Message

J Stewart-Rattray J Marsh A Lazarevich M Tilmouth F Bell

28 Family Law Case Notes By Craig Nichol & Keleigh Robinson

REGULAR COLUMNS

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

26 Risk Watch: A new case on legal professional privilege and former clients – By Grant Feary

34 Gazing in the Gazette Compiled by Master Elizabeth Olsson

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

Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions. PUBLISHER/ADVERTISER Boylen GPO Box 1128 Adelaide 5001 Ph: (08) 8233 9433 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Elliott Layout: Henry Rivera Advertising Email: sales@boylen.com.au

FROM THE EDITOR

IN THIS ISSUE Have you considered a tree change? MICHAEL ESPOSITO, EDITOR

his travel themed edition of the Bulletin roughly coincides with the significant uptick in interstate and overseas travel after almost two years of tight border restrictions. For those who are planning to travel in the near future, the article by Marcus Vella on travel insurance and the extent to which COVID-19 related disruptions may be covered is very useful. During the border restrictions, many South Australians took the opportunity to discover different parts of their own State, eliciting a newfound appreciation for the numerous charms that exist in their own backyard. One silver lining to this whole pandemic was that it gave regional remote and rural parts of South Australia the opportunity to shine in front of a new audience of South Australians who might have otherwise holidayed interstate. It may have even convinced some people to make a permanent tree change. There’s a lot to recommend about living in the country, and Port-Lincoln based lawyer Kate McShane talks up the benefits of working in the country. We are all aware of struggles faced by jobseekers due to the huge numbers of law graduates coming through law schools, yet a number of regional law firms and organisations are crying out for lawyers. If you like the idea of work-life

4 THE BULLETIN June 2022

14 balance, easy commutes, being in a tightknit community and being surrounded by nature’s beauty, working in the country may be something worth considering. Choosing the right trust accounting software Practitioners are reminded that the Society’s website contains a list of trust accounting software packages that are operational in South Australia. The list can be accessed at the following link: https://www.lawsocietysa. asn.au/pdf/Trust%20account%20 software%20schedule%202021.pdf When choosing a trust accounting package, practitioners should evaluate their trust accounting needs and consider matters such as licensing fees, security, compatibility, usability and data access. Practitioners should also be mindful of any contract terms relating to transitioning out of one platform to another, particularly with regards to client data access and exit costs. It is important that practitioners ensure their trust accounting software meets all regulatory requirements. For more information about computerised trust accounting regulatory requirements, click here: https://www.lawsocietysa.asn. au/Public/Lawyers/Operating_a_Legal_ Practice/Trust_Accounting_Management_ Online_Resource/TASoftware.aspx B

TRAVELLING WITH PETS What the law says on pets in vehicles

MENTAL HEALTH TREATMENT Empowering participation for people with disabilities

PROTECTING DATA SECURITY Cloud computing guidelines for practitioners

PRESIDENT’S MESSAGE

Society busy scrutinising new Government’s legislative agenda JUSTIN STEWART-RATTRAY, PRESIDENT

t’s hard to believe we already almost half way through the year! I must say I am pleased that the bombardment of State and Federal political advertisements is behind us, and our Parliaments can get on with governing. Due to the State Election, State Parliament did not sit until 3 May, meaning the Law Society had to wait to get its teeth into one of its most important roles – to advocate and comment on proposed legislation. What started as a slow year in that respect has really shifted into top gear since the recently elected State Government took power. The Government has introduced some significant Bills that the Society has closely analysed and provided commentary on. Ideally, the Government and other parties would allow the Society sufficient time to consult and provide comprehensive responses to proposed law reforms. However this does not always happen and we are working with these parties to ensure that the Society is consulted properly on legislation. Just some of the notable issues that the Society has provided submissions on include: • State Budget Submission, outlining the Society’s key priorities for investment in the legal profession and justice system. • Return to Work (Permanent Impairment Assessment) Amendment Bill 2022, which would substantially

•

impact entitlements for workers who suffer subsequent injuries resulting from the original workplace injury. The Society's submission assessed the impact to injured workers of provisions that would alter the method to determine whole person impairment, warned about the impact of the transitional provisions, and urged proper consultation before attempting to pass the Bill. The South Australian Public Health (COVID-19) Amendment Bill 2022, which has since passed the Parliament and brings the State’s ongoing COVID-19 response under the South Australian Public Health Act 2011 (SA), replacing the state of emergency. The Society noted concern at the uncertain scope of the now permanent feature of public health legislation enabling the Governor to make directions relating to COVID-19 positive cases and “close contacts”. A letter to the Minister for Health and Wellbeing to request some detail as to why the commencement of the Termination of Pregnancy Act 2021 (SA) appears to have stalled, citing concerns of the Women Lawyers’ Committee as to the implications this may be having for women accessing abortion care. The Criminal Law Consolidation (Human Remains) Amendment Bill 2022, seeks to create four standalone offences which relate to dealing with

human remains. Some concern was noted at the prospect of an offence where a person finds human remains and fails to report it to a police officer, carrying a maximum penalty of five years’ imprisonment. • The expiry of various Regulations, particularly the Criminal Law (Clamping, Impounding Forfeiture of Vehicles) Regulations 2007, in relation to which the Society raised and reiterated its previous advocacy and concern about the arbitrariness of the changes to the vehicle confiscation regime introduced in 2021. • The Society will also be involved in the SA Law Reform Institutes’s (‘SALRI’) review of the Ageing and Adult Safeguarding Act. SALRI plays an important part in the major law reform process and the Society welcomes the opportunity contribute to SALRI’s reviews. Lastly, I congratulate the Hon Kyam Maher MLC for his appointment as State Attorney General. I have had the opportunity to meet with him and I am very pleased that Mr Maher has accepted our invitation to attend the July meeting of the Law Society Council. I am very much looking forward to hearing what the Attorney’s legislative agenda is, and for the opportunity to seek his thoughts on some of the Society’s key advocacy issues. B June 2022 THE BULLETIN

FEATURE

Travel insurance claims during Covid-19: An insurance lawyer’s guide MARCUS VELLA, ASSOCIATE, GILCHRIST CONNELL

o the world is opening up again. After months of late nights working from home, dialling into court hearings at the breakfast table, and swearing affidavits over Zoom, perhaps, like me, you are now finally daring enough to swap your top-half-only suit and curated video-call background for a comfy pair of travel pants, to jet off far and wide across Australia or further abroad. Brimming with optimism, you pack your bags, brave the apocalyptic airport lines, and reach your flight in time to gleefully heed the airline’s advice to put your phone on aeroplane mode for everyone’s safety, and not to avoid the steadily expanding pile of work emails filling your inbox. Just as you think you’ve made it, and the unpredictable death trap of travelling during a pandemic appears to have been finally overcome, Covid-19 has other ideas. That’s exactly what happened to me, a Sydney-based insurance lawyer, when my partner contracted Covid-19 on our trip to Queensland for a wedding. Unfortunately, with nearly 50,000 confirmed cases of Covid-19 across Australia each day and rising, odds are that something similar may happen to you. But, as a cautious, forward-thinking intellectual, you will have planned ahead and purchased travel insurance. Doing so might just save you in the event of a claim.

WHAT COVID-19 LOSSES MAY BE COVERED? As with all insurance contracts, the specific terms of your travel policy are key. Commonly, travel policies exclude cover

6 THE BULLETIN June 2022

for loss arising from Covid-19. However, many travel insurers now offer a limited optional cover when Covid-19 impacts on your travel plans. The nature and scope of cover can vary significantly between policies and insurers, and between domestic and international travel. It is important that you closely review the full terms, conditions, limits and exclusions of the insurance policy you intend to purchase. Where Covid-19-related cover is available, it is often limited cover that triggers only if you or someone you are travelling with contracts Covid-19 within a certain period before or during your journey. Some policies may also provide cover if you are a close contact and therefore unable to travel. In those circumstances, cover may not be available where the travel provider cancels their services for reasons incidental to Covid-19, such as changes in border restrictions or staff isolation requirements. Even if you or your travel partner contract Covid-19 within the covered period, only certain losses may be the subject of the limited cover. Some Covid-19 policies only cover medical and repatriation (i.e. flying you back home) costs, whereas others, usually for additional premium, will provide limited cover for consequential loss flowing from the illness, such as quarantine or isolation costs, and the costs of wasted tours at your intended destination. I have three key personal tips: 1. Closely read the definitions in your policy. In some policies, cover may be limited to either you or a spouse, de facto or dependant contracting

Covid-19. Such policies may not respond if you are travelling with friends and one of them contracts the virus. 2. If your policy provides cover for the cancellation of pre-booked flights, accommodation or tours due to Covid-19, it will often only respond if no refund or credit is available after you request that. Check with each of your travel providers, or your travel agent, what refund and credit policies apply to you, so you don’t end up with a series of six-month credits that may be of little practical use to you. 3. Don’t wait until the last minute to buy insurance, because some insurers will only cover you if someone contracts Covid-19 and the policy was purchased more than 21 days before your scheduled departure date.

SO, YOU’VE CAUGHT COVID-19 WHILE TRAVELLING, WHAT NOW? Under many policies, contracting Covid-19 is considered a medical emergency, so once you suspect you have Covid-19 or have tested positive, your first step should be to call your travel insurer’s medical emergency hotline. Most travel insurers have 24-hour hotlines to help you manage your claim and, importantly, it will be the most useful source of information for meeting the requirements of your policy. Take the name of the person assisting you and keep a note of the time and date of the call and all steps your insurer requires of you. Here are a few helpful questions to ask your insurer:

FEATURE

•

What level of Covid-19 testing is required by the insurer? Some insurers will only cover you if you are ‘medically diagnosed’ with Covid-19. In practice, this may mean you must test positive on a polymerase chain reaction (PCR or RT-PCR) test, as opposed to a more widely available rapid antigen test (RAT). In reality, that can be logistically difficult if you are stranded in a foreign place with no car or nearby PCR testing site. If so, ask whether a positive RAT is sufficient in the circumstances or seek pre-approval from your insurer to cover your costs of getting to a PCR testing centre. How long do you have to submit the claim? Many travel policies have a time period within which you must submit your claim form to obtain cover. In some circumstances, you may be required to submit your form, plus all supporting documentation, within 28 days of testing positive. That can be a tall order if, for half those days, you feel tired, unwell and incapable of braving the hours of airline hold music required to obtain your refund or credit, all while figuring out exactly how you will now get home to your own bed. Ask whether the time period starts from the day you arrive home or the date of your test and, if in doubt, submit the claim form within the earliest of the two times and tell the insurer your supporting documents are forthcoming. Many insurers allow more time to submit claims, if required in the circumstances.

Always keep all confirmation emails, tax invoices, and records of payment in a single place, ready to submit with your claim form. As tempting as it can be to leave your laptop at home while you travel, it’s best to have it with you to help you navigate the claim.

•

LEGAL AVENUES IF YOUR POLICY WON’T RESPOND If you consider your claim has been incorrectly declined, your first avenue of recourse is to submit an internal complaint to your insurer, which must be handled in accordance with the insurer’s internal dispute resolution (IDR) processes. Ensure you are aware of your rights under your insurer’s IDR policy and, for signatory insurers, the Insurance Council of Australia’s General Insurance Code of Practice. If you remain of the view that cover has been incorrectly declined after exhausting the IDR process, there are several alternative avenues available to you. • Lodge a complaint with the Australian Financial Complaints Authority (AFCA). All travel insurers operating in Australia are APRA regulated and all must engage properly with any external complaint lodged with AFCA. AFCA is a consumer-focused complaints handling ombudsman that has the power to compel your travel insurer to honour their obligations under your policy and the Insurance Contracts Act 1984 (Cth). • If your dispute is with an airline, lodge a complaint with the Airline Customer Advocate, which can step in when

•

a dispute involves air travel services arranged through a participating airline (currently Jetstar, Qantas, Virgin Australia and Rex). If you believe other service providers are responsible for your loss, consider lodging a complaint with them directly. They may include tour operators, accommodation providers and travel agents. Each service provider may or may not have formal dispute resolution processes. Obtain legal advice. If you cannot resolve your complaint through informal or formal dispute resolution processes, or you simply want the benefit of legal advice and representation through those processes, you may wish to seek advice from a suitably qualified lawyer. They can advise you on your rights and obligations, and the appropriate method of resolving the dispute. It is important to note there may be time limits in which you can lodge complaints or bring legal actions, so seek advice as early as practicable.

The views expressed in this article are the author’s own, not those of the law firm Gilchrist Connell. Marcus Vella is a member of the Australian Insurance Law Association and the article was written as an AILA member. The article is a summary of information on the subject matter covered. The information is not intended to be nor should it be relied on as legal or any other type of professional advice. For more information, please contact Marcus Vella (mvella@gclegal.com.au). B June 2022 THE BULLETIN

PUBLIC HEALTH LAW

How will the new COVID management laws work? BY NATHAN RAMOS, POLICY OFFICER, LAW SOCIETY OF SA

here has been significant media coverage in recent weeks about changes to legislation in the Parliament which deals with the State’s ongoing response to COVID-19. As with anything related to the pandemic, it captures the public’s attention significantly. However, given the relative speed at which the changes have become law and therefore the limited time to consider and evaluate potential consequences, their full impact may not yet be fully realised. This explainer seeks to respond to some likely questions about how the State’s approach to COVID-19 has changed in recent weeks, with the end of the state of emergency and ongoing pandemic management via the South Australian Public Health Act 2011 (SA).

FROM A LEGAL STANDPOINT, HOW HAS THE SITUATION CHANGED WITH RESPECT TO THE STATE’S ONGOING RESPONSE TO COVID-19? The two key pieces of legislation to keep in mind are the Emergency Management Act 2004 (SA) (“the Emergency Management Act”) and the South Australian Public Health Act 2011 (SA) (“the Public Health Act”). Back in March 2020, as a result of the unfolding pandemic situation, Police Commissioner Grant Stevens declared an emergency under the Emergency Management Act. This Act confers significant power on the Police Commissioner to declare an emergency and, during an emergency, make broadranging directions by which the general public is required to comply. Prior to 24 May 2022 the State’s ongoing COVID-19 response, which included the many restrictions on our day to day lives, was managed under the Emergency Management Act. This means the lockdowns, density caps, isolation/ quarantine requirements and CovidSAfe Check-in were all technically enabled by this important piece of legislation. This state of emergency was ended

8 THE BULLETIN June 2022

on 24 May 2022 and the ongoing management of the pandemic was transferred to the Public Health Act, which is South Australia’s primary public health legislation. This Act was amended for this purpose by the State Parliament in May, leading up to the end of the declared emergency, noting the Government had committed to doing so. Practically, this means that although there is a direction which has implications for the daily lives of many South Australians (though to a lesser extent than previous directions), the declared emergency and the Police Commissioner’s extraordinary powers are no more. Now the Governor, rather than the Police Commissioner, will make the directions into the future as advised by the Emergency Management Council, being a sub-committee of Cabinet.

WHAT DOES THE NEW LEGISLATION DO? The South Australian Public Health (COVID-19) Amendment Bill inserts Part 11A into the Public Health Act. This provides the Governor with the power to enforce directions relating to • individuals who have tested positive to COVID-19; and • “close contacts” as defined within the direction. As a result of this, the scope of directions (which are made by the Governor and not the Police Commissioner) has narrowed significantly because they can only relate to the two categories above. But it is also important to remember that until this point in time, all directions have been made pursuant to an unprecedented and temporary declared emergency, rather than via public health legislation

SO, IS THE EMERGENCY SITUATION OVER? Sort of. While the declared emergency under the Emergency Management Act has expired, the most recent direction made under that Act still applies. The Emergency Management

(COVID-19 Requirements) (Consolidated Measures) Direction 2022 came into effect on 23 May 2022 and was made in the context of a declared emergency under the Emergency Management Act. The following day, the state of emergency (and the ability to make such directions), expired. The previous direction remains in force under the amended Public Health Act, despite likely exceeding the scope of directions permitted under that Act (which must relate to COVID-19 positive and close contacts). The arrangements made by the current direction which appear to be beyond that scope include: • mandatory mask wearing in certain circumstances; • obligations for certain places to have in place a COVID Safe Plan; and • obligations for some places to use an approved contact tracing system and records. While the emergency situation is certainly over from a technical perspective, practically, the same arrangements that were in place at the time the emergency declaration was about to expire apply now and can continue to apply for a maximum period of six months. The penalties for refusing, or failing to comply with a direction appear to replicate those in the Emergency Management Act. Should broad ranging directions (such as mask wearing) be required after six months has elapsed, the amended Public Health Act may not be sufficient to manage the pandemic. It could be necessary in such circumstances to further amend legislation, or revert to the Emergency Management Act and declare another emergency under that Act to manage the ongoing pandemic situation.

HOW CAN A DIRECTION MADE UNDER THE DECLARED EMERGENCY (WHICH HAS NOW LAPSED), BE RETAINED UNDER THE NEW ARRANGEMENTS? This is the result of the transitional provisions for the amendments to the Public Health Act, which ensure a relevant

PUBLIC HEALTH LAW

direction made under the Emergency Management Act, at the cessation of the last relevant emergency declaration, continues in force as a direction under the Public Health Act. In other words, a direction made under the previous arrangement is effectively validated by the amended Public Health Act and remains in force. However, it can only remain in force for six months, due to a time limit set out elsewhere in the Public Health Act. Transitional provisions are often included in amended legislation, to ensure a smooth transition for when the changes commence.

HOW WERE THE AMENDMENTS TO THE PUBLIC HEALTH ACT SHAPED BY PARLIAMENTARY DEBATE? Some significant amendments were made to the Bill in the Legislative Council to include some more oversight and transparency in the amendments to the Public Health Act. The changes included: • clarification as to which existing principles within the Public Health Act apply to the new COVID-19 arrangements incorporated in the Public Health Act by the Bill; • the establishment of the COVID-19 Direction Accountability and Oversight Committee, being a Parliamentary Committee tasked with oversight of directions made under the new arrangements; and • the rights of a person to apply for review of a direction made under the amended Public Health Act if it

is a direction to isolate or quarantine at a place other than their place of residence or another location chosen by that person.

WHAT DOES THE LAW SOCIETY THINK OF THESE AMENDMENTS AND, SUBSEQUENTLY, THE FINALISED AMENDMENTS TO THE PUBLIC HEALTH ACT? The Society had provided a submission, at the request of the opposition, in relation to the Bill shortly after it was tabled in Parliament. The general theme of the Society’s initial position on the amendments to the Public Health Act was that the scope of some of the changes proposed was concerningly opaque. Much of this lack of clarity lay in the open-ended definition of “close contact”, which would be subject to change as per each direction issued under the new arrangement. As an example, the definition of “close contact” has changed significantly over the preceding year and had, less than six months ago, included a person who had simply attended a listed exposure site at a particular time. The significant implications of a fluid definition of “close contact” are obvious when read in this light, with the potential for the amended Act to interfere with the lives of South Australians being subject to significant variation. The Society was also concerned at the transitional provisions which (as was demonstrated shortly afterwards) enabled a former direction to be validated and maintained under the amended Public

Health Act, despite the fact that it may be beyond the terms of what it would permit. The importance of the principles already set out in the Public Health Act was emphasised by the Society, as was the need for some sort of oversight mechanism for directions made under the amended Public Health Act. Parliamentary debate, particularly in the Legislative Council, was monitored by the Society with interest and the Society generally welcomes the amendments made to the Bill in the Legislative Council. The imposition of the COVID-19 Direction Accountability and Oversight Committee provides an oversight mechanism and is a welcome addition. This Committee is independent of Executive government, given that it is composed of members of the legislature. It has an entirely different structure to the Emergency Management Council. Similarly, the introduction of a right of review of any directions made (via the Magistrates’ Court and District Court) is a positive inclusion. The Society notes however that the South Australian Civil and Administrative Tribunal is the forum where most Government decisions are reviewed as its flexible approach to litigation and lower costs make it a suitable option for many matters. Overall, the Society’s preference was at the outset and remains for a full review of the Emergency Management Act with a view to enacting legislation that deals with pandemics and other prolonged emergency situations into the future. B June 2022 THE BULLETIN

TRAVEL

TRAVELLING WITH ASSISTANCE ANIMALS: CAN SERVICE BE REFUSED? JILLIAN SMITH, RSPCA LEGAL COUNSEL, AND MEMBER OF THE ANIMAL LAW COMMITTEE

quick scroll through the Human Rights Commission’s Conciliation Register1 reveals many complaints alleging disability discrimination arising from the refusal of service to people travelling with assistance animals. The resolution of the complaints usually involves an apology and a monetary payment of sums ranging from hundreds to thousands of dollars. If everyone knows assistance animals can accompany their owners anywhere, why is service still being refused? Unfortunately, the answer to this question is not as straightforward as perhaps it should be, with confusion over what constitutes an assistance animal as distinct from an emotional support animal. Assistance animals travelling with their owner have full public access rights, guaranteed by the Disability Discrimination Act 1992 (Cth). Emotional support animals do not. The difference: assistance animals are specifically trained to render assistance for a disability whereas emotional support animals are not. When the assistance animal travelling with its owner does not have formal accreditation, disputes have arisen as to the rights of the owner to travel with the animal. In Mulligan v Virgin Australia2 Virgin refused to allow Mr Mulligan’s assistance dog to travel in the cabin with him. Mr Mulligan had cerebral palsy and hearing and vision impairments. It was accepted that the dog had been trained to assist him, but not by an accredited organisation. Virgin contended that the dog required accreditation to travel pursuant to Civil

10 THE BULLETIN June 2022

Aviation Regulations. The Federal Court found Virgin’s conduct amounted to illegal discrimination – the fact that the dog was trained to assist Mr Mulligan in his disability and met standards of hygiene and behaviour qualified the dog as an assistance animal for the purposes of the Disability Discrimination Act3 (the DDA) and the Civil Aviation Regulations did not override the DDA. Compensation of $10,000 was awarded. In Reurich v Club Jarvis Bay Ltd,4 the refusal by the club to allow Mr Reurich’s dog Boofhead to ride on the club’s courtesy bus and to enter the club on eight occasions was held by the Federal Court to be a breach of the DDA. The Court ordered the club to pay Mr Reurich $16,000 in compensation. In this case, while not formally accredited, there was evidence that Boofhead had been accepted as a trainee by mindDog Australia5 and that Mr Reurich himself had trained him. Boofhead’s very presence was the assistance provided to Mr Reurich (who suffered from a personality disorder and various mental illnesses) and the fact that the dog did not assist his handler in an active manner did not negate Boofhead’s status as an assistance animal. Malkovich J said “in contrast to a person with a physical disability, it is Boofhead’s presence and the fact that he provides a different focal point that has a positive effect on Mr Reurich’s symptoms. That Boofhead is not trained to do specific things, as for example a dog assisting a diabetic might be trained to recognise and take certain steps when their handler was having a hypoglycaemic or hyperglycaemic attack, does not

mean that he is not trained to assist Mr Reurich alleviate the effect of his disability …. Boofhead, by his even temper and obedience, has been trained to assist Mr Reurich. It is these qualities that provide the calming influence. If Boofhead was a highly active, excitable dog lacking in obedience he would presumably not be trained to assist in alleviating the effect of Mr Reurich’s disability”.6 By contrast is Phillips v Ventura Bus Lines.7 The Victorian Civil and Administrative Tribunal found there was no breach of the Equal Opportunity Act 2010 (Vic) (which uses the narrower term “assistance dog”8) when a bus company refused Mr Phillips travel with two German Shepherd dogs. While it was accepted by the Tribunal that Mr Phillips had a psychiatric/psychological disability, he was unable to prove that his dogs had received specific training to assist him with the effects of this disability despite letters from his treating doctors stating that the dogs indeed did assist him with managing his conditions. However, the medical evidence did not address the question of the dogs’ training which must be “verifiable and specific”.9 Senior Member Steele cited another case in which Mr Phillips had made another similar and likewise unsuccessful claim of discrimination involving his dogs, in which it was held that “...the evidence is not sufficient to support a finding that Rishi and Goethe are assistance dogs within the meaning of the EO Act. Although Mr Phillips said that his dogs are trained,…… he did not identify the nature and scope of their training. For example, there was no evidence of any socialisation training that might be said to equip the dogs to be in public locations

TRAVEL

(such as on public transport) bringing them into close proximity with strangers and, potentially, other animals”.10 One wonders if Phillips v Ventura had been heard in the Federal Court whether the result would have been different. As the DDA does not exclude or limit the operation of a law of a state or territory that is capable of operating concurrently with the DDA the result is a patchwork of federal, state and territory anti-discrimination acts operating concurrently: a situation ripe for confusion especially when travelling interstate.11 Some anti-discrimination laws do not extend protection to all animals and instead limit protection to dogs. The situation in SA South Australia arguably has the strongest protections with sections 88 and 88A of the Equal Opportunity Act 1984 (SA) extending protection to both assistance animals and therapeutic animals. A therapeutic animal is defined as “an animal certified by a medical practitioner as being required to assist a person as a consequence of the person’s disability” 12 i.e., not required to be specifically trained to render assistance. However, therapeutic animals access rights are limited to accommodation settings, including hotels, caravan parks and holiday rentals, with it being unlawful to refuse an application for accommodation on the basis that the applicant intends to keep a therapeutic animal there. The Passenger Transport Regulations do not allow animals to travel on

passenger service vehicles without the permission of an authorised person, however, an exception is made for “a working animal accompanying a person with a disability”.13 The Dog and Cat Management Act 1995 (SA) complements this at section 81 by stating that disabled persons are entitled to be accompanied by their accredited assistance dogs in public places and on public transport.14 The National Parks and Wildlife regulations encourage assistance dogs to be walked on a reserve on the proviso they remain on a lead.15 Further information: • A list of different requirements in each State and Territory: https://humanrights.gov.au/our-work/ disability-rights/projects/assistanceanimals-and-disability-discriminationact-1992-cth • RSPCA - what is an assistance animal: https://kb.rspca.org.au/knowledgebase/what-is-an-assistance-animal/ • Civil Aviation Safety Authority – Travel with assistance dogs: https://www.casa. gov.au/operations-safety-and-travel/ travel-and-passengers/passengersdisability-and-reduced-mobility/travelassistance-dogs • QANTAS conditions of carriage for assistance animals (in the cabin): https://www.qantas.com/au/en/ travel-info/specific-needs/travellingwith-specific-needs/service-dogs/ conditions-of-carriage.html • QANTAS Pet travel (as freight): https://freight.qantas.com/pets/pettravel-faqs.html B

Endnotes 1 https://humanrights.gov.au/complaints/ conciliation-register 2 Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130 3 Section 9(2) of the DDA provides that for the purposes of the Act an assistance animal is a dog or other animal: (a) accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or (b) accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or (c) trained:(i) to assist a person with a disability to alleviate the effect of the disability; and(ii) to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. 4 [2018] FCA 1220 5 https://www.minddog.org.au/ 6 Reurich v Club Jarvis Bay Ltd [2018] FCA 1220 at [236] 7 Phillips v Ventura Bus Lines Pty Ltd (Human Rights) [2021] VCAT 1122 8 Section 4 Equal Opportunity Act 2010 (Vic) “Assistance dog means a dog that is trained to perform tasks or functions that assist a person with a disability to alleviate the effects of his or her disability.” 9 At [27] 10 Phillips v Ventura Bus Lines Pty Ltd (Human Rights) [2021] VCAT 1122 at [40] 11 For a summary of different legislative provisions see Disability Assistance Animals or Not? Problems In Policy and Practice Workshop, Summary and Scoping Discussion Paper Paul Harpur, Martie-Louise Verreynne, Nancy Pachana, Peter Billings and Brent Ritchie https://lawprofessors.typepad.com/files/ animals.pdf#page58 12 Equal Opportunity Act 1984 (SA) s 88A. 13 Passenger Transport Regulations 2009 (SA) reg. 115 (2). 14 Dog and Cat Management Act 1995 (SA) s 81. 15 National Parks and Wildlife (National Parks) Regulations 2016 (SA) Reg. 26 (4).

June 2022 THE BULLETIN

EVENTS

SA has the wood over Victorian rivals GREG HOWE, DIRECTOR, HOWE JENKIN FAMILY LAWYERS & MEDIATORS

he second golf match between the SA and Victorian golfing lawyers was played on a glorious autumn morning on 13 May at Royal Adelaide Golf Club. The match saw a comprehensive victory to the SA team which thereby retained “The Serviceton” trophy, with an average stableford score of 38.4 to the Victorians’ 34.4. The SA team was captained by David Jenkin in the absence of COVID-struck Greg Howe, and the Victorians were led by barrister, Caroline Paterson. The best overall team score was 41 points by Richard Wood and Jane Ekin-Smyth on a countback from Egils Olekalns and Kym Bartel. Hugh Abbott won the nearest the pin prize on the 7th hole and Victoria’s Chris Arnold pumped a huge drive down the 18th to win the longest drive. Another highlight was Julian Hicks’ near eagle on

David Jenkin (left) and Ashley Kent from the SA team with Victorian golfers Grant Ezzy and Tony Robinson.

17 and David Jenkin’s chip-in birdie on 12. The Victorians have invited SA to play the return match at Peninsula Kingswood Golf Club in May next year. All golfing lawyers are welcome to express interest by emailing ghowe@howejenkin.com.au.

The SA team was David Jenkin; Jeremy Schultz; Kym Bartel; Egils Olekalns; Richard Wood; Simon Lane; Julian Hicks; Jane Ekin-Smyth; Andrew Sinclair; Hugh Abbott SC; Jamie Botten; Peter Hill; Stuart Henry QC and Ashley Kent. B

Auctioneers & Valuers

MGS (SA) is South Australia’s most experienced industrial auctioneers and valuers with over 40 years in the industry. Our expertise is second to none. Servicing Corporate Australia, Insolvency Practitioners, Legal Professionals, Accountants and Government. Jack Ruby’s Bar Providing an unparalleled solution management, valuations or disposal. Basement, 89for Kingasset William Street, Adelaide SA

Auctioneers & Valuers of Plant & Equipment for: • Business Restructuring • Succession Planning

• Acquisition & Disposal • Insolvency & Legal Disputes

www.mgs.net.au Mason Gray Strange Auctions (SA) Pty Ltd | BULLETIN June 2022 12 THE P 8444 9111 | 370-378 Torrens Road, Kilkenny, SA 5009

FEATURE

TRAVELLING WITH PETS: WHAT THE LAW SAYS JILLIAN SMITH, LEGAL COUNSEL, RSPCA OF SA AND MEMBER, ANIMAL LAW COMMITTEE

hen I was a child our black Labrador, Ben, would travel with us in the Ford LTD, nestled happily in the foot-well by the backseat. A well-behaved and chilled individual, Ben would fall asleep almost as soon as the engine turned over for our road trips to Yorke Peninsula or the beaches of the South East, and wake up only at road stops for a quick sniff and cock of the leg before happily retiring back to the car. At night on these caravan holidays, Ben would sleep tethered in a pop-up canvas kennel my father had fashioned. It must have been comfortable as Ben’s loud and guttural snoring reverberated on the night air and was interpreted as Dad’s by the neighbouring campers, much to the chagrin of my mother. We were lucky to have such a superrelaxed hound as Ben, who never barked, never reacted poorly to other animals or people and treated the car as his own personal sleeping compartment. Not all pets are such pleasant travelling companions. They can be lethal distractions and potential missiles in a car and overstimulated animals can be difficult to control whether in the car or in new unfamiliar surroundings. They are also a constant responsibility when travelling. This article provides a brief overview of the regulatory and legislative provisions regulating how and where pets may travel.

WHERE CAN I TRAVEL WITH PETS IN AUSTRALIA? All pets must be cared for at all times whether on holiday or at home and failure to do so may constitute ill treatment of

14 THE BULLETIN June 2022

an animal under the Animal Welfare Act 1985 (SA) or its interstate equivalent.1 The responsibility of pet ownership may limit trips to the pub, theme park, sightseeing trip or other holiday activity.2 The Dog and Cat Management Act 1995 (SA) provides that dogs must be under the effective control of the owner,3 therefore their presence inevitably limits the available activities while away from home. Pets cannot be left to their own devices in camp grounds or caravan parks. Domestic animals (other than accredited assistance dogs) are prohibited from most national parks,4 and dogs are prohibited also in schools, childcare centres and shops unless permission is sought.5 Dog owners may be fined for a dog’s persistent barking6 (something which may be harder to prevent when a dog is in unfamiliar surroundings) and owners will need to be prepared with plenty of poo bags as fines apply for failing to immediately clean up when a dog defecates in a public space.7

DO ANIMALS NEED TO BE RESTRAINED IN CARS? Unrestrained animals can jump from open windows and can easily be injured or injure others within the car if braking suddenly. The RSPCA has reported that 5000 dogs each year are either injured or killed in Australia as a result of jumping from a moving car.8 Given this alarming figure, it is somewhat surprising that in no Australian jurisdiction other than the ACT9 is there a blanket requirement that animals be safely restrained while travelling inside a vehicle. There are however provisions in all Australian jurisdictions (other than

the Northern Territory) prohibiting dogs travelling unrestrained or untethered on the back of a ute, (with exceptions applying for working farm dogs).10 The Australian Road Rules specifically prohibit driving with an animal in your lap or between the handlebars on a motor bike.11 This is not only because of the distraction lap-held pets pose to the driver or rider but also the horrifying fact that pets have caused serious injury, notably when an airbag propels the pet into the body of the driver or other passengers in the vehicle.12 For this reason, while not expressly prohibited, pets should not be allowed to travel on a lap of any passenger in a car. The distraction an unrestrained animal provides in the car is akin to that of a mobile phone,13 and may amount to driving without due care or attention.14 Further, failing to restrain an animal in a car may negate car insurance. The terms and conditions of many comprehensive policies providing that insured parties must “take all reasonable precautions to prevent or reduce loss or damage to the insured property”. A distracting unrestrained pet may fall foul of such a clause. The SA Standards and Guidelines for Breeding and Trading Companion Animals 2017 provides enforceable minimum standards and recommended guidelines to those involved in the pet trade. Part 11 sets out the responsibilities of breeders, sellers and commercial transporters of pets to ensure animal welfare while in transit. This includes mandating the use of appropriate containers or a suitable restraint with noncompliance being a breach of the Animal Welfare Regulations 2012 and punishable by fine.15 Sellers and transporters of pets

FEATURE

are therefore held to higher account in the restraint of pets in vehicles than the general public in South Australia.

WHAT CONSTITUTES ILL TREATMENT OF AN ANIMAL WHILE TRAVELLING? At RSPCA SA, where I am legal counsel, the lack of application of common sense has seen Animal Welfare Inspectors intervene where animals travelling with their owners have their welfare put in jeopardy. Animal ill treatment is an offence in each Australian State and Territory punishable by a fine or imprisonment.16 In South Australia, causing an animal unnecessary harm and failing to provide appropriate living conditions (whether permanent or temporary) for an animal are general heads of ill treatment listed in section 13(3) of the Animal Welfare Act 1985 which have been enlivened in cases where: • Dogs have fallen from ute trays, causing injury, including strangulation of animals inappropriately tethered. • Animals have been left in hot cars (in one bizarre case a dog was left in a car while its owners visited the zoo, also leaving a portable stove going inside the car complete with the billy boiling for a cup of tea, adding to the temperature within). • Dogs have been inappropriately restrained for long periods in harnesses which are too small such that the harness itself injures the animal. • A dog was confined to a carry crate strapped to the roof of the car. • Cats were inappropriately housed in a temporary outdoor enclosure in belowzero temperatures.

Some jurisdictions have specific welfare provisions in relation to the transport of animals. In Victoria, the Prevention of Cruelty to Animals Regulations 2019 prohibit leaving an animal unattended inside a car for more than 10 minutes when outside temperatures are at or above 28 degrees Celsius, or to secure a dog directly on a metal tray of a ute or trailer in these temperature conditions. There is also a specific regulation preventing the transport of animals in the boot of a car.17 In the ACT,18 it is a specific offence to transport an animal in a way that causes or is likely to cause death, injury, pain or stress to the animal. In Queensland19 the Animal Care and Protection Act 2001 provides that it is an offence to transport an animal in a way that is inappropriate for its welfare, while in NSW20 a person cannot carry or convey an animal in a manner which unreasonably, unnecessarily or unjustifiably inflicts pain upon it. In Tasmania21 a person must not drive, convey, carry or pack an animal in a manner that subjects it to unreasonable pain or suffering. And in Western Australia an explicit head of animal cruelty is transporting an animal in a way that causes or is likely to cause unnecessary harm.22

CAN PETS BE TAKEN ON PUBLIC TRANSPORT? In Australia it is relatively uncommon to see animals (other than assistance dogs or therapy animals) taken on public transport.23 The rules regarding this question vary somewhat across Australia. For example, in South Australia taking pets (other than assistance animals) on public transport is prohibited unless special

permission has been granted beforehand24 but in Victoria taking small animals in suitable carry containers is permitted, and dogs may be taken on trains if they are muzzled and on a lead.25 In New South Wales, similar rules apply, but the driver may refuse an animal entry if the service is nearing capacity or if the animal appears likely to misbehave.26

FLYING WITH PETS WITHIN AUSTRALIA Flying is stressful for animals, which despite recent regulatory change, are still considered cargo by the airlines and confined to pet carriers in the freight area of the plane.27 It is not unusual for pets to die during flights (drops in pressure, temperature, noise and unfamiliar surroundings are frightening and stressful for animals)28. Sedation of an animal is not recommended due to health risks while unsupervised in the hold and the RSPCA recommends a vet check prior to flying to confirm that the pet is fit for travel.29 Approved guide, hearing and assistance dogs may travel in the cabin, if they meet certain criteria set by the airline.30

IMPORTING AND EXPORTING PETS Australia’s strict biosecurity laws can make importing pets from overseas a difficult and expensive proposition, with the level of difficulty depending upon the country of origin. For example, dogs and cats from New Zealand do not require an import permit to enter Australia but a veterinary health certification is required. Dogs from some rabies-free countries may be imported if granted an import permit with post arrival quarantine required. June 2022 THE BULLETIN

FEATURE

Imports from rabies-affected countries are not permitted, unless the animal first travels to an approved country where it is rabies-vaccinated prior to import to Australia for quarantine.31 Failure to comply with requirements may result in prosecution and risks substantial penalties,32 as Johnny Depp and Amber Heard famously discovered.33 Similarly a permit and veterinary examination and health certificate is required for the export of domestic companion animals under the Export Control Act 2020 and Export Control (Animals) Rules 202134. The export of Australian native pets is essentially prohibited, limited to some bird species such as budgies, cockatoos and galahs.35

THE LAST WORD – ANIMAL WELFARE FIRST RSPCA Chief Inspector Andrea Lewis advises “whatever sort of pet travel is contemplated, individual needs of the animal should be assessed to ensure the animal can cope with travel’s stress. Owners should also assess their own capacity to manage the additional legal responsibilities to maintain the welfare of the animal and safety of others”.36 B

16 THE BULLETIN June 2022

Endnotes 1 Animal Welfare Act (SA) 1985 s 13(1) and (2) 2 Ibid s 3. 3 Dog and Cat Management Act (SA) 1995 ss 8(b),43 – owners may face a fine of up to $2,500 for dogs wandering at large. 4 National Parks Regulations (SA) 2016) r 26. A guide dog, hearing dog, or disability dog may enter a park on a lead. For a list of SA Recreation Parks where dogs are allowed on a lead see https:// www.environment.sa.gov.au/goodliving/ posts/2015/11/dogs-part-2#:~:text=Dogs%20 are%20welcome%20at%20many,native%20 wildlife%20will%20thank%20you. 5 Dog and Cat Management Act 1995 s45A(2) and (3) 6 Ibid s45A(5) - barking which “unreasonably interferes with the peace, comfort or convenience of a person”. 7 In SA see Dog and Cat Management Act 1995 s45A(6). 8 https://www.rspcaqld.org.au/blog/pet-care/dogrestraints 9 Animal Welfare Act (ACT) 1992 s15A. Also note the Dog Control Act 2000 (Tas) requires the restraint of dogs to prevent them from exiting a vehicle whilst it is on the road but does not require restraint within the vehicle. 10 Dog and Cat Management Act 1995 (SA), s45(1), Animal Welfare Act 1992 (ACT) s15A, Prevention of Cruelty to Animals Act 1979 (NSW) s7, Dog Control Act 2000 (Tas) s16(3), Prevention of Cruelty to Animals Act 1986 (Vic) s15A, Animal Welfare Act 2002 (QLD) s19(3)(a) prohibits a person from transporting an animal in a way that is likely to cause that animal unnecessary harm and in Queensland an unrestrained dog on the back of a vehicle can be considered an unsecured load and fined Transport Operations (Road Use Management – Road Rules). NT repealed the relevant provision of the Animal Welfare Act 1999 (NT) in 2012. A new provision has been enacted but us awaiting commencement of operation see Animal Protection Act 2018 (NT) 11 Australian Road Rules SA (under the Road Traffic Act 1961) s 297(1A) and 297(3). In 2019 the RAA reported that 411 people were fined in South Australia for driving with a pet in their lap. (see https://www.insurancebusinessmag.com/ au/news/breaking-news/pets-pose-a-seriousroadsafety-risk-says-raa-121971.aspx) 12 Author’s conversation with Detective Senior Sgt D Gordge, Investigations Manager Major Crash Investigations SAPOL. 13 see Hazel et al “Restraint of dogs in vehicles in the US, UK and Australia” Preventive Veterinary Medicine Volume 170, 1 October 2019, 104714 14 see Road Traffic Act 1961 (SA) s 45(1)] - for a basic offence, the penalty is a fine of up to $2,500 [see s 164A(2)] and a licence disqualification penalty may apply. 15 Regulation 5, Animal Welfare Regulations 2012(SA)

16 In SA the Animal Welfare Act 1985 (SA) s 13(1) and (2) provides maximum penalties of 4 years imprisonment or a fine of $50,000 for an aggravated offence or 2 years imprisonment or $20,000. 17 Prevention of Cruelty to Animals Regulations (Vic) 2019 r6 18 Animal Welfare Act (ACT) 1992 s15 19 Animal Care and Protection Act (Qld) 2001 s 18 20 Prevention of Cruelty to Animals Act (NSW) 1979 s 7 21 Animal Welfare Act (Tas) 1993 s 8 22 Animal Welfare Act (WA) 2005 s 19(3)(a) 23 For an argument why this should change see https://theconversation.com/many-of-uswant-to-take-our-dogs-on-public-transportbut-others-shudder-at-the-thought-whats-thesolution-161983 24 Passenger Transport Regulations (SA) 2009 r 115 allows “a working animal accompanying a person with a disability”, see also Dog and Cat Management Act (SA) 1991 s 81 25 https://www.ptv.vic.gov.au/more/travelling-onthe-network/animals-on-public-transport/ 26 For a list of links to the various public transport websites with these rules see Can You Take Your Fur Babies on Public Transport in Australia? (lifehacker.com.au) 27 Civil Aviation Regulations (Cth) 1998 r 91.620 permits a person to take an animal on board an aircraft with the permission of the pilot in command. Australian airlines still do not permit this practice. https://www.abc.net.au/news/2022-04-30/petson-planes/101028046 28 Is Taking Your Pet on an Airplane Worth the Risk? | Travel| Smithsonian Magazine For carrier requirements see https://freight.qantas.com/pets/ crates.html. 29 https://kb.rspca.org.au/knowledge-base/whatdo-i-need-to-consider-before-transporting-mypet-by-air/ 30 https://freight.qantas.com/pets/crates.html, https://www.qantas.com/au/en/travel-info/ specific-needs/travelling-with-specific-needs/ service-dogs/conditions-of-carriage.html 31 Import guides are available at https://www.awe. gov.au/biosecurity-trade/cats-dogs 32 Biosecurity Act (Cth) 2015 s 185 33 https://www.theguardian.com/film/2020/jul/16/ johnny-depps-dogs-amber-heard-was-repeatedlytold-she-couldnt-take-pets-to-australia-court-hears 34 A guide to the export of companion animals can be found at https://www.awe.gov.au/biosecuritytrade/export/controlled-goods/live-animals/ companion. 35 Part 13A Environment Protection and Biodiversity Conservation Act (Cth) 1999 . See https://www. awe.gov.au/biosecurity-trade/wildlife-trade/ non-commercial/household-pets#nativehousehold-pets 36 Conversation with author 1.5.2022

IGNITION FOR MEN Specializing in Tailor m a de suiting starting from $ 79 9

SUITING - CASUALWEAR - TAILORMADE

54 Payneham Rd,Stepney 5 069 83 62 998 0 enquiries@ignitionformen.com.au www.ignitionformen.com.au shop online or instore Mention this ad to receive 10% off all ready to wear clothing in store

FEATURE

SPACE TRAFFIC MANAGEMENT: ESSENTIAL YET ELUSIVE? MATTHEW STUBBS, ASSOCIATE PROFESSOR, ADELAIDE LAW SCHOOL AND CHAIR, SPACE LAW COMMITTEE

INTRODUCTION: THE MIRACLE OF TRAFFIC MANAGEMENT, AND THE MORASS OF UNMANAGED TRAFFIC IN OUTER SPACE

ost of us take traffic management for granted. It is a problem that has largely been solved on the roads, and even in airspace. But it is one of the great unresolved challenges of humankind’s burgeoning use and exploration of outer space. Once we have learned the rules of the road and obtained a driver’s licence, it becomes second nature to drive on the formed road within the marked lanes, to give way to other vehicles which have the right of way (including at devices such as roundabouts which are designed to use the right of way as an ordering system) and otherwise to follow the various Australian Road Rules, and to obey traffic control devices such as traffic lights. Each of these is an element of the architecture of road traffic management which is essential to our ability to use the road but which we do not stop to think about, except perhaps if we are in a long queue at the traffic lights. When we fly in an aircraft, we also devote little thought to air traffic management. But typically we fly in aircraft whose pilots are following pre-filed flight plans, with access to standardised information-sharing regimes, using designated air lanes, in aircraft with transponders transmitting identifying information to facilitate radar tracking, whose movements are controlled by active air traffic control in order to reduce the possibility of collision even in congested airspace.1 This is a highly sophisticated system for air traffic management. In outer space, there is no equivalent system of traffic management. Moreover, an object orbiting at an altitude of 400km (as the international space station does)

18 THE BULLETIN June 2022

will be travelling at just under 28,000 kilometres per hour. At that speed, there will be no such thing as a ‘fender bender’ or minor collision. In the absence of space traffic management, James Rendleman has memorably said that satellites in low earth orbit are like ‘cars driving blindly through a corn field, at top speeds, in all directions at once.’2 This is a problem which will only become more acute, as the number of objects in low-earth orbit is increasing exponentially. At the end of 2016, there were just over 2,000 payloads and nearly 10,000 pieces of debris greater than 10cm in size in low-earth orbit.3 By the end of 2021, that had risen to around 6,000 payloads and 12,000 pieces of debris.4 The number of payloads is projected to increase rapidly to 100,000 in coming years.5 The cornfield is becoming much more crowded, and thus collisions much more likely.

EXISTING PRINCIPLES AND PRACTICE: HOW SPACE LAW HAS ORDERED ACCESS TO DATE To date, users of outer space have relied on a practice which amounts to self-help, and on broad principles whose application to the problem is not entirely clear. The practice is that, where space domain awareness enables the tracking of objects, it may be possible to calculate the likelihood of collisions between tracked objects. In such a case, a conjunction warning can be issued when a risk of collision is identified.6 If there is such a warning, individual operators will need to choose whether to heed the warning and take evasive action, which necessarily burns fuel and reduces the lifespan of an expensive satellite.7 The limits of this system are easily demonstrable through the example of a major satellite collision. On 10 February, 2009, there was no conjunction warning

issued to Iridium that its Iridium 33 satellite was going to pass close to the defunct Cosmos 2251, and publicly available data (of which the operator was unaware) put the risk of collision outside the top 10 conjunction warnings for the day. In fact, the satellites did collide, creating more than 2,000 pieces of space debris greater than 10cm in size, and a great many more smaller pieces.8 This illustrates the problems of the track and avoid system we have today: tracking capabilities leave gaps in space domain awareness, and the lack of data sharing arrangements further hamper the identification of collision risks; and even where risks are identified, there may be limited capacity to respond, and imperfect information may mean that poor judgements are made about the need for response where there is a capability to take evasive action. The precise application of the legal framework is also uncertain. The Outer Space Treaty of 19679 – the constitution of outer space –10 establishes important principles which guide the exploration and use of outer space. Relevantly, these principles include: • Freedom of exploration and use (art I); • Due regard for the interests of other states and the avoidance of harmful interference with their space activities (where possible) (art 9). Inevitably, due regard and the avoidance of harmful interference must operate as a limit on the general freedom of exploration and use of outer space. However, it is not clear how the balancing of these considerations is to be carried out in practice.

PRACTICAL PATHWAYS TO THE FUTURE: WALK BEFORE YOU RUN; DON’T BITE OFF MORE THAN YOU CAN CHEW

FEATURE

It is widely accepted that there is unlikely to be a new multilateral treaty establishing a regime of space traffic management.11 This raises the question of what pathways exist for normative development in this important area. One pathway that can be of considerable value in the international legal arena is the development of relevant ‘soft law’ principles. The best example relevant to space traffic management are the Space Debris Mitigation Guidelines developed under the auspices of the United Nations’ Committee on the Peaceful Uses of Outer Space (COPUOS).12 Although not legally binding, these guidelines are relatively widely followed and provide useful guidance as to the avoidance of the creation of space debris. They only touch tangentially on space traffic management in calling on states to ‘[l]imit the probability of accidental collision in orbit’.13 The development of a soft law instrument is perhaps the most likely means for advancing understandings of the legal contours of effective space traffic management. What principles should be embodied in any soft law instrument on space traffic management? Two key scholars of outer space law have offered valuable suggestions. First, Paul Larsen has advocated that any normative regime aim to address only civil, and not military, uses of outer space.14 This would parallel many other regimes – for example, the Chicago Convention applies only to civil aircraft, and the International Telecommunications Union regulates only civil access to the radiofrequency spectrum – and is much more likely to lead to engagement by states. Second, PJ Blount has suggested that the best immediate focus would be on what he terms space traffic coordination.15 That is, rather than directly seeking to develop norms regarding traffic management, the

first step should be to enhance data sharing with a view to improving general access to space domain awareness. In other words, we need to enhance our capacity to identify key risks of collisions, before we set out in detail what to do once such a risk has been identified (a matter which is already guided by the obligations of due regard and the avoidance of harmful interference, even if their precise application is unclear).

CONCLUSION Just as we rely on traffic management on the roads and in the air, so we will need traffic management to ensure effective and efficient, or even continued, access to outer space. To achieve an effective regime of space traffic management will require lawyers to think more broadly about norm creation, given that a grand and comprehensive scheme brought to force through the traditional means of a multilateral treaty seems extremely unlikely. Instead, if we seek to develop consensus around non-binding guidelines that would enhance space traffic coordination through the sharing of space domain awareness information, and focus on civil rather than military uses of outer space, there is a realistic possibility that we will start to develop the foundations of the effective regime of space traffic management that will be essential in future if we are to ensure humankind’s continued access to outer space and all the benefits that brings. B

Endnotes 1 See, eg, Corinne Contant-Jorgenson, Petr Lála and Kai-Uwe Schrogl (eds), Cosmic Study on Space Traffic Management (International Academy of Astronautics, 2006) 46-52, 55.

J ames D Rendleman, ‘Space Traffic Management Options’ in (2014) 57 Proceedings of the International Institute of Space Law 109, 111. 3 European Space Agency, Annual Space Environment Report (27 April 2017) 22. 4 European Space Agency, Annual Space Environment Report (4 April 2022) 52. 5 Harry Baker, ‘How many satellites orbit Earth?’ (14 November 2021) https://www.livescience. com/how-many-satellites-orbit-earth. 6 See, eg, Paul B Larsen, ‘Solving the Space Debris Crisis’ (2018) 83 Journal of Air Law and Commerce 475, 481-2; Danielle Miller, ‘Calling Space Traffic Control: An Argument for Careful Consideration before Granting Space Traffic Management Authorities’ (2017) 23(2) ILSA Journal of International and Comparative Law 279, 283-4. 7 See, eg, Brian Weeden, ‘Billiards in Space’, The Space Review (23 February 2009) <http://www. thespacereview.com/article/1314/1>; PJ Blount, ‘Space Traffic Management: Standardizing OnOrbit Behavior’ (2019) 113 American Journal of International Law Unbound 120, 121-3. 8 Weeden (n 7). 9 Treaty on principles governing the activities of States in the exploration and use of outer space, including the moon and other celestial bodies, 610 UNTS 8843 (entered into force 10 October 1967). 10 Ram Jakhu, ‘Legal Issues Relating to the Global Public Interest in Outer Space’ (2006) 32 Journal of Space Law 31, 31. 11 See, eg: Blount (n 7) 123-4; Brian Israel, ‘Treaty Stasis’ (2014) 108 American Journal of International Law Unbound 63; Saadia M Pekkanen, ‘Governing the New Space Race’ (2019) 113 American Journal of International Law Unbound 92. 12 Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, UN Doc A/62/20 Annex. 13 Ibid guideline 3. Similarly, the proposed Draft International Code of Conduct for Outer Space Activities (2014) <https://eeas.europa.eu/sites/ eeas/files/space_code_conduct_draft_vers_31march-2014_en.pdf> would require States to ‘minimise the risk of accidents in space’. 14 Paul B Larsen, ‘Minimum International Norms for Managing Space Traffic, Space Debris, and Near Earth Object Impacts’ (2018) 83 Journal of Air Law and Commerce 739. 15 PJ Blount, ‘Space Traffic Coordination: Developing a Framework for Safety and Security in Satellite Operations’ (2021) Space: Science & Technology https://doi. org/10.34133/2021/9830379.

June 2022 THE BULLETIN

MENTAL HEALTH LAWS

Increasing the Participation of Persons with Mental Health Disabilities in Involuntary Mental Health Treatment Decision-Making DR SUSAN PEUKERT, BA(HONS) LLB (HONS) PHD, MENTAL HEALTH ADVOCATE

or too long the voices of persons with mental health disabilities1 have been unheard during the involuntary mental health treatment decision-making process.2 State legislative frameworks such as the SA Mental Health Act 2009 have relegated these persons to playing the role of observer in deeply personal processes in which they should be the key players. This framework prescribes when individuals can make decisions for themselves and when they cannot. The framework aims to minimise harm, but this is achieved at an unnecessary cost of too many instances of involuntary treatment where persons with mental illness are excluded from the process of making their own decisions. This is an issue that warrants careful consideration and reevaluation because involuntary treatment curtails the autonomy of the individual. The marginalisation of those with mental health disabilities can only be addressed by giving them back their voices, and, as far as possible, inviting them into the decision-making process. Given the South Australian Law Reform Institute will be conducting a comprehensive review of the Mental Health Act 2009 (SA), now is the time to take action and promote advocacy for a new model for involuntarily treating persons with mental health disabilities. South Australia needs law reform that realises and champions the rights of persons with mental health disabilities in line with the UN Convention on the Rights of Persons with Disabilities3 (CRPD). This article argues that a balance must be struck between empowerment and

20 THE BULLETIN June 2022

protection - the vulnerability of those with a mental health disability cannot be ignored but neither can it be used as a reason to silence them during involuntary decision-making processes. An appropriate balance can be found through the creation of a nuanced supported decision-making model which draws on international best practice, is rights-based and focuses on a person’s right to make autonomous decisions where practicable. A supported decision-making model is predominantly about increasing respect for the rights of persons with mental health disabilities. This article sketches a supported decision-making model4 which is consistent with the spirit of the CRPD. This model represents a path forward whereby persons with mental health disabilities and their supporters can more greatly participate in the involuntary mental health treatment decision-making process. This means that some persons who might otherwise be treated involuntarily will be supported to the degree that they are able, to participate in decisions surrounding their treatment in collaboration with their treating psychiatrist and supporter(s). This will allow persons with mental illness to build their mental capacity to the point where they may be treated voluntarily. The CRPD Rights afforded to persons with mental health disabilities arise from the CRPD. The rights flowing from the CRPD as a whole are important for all persons with disabilities. The focus here is on Article 12 of the CRPD and its recognition of

equality before the law5 and the legal standing and legal agency6 of persons with disabilities. Supported decision-making is promoted in the CRPD and involves the provision of support during the treatment decision-making process.7 Article 12(4) introduces a ‘will and preferences’ paradigm and refers to the requirement to take into consideration the values and views of the individual making treatment decisions, or, on whose behalf, treatment decisions are being made. If adopted, a supported decisionmaking model will empower persons with mental health disabilities to make their own treatment decisions with legal effect through the provision of supported decision-making and recognition of their will and preferences.8 As detailed below, careful law reform is needed to realise the changes proposed. Determining Whether a Person with Mental Health Disabilities Will be Involuntarily Treated The existing state legal framework uses a test of mental capacity9 to determine whether or not a person with mental health disabilities will be treated involuntarily.10 This test is found in s 5A of the Mental Health Act 2009 (SA). For the purposes of the Act, a person is taken to have impaired decision-making capacity if they cannot understand information relevant to the decision to be made, retain that information, and weigh the information in reaching a decision. Those who fail to meet a limb of this mental

the brand with the brands.

personal service. Mention this ad in-store to receive

OFF

Exclusive Law Society Discount. Online discount code:

LSDISC

Rundle Mall | Glenelg | Mt Barker | Gawler

MENTAL HEALTH LAWS

capacity test accordingly lose their ability to make treatment decisions. A strong critic of tests of mental capacity is the UN Committee on the Rights of Persons with Disabilities (Committee) as expressed in General Comment No. 1. It is the view of the Committee that a person’s decision-making skills should not lead to his or her legal capacity to make a particular decision being removed and that the use of mental capacity tests is inconsistent with the rights of persons with disabilities.11 In my view, a more nuanced approach than that of the Committee is required: that the mental capacity test should be retained and used as an indicator of support needs. For example, if the treating psychiatrist determines that a person cannot understand the treatment information given, they fail this limb of the mental capacity test and are determined to have impaired decision-making capacity. This should not be the end point. Rather, a decision-making supporter could step in to provide supported decision-making to the individual to assist them to make their own decision if practicable. The mental capacity test need not be jettisoned. This test may be used to identify areas in which the individual being considered for treatment under mental health legislation can be assisted to make their own decision. Where a person fails to understand treatment information, then it is incumbent on the treating psychiatrist to present the information simply, at a time and in an environment where the

22 THE BULLETIN June 2022

person is most likely to understand the information. If this fails, the person with disabilities can then resort to the aid of a supported decision-maker to be supported to understand the information related to their treatment, and they may go on to be able to make their own treatment decisions. Further, if a person is unable to weigh the treatment information, then the treating psychiatrist could explain the implications of deciding whether or not to proceed with treatment, along with any other relevant factors that are reasonably foreseeable as necessary to weigh the information given. Again, if this fails, a person can nominate to be supported to weigh the treatment information with the aid of a supported decision-maker and they may be able to proceed to make their own treatment decision. It is clear that this model does not diminish the role of the treating psychiatrist; it is only if they cannot aid the person in meeting the limbs of the mental capacity test that recourse is taken to using the assistance of a supported decision-maker. A More Nuanced Supported DecisionMaking Model Three levels of decision-making arrangement are suggested for persons who are at risk of being treated involuntarily because of a determination of mental incapacity. These are assisted decision-making, co-decision-making, and fully supported decision-making. Each level of these arrangements may be entered into at a time when the individual’s capacity is in question because they fail the

mental capacity test of s 5A of the Mental Health Act 2009 (SA). The level of support chosen by the person with mental health disabilities is determined by two factors. Firstly, it may depend on the degree of impairment experienced by the individual as determined by the outcome of the mental capacity test. For example, the application of the mental capacity test may indicate a profound lack of understanding of treatment information that requires a high level of support. Secondly, the individual may themselves choose a high level of support even if they have minor support needs. For example, a person with low support needs may request the support of a fully supported decisionmaker to make decisions on their behalf. A person with mental health disabilities may choose to relinquish the responsibility of making a decision to a fully supported decision-maker just as we may choose to have a family member make a decision on our behalf. Assisted decision-making arrangements allow the person with mental health disabilities to be supported by another person who helps them obtain information relevant to the decision to be made and explains it to them. The decision reached remains that of the person with mental health disabilities. Under co-decision-making arrangements, the person with mental health disabilities and their supporter make the decision jointly, reflecting the greater support needs. It is the role of the co-decisionmaking supporter to ascertain the will and

MENTAL HEALTH LAWS

preferences of the person with mental health disabilities and to discuss the known alternatives and likely outcomes of the decision. Under fully supported decisionmaking arrangements, the decision is that of the supporter. The supporter must ascertain the person with disabilities’ treatment preferences along with their will and preferences before making a decision on their behalf. A fully supported decisionmaker’s role differs to that of a substitute decision-maker. They are nominated by the individual and take into account the will and preferences of the individual. The results of the supported decisionmaking process are reported to the treating psychiatrist who may take them into consideration when deciding a course of treatment. At a minimum, this means that persons with mental health disabilities are able to participate in the treatment decision-making process in a meaningful way and learn to develop their decisionmaking skills. At best, a person who was previously determined to lack capacity may be reassessed using the mental capacity test and be found to have the capacity to make their own decisions. For example, a person who had previously been found to lack the ability to weigh treatment information may be considered able to do so after receiving decision-making support. Supported decision-making arrangements do not diminish the role of the treating psychiatrist. They still have the primary function of directly explaining proposed treatment information to their mentally ill patient and assessing their

mental capacity. The role of the supported decision-maker is then to discuss and provide access to information relevant to the decision to be made with the person with mental health disabilities if they fail a limb of the mental capacity test. Decisionmaking arrangements are desirable as these arrangements are envisaged to be appointer-driven, individualised, and a form of supported decision-making. Entering into these arrangements is a type of self-referral, with the appointer deciding the level and type of support that they want, and the person(s) they wish to be supported by. Conclusion The model proposed is characterised by the provision of support in decisionmaking, as opposed to substitute and ‘best interests’ decision-making models found in the traditional mental health legislation. Under the proposed model, persons with mental health disabilities being treated involuntarily are empowered to make their own decisions through the provision of support where practicable. In reviewing its mental health legislation, South Australia has an opportunity to ensure those persons with mental health disabilities can realise their right to make autonomous decisions where practicable. I would strongly encourage lawyers who have persons with mental health disabilities as clients and see the need for mental health law reform to participate in the Review process. You can participate in the Review by visiting https://yoursay. sa.gov.au/mental-health-act-review. B

Endnotes 1 The term ‘person with mental health disabilities’ reflects the language of the UN Convention on the Rights of Persons with Disabilities. It refers to those persons who experience long-term chronic mental illness of such a nature to be considered a disability. 2 Mental Health Act 2009 (SA) ss 21, 25, 29. 3 Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008). 4 This model is developed in full in my PhD thesis: Susan Peukert, Increasing the Participation of Persons with Mental Illness in Mental Health Decision-Making, 2021. A snapshot is given due to the length and complexity of the supported decision-making model developed in the thesis. 5 Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) art 12(1). 6 Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) art 12(2). Art 12(2) covers the recognition of the legal capacity of persons with disabilities. Legal capacity comprises of both legal standing and legal agency. The notion of universal legal capacity requires that both legal standing and legal agency are present for the right to legal capacity to be realised. Legal agency is commonly thwarted for persons with mental health disabilities as it is diminished by involuntary treatment under mental health legislation with the result that the person cannot make decisions on their own behalf. 7 Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) art 12(3). 8 See: Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) art 12(3), (4). 9 A test of decision-making ability. 10 In concert with impaired capacity, a person must also have a mental illness and pose a risk of harm to themselves or others to be treated involuntarily under an Inpatient Treatment Order. 11 General Comment No. 1: Article 12: Equal Recognition before the Law, 11th sess, UN Doc CRPD/C/ GC/1 (19 May 2014) [15].

June 2022 THE BULLETIN

CLOUD COMPUTING

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

his is the third of five articles that analyse the Law Society’s Cloud Computing Guidelines against candidate cloud systems and on-premises systems. My thesis is that the caution expressed in the Guidelines should be applied as much to on-premises systems as cloud systems to obtain the best risk profile for a practice’s information systems. In this article we discuss data security. Data Security This is where cloud services really shine. Ironically this is also the area which is usually of the greatest concern. The question to ask is whether a practitioner would prefer to delegate the security of their data to a provider with extensive resources dedicated to the maintenance of data security and the detection and resolution of security incidents, or to manage data security themselves, either directly or via an IT provider, neither of whom is likely to be a cybersecurity specialist. The resources and skills required to detect and protect against security intrusions is way beyond the capabilities of most IT providers. Cybersecurity has evolved to its own discipline and there exist businesses that specialise in cybersecurity management, most of whom are not engaged by legal practitioners to manage their IT infrastructure. Detecting an intrusion is itself very difficult. If an intrusion remains undetected, as many are, an intruder could usually remain, or ‘dwell’, in a compromised system for many many months.1 Cloud services encrypt data at rest (when it is stored) and in transit (when it is sent to a computer to use). Cloud providers usually have robust systems in place to ensure the keys used to decrypt data are not easily accessible.

24 THE BULLETIN June 2022

Table 3 Data Security ENCRYPTION ENCRYPTION EFFECT OF AT REST IN TRANSIT TERMINATION

CHANGE OF CONTROL

Yes

Will notify and Will notify and give opportunity to ‘outline your export data choices’

Dropbox Business Yes

Yes

Provision to export data after termination

Not specified

Google Workspace Yes

Yes

Access to data ceases on termination

Will give notice

Microsoft 365

Yes

Not specified

LEAP

Yes

Data retained but inaccessible

Not specified

Actionstep

Optional, Yes on request

Delete data 30 days Not specified after termination

On Premises

N/A

Dropbox

Apart from Actionstep, all the service providers analysed for this paper encrypt data at rest and in transit. Actionstep does not encrypt data at rest by default but it can be requested. It is true that cloud services provide an easier target for intruders. However, this is offset by the increased security resources dedicated to detecting and mitigating this risk. On-premises data is almost always not encrypted, particularly on practice management servers and file servers. On-premises backups are also usually not encrypted and may not be stored in a secure location. An intrusion into an on-premises system carries significant risk of going undetected, and the intruder is likely to have access to unencrypted client information for an extended period of time.

N/A

Verdict In my view, cloud services do data security much better than on-premises services. Although cloud might be an easier target, this risk is in my opinion more than offset by the much higher level of cybersecurity skills present inside cloud firms (or at least the candidate firms discussed) than what exists in the onpremises context. Data security is a comprehensive win for cloud in my view. In the next article we discuss data resilience. B Endnotes 1 See eg: ‘Asia-Pacific Lags in Dwell Time, Study Reveals’, Security Intelligence <https:// securityintelligence.com/news/asia-pacific-lagsin-dwell-time-study-reveals/>.

PROMO

Integrating Document Management: A Multi-faceted Growth Strategy

o attract the most impressive talent, legal firms – among others – are pushed to come up with innovative solutions, such as offering employees the level of flexibility they became used to during the pandemic. Day-to-day, that means the staff at legal firms are increasingly spending at least part of the week working from home or outside the office, and this brings about challenges of its own. Digitising your workplace for a mobile workforce is not so much an option but a requirement. With so much paper to control in your business, both in the business and from clients, it is difficult to make sure your whole office is with you when you are working from home. The good news is that it’s available. Digitisation solutions from Canon that integrate with your line of business systems such as (LEAP, LexisNexis, Affinity, FilePro, Practice Evolve, Alite

and Aderant) can improve productivity and accessibility for your staff. Keep your documents secure and accessible with Canon’s secured digitisation solutions to store the records in the right matters. Legal firms that take advantage of these systems work in an integrated digital environment where teams are empowered to boost productivity – whether they’re working from the front office, the back office, home office or even court. By integrating hardware with stateof-the-art like the uniFLOW software, these firms are equipping their teams with instant access to up-to-date documents when they need them. Furthermore, they enable teams to update documents as matters evolve with accuracy so clients can be kept in-the-loop in real-time. At times like these, when every dollar counts – both to the firm and your clients – firms that invest in digitisation solutions are also lowering costs by

reducing the need for administrative staff to be involved in long paper-based processes. Importantly, they benefit from automated audit trails that enable jobs to be automatically assigned and precisely charged to cost centres. For more information on how Canon can help your firm, contact Gary Bennetts | gary.bennetts@sales. canon.com.au Canon Authorised Agent SCAN QR CODE TO LEARN MORE or visit to https://www.canon.com.au/ business/legal-solutions B

We Are Forensic Experts In • Engineering Analysis & Reconstruction

• Failure Analysis & Safety Solutions

• Traffic Crashes & Road Safety

• Physical, Crash, Incident & Vehicle Dynamic Handling Testing

• Workplace or Mining Incidents • Reporting & Experts Court Testimony

Delta V Experts

DELTA-V EXPERTS

• Clarifies the facts in a situation

• Strengthens your communication

• Scientifically substantiates the evidence

• Diverse experience and expertise

03 9481 2200

www.dvexperts.net

9 Springbank Street, Tullamarine, 3043 June 2022 THE BULLETIN

RISK WATCH

Waive goodbye? A new case on legal professional privilege and former clients GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS

recent decision of the Supreme Court of Queensland — R v McNicol [2022] QSC 67, Davis J, 29 April, 2022 - is of interest to practitioners in the common scenario where information is sought from a practitioner as to the affairs of a client. Sometimes this arises where an (ex)client has alleged negligence on the part of the practitioner which will give rise to issues concerning confidentiality and privilege.

THE FACTS Mr McNicol was charged with a serious drug offence to which, after receiving legal advice, he pleaded guilty. Some months later he applied — through new legal advisors — to withdraw this plea, alleging that he had been pressured by his lawyers to plead guilty and that his plea was therefore not voluntary. The Crown opposed the application to set aside the plea and sought evidence from Mr McNicol’s former solicitors. The solicitors provided an affidavit without making enquiries as to whether privilege was waived. The affidavit filed by Mr McNicol’s previous solicitor explained how the guilty plea came about and what advice was given to Mr McNicol by both him and counsel. Further, various notes of the conversations between Mr McNicol, the solicitor and counsel were exhibited to the affidavits.

THE JUDGMENT Davis J said that the “conversations and the notes clearly attracted legal professional privilege” [26] and went on to summarise the (hopefully) well-known principles applicable to legal professional privilege [26]–[29]. His Honour further said that, whilst Mr McNicol’s solicitors did not disclose to the Crown what they described as Mr McNicol’s “trial instructions”, they otherwise “seem to have given no consideration to any issues concerning legal professional privilege” [30]. It appeared that the solicitor only raised the issue with the Crown, not Mr McNicol. Davis J said that such a course had no justification.

26 THE BULLETIN June 2022

Crucially, Davis J went on to say “There is a trend which I have noticed that lawyers who have formerly acted for a client in criminal proceedings regard privilege as waived in toto once the client swears an affidavit criticising their handling of the client’s matter. Invariably then, the lawyers collaborate with the prosecution and swear affidavits which prima facie breach the privilege which they assume has been waived. [32] Such a course is fraught with risk. If the lawyer’s judgment is wrong and privilege continues to enure for the benefit of the client, then the delivery of the affidavit to the prosecution in breach of the privilege constitutes a serious breach of professional obligation owed to the client.” [33] Further, and helpfully, Davis J then proceeded to set out the approach which should be adopted by a lawyer who finds themself in the position of Mr McNicol’s previous lawyer, and it is worth setting out that guidance in full: “The approach which should be adopted by a lawyer in the position which Mr Stitt found himself is that once approached by the prosecution: 1. prepare an affidavit in response to the

assertions made by the client. That affidavit will no doubt contain privileged information; send the affidavit to the former client’s current solicitors, not the prosecution, and seek instructions as to whether the client accepts that the privilege has been waived; tell the prosecution that an affidavit has been prepared, that it contains privileged information and that instructions have been sought from the former client as to whether the privilege has been waived; if the former client accepts that the privilege has been waived, then the affidavit can of course be delivered to the prosecution. If the instructions are that there is a dispute as to questions of privilege, then the prosecution should be informed of that and told that the lawyer will be in court on the hearing of the application with the affidavit and ready to give evidence and will abide any ruling of the court on the issue of privilege.” [35] It was also said that if that procedure is adopted, then in the case of any dispute, the Court rules on the privilege and the lawyers are protected by the Court’s ruling in relation to any disclosure that is subsequently made. In the end there was no dispute about privilege in Mr McNicol’s case, however Davis J observed “[t]hat though was as a result more of good luck than good management” [37].

RISK WATCH

COMMENTARY There are antecedent questions which arise here, – if the lawyer was no longer acting for the client, why was the lawyer contemplating giving an affidavit or making a statement to the Crown at all? What permitted the lawyer to do this? Was there anything that obliged the lawyer to do this? It seems clear from Davis J’s comments at para [30] in the McNicol judgment that his Honour was somewhat bemused by the lack of attention to these antecedent questions given by the lawyer involved. Law Claims would encourage all practitioners who receive a request for information about an ex-client or the ex-client’s matter to treat these antecedent questions seriously.1 If you have not

received either i. a request from the ex-client, ii. a request for information or an explanation from the Court; or iii. a subpoena then there is no warrant for you to be talking about your ex-client or their matter at all. This of course is because, notwithstanding the desire to help and professional courtesy, the duty of confidentiality you owe to your client extends after the solicitor-client relationship has ended. Further, only the client can waive their legal professional privilege and it is not up to you as their previous lawyer to make an assessment that what the client

has subsequently done (in the McNicol case for example, making an application to set aside the plea) constitutes a waiver of that privilege. This applies even when the court is making the enquiry and where a subpoena has been issued. It is in this situation that the well known procedure of producing privileged documents in a sealed envelope, separate from other nonprivileged documents should be used. Endnotes 1 It should be noted that in relation to questions about wills and will files, especially as regards testamentary capacity, particular issues arise. An excellent resource which sets out the issues in this area is the paper Lawyers and Disputed Wills: Confidentiality, Privilege and other issues by Graham Edmonds-Wilson QC (Law Society Succession Law Conference 21 November 2019).

New appointment brings High Court and Royal Commission experience to major legal aid role

ucinda Byers has been announced as the new Chief Legal Officer at the Legal Services Commission. Ms Byers will oversee the Commission’s practitioner Panels that are made up of more than 650 lawyers, from over 220 SA law firms, who are approved to do legal aid cases. She will also manage the Commission’s in-house Criminal Law and Family Law practices. Before taking up this role, Ms Byers held senior public sector legal roles including Special Counsel to the SA Crown Solicitor and Solicitor Assisting the Nuclear Fuel Cycle Royal Commission. The appointment was announced by Legal Services Commission CEO Gabrielle Canny. “Lucinda is an outstanding public

lawyer who has specialised in providing high level advice to government over many years and has also represented SA in the High Court,” Ms Canny says. “She joins the Commission with a strong understanding of our services and priorities, having served on our board since 2019.” Ms Byers studied law in Adelaide and California, and has a Master’s degree in International and Comparative Law from the University of Brussels. She also spent five years working for the UK Government. “I am delighted to be part of a team that makes an enormous difference to the lives of so many South Australians,” Ms Byers says. “The Legal Services Commission plays a fundamental role in our justice

Lucinda Byers

system and in society more broadly. The Commission delivers its services in collaboration with courts, government, lawyers and legal professional bodies – and I look forward to building on its relationships with all those parts of the justice system.” B June 2022 THE BULLETIN

FAMILY LAW CASE NOTES

Family Law Case Notes KELEIGH ROBINSON, THE FAMILY LAW BOOK

PROPERTY – LEAVE GRANTED TO ADDUCE EVIDENCE FROM AN ADVERSARIAL EXPERT – COURT ERRED BY CONSIDERING $11 MILLION DIFFERENCE BETWEEN VALUATIONS IN ISOLATION

n Neales [2022] FedCFamC1A 41 (28 March, 2022) the Full Court (Aldridge, Tree and Schonell JJ) considered a husband’s application for leave to adduce evidence from an adversarial expert. The single expert, Mr B, had valued real properties at between $33.835 million and $34.190 million; whereas the husband’s expert, Mr D, had valued the properties at $22.465 million. The Full Court said (from [25]): “The primary judge concluded that contrary to the submissions of the husband, there was not a substantial body of contrary opinion, but rather an alternate opinion. (…) [27] … The primary judge observed that to permit another expert just because of a divergence in value, even if substantial, was inconsistent with the purpose of the [Rules] … (…) [41] The husband argued … that the following matters, which taken collectively, satisfied as another special reason: (1) that [each expert] … adopted alternative methodologies … ; (2) that matters were known to Mr D that were not known to the single expert. (…) (3) that … [if] the significant difference in value of over $11 million … arises as a result of a difference in methodology and information, it warrants consideration as another special reason; and

28 THE BULLETIN June 2022

(4) … [I]t is the husband who will be left with the consequences of the findings as to value … [42] … We are satisfied that the primary judge did not consider these matters in aggregate … but rather confined his consideration to the issue of differences in value. In doing so, the primary judge fell into error.” The Full Court granted leave for the husband to rely on his adversarial expert and costs certificates were ordered.

CHILDREN – SERIOUS CONTEMPT WARRANTS SIX MONTH IMPRISONMENT – LIBERTY TO PURGE CONTEMPT BY DISCLOSING WHEREABOUTS OF CHILD In The Marshal of the Federal Circuit and Family Court of Australia & Trach [2022] FedCFamC1F 22 (25 January, 2022) Gill J sentenced a mother for contempt, where she failed to provide information about the whereabouts of her son, after she handed him to a friend. In breach of a recovery order, the mother said that she could not locate him. Gill J said (from [8]): “In sentencing [the mother] I accept that to find facts … that are adverse to her I must find facts beyond reasonable doubt. I accept further that where there are matters that are … positive for [her] then they need only be found on the balance of probabilities … She has demonstrated that she suffers from some cognitive difficulties … [S]he is vulnerable to being used by others … [I]t has not been shown that the offending conduct is connected to … that vulnerability … [9] … [T]here are a number of … matters that I am to take into account,

which include … personal characteristics … remorse, the seriousness of the contempt, whether she has purged the contempt, the effects of the contempt, issues involving retribution, personal deterrence and general deterrence … [O]f particular importance is the enforcement of orders, punishment, … deterrence and the vindication of the Court’s authority … (…) [15] … [T]he seriousness of the contempt calls for a custodial disposition … I consider that [the mother] ought to be given the option to purge her contempt and if she provides … the information that she has about X’s whereabouts then she may be released … It is not adequate to suspend the term … Suspension is typically … on terms that a person enter into security or an agreement … to be of good behaviour. Where [the mother] has not disclosed the information that she holds about X … she is not of good behaviour … (…) [17] The circumstances of this case and the purposes of sentencing for contempt will be sufficiently met by a term of six months, on terms that permit [the mother] to relist the matter … to disclose the information about X’s whereabouts …”

PROPERTY – TREATMENT OF INITIAL CONTRIBUTIONS IN FOUR YEAR RELATIONSHIP – SPECIFIC AND GENERALISED ALLEGATIONS OF FAMILY VIOLENCE HAD A SIGNIFICANT ADVERSE EFFECT UPON CONTRIBUTIONS In Ferman & Lapham [2022] FedCFamC2F 415 (5 April, 2022) Judge Kearney considered property adjustment

FAMILY LAW CASE NOTES

applications after a four year de facto relationship, where each party had children of previous relationships. The de facto husband’s initial contribution was $895,000 and the de facto wife’s $21,000 (including superannuation) to an asset pool of $2,814,132, with all but $10,763 of the pool owned by the de facto husband. Judge Kearney said (from [183]): “The Court must treat the de facto husband’s superior initial contributions as one of those myriad of contributions to this relationship rather than weighing the myriad of contributions during the relationship against his initial contributions … (…) [189] … [C]ircumstances which weigh against the de facto husband’s contribution [to the de facto wife’s children of a previous relationship] are the short duration of the relationship and his large absences from the … home in the first half of the de facto relationship (due to his work commitments …) … (…) [236] There is no doubt that the de facto husband has engaged in serious family violence, including but not necessarily limited to, engaging in physical violence upon her and [her child] (for which he has been convicted), behaving in a threatening manner towards her, repeatedly making offensive, abusive and derogatory comments about her and [her child], damaging property in the presence of her and [her child] and breaching (on more than one occasion) an existing ADVO. (…) [239] I conclude that the de facto wife’s many and varied contributions …

took place in a context of fear and suffering caused by the de facto husband’s conduct. A qualitative assessment of those contributions leads inevitably to a conclusion that they were rendered significantly more arduous by circumstances of the de facto husband’s making and meaning that her contributions were adversely affected by her having to bear the burden. …” After assessing contributions as 90:10 in favour of the de facto husband, the Court made a s90SF(3) adjustment of 5% in favour of the de facto wife ([272]), such that there was an 85:15 division overall.

CHILDREN – COSTS – FATHER FAILS IN APPLICATION FOR INDEMNITY COSTS WHERE THE MOTHER’S MENTAL HEALTH DIFFICULTIES WERE CENTRAL TO HER CONDUCT DURING THE LITIGATION In Earle [2022] FedCFamC1F 16 (21 January, 2022) Hannam J heard a father’s application for indemnity costs after parenting proceedings culminated in orders for the parties’ two children to live with the father, with supervised maternal time. A single expert concluded that the mother exhibited symptoms of schizophrenia ([11]). After considering s117(2)(A) factors, Hannam J said (from [47]): “It is the father’s contention … that the mother conducted the proceedings in a manner that caused him to incur significant and unnecessary expense. (…) [61] … I accept the father’s submission that the mother’s conduct … generally contributed to delay and difficulty in reaching a conclusion to the

proceedings, which may well have resulted in costs being thrown away. However … this conduct must be viewed in the context of the mother’s mental health difficulties and the impact these difficulties had on her overall functioning. … [62] The father further argues that a costs order should be made against the mother given she was wholly unsuccessful … [T]he father attaches considerable weight to the mother continuing to press for final orders … contrary to the opinions and recommendations of the courtappointed expert and the final orders ultimately made … (…) [67] … However, this must be balanced together with all of the other relevant factors including … the mother’s mental health difficulties … (…) [77] … I accepted at the final hearing that the mother’s mental health difficulties … had been evolving over time. … [78] … I accepted the opinion of the expert that the mother did not have any insight into her psychotic symptoms or the effect that they were having on her functioning. I also accepted that the mother’s observed disorganised and unusual behaviour had been present to some extent throughout the entirety of the proceedings. In circumstances where these features of the mother’s functioning and behaviour are central to the father’s contentions about her conduct, I do not consider it just to attach significant weight to this matter … ” The Court concluded that each party bear their own costs, with the mother to reimburse the father for her share of the expert’s costs. B June 2022 THE BULLETIN

YOUNG LAWYERS

facebook.com/YLCSA

Justice Stein imparts career lessons at Young Lawyers’ Premium Breakfast ADAM HAMILTON, OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS AND LUNGAKA MBEDLA, THE WORKING WOMEN’S CENTRE SA

ollowing the event’s success in 2021, young lawyers from around the state eagerly gathered in the early hours of the morning on 21 April, 2022 to again break bread, or eggs as it was, and to gain some tips, tricks and invaluable wisdom from the guest speaker, her Honour Justice Stein. The sold out event was hosted at Lot 10 Cucina & Bar on Market Street, allowing for an intimate morning full of wonderfully delicious food that did not disappoint, ranging from roasted granola bowls to balsamico eggs with goats cheese, alongside copious amounts of coffee. Following breakfast, Justice Stein delivered a highly insightful speech about her career, providing advice on a wide range of topics alongside a number of very practical tips and tricks to assist young lawyers as they navigate through their inevitably challenging career ahead. Notably, her Honour mentioned the importance of setting boundaries, where possible, that distinguish between work and personal life to assist in avoiding burnout. Her Honour also highlighted the benefits of meditation and exercise to assist with, among other things, memory, stress and productivity. A special thank you to Justice Stein for taking the time out of her busy schedule to offer her advice to young members of the profession. The Young Lawyers’ Committee would also like to thank all of the attendees who supported the event and purchased all of the tickets; Lot 10 Cucina & Bar for hosting and for their excellent hospitality; as well as our major sponsor Burgess Paluch Legal Recruitment.

30 THE BULLETIN June 2022

Justice Stein speaks to the Young Lawyers at the Premium breakfast

WELLBEING & RESILIENCE

The burnout era SARAH EL SAYED, WELLBEING AND RESILIENCE COMMITTEE

rior to the emergence of COVID-19, burnout had gained some traction in headlines with its reclassification by the World Health Organisation as a syndrome caused by chronic stress in the workplace that has not been successfully managed. This occupational phenomenon has placed the syndrome high on the agenda for employers and employees concerned with managing burnout and employing effective practices that support positive mental well-being in the workplace. Given its debilitating and obstructive nature, it is an important skill to be able to identify the obvious signs of burnout (and the not so obvious) and adopt strategies that will allow you to overcome burnout so that you can live a flourishing life.

WHAT IS BURNOUT? Burnout is a state of emotional, physical and mental exhaustion caused by chronic stress and comprises of three main components: 1. Physical and emotional exhaustion - you may find that you are waking up each morning with a constant state of dread and fatigue. 2. Cynicism and detachment in the workplace - you are finding yourself cynical of the workplace and perhaps even your clients. You have also developed an increased sense of detachment from your workplace. 3. Reduced professional efficacy - you once felt like you were great at your job but now feel unaccomplished and demotivated. It is important to recognise that burnout does not occur overnight; it is insidious in nature and tends to creep up on you. It can take quite some time for you to notice that you are experiencing burnout as the signs can be quite subtle at first.

WHAT ARE SOME COMMON SIGNS OF BURNOUT? Burnout manifests differently in

everyone. However, some of the common signs of burnout include: • Constant fatigue, lack of energy and poor sleep. • Decreased attention span, difficulty focusing and poor memory retention. • Physical symptoms such as heart palpitations or chest pain, weight fluctuation, changes in mood, feelings of detachment and isolation. It can be quite difficult to pinpoint burnout as the symptoms can quite easily be overlooked and attributed to other factors in your life such as pregnancy, menopause or starting a new family.

WHAT CAN YOU DO? If you are already experiencing burnout, you should first take steps to recover from that episode. This may include implementing exercise into your life, taking time off work, or re-assessing your goals. To prevent future episodes of burnout you should try and find the sources of stress in your life and implement effective strategies to manage that stress. It can be quite difficult to implement change in your life when you are unsure what is causing you to feel that way. Once you

are aware of the contributing factors, you can implement strategies to manage those problems effectively. For example, why is your workload always so overwhelming? Perhaps you struggle to say no to your boss and have overcommitted or maybe there’s not an even distribution of the work between yourself and other members of your team. An effective strategy may be to communicate to your team when you are nearing capacity or delegate work to others where appropriate. The reduction in your workload may be enough to give you some immediate relief. Burnout can be quite overwhelming, and it can be difficult to find the energy to take positive steps to overcome burnout when you are feeling mentally, physically and emotionally exhausted. If this is the case, you may find some utility in reaching out to others for help. Seek help from someone you trust. It could be a family member, co-worker, friend or even a professional such as a psychologist or counsellor. The Dr Jill LawCare service is available through the Society. If you are concerned about your general well-being, you can also access the Society’s Wellbeing and Support resources. June 2022 THE BULLETIN

BOOKSHELF

COPYRIGHT LAW Abstract from Federation Press Copyright Law offers a comprehensive resource for practitioners, students and those in copyright-dependent industries. It deals with all the private law regimes within the Copyright Act 1968 (Cth) – proprietary copyright, technical

protection measures, performers’ rights and moral rights. The work has a strong focus on Australian jurisprudence and law reform, and provides expositions of complex matters within their treaty law, litigious, technological, historical or political contexts.

D Brennan The Federation Press 2021 HB $220

ROYAL COMMISSIONS AND PUBLIC INQUIRIES IN AUSTRALIA Abstract from LexisNexis

S Prasser 2nd ed LexisNexis 2021 PB $198

Royal Commissions and Public Inquiries in Australia 2nd edition provides the most comprehensive and up-to-date review of this important, but sometimes overlooked, instrument of public policy. Written by an expert in the field, this authoritative book comes with several new

chapters covering international trends; key issues and controversies; inquiry impacts and effectiveness; and comparison between public inquiries and permanent anti-corruption bodies. This book is a perfect companion to Advocacy in Practice 7th edition by James Glissan QC which provides practical insights to counsel appearing before Royal Commissions, Inquiries and anti-corruption bodies.

WINDFALL EQUITY AND THE JOINT ENDEAVOUR PRINCIPLE: RESTATEMENT OF THE PRINCIPLES IN MUSCHINSKI V DODDS Abstract from LexisNexis An examination of over 30 years of case law history on constructive trusts in joint endeavours. Explores the equitable basis of joint

endeavours through case law and shows how fiduciary duties and constructive trusts arise in joint endeavours, which is helpful for understanding how to wind up a joint endeavour that has failed and the principles one seeks to displace with a contract.

D Weber LexisNexis 2021 PB $180

ANNOTATED CIVIL LIABILITY LEGISLATION - QUEENSLAND Abstract from LexisNexis

J de Groot & B Nickel 5th ed LexisNexis 2021 PB $240.00

32 THE BULLETIN June 2022

Annotated Civil Liability Legislation — Queensland, is the essential companion for practitioners engaged in the conduct of negligence claims, whether in a commercial or personal injury context. This well-renowned title is a unique and practical guide to the interpretation and application of the [law]. This 5th edition updates and examines the important advances in jurisprudence concerning this legislation. New developments

are considered in areas ranging from application and exclusion, breach of duty and causation, to those governing proportionate liability, contributory negligence, liability for institutional child abuse, damages and operation in respect of federal statutory causes of action. The well-defined annotated format of this text affords practitioners commencement and application information, expert commentary by reference to case law and journal treatment, together with cross-referencing to interstate and federal analogues.

TAX FILES

Trust reimbursement arrangements STEPHEN HEATH, PARTNER, WALLMANS LAWYERS

he issue of the tax effectiveness of certain discretionary trust distributions has been a major focal point for the Australian Taxation Office (ATO) for quite some time. In many respects, the ATO perceives discretionary distributions to be akin to tax avoidance. This has now culminated in the ATO issuing Taxation Ruling TR2022/D1 and Practical Compliance Guide PCG2022/D1 on 24 February 2022. These rulings have been issued as drafts and represent the Commissioner of Taxation’s preliminary view of the operation of section 100A Income Tax Assessment Act 1936 (Cth). Public consultation on the drafts closed on 8 April 2022. In the writer’s experience most tax professionals have never had much cause to consider the application of section 100A to the annual exercise of determining the distribution of trust income. On occasion some more sophisticated and seasoned advisers have found reason to mention the potential application of section 100A to some arrangements, though usually without great conviction. The reason for this, perhaps quite rightly, is that section 100A was only introduced into the tax legislation in 1978 to deal with blatant trust stripping arrangements. Gone are the halycon days of the tax avoidance industry, given free reign by the Barwick High Court. This has given rise to conjecture about the appropriate way to interpret tax legislation. The view, once upon a time, will of course have been that the revenue statute should be interpreted in favour of the King.

The ATO view now being espoused proceeds on the basis that, notwithstanding section 100A having originally had a specific purpose, if the words can be made to adapt and fit to other circumstances then there is no reason for the provision not be applied to that end. What is Section 100A about? Section 100A is open to being applied where: 1. A present entitlement of a beneficiary of a trust has arisen in connection with a ‘reimbursement arrangement’. The term ‘present entitlement’ often gives rise to confusion. In simple terms a present entitlement arises when a trustee appoints income of the trust at year end to a beneficiary of the trust but does not pay the income to the beneficiary. This appears on the trust balance sheet as an unpaid present entitlement of the beneficiary and should not be confused with a loan. A sui juris beneficiary, as of right, can demand payment as against the trustee at any time. 2. A ‘reimbursement arrangement’ exists where: a. there is the provision of a benefit to a person other than the presently entitled beneficiary; b. the purpose of any one or more of the parties to the arrangement is to reduce the overall incidence of tax; and c. the arrangement must be other than in the course of ordinary family or commercial dealings. The meaning of course of ordinary

family or commercial dealing is undefined and unclear and accordingly, it is not inconceivable that the Courts would resort to the historical context in which section 100A came into being to provide guidance. That may prove to be an impediment to the ATO given the attitude that section 100A can be applied in circumstances not originally intended. Significantly, an application of section 100A is not subject to time limits and will result in the subject income being taxed to the trustee at the top personal marginal rate (47%) as distinct from the beneficiary’s tax rate at the margin (usually a lower rate). What is the ATO view? In PCG2022/D1 the ATO from an administrative viewpoint divides various trust distribution arrangements into white zone, green zone, blue zone and red zone arrangements. This is something of a fiction and has no basis by reference to the wording of the provision. In short, the objective for taxpayers is to stay out of the red zone! The PCG contains 11 factual examples which describe what ‘arrangements’ might fit into what ‘zones’. In the writer’s view the potential offered by this methodology is diminished by examples which are either simplistic and where the answer is self-evident or refer to manifestly aggressive tax planning. Several generalisations can be made which are of some assistance: Arrangements entered into before 1 July 2014 fall into the ‘white zone’ and are unlikely to attract attention from the ATO. • Likewise a case of ‘trustee retention of funds’ is unlikely to attract the ATO’s June 2022 THE BULLETIN

TAX FILES

attention. Examples of a ‘trustee retention of funds’ is the use of unpaid distributions to fund working capital of a business conducted by the trust or to invest in passive investments; say shares or real property. In the usual course one should not lose sight of the tax liability which arises to the beneficiary of the distribution year; notwithstanding the entitlement remaining unpaid. A common scenario A legal practitioner is a partner of a law firm and uses a family trust to take receipt of service trust distributions each year. Present entitlements are created in favour of the legal practitioner’s three adult children every year. After several years the trust balance sheet presents as follows:

On the ATO’s view it is arguable that Section 100A applies because: Present entitlements have been created; There is a ‘reimbursement agreement’ because: a. The legal practitioner (a person other than the 3 child beneficiaries) has obtained a benefit by way of the $100 loan; b. the purpose of the legal practitioner (the children probably have little insight into this perhaps until they seek to claim student youth allowance from Centrelink) is to access the lower tax rate applicable to each of the children; c. the arrangement may not be an ordinary family dealing. This does give rise to an important issue under Australian tax laws; namely, is it an

LEGAL PRACTITIONER TRUST A

L&E

Cash

Child 1

Loan: Legal Practitioner

100

Child 2

Child 3

Settlement

3 APR 2021 – 2 MAY 2022 ACTS PROCLAIMED Nil

ACTS ASSENTED TO Nil

APPOINTMENTS Legal Services Commission

34 THE BULLETIN June 2022

ordinary family dealing for family members to collude to access the tax rates of lower income earning family members. For the time being trustees and controllers of trusts will be well served to tread carefully and, at the very least, attempt to curb conduct in the red zone. PCG2022/D1 skirts around the legal practitioner trust example above and the best interpretation the writer can reach is that these facts rest on the cusp between the blue zone and red zone. It should be the noted that whilst the legal practitioner and the children might never seek to apply the vigour of their rights and obligations as between themselves: • creditors of the children are entitled to pursue the trustee; • the children can pursue the trustee as of right; • the death of any legal practitioner and the children will give rise to claims by and against executors; • entitlements held by a beneficiary may impact their availability to claim certain tax concessions and social security benefits. B

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

Member: from 28 April 2022 until 30 November 2022 Stephanie Jane Jude Halliday Gazetted: 28 April 2022, Gazette No. 25 of 2022 Coroner for a term commencing on 28 April 2022 and expiring on 10 August 2022 Naomi Mary Kereru

Gazetted: 28 April 2022, Gazette No. 25 of 2022

RULES Nil

REGULATIONS PROMULGATED Nil

CLASSIFIEDS

VALUATIONS MATRIMONIAL

Banking Expert

INSURANCE

Lending & recovery decisions, including: Banking Code issues, finance availability, capacity to settle, and loan enforcement.

TAX REALIGNMENT

Geoff Green 0404 885 062

INSOLVENCY

Details of qualifications and experience, including giving evidence in the FCA, VSC and SICC, via:

DECEASED ESTATES

FURNITURE ANTIQUES, COLLECTIONS BUSINESS ASSETS MACHINERY MOTOR VEHICLES CARS, BOATS, PLANES

BankingExpertWitness.com.au

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

Simple, clear, unbiased advice, without fear or favour.

t. +61 8 431 80 82 Hugh McPharlin FCA

d m e w

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

m. 401 712 908 +61+61 8 8139 1130

+61 419 841 780 e. ahi@andrewhillinvestigations.com.au hmcpharlin@nexiaem.com.au 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:

CITY & COUNTRY ROGER KEARNS

Business valuations

Andrew Hill Investigations

Take Your Business Mobile boylen.com.au

• 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

P (08) 8233 9433

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

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 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher

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.

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

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

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

We manage one of SA’s largest social media accounts. boylen.com.au

P (08) 8233 9433

Law Society Bulletin - June 2022

Articles inside

Tax Files: Trust reimbursement

Family Law Case Notes

Young Lawyers: Justice Stein imparts career lessons at Young Lawyers’ Premium Breakfast

Wellbeing & Resilience: The burnout

Bookshelf

Lucinda Byers appointed Chief

Risk Watch: A new case on legal professional privilege and former

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

How will the new COVID management laws work?

Increasing the Participation of Persons with Mental Health Disabilities in Involuntary Mental Health Treatment Decision-Making

Space traffic management: Essential

Travel insurance claims during Covid-19: An insurance lawyer’s guide

Travelling with pets: what the law says

From the Editor

President’s Message