The Bulletin - Law Society of South Australia - March 2020 edition by lawsocietysa

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 42 – ISSUE 2 – MARCH 2020

IN THIS ISSUE

Opportunities for lawyers in the space industry The militarisation of space Negotiating contracts for space technologies

SPACE LAW: PART I

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (2) LSB(SA). ISSN 1038-6777

CONTENTS SPACE LAW: PART 1 6

FEATURES & NEWS

The crucial role that lawyers will play in the space industry – By John Caruso ANGELS project creates one stop shop for space laws – By Alice Osborne International space law and military uses of space Professor Melissa De Zwart Australia’s Essential Contribution to space domain awareness By Duncan Blake Space mining: Commercial opportunities & legal uncertainties By Dr Matthew Stubbs Commercial space law: launch and operation of spacecraft By Donna Lawler

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

T White R Sandford J Stewart-Rattray E Shaw F Bell A Nikolovski S Hooper V Gilliland

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

REGULAR COLUMNS

Shaya to ride 500km for charity

From the Editor

Event wrap-up: Happy New (Legal) Year event

President’s Message

Society outlines key asks in State Budget submission

Oral Histories profile: Morry Bailes By Lindy McNamara

Tax Files: Residence issues for Trust Estates with Foreign Corporate Trustees – By John Tucker

The Security of Payment Act: considering the cope of the mining exclusion – By Allie A Umoff

Risk Watch: Proper use of the Inactive Case List can save time, money & claims – By Grant Feary

High Court judgment puts Aboriginal Australians beyond “Alien” powers By Matthew Rismondo

Wellbeing & Resilience: The desire to be resilient is infectious

Mann v Paterson Constructions Pty Ltd: The end of the rescission fallacy By Travis Shueard & Seamus Brand

Family Law Case Notes By Rob Glade-Wright

The execution of Charles Patrick Joseph O’Leary – By Dr Auke ‘JJ’ Steensma

Bookshelf

Gazing in the Gazette

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

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

Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions. PUBLISHER/ADVERTISER Boylen Level 3, 47 South Terrace, Adelaide SA 5000. Ph: (08) 8233 9433 Fax: (08) 8212 6484 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Layout: Henry Rivera Advertising Email: sales@boylen.com.au Printer Lane Print Group 101 Mooringe Ave, Camden Park SA 5038. Ph: (08) 8376 1188

FROM THE EDITOR

So many opportunities to explore in space MICHAEL ESPOSITO, EDITOR

or an apparently niche topic, space law is certainly generating a fair bit of interest in the profession. So much so that this is one of the few times that we have decided to split the topic over two editions because there just isn’t enough, ahem, space, to fit all the articles we have received in just one publication. So we have launched our special space law edition in March, and will be returning to this fascinating topic in April. No doubt the excitement around this area of law has been turbocharged by the establishment of a Space Agency in Adelaide. South Australia is officially Australia’s space state and the opportunities to be part of this industry are innumerable. At a recent space forum held at University of Adelaide, Flavia Tata Nardini, CEO of the start-up success story Space Fleet Technologies, recalled that she was told she was crazy for trying to establish a tech start-up in Adelaide rather than going to Silicon Valley. Largely due to the fact that she moved here for love and her partner would never dream of leaving Adelaide, she remained in Adelaide and her enterprise has bucked conventional wisdom and is thriving, demonstrating the potential that South Australia has to become world

leader in innovation and technological development. The panellists remarked that, while traditionally the domain of mathematicians and engineers, the space industry has opened up to numerous other sectors and will continue to require more and more people from more and more industries, from accountants, to doctors, data analysts, to chefs, to furniture makers, and of course, lawyers. As humans increase their presence in space, lawyers will have a bigger role to play in managing contract negotiations, resolving disputes, patenting intellectual property, advising on the rules of spacebased conflict, analysing the implications of data collection, ensuring spacecraft launches comply with regulations, and much more. We may even see the day when lawyers are responsible for writing the rules that will govern a new interstellar settlement. There is so much to learn about this industry, and we have assembled some of the brightest minds in South Australia and Australia to explore the current, emerging and future issues in the area of space law and hopefully highlight some of the opportunities that are out there for lawyers. I hope you have a blast reading this special edition. B

IN THIS ISSUE

SPACE MINING Opportunities & legal uncertainties

SECURITY OF PAYMENT ACT Considering the scope of the mining exclusion

SOCIETY ESTABLISHES SPACE LAW COMMITTEE

he Society will establish Space Law Committee, following adoption of terms of reference for the Committee by the Council of the Society at its March meeting. The Society is now seeking expressions of interest to join the Committee, which will assist in representing the Society’s views on legal matters relating to the space industry, informing the profession about relevant matters in this area via the provision

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of articles in the Bulletin and other publications, providing recommendations with regards to CPD sessions (including developing a hypothetical case study workshop), identifying work opportunities for the profession in this area, and assisting with the development of submissions in the area of space law. Expressions of interest by Members in joining the committee can be sent to the Chief Executive at eoi@lawsocietysa.asn.au

LANDMARK DECISION The High Court confirms that alien powers do not apply to Aboriginal Australians

PRESIDENT’S MESSAGE

Much work to be done to develop space law TIM WHITE, PRESIDENT, LAW SOCIETY OF SA

uter space fascinates us for many reasons - its endless size, questions of what might be out there, the prospect of discovering new planets, the marvel of human space travel and countless other aspects. Increasingly, lawyers are advising companies and countries about their activities in space. Clearly the establishment of the Australian Space Agency in Adelaide in July 2018, which officially opened on 19 February 2020, offers a unique opportunity for SA lawyers to maximise their involvement in this expanding area of law. Considerable expenditure continues to occur in Australian in this industry. Just one example of this was the Australian Government’s announcement in September 2019 to commit $150 million towards the project with NASA on a joint campaign to return to the Moon and travel to Mars. I recently talked about the expanding militarization of outer space in one of my regular columns for The Advertiser. The USA announced late last year that it has formed a “Space Force” to work along side its other land, sea and air forces. When announcing the establishment of Space Force, President Trump gave a clear indication of the USA’s future intentions when he referred to outer space as being “the world’s newest war-fighting domain.” Perhaps surprisingly, there currently exists no agreed modern laws governing the conduct of countries, in outer space, at the time of an international armed conflict. There are certainly international space treaties that many countries have adopted but they say little about what acts a country can perform during a time of war. Instead, the operative international

law is the Additional Protocol 1, which commenced in 1977. Clearly weapons and the means of warfare have progressed enormously since the AP1 was adopted and according its applicability to weapons in space remains questionable. Given the seemingly endless means of modern warfare there are significant challenges that face any drafters of laws that try to “control or regulate” the conduct of countries in outer pace. A current “hot topic” among international academics is whether electronic data is or is not a military objective. This issue is vital because at the time of war only military objectives can be attacked. So if electronic data is not a military objective, it cannot be attacked directly.1 This important issue, in additional to many others, was considered by leading international military academics in Tallinn, the capital of Estonia. It resulted in the publication of the Tallinn Manual 2 (TM), which deals with a large range of cyber operation threats that may arise in military conflicts .The majority opinion arising from the TM, in short, was that data is not a military objective and as a consequence of that it can not be directly targeted. In addition to the issue of military objectives, there are many other restrictions that determine what a country can attack during an international armed conflict. One such important principle is that any offensive action must not amount to an indiscriminate attack. In essence, an indiscriminate attack is defined as one which is not aimed at a specific military objective. Accordingly, even if data is a military objective, any attack on data must be distinct, direct and targeted. This principle raises a major complication

with any cyber attack given the highly interconnected relationship between civilian and military networks, computers and systems. An attack on military data, in many instances, will have flow on and often adverse effects to civilian objects and/or personnel. As a result, any cyber attack must be highly sophisticated and direct, only impacting on and affecting military data. Would the introduction of a virus to an enemy’s computer network be likely to constitute an indiscriminate attack? Given that many military networks rely on civilian assets or are intertwined with civilian data you would expect it would be very difficult to create a virus that only affected military data. Any virus that is introduced to attack military data must not “bleed” into civilian networks. Indeed it must remain very direct and specific with its impact. This, in many instances, will be impossible. Consequently, many attacks on data, utilizing a virus, will be prohibited due to their indiscriminate impact. The University of Adelaide is playing a lead role in developing a comprehensive guide on military space laws, via the development, in conjunction with other universities, of the Woomera Manual, which aims to elucidate and clarify international law that applicable to military space operations. With Adelaide academics at the forefront of this mission, and the city of Adelaide becoming a space industry hub, there huge opportunities for South Australian industries and professions, including the legal profession, to be involved in this exciting area. B Endnotes 1 see AP 1 Article 52(2)

March 2020 THE BULLETIN

SPACE LAW

WATCH THIS SPACE: THE CRUCIAL ROLE THAT LAWYERS WILL PLAY IN THE SPACE INDUSTRY JOHN CARUSO, PARTNER, TINDALL GASK BENTLEY

pace, it has been said, is infinite, and the opportunities for South Australia – and its lawyers - in the rapidly-growing space industry are much the same. Our State is open for business as evidenced by the fact the South Australian space industry has grown substantially in the 12 months since it was announced that the Australian Space Agency (ASA) would be headquartered in Adelaide at the old Royal Adelaide Hospital site located on North Terrace named Lot 14. This article will look at the role lawyers will play in the rapidly developing space industry and will also provide some background to the space industry and the enormous opportunity we have for growth in South Australia if we can channel our rich resources of highly skilled, innovative and motivated leaders of tomorrow to embrace the broad opportunities the space industry offers. The role for lawyers in the space industry was neatly described by Deputy Premier and Attorney-General of South Australia, Vickie Chapman, who has also recently completed a one-week intensive Strategic Space Law course at the University of Adelaide by stating: “We’re going to be the centre of space, so space law needs an army of people who are going to know about contract law in space, the rules of engagement in the defence world, the surveillance rules, and the launching and permit processes for satellites,” she said. “Every new industry comes with an army of

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regulation and rules, we need to be prepared for it and I want South Australians in the legal world to provide that service.”1 President of the Law Society of South Australia, Tim White recently made the following similar comments on the topic: “While the space industry has the potential to be a key employer for South Australia in the not too distant future, there are legal issues around this evolving industry and we need to keep ahead of it to ensure growth.”2

WHAT TYPE OF WORK WILL THE SPACE LAWYERS OF TOMORROW FOCUS ON? I expect the three main areas for lawyers to become involved in the space industry to be: • the commercial space industry; • alternative dispute resolution for commercial disputes in the space industry; and • implementation and interpretation of Australian space laws and international treaties, government advisor roles and Australian Defence Force space capabilities.

COMMERCIAL SPACE INDUSTRY The largest of the three areas in terms of size and volume of work will be for corporate and commercial lawyers working in the commercial space sector. This is a very broad category which encapsulates any commercial law requirements concerning the space industry. This would

include, but not be limited to, commercial contract negotiations, insurance, mergers and acquisitions, corporations’ law, intellectual property and business transactional law. To understand the role that current and future lawyers will play in the developing space industry, we must first have some background to the structure of the industry and the global space economy.

STRUCTURE OF THE SPACE INDUSTRY – THE GLOBAL SPACE ECONOMY The world relies on a wide variety of space-related technologies which are used in virtually every sector of the global economy. We are witnessing a real transformation in the global space economy. Space technology is getting smaller, access to space is becoming cheaper and innovation cycles are becoming shorter. The space industry has become a fast-growing and fiercely competitive commercial sector. The falling costs associated with satellite launches together with the unprecedented levels of private funding flowing into the industry have pushed the market entry price lower than ever. The space industry is no longer restricted to government agencies with enormous government budgets. This means companies ranging in size from global multi-nationals to medium-size national companies including SMEs, all the way down to small start-ups, have

SPACE LAW

the opportunity to make significant contributions to the space economy and the space industry. The key driving force behind the recent global resurgence in the space industry is mainly due to the private sector. According to recent statistics, three-quarters of the US $345 billion dollars spent globally on the space industry in 2016 was contributed by private enterprise.3 According to the latest figures, by 2040 the global space economy is expected to have tripled in size to at least US $1.1 trillion dollars as demand for services escalates and disruptive technologies such as reusable rockets and mass-produced satellites force costs down significantly.4 In Australia alone, the space sector is growing strongly and outperforming the broader economy. According to recent figures, the Australian space industry was worth AU $3.94 billion dollars in the 2015–16 financial year with 88% of that dollar figure contributed to by the private sector.5 Currently, in Australia, approximately 10,000 people are working in the space industry, and the Australian Government has set an ambitious target to increase that number to 30,000 by 2030.6 Australia follows the international trend in that a significant proportion of the space industry is dominated by satellite TV, broadband, and communication services. However, space-enhanced products and services can improve the productivity and

competitiveness of virtually every sector of our economy, from telecommunications, transport, logistics and communications, to mining and agriculture.7

ALTERNATIVE DISPUTE RESOLUTION (ADR) According to an article written by Mark Giddings in the SA Law Society Bulletin in December, 2019 titled Watch this space: Attorney General identifies the need for ADR in the states emerging commercial space industry, Deputy Premier and Attorney-General of South Australia, Vickie Chapman emphasised that: “the space industry requires commercial solutions to disputes that would avoid parties getting bogged down in litigation in the courts where matters may take several years to be resolved” and hinted that the State Government may take steps to promote forms of alternative dispute resolution in the sector.8 I note that the distinction must be made between “disputes in outer space” involving space law as defined in this context as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies of 1967 (Outer Space Treaty) and its accompanying agreement and conventions9 as listed in the footnotes.10 Although not formally concerning space law as defined above, disputes can and do arise in the space industry,

which comprises manufacturers and operators of satellites, launch service providers who bring satellites into orbit, telecommunications companies and their insurers. These players conclude contracts for the planning of satellite constellations, the manufacturing of satellites, insurance, the delivery into orbit and for the operation of satellite constellations. These contracts usually contain arbitration clauses. If something goes wrong and a dispute cannot be settled amicably, the dispute may escalate to (commercial) arbitration.11 Looking particularly at the commercial arbitrations in the satellite and launch services industries the range of commercial arbitrations in space disputes follows the whole lifecycle of a satellite including the order and (possibly late) delivery of satellites, their total or partially failed launch into orbit and in the sale or lease of satellites already in orbit.12 Lawyers who would look to being involved in arbitration and alternate dispute resolution in the space industry need to have a solid understanding of the rules at play in these types of disputes including but not limited to arbitral rules, such as the UNCITRAL Arbitration Rules or those published by institutions such as the Australian Centre for International Commercial Arbitration (‘ACICA’), which provide ready-made procedures for dealing with commercial disputes which may be adopted by parties with or without modifications.13 March 2020 THE BULLETIN

SPACE LAW

Prime Minister Scott Morrison and SA Premier Steven Marshall sign a Memorandum of Understanding to establish a national space agency in Adelaide

IMPLEMENTATION AND INTERPRETATION OF AUSTRALIAN SPACE LAWS Another sub-area of space law that will have a greater need for lawyers to become involved in the industry is the implementation and interpretation of Australian space laws. For example in recent changes on 31 August, 2019 updated and streamlined the regulatory framework for space launches and returns. The Space (Launches and Returns) Act 2018 replaces the existing Space Activities Act 1998. The intention of the new Act is to make it more attainable for smaller businesses, start-ups and universities to participate in the space ecosystem. The Act and regulatory framework has been designed to reduce barriers, streamline the approval process and significantly reduce the insurance premiums for launches and returns. This aims to foster innovation and collaboration in Australia’s growing space sector. The Act now incorporates three new rules covering general provisions for: • launches and returns; • special provisions for high powered rockets; and • insurance requirements. These measures streamline the

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approvals process and adjust the insurance requirements to appropriate risk levels for launches and returns. As well as having a strong understanding of space laws, including the Act and new regulations outlined above, space lawyers may also be required to interpret international treaties and advise lawmakers about good policy, which will also require a good understanding of some of the science involved to give their clients the educated advice required. These areas of space law will also branch out to Government advisor roles and in particular Australian Defence Force space capabilities. For example, the announcement by Prime Minister, Scott Morrison in September, 2019 for a $150 million investment by the Federal Government into Australian businesses and new technologies that will support NASA in an ambitious project to return to the Moon and travel to Mars. John Caruso is an active member of the International Bar Association (IBA) Space Law Committee which provides a forum for space lawyers to address the increasing number of practical legal issues arising in commercial and regulatory activities in this specialised area of domestic and international law. B

Endnotes 1 Adelaide.edu.au. (2020). Leading lady Alumni University of Adelaide. [online] Available at: https://www.adelaide.edu.au/alumni/news/ list/2019/12/04/leading-lady. 2 Tindall Gask Bentley Lawyers. (2020). TGB partner Tim White starts Law Society SA presidency - Tindall Gask Bentley Lawyers. [online] Available at: https://tgb.com.au/ news-features/tgb-partner-tim-white-starts-lawsociety-sa-presidency/. 3 Review of Australia’s Space Industry Capability - Report from the Expert Reference Group, (2018) Industry.gov.au.[online] Available at: https://www.industry.gov.au/sites/default/ files/June%202018/document/pdf/review_of_ australias_space_industry_capability_-_report_ from_the_expert_reference_group.pdf ?acsf_ files_redirect 4 Morgan Stanley. (2020). Space: Investing in the Final Frontier | Morgan Stanley. [online] Available at: https://www.morganstanley.com/ ideas/investing-in-space. 5 Australian Space Agency (2019) Advancing Space Australian Civil Space Strategy 2019 – 2028 [online] Available at:https://publications. industry.gov.au/publications/advancing-spaceaustralian-civil-space-strategy-2019-2028.pdf 6 Ibid. 7 Ibid. 8 (2020). The Law Society Bulletin - December 2019 edition. Mark Giddings Watch this space: Attorney General identifies the need for ADR in the states emerging commercial space industry [online] Available at: https://issuu.com/ lawsocietysa/docs/lsb_december_2019_digital_h 9 Jan Frohloff, Arbitration in space disputes, Arbitration International, Volume 35, Issue 3, September 2019, Pages 309–329, https://doi. org/10.1093/arbint/aiz015 10 Namely the Convention on International Liability for Damage Caused by Space Objects 1972 (‘Liability Convention’), the Convention on Registration of Objects Launched into Outer Space 1976 (‘Registration Convention’), the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1968 (‘Rescue Agreement’) and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979 (‘Moon Agreement’). 11 Jan Frohloff, Arbitration in space disputes, Arbitration International, Volume 35, Issue 3, September 2019, Pages 309–329, https://doi. org/10.1093/arbint/aiz015 12 Jan Frohloff, Arbitration in space disputes, Arbitration International, Volume 35, Issue 3, September 2019, Pages 309–329, https://doi. org/10.1093/arbint/aiz015 13 (2020). The Law Society Bulletin - December 2019 edition. Mark Giddings Watch this space: Attorney General identifies the need for ADR in the states emerging commercial space industry [online] Available at: https://issuu.com/ lawsocietysa/docs/lsb_december_2019_digital_h

SPACE LAW

ANGELS Project creates one stop shop for space laws ALICE OSBORNE, HONOURS STUDENT, ADELAIDE UNIVERSITY LAW SCHOOL

he space technology industry is not by nature filled with those with an extensive law background, and yet so often participants in this field must try to navigate complex legal problems regarding space projects. The Australian “Navigational” Guide Explaining Laws for Space (ANGELS) project has been created to equip these entrepreneurs with a “first port of call” when they encounter legal problems. In the form of a website, available at spacelaws.com.au, the ANGELS project provides information on a range of topics in the field of space law, both domestic and international, ranging from government procurement, to liability and insurance, to intellectual property. The ANGELS project was an initiative of Adelaide Law School, in collaboration with Duncan Blake, currently undertaking doctoral research within the Adelaide Law School on a related topic and Special Counsel on Space Law for the International Aerospace Law & Policy Group, and supported by a grant from the Law Foundation of South Australia. Six high-achieving undergraduate students from Adelaide Law School were chosen to facilitate the creation of content for the website. Under Duncan’s leadership, Alice Osborne, Nicholas Garbas, Claudia Floreani, Chloe Evans, Brian Lian, and Peter Dalrymple spent Semester 1 of 2019 undertaking comprehensive legal research, conducting interviews with spacetechnology entrepreneurs and industry participants, giving presentations at Space Hubs around Australia, and finally creating the necessary content for the website. With an often-grueling schedule, including a nine-day “tour” encompassing six capital cities, and sometimes entirely new legal topics, the students were pleased to launch the website on 2 September, 2019 to coincide with the commencement of the Space (Launches and Returns) Act 2018 (Cth). During the interviews undertaken by each student with space technology entrepreneurs (33 in total) it was found that often these entrepreneurs gave only a little thought to their legal obligations

before pursuing their research and developing their technology and projects. It was found that this approach can create problems further (or too late) in the process – for example, an entrepreneur may find that their technology is inherently incapable of complying with pertinent legal parameters. Alternatively, other entrepreneurs reported that although they understood that they must comply with various legal regimes, the specific details of these obligations were extremely difficult to find and were scattered across multiple websites and platforms, without clear signposting or ability to make speedy enquiries. It is therefore the hope of the ANGELS team that these beleaguered entrepreneurs will now be able to access the ANGELS website at the start of their project, find and understand relevant legal information, and seek external legal advice if appropriate to do so. The ANGELS website encompasses a broad range of legal topics, distilling them into content that a layperson may understand. The topics included (as applicable to space technology) are: • Space law fundamentals; • Legal services for space activities; • Regulators of space activities; • Aviation law; • Australian export control laws; • Government procurement; • Intellectual property; • Liability and insurance; • Laws applicable to launch; • Spectrum regulation; • Hybrid-aerospace vehicles; • Satellite communications; • Laws applicable to remote sensing; • Position, navigation, and timing; and • Laws applicable to space situational awareness (SSA). Additionally, the licensing regimes of France, India, the United Kingdom, the United States, China, and New Zealand were compared to that of Australia, as Australia currently has no commercial space ports from which to launch a rocket into orbit (although this may change in the near future). For ease of comprehension, these topics are searchable under

categories, by “segment”, “legal area”, or “country of activity”. Furthermore, the website has been designed in such a manner that those with a specific question, those who need to understand their obligations generally, and those for whom space law is an interest all may access the information they require. Thus, one may enter a general phrase into the initial search bar, or click through the articles defined under each category. The website, after receiving feedback from users, also has the capability to add more articles in the future. For example, some proposed articles will address the application of dangerous goods legislation – especially in respect of fuel for rockets and satellites – and comparative space licensing in additional countries, beginning with Japan. When questioned about the ANGELS website, entrepreneurs and participants in the space industry responded enthusiastically about the usefulness of such a website, as well as its timeliness. The space industry is getting larger and more complex, with increasing participation from both the private and public sector, including burgeoning space projects from previously nonparticipating states. As the industry grows, its unregulated aspects diminish, thus requiring a greater and greater knowledge of both domestic and international legal regimes. The ANGELS Project addresses years of legal uncertainty for space industry participants, who now may access concise legal information relevant to the space industry, enabling them to better understand their position and to seek expert legal advice when necessary. The ANGELS Project may be accessed at spacelaws.com and spacelaws.com.au. B March 2020 THE BULLETIN

SPACE LAW

INTERNATIONAL SPACE LAW AND MILITARY USES OF OUTER SPACE PROFESSOR MELISSA DE ZWART, DEAN OF LAW, UNIVERSITY OF ADELAIDE

pace is an inherently dual use domain. Much of the technology we take for granted on a daily basis, including the now ubiquitous GPS tools used to navigate around town or record our running or cycling activity, is supported either wholly or in part by military technology and hardware. As we all know from popular culture, many of the early astronauts and cosmonauts were drawn from the ranks of their respective nation’s military, and this is still predominantly the case. Renowned US astrophysicist Neil de Grasse Tyson recently published an entire book devoted to the “unspoken alliance between astrophysics and the military’”, noting the many scientific and technological leaps forward that resulted from military science.1 De Grasse Tyson observes: “What propelled America to the Moon was not science or exploration, but fear and competition with the Soviet Union.”2 This same rivalry, and fear of its catastrophic potential, also led to the creation of international space law in the Outer Space Treaty.3 Despite this international treaty, and the four other space treaties that succeeded it,4 there remains significant confusion in the public mind regarding claims about the increasing “militarisation” of space and claims that such developments are inconsistent with international space law. Recent months have witnessed President Trump’s creation of a US Space Force in December, 2019,5 NATO’s characterisation of space as an operational domain6 and France’s creation of a space defence command.7 Such developments have led to a concern regarding space being normalised as a “warfighting domain”. At the same time, the Indian space program, operated through the Indian Space Research Organisation (ISRO)

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which had previously publicly declared that it was not involved in any military space activity, proclaimed in March, 2019 the arrival of India as a “space power” after the destruction of its own satellite in a project known as “Mission Shakti”.8 This test, which involved the deliberate destruction of its own fridge sized satellite in Low Earth Orbit (LEO) with a kinetic weapon, created dangerous fields of debris, posing hazards for the International Space Station and commercial users of space, such as Planet, whose high resolution satellite imagery has recently captured the devastation of the Australian bushfires.9 In a carefully managed propaganda statement, India’s Prime Minister Modi declared this test a success of the Indian space programme, one which “will make India stronger, even more secure and will further peace and harmony”.10 This discourse tracks the ambivalence of India’s assertion of space as a peaceful domain, through the celebration of a destructive event. The Official FAQ released by the Indian Foreign Ministry focused on the allegedly responsible manner in which the test had been conducted rather than the destructive nature of the test itself.11 That FAQ noted that “India has no intention of entering into an arms race in outer space. We have always maintained that space must be used only for peaceful purposes. We are against the weaponization of Outer Space and support international efforts to reinforce the safety and security of space based assets.” Further, it reiterated that India is a party to “all the major international treaties relating to Outer Space” and “already implements a number of Transparency and Confidence Building Measures (TCBMs)”.12 These developments highlight the

fragile nature of space as well as the lack of clarity provided by international space law regarding the legality of such actions. Whilst India’s actions were condemned by many, including NASA Administrator Jim Bridenstine and acting US defense secretary, Patrick Shanahan, there was no official State objection to India’s actions. This lack of official state response remains the grey area of space law, meaning there is little state practice to fill in the apparent gaps in the UN Space Treaties. The Outer Space Treaty provides very little clarity regarding where a line may be drawn between military and weaponised uses of outer space.13 Article 1 of the OST provides (inter alia): The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. Art III requires that all activities in the exploration and use of outer space are undertaken “in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.” Art IV prohibits the placement of nuclear weapons or other weapons of mass destruction in orbit around the Earth, on celestial bodies and in outer space. Further it states that the “Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes”. The establishment of military bases, weapons testing and conduct of military manoeuvres on

SPACE LAW

Left: India's Mission Shakti was an anti-satellite missile test that successfully destroyed one of India's own satellites.

celestial bodies is forbidden, but the use of military personnel for scientific research and other peaceful purposes is permitted. This reference to “peaceful purposes” is reflected in two other places in the preamble to the OST, referring to the “common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes” and the “exploration and use of outer space for peaceful purposes”. Yet there is no clear consensus of what this means and how it may be implemented in practice. In the absence of clear legal rules regarding permitted uses of outer space in a time of rising tension, various “soft law” instruments have been proposed to articulate acceptable practices. Yet these

soft law proposals reflect different political and technological philosophies and may not have the neutral application that they claim. The Prevention of an Arms Race in Outer Space (PAROS) has been a standing agenda item in the Conference on Disarmament (CD) since 1982.14 An ad hoc committee of the CD was formed to specifically address matters relevant to this topic between 1985 and 1994, however no progress was made in that committee nor generally by the CD with respect to the matter of space-related security.15 A revived PAROS process in 2018-2019 appears equally to have finished without clear outcomes. Other initiatives include: the UN Group of Governmental Experts (GGE) formed by UNGA Resolution

65/68 in 2011 to study transparency and confidence-building measures (‘TCBM’) for outer space activities with a mandate “to conduct a study ... on outer space transparency and confidence-building measures”,16 an annual resolution on the “[p]revention of an arms race in outer space” submitted by Egypt and Sri Lanka at the CD for over 30 years,17 Russia’s annual (since 2014) resolution on “[n]o first placement of weapons in space”,18 the European Union draft Code of Conduct for Activities in Outer Space first released as a draft in October, 2010 and a revised version in 2014,19 and the Russia and China sponsored draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against

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SPACE LAW

Defense Satellite Communication System satellites. (U.S. Air Force illustration)

Outer Space Objects (PPWT).20 None of these initiatives have attracted universal acceptance and the gaps remain. Thus, despite the long history of space law and the attention devoted to issues of military and non-military uses of outer space, there is a lack of clarity surrounding these uses. It seems likely that in a time of increased use of outer space by commercial providers, as the space domain itself becomes both more valuable and more congested, that the answers to these questions will become more vital. It is hoped that an increased attention to the importance of international and domestic space law will lead to a more certain understanding. Certainly, it appears that whilst there is little international appetite for a new multilateral treaty, there is a corresponding discord surrounding the soft law instruments. B Endnotes 1 Neil De Grasse Tyson and Avis Lang, Accessory to War: The Unspoken Alliance Between Astrophysics and the Military, WM Norton & Company Inc, New York, 2018. 2 Ibid, 379. 3 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, January 27 1967, 18 U.S.T. 2410, 610 U.N.T.S 205 (entered into force 10 October 1967) (the ‘Outer Space Treaty’). 4 Rescue and Return Agreement (Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature 22 April 1968, 672 UNTS 119 entered into force 3 December 1968); Liability Convention (Convention on the International Liability for Damage Caused by Space Objects, opened for signature 29 March 1972, 961 UNTS 187, entered into force 1 September 1972); the Registration Convention

12 THE BULLETIN March 2020

(Convention on Registration of Objects Launched into Outer Space, opened for signature 14 January 1975 entered into force 15 September 1976) and the Moon Agreement (Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature 18 December 1979, 1363 UNTS 3 entered into force 11 July 1984). 5 Marina Koren ‘The U.S. Space Force Is Not a Joke: It’s not all President Trump promised, but it exists now’ The Atlantic (online) 15 January 2020, https://www.theatlantic.com/science/ archive/2020/01/space-force-trump/604951/ . 6 Daniel Boffey ‘Nato leader identifies space as the next ‘operational domain’’ The Guardian (online) 21 November 2019, https://www.theguardian. com/world/2019/nov/20/nato-identifies-spaceas-next-operational-domain. 7 BBC News, ‘France to create new space defence command in September’, 13 July 2019, https:// www.bbc.com/news/world-europe-48976271. 8 George Dvorsky ‘India declares itself a “Space Power” After Shooting Down its Own Satellite’ Gizmodo, 28 March 2019, https://gizmodo.com/ india-declares-itself-a-space-power-after-shootingdo-1833605002 9 https://www.planet.com/disaster/fires-inaustralia-2019-11-06/ . 10 Eric Berger, ‘India shoots down a weather satellite, declares itself a “space power”’ Ars Technica, 28 March 2019, https://arstechnica.com/science/2019/03/indiashoots-down-a-weather-satellite-declares-itself-aspace-power/; Narendra Modi, Twitter, 27 March 2019: ‘#MissionShakti is special for 2 reasons: (1) India is only the 4th country to acquire such a specialised & modern capability. (2) Entire effort is indigenous. India stands tall as a space power! It will make India stronger, even more secure and will further peace and harmony.’ https://twitter.com/narendramodi/ status/1110801488559759360. 11 Ministry of External Affairs, Government of India, Frequently Asked Questions on Mission Shakti, India’s Anti-Satellite Missile test conducted on 27 March, 2019, 27 March 2019, https://mea.gov.in/pressreleases.htm?dtl/31179/Frequently+ Asked+Questions+on+Mission+Shakti+Indias +AntiSatellite+Missile+test+conducted+on+ 27+March+2019. 12 India has ratified the Outer Space Treaty, the

14 15 16

17 18 19

Rescue and Return Agreement, the Liability Convention, the Registration Convention, and is a signatory to the Moon Agreement, Committee on the Peaceful Uses of Outer Space Legal Subcommittee Fifty-eighth session, Vienna, 1–12 April 2019, Status of International Agreements relating to activities in outer space as at 1 January 2019, A/ AC.105/C.2/2019/CRP.3. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, January 27 1967, 18 U.S.T. 2410, 610 U.N.T.S 205 (entered into force 10 October 1967) (the ‘Outer Space Treaty’). Paul Meyer, ‘Dark Forces Awaken: The Prospects for Cooperative Space Security’ (2016) 23 (3–4) Nonproliferation Review 495, 496. Ibid. Transparency and Confidence-Building Measures in Outer Space Activities, GA Res 65/68, 65th sess, Agenda Item 97(y), UN Doc A/RES/65/68 (11 January 2011) 2 para 2, Transparency and Confidence-Building Measures in Outer Space Activities, GA Res 68/50, 68th sess, Agenda Item 99(c), UN Doc A/Res/68/50 (10 December 2013) (‘Resolution 68/50’); Report of the Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities, UN Doc A/68/189 (29 July 2013). Final Record of the One Thousand Three Hundred and Sixth Plenary Meeting, UN Doc CD/PV.1306 (18 February 2014) 6. No First Placement of Weapons in Outer Space, GA Res 69/32, 69th sess, Agenda Item 94(b), UN Doc A/RES/69/32 (11 December 2014). Council of the European Union, Council Conclusions on the Draft Code of Conduct for Outer Space Activities, Doc No 17175/08 (17 December 2008) annex I; Council of the European Union, Council Conclusions of 27 September 2010 on the revised draft Code of Conduct for Outer Space Activities, Doc No 14455/10 (11 October 2010); International Code of Conduct for Outer Space Activities: Version 31 March 2014, Draft (31 March 2014) <https:// eeas.europa.eu/sites/eeas/files/space_code_ conduct_draft_vers_31-march-2014_en.pdf>, archived at https://perma.cc/7XZC-MK94. Conference on Disarmament, Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects, UN Doc CD/1985 (12 June 2014).

CHARITY

Shaya to ride 500km for homeless and disadvantaged children

haya Lewis-Dermody, Principal Solicitor of The Family Law Project (FLP), will be riding a pushbike 500km over five days in Thailand in an effort to raise $5000 for charity. It marks the sixth year that The FLP has been involved in the Business Blueprint Ride, an annual charity bike ride in Thailand which raises funds and awareness for Aussie-based charity Hands Across the Water (HATW), which aims to provide disadvantaged children in Thailand with a “life of choice”. The FLP is raising funds via various initiatives including their charity Will deal, where the all of the proceeds from the preparation of Wills and Estate documents for clients are donated to HATW. The FLP’s involvement in the annual bike ride over the past six years has seen the law firm fundraise and donate over $50,000 to HATW. This year, the ride will take place from 28 March to 5 April in the Northern province of Thailand and the riders will average 100km per day on hybrid push bikes in extremely hot conditions. “The experience of being involved in such a physically difficult challenge,

whilst raising much needed funds and awareness for these Thai children, is an absolute privilege,” Ms LewisDermody said. “It’s also fantastic to be giving back to the community and meeting our social responsibility obligations.” Hands Across The Water provides homes for a number of Thai children who do not have any other feasible living

options. The financial support changes lives and also saves lives. HATW was established following the Boxing Day tsunami in 2004 which saw many children homeless having lost their parents. All of the fundraising and donations to HATW go direct to the homes and the children and no monies are spent on administration. B

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SPACE LAW

Australia’s Essential Contribution to ‘Space Domain Awareness’ DUNCAN BLAKE, SPECIAL COUNSEL, SPACE LAW, INTERNATIONAL AEROSPACE LAW & POLICY GROUP

“S

pace Domain Awareness” (SDA) is knowledge of what space objects are in orbit and what they’re doing, as well as what is happening in the space environment itself.1 SDA is essential to the safe, secure, sustainable and responsible use of space by all space operators. In spite of several legal uncertainties that arise from SDA activities, Australia is making an increasing contribution to the collection, global sharing and use of SDA data. As at January, 2020, somewhere between 9000 and 10000 satellites have been placed in orbit since the beginning of the space age in 1957.2 Yet, within the next decade, governments, commercial entities and universities plan to add 20,000 to 50,000 new satellites, some of which are independent satellites, but most of which are parts of ‘mega-constellations’ of satellites acting cooperatively.3 Some of these are Australian.4 This is in addition to the approximately 22,000 pieces of space debris currently in orbit and big enough to be tracked, the approximately 1 million pieces of space debris currently in orbit that are not big enough to be tracked but still big enough to destroy a satellite on impact, or least render it inoperative, and the approximately 128 million even smaller pieces of space debris, that would still at least damage a satellite on impact, if not render it inoperative.5 Collisions between satellites and space debris happen regularly. The International Space Station (ISS), for example, is pitted with impacts from pieces of space debris, and although it has not (yet)

14 THE BULLETIN March 2020

been hit with debris big enough to do significant damage, the crew have been directed to begin evacuation drills with increasing frequency, and the ISS has been manoeuvred, at enormous cost, around 1.5 times each year to avoid space debris.6 On average, a satellite operator somewhere receives a warning of a possible collision close to 2,000 times each day.7 Such warnings can only provide a probability of collision, usually in the order of 1/10000 – the sensors and the data they provide are simply not accurate enough to assert a certainty of collision.8 So, satellite operators only occasionally respond to such warnings. Many satellites lack propulsion, so they can’t move anyway, and other satellite operators do not wish to waste precious fuel to manoeuvre a satellite in response to something that has only a small chance of happening. The fuel would otherwise be used to do “station-keeping”, to make sure that the satellite maintains an orbit and an altitude that enables it to provide the services for which its customers are paying. Thus, when the operators of an Iridium satellite (part of a constellation that provides global satellite communications, particularly for the maritime market) were given a warning of a collision with a defunct Russian military satellite (Kosmos 2251) on 10 February, 2009, with an anticipated miss distance of 584 metres based on probabilistic calculations, they made a commercial decision not to move the satellite. The two satellites “beat” the

odds and actually collided, producing a cloud of around 2000 extra pieces of debris, each of which could subsequently go on to collide with other satellites or pieces of debris.9 (The phenomenon whereby one collision produces debris that goes on to collide with other things, creating more debris, and so on, in a never-ending “cascade”, is known as the “Kessler Syndrome”, and some experts believe we are already at the point where this is inevitable). The addition of 20,000 to 50,000 new satellites exacerbates the problem. The biggest of the prospective megaconstellations is the Starlink constellation. Elon Musk – one of the founders of PayPal, the Tesla motor vehicle company and battery producer (including for South Australia), and the SpaceX rocket company – has already launched 180 of an eventual constellation of up to 12,000 satellites and his company recently sought permission to use frequency for 30,000 additional satellites.10 One of the first batch of Starlink satellites that are already in orbit was recently the subject of a collision warning with a scientific satellite from the European Space Agency (ESA). The warning was given to both organisations in anticipation that they would liaise in order to determine who should move. They had begun liaison, but apparently the Starlink operators were unable to communicate with ESA during the crucial moments, and so ESA made an independent decision to move their satellite, thereby diminishing the future utility of the ESA satellite.11

SPACE LAW

This artist's impression shows debris objects in orbit around Earth. Note: The debris field shown in the image is an artist's impression based on actual data. However the image does not show debris items in their actual size or density. Photo: European Space Agency.

The existing Starlink satellites are also the subject of controversy among astronomers due to the highly reflective nature of the satellites. With just 180 of the planned 12,000 satellites in orbit, the astronomers’ view of the night sky has already changed significantly.12 There have also been deliberate activities to destroy satellites, thereby creating space debris. On 11 January, 2007 the Chinese Army tested an anti-satellite missile against one of their own satellites – a defunct weather satellite. The cloud of over 3000 pieces of debris from that test is expected to present a threat to active satellites for over 100 years.13 Then on 20 February, 2008 the Americans destroyed one of their own satellites with a missile, ostensibly for the purpose of preventing toxic hydrazine fuel from polluting Earth when the satellite de-orbited. We are assured that the satellite was destroyed at a sufficiently low altitude such that all of the resultant debris de-orbited and burned up in the atmosphere within 40 days.14 On 27 March, 2019 the Indian Air Force tested their own anti-satellite missile against one of their satellites. Notwithstanding that the missile hit the satellite at a lower altitude than in the Chinese test, some debris was kicked into higher orbits where it will pose a threat for up to two years.15 It is not just the risk and actuality of collisions that gives rise to legal controversy (putting aside the challenges of proof of attribution, cause and effect), but the competition for use of limited radio frequency bandwidth. For

example, manufacturers and operators of small satellites – the size of toasters and smaller – cannot always afford the cost and administrative burden of seeking priority to use a certain frequency from the International Telecommunication Union (through their national regulator), especially in the face of resistance from established satellite manufacturers, so they use frequency on a “no protection, no interference” basis – whereby they undertake not to interfere with any operator who has been granted priority to use a frequency, and accept that they have no protection from interference from other users.16 This may work if only a small number of operators take this approach, but when, for example, many satellites are dispensed from a single rocket and they’re all trying to use the same frequency in the same volume of space, some are bound to fail.17 There are also natural threats in the space environment: threats of collisions with natural objects, as well as many high energy particles from our Sun, other stars, blackholes and other sources that can at least interfere with electrical circuits on satellites, and could at most obliterate our solar system.18 SDA facilitates deconfliction of launches, warnings of collisions, deconfliction of the use of lasers, deconfliction of the use of frequency, support for planned manoeuvres by satellite operators, re-entry warnings and support, effective Space Traffic Management, warning of overflight

by satellites (especially spy satellites), mitigation or denial of an adversary’s access to space, monitoring of debris creation, warning and mitigation of natural risks, resolution of anomalies and attribution of space events, identification of space threats, normalisation of the space environment and spotting of aberrant behaviour. The US Air Force, now the US Space Force, operates the largest network of sensors for SDA, and maintains and (mostly) shares the data it collects with the global space community.19 Australia is making an increasing contribution to SDA, through joint US-Australian military capabilities such as the C-band radar and Space Surveillance Telescope, but also through the efforts of Australian space entrepreneurs, such as Electro-Optical Systems, Silentium Defence, Inovor and HEO Robotics.20 Satellite and rocket operators, and their insurers, are seeking better quality SDA data to manage their exposure to operational, legal and reputational risks. But SDA data providers, including those in Australia and commercial entities, themselves face operational, legal and reputational risks. The data they collect may include orbital parameters for satellites that States would rather not acknowledge. The sensitivity is particularly acute if the SDA data is sufficient to provide a potential adversary with a targeting solution for the satellite. Export control laws may restrict the transfer of data directly, or governments may seek March 2020 THE BULLETIN

SPACE LAW

other ways to assert their export control policies over SDA data providers, such as by contractual means, restrictions on foreign investment, or denial of licences.21 SDA data providers also need to warn against over-reliance by satellite operators on data that is, ultimately, only a probability – as the 2009 collision between an Iridium and Kosmos satellite demonstrates. There are other ways in which the use of SDA data may be legally complex – especially where it might be used to actively manage space debris. There is no commonly-accepted definition of “space debris”, and no “right of salvage” (by analogy from maritime law, or otherwise). The State of registration of a space object retains jurisdiction and control over the space object to the exclusion of others, notwithstanding that other States may have responsibilities in respect of ‘active debris management’ activities, and yet other States may be exposed to liability for damage done by the space object in the course of “active debris management”, by virtue of their involvement in the launch of the space object. Furthermore, the community of States generally may be concerned that a capability that is prima facie for the purposes of active debris management, could be used for military or coercive purposes.22 In spite of the legal and policy complexities, SDA is so essential to safe, secure, sustainable and responsible use of space by all space operators, that Australia must continue to develop its contribution. And the legal profession, for its part, must work to develop clarity and certainty around the application of law to SDA activities. B Endnotes 1 ‘Space Domain Awareness’ is a new term that the US, Australia and others are using in place of ‘Space Situational Awareness’. Many definitions exist, but the generic description above encompasses the broad elements. For more discussion, see Sandra Erwin, “Air Force: SSA is no more; it’s ’Space Domain Awareness’” in SpaceNews, dated 14 November 2019, see <https://spacenews.com/air-force-ssa-is-nomore-its-space-domain-awareness/>.

16 THE BULLETIN March 2020

2 The Space Debris Office in the European Space Agency provides a summary of ‘Space Debris by the Numbers’ at: https://www.esa.int/ Safety_Security/Space_Debris/Space_debris_ by_the_numbers. However, this is as at 1 January 2019. There have been many additional satellites launched since then. 3 There is no consolidated list of all proposed satellite constellations. Wikipedia has an incomplete list at its page titled, ‘Satellite constellations’. Significantly, it omits apparent plans for 30000 satellites by SpaceX – see Caleb Henry, ‘SpaceX submits paperwork for 30000 more Starlink satellites’ in SpaceNews, dated 15 October 2019, see <https://spacenews.com/ spacex-submits-paperwork-for-30000-morestarlink-satellites/>. The author is aware of several other, smaller constellations that have been omitted from the list by Wikipedia. 4 The author is aware that Fleet Space Technologies in Adelaide plans a constellation of as many as 100 satellites, see < https://www.fleet.space/ launch>. Canberra-based company ‘Skykraft’ plans a constellation of 200 satellites – UNSW Canberra Press Release, ‘UNSW Canberra spinoff company Skykraft awarded $1 million ACT government grant’ dated 11 September 2019, see <https://www.unsw.adfa.edu.au/space-research/ news/unsw-canberra-spin-company-skykraftawarded-1-million-act-government-grant>. 5 Space Debris Office, European Space Agency, ‘Space Debris by the Numbers’, dated 1 January 2019, see <https://www.esa.int/Safety_Security/ Space_Debris/Space_debris_by_the_numbers>. 6 No official figures exist, but NASA officials are often asked this question. Some answers are given here: <https://www.quora.com/How-does-theISS-avoid-hitting-space-debris>. 7 Mark Brown, ‘Space Traffic Management and Orbital Debris: A Path Forward to Ensure Safe and Uninterrupted Space Operations’ (2018), Space Traffic Management Conference, see <https:// commons.erau.edu/stm/2018/presentations/15>. 8 Q. Funke et al, ‘Operational Collision Avoidance at ESOC’, 2018, pp 6 – 7, see <https://cddis. nasa.gov/lw21/docs/2018/papers/SessionSD3_ Funke_paper.pdf>. 9 The information is derived from a variety of sources, which are reliably compiled at the Wikipedia page, ‘2009 Satellite Collision’, see <https://en.wikipedia.org/wiki/2009_satellite_ collision>. 10 Caleb Henry, ‘SpaceX submits paperwork for 30000 more Starlink satellites’ in SpaceNews, dated 15 October 2019, see <https://spacenews.com/ spacex-submits-paperwork-for-30000-morestarlink-satellites/>. 11 Mike Wall, ‘European Satellite Dodges Collision with SpaceX Starlink Craft’ in Space.Com, dated 3 September 2019, see <https://www.space.com/

spacex-starlink-esa-satellite-collision-avoidance. html>. 12 Leah Crane, ‘SpaceX Starlink Satellites could be ‘Existential Threat’ to Astronomy, in New Scientist, dated 9 January 2020, see <https:// www.newscientist.com/article/2229643-spacexstarlink-satellites-could-be-existential-threat-toastronomy/>. 13 Celestrak, ‘Chinese ASAT Test’, updated 22 June 2012, see <https://celestrak.com/events/asat. php>. 14 Nicole Petrucci, ‘Reflections on Operation BURNT FROST’, dated 5 March 2017, see <http://www. airpowerstrategy.com/2017/03/05/burnt-frost/>. 15 Marco Langbroek, ‘Why India’s ASAT Test was Reckless’, in The Diplomat, dated 30 April 2019, see <https://thediplomat.com/2019/05/why-indiasasat-test-was-reckless/>. 16 Attila Matas, ‘De-mystifying Articles of the RR Related to Small Satellites’, presentation delivered at the ITU Symposium and Workshop on small satellite regulation and communication systems 2 – 4 March 2015, see <https://www.itu.int/en/ITU-R/ space/workshops/2015-prague-small-sat/ Presentations/AM-PHA-ART5.pdf>. 17 Loren Grush, ‘Why the Air Force Still Cannot Identify More Than a Dozen Satellites from one December Launch’, in The Verge, dated 2 April 2019, see <https://www.theverge. com/2019/4/2/18277344/space-situationalawareness-air-force-tracking-sso-a-spaceflightcubesats>. 18 Joseph Pelton, ‘Space Debris and Other Threats from Outer Space’, in Springer Briefs in Space Development, 2013. 19 The US Department of Defense has previously had an official webpage with information about its Space Surveillance Network, but the webpage is not currently active due to the formation of the US Space Force. Information about the US Space Surveillance Network can be found on the Wikipedia page titled, ‘United States Space Surveillance Network’, see <https://en.wikipedia. org/wiki/United_States_Space_Surveillance_ Network>. 20 Scott Schneider, ‘Australian Capabilities for Space Situational Awareness’, in Project Asteria 2019 Space Debris, Space Traffic Management & Space Sustainability – A Collaborative Project Between the Air Power Development Centre and the Australia New Zealand Space Law Interest Group (2019, APDC, Canberra), see <http://airpower.airforce.gov.au/ Publications/Project-Asteria-2019-Space-Debris,Space-Traffic-M>. 21 Adelaide Law School and IALPG, ‘Laws Applicable to Space Situational Awareness’, in ANGELS (Australian Navigational Guide Explaining Laws for Space, see <https://spacelaws.com/articles/lawsrelating-to-space-situational-awareness-ssa/>. 22 Ibid.

EVENTS

Profession marks beginning of legal year

ore than 200 members of the legal profession celebrated the beginning of the working year at the Societyâ&#x20AC;&#x2122;s Happy New Legal year event on 8 February. While most people would have been back at work for some weeks prior to the event, the occasion was a symbolic opening of the legal year that acknowledged the new legal year services that in earlier times were traditionally held in church. Since the event was revitalised by the Society in 2016, it has been held at Adelaide Oval as a far more casual affair, but still with a similar intention to prompt lawyers about the significant influence they hold as lawyers and their obligations to the community.

Law Society President Tim White addressed the crowd by outlining his aim this year to look at innovative ways to enhance opportunities for the profession, boost the reputation of the profession, and encourage practitioners to speak to him about any concerns or issues they want to raise. Mr White was followed by Chief Justice Chris Kourakis, who urged everyone connected with the Society, including staff to Council members, Committee members, to make the most of their limited time in these privileged positions and use their position of influence to defend and advocate for the principles of fairness, equality, and impartiality that must be the bedrock of a justice system. B

Thomas Hendrick (left) and Robert Katsambis

Mark Gustavsson (left) and Polina Asmalovskaya

Natalie Mackay (left), Anna Finizio and Amelia Garreffa

Warwick Ambrose (left), Ben Garnaut, Magistrate Kylie Schulz, and Samuel Whitten

Dani Sapio (left), Jacqui Johns, Matilda RedmanLloyd, Rasa Bakutis, and Bridget Shinnick

Alyssa Sallis (left), Brittany law, and Professor Tania Leiman.

Law Society President Tim White, with Chief Justice Kourakis in the foreground, raises a toast to the new legal year.

Olivia Brownsey (left), Dani Court, Thuan Nguyen, Dominic Francese, Danielle Stopp, Cate Coleiro, and Imogen Noble

His Honour Judge Tony Rossi (left), His Honour Judge Mark Calligeros, and His Honour Justice Mark Livesey.

Christopher Stone (left), Anton Rook and Daniel Agent

Alex Pyke (left) and Vanessa Hutchens

March 2020 THE BULLETIN

SPACE LAW

SPACE MINING: COMMERCIAL OPPORTUNITIES AND LEGAL UNCERTAINTIES DR MATTHEW STUBBS, ASSOCIATE PROFESSOR, ADELAIDE LAW SCHOOL

he potential of space mining as a commercial industry for the future is enormous. As the US Geological Survey has recently stated: “the amount of useful resources in NEOs [near-earth objects such as asteroids] is immense’ and ‘could sustain a million-fold increase in human activity in space for a million years.”1 One barrier to this industry is technology – but this is evolving rapidly. Another barrier is institutional – the lack of a legal regime which can coherently regulate space mining. Terrestrial mining generally relies on a legal regime which has at least three key features. First, licences granting access to exclusive exploration rights within a defined area (prospecting rights). Second, licences granting exclusive rights to extract resources discovered through such exploration with ongoing security of tenure granted subject to the payment of royalties (extraction rights). Third, lawful markets for the selling of such resources. At present, as this article will explain, space law offers no equivalent institutional infrastructure, and indeed contains principles which appear to stand in the way of their implementation in outer space.

IMPLICATIONS FOR SPACE MINING FROM THE OUTER SPACE TREATY The conduct of States, corporations and individuals in outer space is governed by the Outer Space Treaty of 1967,2 which does not contain any provisions expressly addressing space mining. However,

18 THE BULLETIN March 2020

the framework of principles for the exploration and use of outer space which the Outer Space Treaty provides has important consequences for the regulation of space mining. One of the fundamental principles enshrined in art I of the Outer Space Treaty is that outer space (which includes the Moon and other celestial bodies) is to be “free for exploration and use by all States’, who are to have ‘free access to all areas of celestial bodies”. Further, exploration and use of outer space is to be conducted “for the benefit and in the interests of all countries”. Additionally, art II of the Outer Space Treaty provides that “Outer space … is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” These principles are significant to the regulation of space mining because of their inconsistency with a number of the features of a typical terrestrial mining regime. First, there would not appear to be any means by which a State could grant exclusive prospecting rights – which, given the extraordinary cost of an exploration mission to a NEO, would be a significant disincentive to commercial parties. Second, even if a resource were discovered, there does not appear to be any means by which a State could grant exclusive extraction rights to the discovering entity – which would act as a further disincentive to commercial parties. Third, there is an important question regarding whether space mining might breach the art II prohibition of national appropriation3 – which could prevent there being a lawful market for

resources. Fourth, even if these barriers could be overcome, it is unclear whether the ensuing benefits are for the entity undertaking these activities or whether they must be shared with all nations.

THE MOON AGREEMENT: COMMON HERITAGE OF HUMANKIND AND BENEFIT SHARING The picture becomes even less promising for those States who are parties to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement) of 1979.4 Only Australia and 17 other States are party to this agreement, none of which are major space-faring nations. The most significant aspect of the Moon Agreement for the purposes of space mining are the provisions of art XI dealing with benefit sharing. Art XI provides that “The Moon and its natural resources are the common heritage of mankind”5 and requires State parties to “establish an international regime … to govern the exploitation of the natural resources of the Moon”.6 The main purposes of that regime are to be to ensure: • “The orderly and safe development of the natural resources of the Moon; • The rational management of those resources; • The expansion of opportunities in the use of those resources; • An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of

SPACE LAW

the Moon, shall be given special consideration.”7 In fact, no such regime has yet been developed. There are clear advantages that might flow from a regime addressing the first three dot points above. Unfortunately for the prospects of commercial space mining, the last of these is likely to be a significant stumbling block. Provisions similarly declaring resources to be “the common heritage of mankind” and prescribing a regime of benefit sharing were included in the United Nations Convention on the Law of the Sea of 1982 in respect of the resources of the deep sea bed (the sea bed in areas beyond national jurisdiction – that is, beyond the EEZ and continental shelf of States – roughly 50% of the world’s sea beds).8 These provisions (until modified in 1994) presented a major barrier to States becoming parties to UNCLOS,9 and have remained a disincentive to commercial resource exploitation of the deep sea bed.10 Two additional provisions of the Moon Agreement appear relevant, yet suggest contradictory results. First, art VI(2) contains a narrow permission to collect and remove samples and “use mineral and other substances of the Moon in quantities appropriate for the support of their missions”. This might imply that the use of resources other than for the immediate carrying out of a mission may be impermissible. Second, however, art XI(3) provides that “Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State”.11 This appears to leave open the possibility of

natural resources once extracted being liable to ownership and commodification.

SPACE MINING LEGISLATION AROUND THE WORLD Notwithstanding conceptual difficulties at the international level, States have begun to pass domestic legislation aimed at encouraging the development of space mining industries. The most significant of these is the United States’ Space Resource Exploration and Utilization Act of 2015, which provides that “A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States”.12 Interestingly, apparently anticipating a potential objection based on art II of the Outer Space Treaty, the law itself contained a note that: “It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body”.13 This is consistent with the view that art II of the Outer Space Treaty prohibits only property claims over resources in place, and not property claims over resources after they have been extracted.14 Legislation similar to that in the United States has been passed in Luxembourg,

and is being introduced in the United Arab Emirates. Other jurisdictions are likely to follow. While international space law still lacks rules relating to the topics identified above as fundamental to terrestrial mining, some States are nevertheless keen to encourage space mining industries to emerge while a regulatory regime develops.

FUTURE DEVELOPMENTS IN THE LAW OF SPACE MINING Ultimately, States will shape the development of the law relating to space mining. However, an academic endeavour has articulated Building Blocks for the Development of an International Framework on Space Resources15 which are of conceptual interest. In particular, they propose that the future regulation of space mining should include the following features: • “attribution of priority rights to an operator to search and/or recover space resources in situ for a maximum period of time and a maximum area upon registration in an international registry”16 • “resource rights over raw mineral and volatile materials extracted from space resources, as well as products derived therefrom, can lawfully be acquired”.17 On the thorny issue of benefit sharing, the Building Blocks propose that “[t]he international framework should not require compulsory monetary benefit-sharing”.18 Instead, benefit-sharing would focus on non-monetary benefits such as: a. The development of space science and technology and of its applications; b. The development of relevant and appropriate capabilities in interested States; March 2020 THE BULLETIN

SPACE LAW

c. Cooperation and contribution in education and training; d. Access to and exchange of information; e. Incentivization of joint ventures; f. The exchange of expertise and technology among States on a mutually acceptable basis; g. The establishment of an international fund.”19 Whether these proposals do enough to address the issues that the common heritage of humankind principle is intended to respond to – fairness to the Global South and intergenerational equity – is unclear. These Building Blocks identify some of the features that may be desirable in future international law regulating space mining. However, they are a very long way from representing the present state of the law.

CONCLUSION As space mining becomes technologically and economically feasible, the law will need to keep pace. At present, the basic features that might be expected of a mining law regime (exclusive prospecting and extraction rights, and a lawful market) do not exist, and may be inconsistent with important principles in the Outer Space Treaty. Moreover, for States parties to the Moon Agreement as Australia is, there is further uncertainty about the application of the common heritage of humankind principle. Legal clarity may come from treaty developments (whether

Expert Reports. Litigation Support.

through the creation of a new regime or under the auspices of the Moon Agreement), from an accumulation of national legislation passed by States to structure the space mining activities of their nationals, or from the eventual implementation of the efforts of non-State experts. The opportunities offered by space mining are likely to impel the development of a more effective legal regime, although its contours remain to be shaped in the future. B Endnotes 1 Laszlo Keszthelyi et al, ‘Feasibility Study for the Quantitative Assessment of Mineral Resources in Asteroids’ (US Geological Survey, 2017) <https:// pubs.usgs.gov/of/2017/1041/ofr20171041.pdf> 11. 2 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 205 (entered into force 10 October 1967) (‘Outer Space Treaty’). 3 See, eg, Frans G von der Dunk, ‘Asteroid Mining: International and National Legal Aspects’ (2017) 26(1) Michigan State International Law Review 83; Jinyuan Su, ‘Legality of Unilateral Exploitation of Space Resources under International Law’ (2017) 66 International and Comparative Law Quarterly 991. 4 Agreement governing the Activities of States on the Moon and Other Celestial Bodies, 1363 UNTS 3 (entered into force 11 July 1984) (‘Moon Agreement’). Under art 1(1), the Moon Agreement also applies ‘to other celestial bodies within the solar system, other than the Earth’. 5 Ibid art XI(1). 6 Ibid art XI(5). 7 Ibid art XI(7). 8 United Nations Convention on the Law of the Sea, 1833 UNTS 397 (entered into force 1 November 1994).

9 See, eg, Michael C Wood, ‘International Seabed Authority: The First Four Years’ (1999) 3 Max Planck Yearbook of United Nations Law 173, 177-8. 10 See, eg, Kris Van Nijen et al, ‘The Development of a Payment Regime for Deep Sea Mining Activities in the Area through Stakeholder Participation’ (2019) 34(4) International Journal of Marine and Coastal Law 571. As the International Seabed Authority has itself noted, ‘aligning optimal proceeds with attracting investments … will prove a fundamental challenge’: International Seabed Authority, Developing a Regulatory Framework for Mineral Exploitation in the Area: A Discussion Paper on the Development and Implementation of a Payment Mechanism in the Area for Consideration by Members of the Authority and All Stakeholders (2015) <www.isa. org.jm/files/documents/EN/WorkingPapers/ DiscussionPaper-FinMech.pdf>. For commentary on the common heritage of humankind and benefit sharing, see: Isabel Feichtner, ‘Sharing the Riches of the Sea: The Redistributive and Fiscal Dimension of Deep Seabed Exploitation’ (2019) 30(2) European Journal of international Law 601. 11 Emphasis added. 12 51 U.S.C. § 51303. 13 Public Law 114–90 s 403. 14 See, eg, Scot W Anderson, Korey Christensen & Julia LaManna, ‘The Development of Natural Resources in Outer Space’ (2019) 37(2) Journal of Energy & Natural Resources Law 227, 240. 15 The Hague Space Resources Governance Working Group, Building Blocks for the Development of an International Framework on Space Resources (2019) <https://www.universiteitleiden.nl/ binaries/content/assets/rechtsgeleerdheid/ instituut-voor-publiekrecht/lucht--enruimterecht/space-resources/bb-thissrwg--cover. pdf>. 16 Ibid [7]. 17 Ibid [8.1]. 18 Ibid [13.2]. 19 Ibid [13.1].

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STATE BUDGET

Society outlines key asks in State Budget submission

he Law Society released its 2020-21 State Budget submission in February, which addresses key areas that the Society, on behalf of Members, have identified as in need of resourcing and improvement. A number of the key asks in the State Budget Submission are based on independent reports commissioned by Government. These reports include the Review of Major Indictable reforms conducted by the Hon Brian Martin AO QC, the Mansfield inquiry into the Return to Work Act, and the Social Development Committee’s review of the CTP scheme. The Society is calling on the Government to act on the recommendations made in recent reports. Reform and appropriate resourcing is required to address the deficiencies of the major indictable process, to fix the discriminatory aspects of our personal injury laws, and to improve access to justice in this State. The heart of the justice system, the courts, has been starved of adequate investment for years, and requires greater investment to operate at an acceptable level. This is particularly the case in the youth justice system, where the Youth Court has been forced to bear a significant legislationdriven increase in workload without a commensurate increase in resources.

MAJOR INDICTABLE REFORM The issue: The Hon Brian Martin AO QC, in his Review of Major Indictable Reforms, made a number of recommendations to address current flaws in the system and make it work more effectively, including the recommendation that DPP take control of matters from the time of arrest with the power to direct SAPOL to obtain further evidence in a timely fashion so matters can be advanced quickly and efficiently. KEY ASKS • That the Martin Report Recommendations are implemented and the DPP is adequately resourced to undertake all adjudications in major indictable matters and appear from the second appearance thereafter.

• That Forensics SA is adequately resourced to ensure forensic evidence can be obtained efficiently (to ensure the prescribed timeframes recommended by Mr Martin can be met).

YOUTH COURT The issue: The Youth Court’s workload has significantly increased since amendments to the Children and Young People Safety Act were introduced in 2018, but it has not received any extra resources to deal with the spike in cases coming before the Court.

injury giving rise to a permanent impairment.

MOTOR INJURY COMPENSATION The issue: The CTP Scheme is unfair and restrictive and discourages claims even in cases of severe injury.

KEY ASK • The appointment of an additional fulltime Magistrate in the Youth Court.

KEY ASKS • Remove the 20% reduction in compensation when calculating economic loss in CTP claims. • Reduce the threshold to recover legal costs associated with CTP compensation claims, so it is in line with other civil claims. • Adequately fund the CTP scheme to implement these reforms.

WORKERS COMPENSATION

JUDICIAL RESOURCES

The issue: The test for compensability for psychiatric injuries is higher than physical injuries under the Return to Work Act. The Act also does not provide for payment of a lump sum for non-economic loss in cases of psychiatric injury.

The Courts system has long been under-resourced and the Supreme Court has been operating with a reduced pool of judges for several months. The soon to be established Court of Appeal is also likely to require additional resources to operate effectively.

KEY ASKS • That the Return to Work Act 2014 be amended to address the discrimination against workers with psychiatric injuries. • That the Scheme is funded accordingly to compensate for psychiatric injuries and provide payment for noneconomic loss in cases of psychiatric

KEY ASKS • The immediate appointment of Supreme Court Judges - to fill the vacancy on the Court and an additional Judge, and funding to ensure all judicial officers have requisite administrative support • Additional funding to operate the Court of Appeal. B March 2020 THE BULLETIN

SPACE LAW

Commercial space law: launch and operation of spacecraft DONNA LAWLER, PRINCIPAL, AZIMUTH ADVISORY

pace is a unique environment in which to conduct business. Not only are the locations harsh, remote and difficult to access, the risks high and the timeframes long, but the legal environment is different from any other. The interaction of international treaties and guidelines, international customary law, national legal frameworks and industry-specific contractual structures has created legal conditions that make space transactions a highly specialised branch of technology contracting. Whereas in terrestrially based technology contracts, the focus of lawyers is often to shift as much risk as possible to the other party and to impose punishing financial consequences for failure, experienced space lawyers often employ a different set of tools and structures with an emphasis on long term mission success. Rather than each party competing to avoid as much risk as possible, seasoned negotiators of space contracts tend to focus on the clear and efficient allocation of risk based on time rather than fault, the avoidance of double-insurance and prevention of disputes between insurers. Whilst each party must be given appropriate incentives to behave in a manner that will maximise the chances of success of the mission and meet required timeframes, adversarial legal techniques used in terrestrial projects can sometimes work against those longterm goals. Provisions that drive an internal culture where potential failures are hidden rather than brought to light can have long term damaging effects in the harsh environment of space, where repair of faulty equipment after launch is usually not a viable option. Similarly, care must be taken to reach the right balance of incentives

22 THE BULLETIN March 2020

and disincentives, as fatal flaws can be introduced into a program if vendors are pressured to rush important testing phases in order to avoid financial penalties.

THE LEGAL ENVIRONMENT FOR OUTER SPACE: INTERACTION BETWEEN INTERNATIONAL LAW, NATIONAL LAW AND COMMERCIAL CONTRACTS For the most part, outer space is an area beyond national jurisdiction1. In this respect, analogies can be drawn between outer space with other such areas, such as the High Seas and Antarctica, where a combination of international treaties, national laws governing certain objects and activities of citizens and private contractual frameworks create unique legal environments. Over time, legal and risk frameworks have been adapted to the particular physical characteristics and challenges of each of these areas, with a view to allocating resources and manage the activities of people, entities and objects2. In the case of outer space, increasing cold war tensions between the USSR and USA led to their adoption of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the ‘Outer Space Treaty’) along with many members of the international community3. Other space treaties dealing with liability, registration and other matters in more detail followed over the next 12 years4. The States parties to the Outer Space Treaty are required to conduct activities in outer space in accordance with international law to ensure that activities of their nationals in space comply with the Treaty. In particular:

…the activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.5 In line with this international requirement, an increasing number of space faring nations are passing national space laws6 which include licensing regimes applicable to their nationals who engage in space activities7. National space laws deal with a variety of issues, many of which are designed to ensure compliance with international space treaties. For example, many States require participants in space activities to provide information that will enable the State to comply with its obligations under the Registration Convention.8 Other national provisions are designed as a response to State responsibility for losses under the Liability Convention, requiring licence-holders to insure against liability in the event of an accident arising from the space activity9 or mandating implementation of space debris mitigation measures10. Space-related contracts, in turn, must be responsive to the national laws affecting the parties to the contract, including with respect to space debris, registration of space objects, environmental controls and liability.

ALLOCATION OF RISK IN SPACE-RELATED TRANSACTIONS Lawyers who have dealt extensively with technology contracts that do not have a space component would be familiar with a model that relies on the determination of fault and the allocation of responsibility to the at-fault party. In

SPACE LAW

such “terrestrial” transactions, it is often the goal of each lawyer to minimise her own client’s liability and allocate as much risk as possible to the other party. Negotiations of this nature have been part and parcel of most high stakes technology transactions for many years.11 This approach also has its place in certain aspects of space transactions, but can have disadvantages if misapplied by well-meaning technology lawyers in an outer space context12. Quite apart from the international and national legal environment described above, development, launch and operation of space technologies have historically taken place in a context where: • technologies have lengthy development, manufacture and testing timeframes; • hardware is comparatively high cost; • launch and in-orbit phases are inherently risky; • hardware cannot be easily accessed for repair or replacement of components after launch; • the precise cause of failures during launch or in orbit cannot always be determined; • insuring space related risks is expensive and double insurance needs to be avoided; and • global insurance capacity has sometimes been low and has at times been limited for multiple parties involved in the same launch. These factors have shaped the legal culture in the space industry over time and have resulted in commercial norms that can be baffling for some lawyers who are used to operating in terrestrial contexts. Whilst some of these factors are changing with the miniaturisation of satellite technologies, “fail fast” innovation cultures and the potential availability of in-orbit manufacturing and servicing, they remain as underlying influences for the structure of space contracts and insurance policies in the global space industry. In the experience of the author, space contracting tends to allocate risks to participants according to the phase in the project, rather than the fault of a particular party, except in

the case of gross negligence or wilful misconduct. In other words, during the most risky phases of a space project, time is more important than culpability. Focusing on time rather than culpability has the function of reducing cost, uncertainty and risk in four ways: 1. avoidance of costly double insurance of the same programme risks by different parties; 2. minimisation of the risk of disputes between insurers; 3. elimination of critical gaps in insurance; and 4. simplification of insurance claims in the event of a failure. Negotiations should also be conducted with an eye to the national regulatory obligations affecting each stakeholder, including the need to fulfil licensing requirements and protect the interests of the launching states involved. This requires an understanding of the interaction of international, national and contractual provisions that apply to the particular space programme as well as the structure of insurances for different aspects of the programme. As many of these requirements are not known at the time of negotiating arrangements for manufacture and launch of space objects, a sound understanding of industry norms is of value and may save clients frustration, expense and delay down the track.13

CONCLUSION The legal norms for space transactions have been contoured by the unforgiving nature of outer space itself as well as the need to adapt to international and national legal frameworks. Those norms have evolved over the years into adaptable risk management frameworks used by space professionals, which are capable of dealing with the complexity created by a multiplicity of legal systems and stakeholders. As a result, commercial contracts for space programmes often have features that differ from terrestrial technology contracts in fundamental ways that are sometimes at odds with the legal culture in other industries. Adaptation

of standard contractual frameworks to a space context should be made with considerable care and with a strong understanding of potential mission outcomes for the parties as well as the unique combination of international and applicable national legal environments. Azimuth Advisory is an Australian law firm specialising in space activities. B Endnotes 1 See Article I of the Outer Space Treaty, which refers to the exploration and use of outer space as ‘the common province of all mankind’. 2 See the extension discussion by Graham Nicholson regarding the similarities and differences of these legal environments in The Common Heritage of Mankind and Mining: An Analysis of the Law as to the High Seas, Outer Space, the Antarctic and World Heritage 6 N.Z. J. Envtl. L. 177 (2002) 3 Joanne Irene Gabrynowicz, ‘Space Law: Its Cold War Origins and Challenges in the Era of Globalization’ 37 Suffolk U. L. Rev. 1041 (2004) 4 See: • The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the ‘Rescue Agreement’); • The 1972 Convention on International Liability for Damage Caused by Space Objects (the ‘Liability Convention’); • The 1975 Convention on Registration of Objects Launched into Outer Space (the ‘Registration Convention’); and • The 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the ‘Moon Treaty’). 5 Outer Space Treaty, Article VI 6 UNOOSA provides links to a number of national Space Laws at http://www.unoosa.org/oosa/en/ ourwork/spacelaw/nationalspacelaw/index.html 7 See for example the laws of the Russian Federation, No 104 - Statute on Licensing Space Operations 8 See for example Article 11 of the Netherlands Rules Concerning Space Activities and the Establishment of a Registry of Space Objects (Space Activities Act) 9 See for example section 5(2)(f) of the United Kingdom’s Outer Space Act 1986 10 See for example sections 34 and 46G of the Australian Space (Launches and Returns) Act 2018 11 See the excellent and practical guide to terms of this nature set out in Margaret Calvert and Ian Reid, Technology Contracts : A Handbook for Law and Business in Australia 2nd Ed, Butterworths 2002 12 See Ingo Baumann’s discussion of the pros and cons of Service Levels in ‘ the Use of Service Level Agreements in Space Projects’ in chapter 25 of Contracting for Space, Contract Practice in the European Space Sector edited by Lesley Jane Smith and Ingo Baumann, Ashgate 2011 13 The author is relying on her own commercial experience in confidential arrangements.

March 2020 THE BULLETIN

ORAL HISTORIES

Fighting the good fight LINDY MCNAMARA President in 2013/14, Morry Bailes was at the helm when the debate over proposed changes to compulsory third party insurance was raging. He didn’t shy away from the inevitable stoush with the Government – but in an open interview with the Law Society he reveals it eventually took a toll on his health.

ermont Technical High School wasn’t the most common feeder school for those entering a law degree in the 1980s, and Morry Bailes admits he didn’t enjoy his university years as he “didn’t fit in”. He wasn’t used to the “private school scene” and found it tough academically, however he persevered and graduated, securing his first – and only – job in the law with Tindall Gask & Co. “I think I spent the first 10 years of my career just being excited about the fact that I was a lawyer,” he revealed in a frank oral history interview recorded by the Law Society. “During Year 10 we were invited to do work experience when we were in secondary school. I applied, and was given some work experience at the Legal Services Commission for two weeks. I think the first week and a half I had to just do filing. Then for the last two days, a criminal lawyer took me to the Adelaide Magistrate’s Court and I found it exhilarating. “I did a stint of work experience at what is now Minter Ellison, in those days it was Baker McEwen, and they offered me a job. I’ve got a slightly embarrassing letter that I wrote back to them saying that I desperately wanted to be a criminal lawyer, so thanks but no thanks! Which is probably insane. “Anyway, I ultimately did my last lot of work experience at Tindall Gask & Co. I

24 THE BULLETIN March 2020

think I applied for the job at Tindall Gask beforehand and it seemed logical that I should go and do my work experience there. I just couldn’t believe I was in a firm. “I was entranced by opening legal files, legal matters, entranced by everything to do with the law. When I walked in, everyone smoked. I used to smoke – not through enjoyment so much, as social obligation so I immediately, on getting the job, ran out and got myself an ashtray and set myself up in my office. I had to scratch myself – I couldn’t believe it.” That was in 1988 and Morry has remained there ever since, with many of his peers also long-standing members of the business. “We pride ourselves in the culture of the firm – the fact that people hang around proves it. “When I entered the firm, I said that I wanted to do criminal law and I was I guess making a concession or a compromise in coming to an insurance firm. “That sounds very impolite or that I was self-important, but in fact out of the 99 of us who were in the GDLP, virtually everyone got a job. It was more on our terms than the employers, in those days. “Anyway, I said I wanted to do criminal law, and they said that Greg Howe, then a partner, would often mix it up down at the Magistrate’s Court doing guilty pleas

for drink driving matters, and so forth, so that’s what I did. “I then continued doing criminal law, and that ultimately led me to be able to act for a number of associations, including correctional officers and police and so forth. So I ultimately did plaintiff work for injured people – injured coppers, injured correctional officers, and others. But I mixed it up with this criminal and industrial practice, and that is to this day what I do.” In 2002 Morry was appointed Managing Partner at the age of 36. Admitting he easily becomes bored with day-to-day practice, the new position enabled him to focus his enthusiasm toward the firm, growing it into a bigger, “but very solid” business. Today Tindall Gask Bentley is housed in a relatively new building on Light Square and is a daily reminder to Morry of his first foray as a commercial developer and the many lessons he learned during the project. After purchasing the property and with plans for a development, Morry sensibly garnered the commitment of the TGB partners that the firm would move back into the new building once it was completed. “That was a plan conceived before the 2008 global financial crisis. It didn’t seem quite so shiny immediately after the collapse of Lehmann Brothers,” he laughed. “I’ve still got the newspaper of that day in my records to remind me of how horrible things can get. Anyway, banks that were one day going to give (wife) Mel and I the money weren’t the next. So we knocked a couple of storeys off it, concentrated on making it work, and got it up.

ORAL HISTORIES

Morry Bailes (left), with Geoffrey Robertson QC, who was guest speaker at the Law Society’s Centenary Dinner during Morry’s presidency

“So it’s something that my wife and I own, and lease to the firm, and it’s one of the hardest things I’ve done in life, but also one of the most enjoyable. I never imagined I’d become a commercial developer but I had a willing tenant, and if you surround yourself by people who actually know what they’re doing, it’s possible.” With the building project in hand, Morry decided it was time to devote some of his time to supporting the legal profession and was elected to the Law Society Council in 2009. “I’m embarrassed by the fact that I didn’t give the Society more attention as a younger lawyer, because I now recognise its great value,” he said. “My advice to anyone in the profession is to understand better what the Law Society does. It has so many roles, regulatory and membership.” In October, 2013 he became President, with his term finishing 15 months later and heralding the start of the presidency now running for the calendar year. One of the issues reviewed by the Law Society during his time at the helm was mandatory sentencing. “It was the era when people were very concerned about the ‘one punch’ situations and rightly so, but I am a vehement believer in the fact that investing the judiciary with discretion is the only equitable and fair way in which to sentence a person for a criminal offence, because mandatory sentencing takes away the capacity to take into account individual circumstances. “It’s essentially a decision by parliament to involve itself in the sentencing process in every single matter of a particular ilk that comes before the courts, knowing nothing of the individual

circumstances. There are some classic examples from the US, who interestingly are well into the process of undoing mandatory sentencing because it led to over-representation of people in prison, of terrible travesties with regard to mandatory sentencing.” Undoubtedly the biggest issue on the agenda during his presidency was the State Government’s proposed reforms to compulsory third party insurance. “What was proposed was a huge erosion of, until then, a common law right to sue in negligence for your injuries arising from a motor vehicle accident. Whereas we were quite open to tweaks and changes because law ought to be improved on, if people were perceived to be being over compensated at the bottom end of the scale, so to speak – I always had a view that they probably under-compensated the upper end of the scale with very serious injuries – we were perfectly open to speaking about the bottom end. However, what was embarked upon by the government was a wholesale alteration. “The first iteration, a green paper, suggested a ‘no fault’ scheme. What in fact happened was the State of South Australia had signed an inter-governmental agreement with the Federal Government that in order to receive NDIS funding, it would introduce a ‘no fault’ scheme. “But ultimately what happened was the ‘no fault’ scheme was introduced only in respect of catastrophic injuries, and the Society’s research showed that was about 10 to 15 such motor vehicle accidents per annum resulting in catastrophically injured people who, for example, have quadriplegia, paraplegia, brain damage, and so forth; so the most seriously injured. And the Lifetime Support Scheme was established.

“However, what the reform then did was to emasculate dramatically every entitlement to an injured person who wasn’t catastrophically injured. To this day, our government continues to talk about the Lifetime Support Scheme, and that might be now 100 people, some of whom are in it temporarily not permanently, but there’s probably six or seven thousand people per annum who have an injury that is not catastrophic, and it’s those tens of thousands of people who have lost out. “In what was probably a first for South Australia, the big firms got together through the Society. An executive committee was formed comprising members from the Society and also the South Australian Bar Association and the Australian Lawyers’ Alliance (SA), that is still a standing committee to this day. “We very aggressively sought to educate the South Australian public as to what was going on, and we got to a point leading up to the election of being quite active in placing advertisements and billboard ads, letter drops and so forth. It was probably the first time that we engaged in a political way with a campaign that was run.” As Morry revealed, while he relished the opportunity to lead the Law Society during this important campaign, the long hours required during his 15 months as President eventually took a toll on his health, and he was “looking down the barrel” of renal failure due to an inherited condition. But another remarkable chapter in his life was about to unfold. To read the full transcript go to www.lawsocietysa.asn.au. The original interview was conducted by Lindy McNamara on 2 June, 2017. B March 2020 THE BULLETIN

SECURITY OF PAYMENT

The Building and Construction Industry Security of Payment Act 2009 (SA): considering the scope of the mining exclusion ALLIE A UMOFF, SENIOR ASSOCIATE, LIPMAN KARAS

he Building and Construction Industry Security of Payment Act 2009 (SA) (the SA Act) provides a regime by which persons who carry out construction work or supply related goods and services under a construction contract can obtain progress payments for that work, without compromising the ultimate rights of the parties in respect of the final contract price. The purpose of the SA Act is to assist persons in the building and construction industry to secure payment in a timely fashion for work performed or goods and services supplied, and to protect them from oppressive “pay when paid” or “pay if paid” clauses which had previously been found in many construction contracts.1 In order to come within the operation of the SA Act, a party must perform “construction work” or supply “related goods and services” as those terms are defined in the SA Act. Section 5 of the SA Act defines “construction work” very broadly, subject to an exclusion in subsection 2, which provides that construction work does not include (the mining exclusion): a. the drilling for, or extraction of, oil or natural gas; b. the extraction (whether by underground or surface working) of minerals, including tunnelling or boring, or constructing underground works, for that purpose; c. other work of a kind prescribed by the regulations for the purposes of this subsection.

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The regulations currently in force, Building and Construction Industry Security of Payment Regulations 2011 (the Regulations), do not include any provisions in respect of the mining exclusion. Section 6 of the SA Act also defines “related goods and services” very broadly, and the scope of this term is further broadened by section 5 of the Regulations. While the relevant sections of the SA Act have not yet been the subject of much litigation, its counterparts in Queensland2 and New South Wales,3 which are in relevantly nearly identical terms, have been the subject of comparatively more litigation. Given the similarities between the QLD Act and the NSW Act, as compared to the SA Act and to each other,4 the cases decided under those provisions can be instructive in considering the scope of the mining exclusion in the SA Act.

CONSTRUCTION WORK Courts considering the scope of “construction work” or “related goods and services” within the meaning of the Act have differed in their characterisation of the legislation as either “remedial” and deserving of a liberal interpretation,5 or as requiring a “natural” construction of the relevant definitions without any presumption of liberality.6 However, an analysis of these cases indicates that the approach has essentially been a common-sense approach that considers whether the scope of work described in the particular contract at

issue in the case can fairly be said to be, or be related to, “construction work”, by reference to the terms of the contract and the statutory provisions. For example, in Edelbrand, the NSW Court of Appeal held that contractual provisions requiring one party to manage consultants and contractors and monitor and administer the development of a factory were properly characterised as building advisory services, which were included within the NSW Act as goods and services related to construction work, such that the NSW Act applied.7 Whereas in Capricorn Quarries, the provision of rock crushing services to the owner and operator of a quarry, which then sold that crushed rock on to quarry customers (who may have eventually used the rock in work that could be deemed “construction work”), was held not to be construction work or the supply of materials for use in construction work, within the meaning of the QLD Act.8 No construction use was identified at the time of the making of the contract between the two parties and the potential future construction use of the rock by customers of the quarry was too tenuous to satisfy the requirements of the statute.9 Further, if a company’s scope of work includes some aspects which do come within the definition of construction work or related goods and services, and others which do not, those aspects of the work which come within the definition have been held to be sufficient to trigger the

SECURITY OF PAYMENT

application of the Act. In other words, it is not a necessary condition that all of a company’s scope of work be deemed construction work or related goods and services in order for it to avail itself of the benefit of the Act.10

SCOPE OF THE MINING EXCLUSION While the cases to consider the definitions of “construction work” and/ or “related goods and services” have generally indicated that the scopes of work which fall into either of those categories are quite broad (consistent with the broad language used in the statutory definitions), the cases to consider the mining exclusion so far have tended to interpret that particular provision narrowly. As a starting point, the mere fact that work occurs on a mine site, or in connection with the construction or expansion of a mine, does not mean that it is captured by the mining exclusion.11 Further, the temporary nature of a structure, which may only be intended to remain in place for the life of a mining project or a phase of that project, does not suffice to bring the work of building or dismantling that structure within the operation of the mining exclusion.12 In J&D Rigging, the respondent mine operator argued that the work in question (dismantling and removal of a treatment and storage plant that had been erected on a mine site) could not be considered “construction work” for purposes of section 10(1)(a) of the QLD Act, which

referred to buildings or structures “forming, or to form, part of land”13 because the structures had been built on behalf of the owner of a mining lease only, and not on behalf of the owner of the underlying land.14 In rejecting this argument, Applegarth J stated:15 Generally speaking, the extraction of minerals can only take place pursuant to a mining lease. The effect of s 10(3) of BCIPA is that certain kinds of work on areas covered by mining leases which otherwise would fall within the definition of “construction work” in s 10(1) and (2) are taken outside of that definition. The implication is that other kinds of construction work on such land such as the construction or dismantling of structures that form part of land may constitute “construction work”. The work may be undertaken as part of a mining venture and be authorised by a mining lease. If such work on land that is subject to a mining lease precluded the building, structure or construction works from “forming, or to form, part of land”, then s 10(3) would have little, if any, work to do. In Thiess,16 at issue was the meaning of the word “extraction” within section 10(3) (b) of the QLD Act, which excluded from construction work “the extraction, whether by underground or surface working, of minerals, including tunnelling or boring, or constructing underground works, for that purpose”.17 Thiess, the operator of a coal mine, had entered into contracts with Warren Brothers Earthmoving Pty Ltd (Warren) for Warren to clear and grub, strip topsoil, and construct dams and drains. Thiess also contracted with Warren

for Warren to supply excavators for Thiess to use in connection with various work at the mine site. The contracts included work in constructing dams and drains, and it was undisputed between the parties that constructing dams and drains comprised “construction work” within the meaning of section 10(1) of the QLD Act.18 Thus, the issue was whether constructing dams and drains came within the mining exclusion, so as to take Warren’s scope of work out of the operation of the QLD Act. Thiess submitted that the mining exclusion was directed to work constituting mining industry operations,19 which included all activities that “were ‘a necessary and integral part of the coal mining process’ or which were ‘essential for the exposing of the coal seam for removal of coal’”.20 On Thiess’ submission, constructing the dams and drains at issue in the contracts with Warren was such “necessary and integral” work, essential to the process of extracting the coal.21 The Court rejected those submissions, noting that if the legislature had wanted to extend the scope of the meaning of the phrase “extraction … by … surface working” to include “activities which are integral to or necessary for the extraction of minerals”, it would have been simple to do so by clear words.22 This was particularly clear when contrasted with the broad terminology used in section 10(1)(e) of the QLD Act, which expressly extends “construction work” to activities that are March 2020 THE BULLETIN

SECURITY OF PAYMENT

“an integral part of, or … preparatory to or … for completing” the relevant work.23 On that basis, the Court held that the construction of the dams and drains did not come within the mining exclusion and, accordingly, the protections of the QLD Act applied.24

CONCLUSION Thus, the Courts have been careful so far not to expand the scope of the mining exclusion, instead closely considering the particular work at issue to determine whether it comes within the literal meaning of that provision. When considering a scope of work that appears at first glance to be “mining work” in a colloquial sense, it will be important to return to the text of section 5(2) of the SA Act and evaluate the position in the context of the specific words used. B Endnotes 1 South Australia, Parliamentary Debates, House of Assembly, 5 March 2009, 1855-6 (Tom Kenyon). 2 Building and Construction Industry Payments Act 2004

(Qld) (the Qld Act). The Qld Act has recently been repealed and replaced by the Building Industry Fairness (Security of Payment) Act 2017 (Qld), but the relevant provisions in the new legislation are largely the same. 3 Building and Construction Industry Security of Payment Act 1999 (NSW) (the NSW Act). 4 See, especially, Qld Act ss 10 (definition of “construction work” and the mining exclusion) and 11 (definition of “related goods and services”); and NSW Act ss 5 (definition of “construction work” and the mining exclusion) and 6 (definition of “related goods and services”). 5 See, eg, Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd [2012] NSWCA 31 at [30] (per Bathurst CJ; McColl JA and Tobias AJA agreeing) (Edelbrand); Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2012] QCA 276 at [62] (per Philippides J) (Thiess) (referring to the “beneficial purpose” of the Qld Act). 6 Capricorn Quarries Pty Ltd v Inline Communication Construction Pty Ltd [2012] QSC 388 at [45] (Jackson J) (Capricorn Quarries). 7 Edelbrand [2012] NSWCA 31 at [34]-[36]. 8 Capricorn Quarries [2012] QSC 388 at [60], [66], [70], [72]-[73], [78]-[80]. 9 Ibid at [60], [69]. 10 Edelbrand [2012] NSWCA 31 at [32]-[37]; HM Hire Pty Ltd v National Plant and Equipment Pty Ltd

11 12

13 14 15 16 17 18 19 20 21 22 23

[2013] QCA 6 at [27] (per Fraser JA; Margaret McMurdo P and Gotterson JA agreeing) (HM Hire). HM Hire [2013] QCA 6; Thiess [2012] QCA 276. See, SA Act s 5(1)(a), which explicitly includes temporary structures within the definition of “construction work”; J&D Rigging Pty Ltd v Agripower Australia Ltd [2013] QCA 406 (Holmes JA and Applegarth and Boddice JJ) (J&D Rigging). Section 10(1)(a) was virtually identical to section 5(1)(a) of the SA Act. J&D Rigging [2013] QCA 406; Agripower Australia Ltd v J&D Rigging Pty Ltd [2013] QSC 164. J&D Rigging [2013] QCA 406 at [47] (with Boddice J and Holmes JA agreeing). [2012] QCA 276. This is in virtually identical terms to section 5(2) (b) of the SA Act. Thiess [2012] QCA 276 at [57]. Ibid at [61]. Ibid at [65]. Ibid. Ibid at [68] (per Philippides J). The corresponding provision in the SA Act is s 5(1)(e), which extends “construction work” to activities that are “an integral part of, or … preparatory to or … for rendering complete” the relevant work. Thiess [2012] QCA 276 at [68]-[69] (per Philippides J).

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CASE NOTE

High Court judgment put Aboriginal Australians beyond ‘alien’ powers MATTHEW RISMONDO, ABORIGINAL ISSUES COMMITTEE A landmark High Court decision has confirmed that “an Aboriginal Australian cannot be said to belong to another place”.

he High Court of Australia made a landmark decision in Love v Commonwealth of Australia and Thoms v Commonwealth of Australia on 11 February. By a four to three majority, the High Court decided that Aboriginal Australians who are born overseas and are not citizens of Australia are not within the reach of the “aliens” power in section 51 (xix) of the Constitution1.

BACKGROUND The Plaintiffs, Daniel Love and Brendan Thoms, were both born overseas with one Aboriginal Australian parent and both identify as Aboriginal Australian. Mr Thoms was born in New Zealand but had resided permanently in Australia since November 1994 and is a descendant of the Gunggari People. Mr Love was born in the independent State of Papua New Guinea but has been a permanent resident of Australia since 1984 and is a descendant of the Kamilaroi people. Neither Mr Love or Mr Thoms were Australian citizens and retained citizenship of their respective birth countries. The Plaintiffs had served sentences in Australia for separate and unrelated offences. After their convictions, both Plaintiffs’ visas were cancelled by delegates of the Minister for Home Affairs pursuant to section 501 (3A) of the Migration Act 1958 (Cth). Following this, the Plaintiffs were detained in immigration detention under section 189 of the Migration Act 1958 (Cth) on suspicion of being “unlawful noncitizen[s]”.

DECISION The key findings from the majority, Bell, Nettle, Gordon and Edelman JJ, which led to their decision are as follows: • there is a special and unique connection between Aboriginal and Torres Strait Islander peoples and the land and waters of Australia, as recognised in Mabo v Queensland [No 2] 1992 175 CLR 1. To put it simply, that Aboriginal Australians are in a unique position in Australia;2 • the opposite of “alien” is not “citizen”3, but in fact is “non-alien”4 or a “belonger” to the political community;5 • the two common tests of citizenship, birth or descent, are not the only examples of membership of a political community;6 and • the common law recognises the unique spiritual connection between Aboriginal Australians and their traditional lands. That is not in harmony with the idea that an Aboriginal Australian can be described as an “alien” to that land.7 The dissenters, Kiefel CJ, Gageler and Keane JJ, held that race is irrelevant to the questions of citizenship and membership of the Australian body politic,8 and allowing individuals and their communities to determine Aboriginal status, when looking at whether that person is a non-alien, is a concession of an aspect of sovereignty.9 It would confer on Native Title bodies a constitutional capacity beyond that of State parliaments10 and it would leave the status of alienage under the subjective determination of individuals, dependent upon their actual self-identification and acceptance by others under the three-fold test.11 On the facts, Mr Thoms was found to be a recognised member of an Aboriginal community because his status as a native title holder was undisputed. However, the facts in respect to Mr Love’s Aboriginality were unclear and the question of his status has been referred to the Federal Court.12

One of the most delicate constitutional questions of recent years is the Aboriginal identity question and differential treatment under the law and the Constitution. This decision dealt directly with these issues and, although divided in their findings, the majority consensus was summarised by Bell J, who stated that “Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the ‘aliens’ power conferred by section 51 (xix) of the Constitution”13. While the judgments are likely to have a relatively narrow direct effect, the majority judgments have reopened the broader questions of Aboriginal identity and the implications of the High Court’s acknowledgement in Mabo No 2 of the connection of Aboriginal and Torres Strait Islander people to their lands and waters. By directly connecting the question of the Australian State’s obligation to protect Aboriginal people from alienage to this connection which antedated the Crown’s acquisition of sovereignty, it has also potentially revived the question of the Crown’s fiduciary obligations to Aboriginal people. 14 And that is enormously important. B Endnotes 1 Commonwealth of Australia Constitution Act 1900 (Cth) (“the Constitution”). 2 Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 at (per Bell J at [70] – [74], Nettle J at [262], [268]-[272], Gordon J at [333], [335], [357], [368] and Edelman J at [447], [452], [454], [466]). 3 Ibid at [394] 4 Ibid at [295], [304]. 5 Ibid at [394], [396], [437] 6 Ibid at [66], [373], [435], [444]. 7 Ibid at [71], [270], [272], [454]. 8 Ibid, at [31], [44], [126], [133], [147], [178], [181]. 9 Ibid at [25], per Kiefel CJ. 10 Ibid at ([137] in the reasons of GagelarJ 11 Ibid [196] per KeaneJ . Edelman J in the majority acknowledged this but pointed out that it equally applies to the race power and the extent of a legislative power always extends to exogamous matters. .[457] 12 Ibid at [287]-[288]. 13 Ibid at [81]. 14 [280] per Nettle J and [364] GordonJ

March 2020 THE BULLETIN

BUILDING LAW

Mann v Paterson Constructions Pty Ltd: The End of the Rescission Fallacy TRAVIS SHUEARD1 AND SEAMUS BRAND2

he High Court recently handed down its decision in Mann v Peterson Constructions Pty Ltd,3 dismissing the “rescission fallacy” as a poor basis for quantum meruit claims. This “fallacy” should no longer be implemented in Australian law. The decision means that building and construction lawyers will now be restrained by the “ceiling price” of a contract when making claims of quantum meruit. Accordingly, the right to seek compensation as quantum meruit will be unavailable where the contract provides for an accrued right of payment at the time of repudiation. While the decision will lead to practical complications (e.g. contracts which allow for provisional payments), the decision does mean that parties will generally be unable to issue a quantum meruit claim oping to extract far larger amounts than for what the contract otherwise provides.”

OVERVIEW Mann v Paterson concerned a contract between Peter and Angela Mann (the Manns) and Paterson Constructions Pty Ltd (Paterson) to build two townhouses in Blackburn, Melbourne. The parties entered into the contract on 4 March, 2014 at a fixed price of $971,000. In Victoria, domestic building contracts are governed by the Domestic Building Contracts Act 1995 (Vic) (the Act). The Contract provided for a variation procedure which permitted the Manns to request variations by providing written notice to Paterson. Section 38(1) of the Act requires a building owner who wishes to vary the plans or specifications set out in a major domestic building contract to give the builder a notice outlining the proposed variation, though it does not specify whether it is to be in writing. During construction, the Manns orally requested 42 variations without providing written notice to Paterson. When Paterson handed one of the townhouses over, it informed the Manns that $48,844.92 was due to be paid for the orally requested variations.

30 THE BULLETIN March 2020

Following a dispute over the variations’ price, Paterson ceased work on the second townhouse until the invoice was paid by the Manns. The Manns claimed that by Paterson ceasing the work and by issuing the invoice contrary to the Act’s requirements, Paterson had repudiated the Contract and the Manns had accepted this repudiation. Paterson rejected that repudiation and later claimed that the Manns had repudiated by their determination of the Contract. Paterson instituted proceedings in the Victoria Civil Administrative Tribunal (VCAT) for damages or a balance of moneys for work and labour done and materials provided up to the date of termination. VCAT decided in favour of Paterson on the basis that the Manns had repudiated the Contract and that the Manns owed $660,526.41 to Paterson, “considerabl[y] more than it might have recovered had the claim been confined to the Contract.”4 Following VCAT’s decision, the Manns unsuccessfully appealed to the Supreme Court of Victoria. The Manns then appealed to the Court of Appeal but were again unsuccessful, with the Court of Appeal determining that the builder’s right to seek quantum meruit as an alternative to damages ‘seeks to achieve an equitable outcome by ensuring that the builder receives a fair and reasonable amount for the benefit the builder has conferred’ and that the Act did not apply to claims in quantum meruit.5 The Manns appealed to the High Court.

HIGH COURT APPEAL The Manns’ appeal to the High Court was founded on three grounds: Ground 1: That the Court had erred in holding that Paterson, having terminated the contract upon repudiation by the Manns, was entitled to sue on a quantum meruit basis for the works carried out;

Ground 2: Alternatively, if Paterson was entitled to sue on quantum meruit, that the Court of Appeal erred in finding that the price of the contract did not operate as a ceiling on the amount claimable under a quantum meruit claim; and Ground 3: The Court erred in allowing Paterson to recover on a quantum meruit basis for variations because it incorrectly found that s 38 of the Act did not apply to a quantum meruit claim for variations to works under a domestic building contract.

THE RECISSION FALLACY The Court’s dismissal of the rescission fallacy stems from the first ground. Kiefel CJ, Bell and Keane JJ traced the origin of the rescission fallacy, which originated from the Privy Council in Lodder v Slowey.6 This principle had subsequently been applied by the State appellate courts. In Lodder, the Privy Council determined that as the contract in question had been rescinded ab initio, the plaintiff was entitled to recover a sum assessed as the reasonable value of the rendered services, despite that amount substantially exceeding the agreed price. Lodder’s effect is that parties were entitled to advance a claim for quantum meruit in lieu of a claim for damages if it accepted repudiation and termination of the contract. The Lodder principle was based on the theory that where a contract was terminated for breach or repudiation then the contract became irrelevant and rescinded ab initio. The High Court has since determined that this position is untenable, with Kiefel CJ, Bell and Keane JJ unequivocally labelling the position “fallacious.”7 The High Court noted that correcting the position was important due to the “danger that the error may spread in other directions, and a portion of our law be erected on a false foundation.”

BUILDING LAW

The proper position under Australian law is that while neither party remains bound to complete their obligations under the contract upon rescission, the terms of that contract must still form the basis of the quantum of damages recoverable. If a claim for restitution was permitted to be “unconstrained by the bargain made by the parties” that claim would “impermissibly cut across the parties’ contract.”8 This would be an unacceptable reallocation of the parties’ agreed to risks.9 Termination of the contract provides no reason to disrespect that allocation.10 The prior position was not without some justification, however. In Renard Constructions (ME) Pty Ltd v Minister for Public Works,11 Meagher JA held that: “…it would be extremely anomalous if the defaulting party when sued on a quantum meruit could invoke the contract which he has repudiated in order to impose a ceiling on amounts otherwise recoverable”.12 Despite this, the High Court dismissed Meagher JA’s comments as failing “to acknowledge that it is precisely because the parties have agreed upon the contract price for the performance of work that it is to be regarded as the greatest possible remuneration for the work agreed to be performed.”13 In doing so, Kiefel CJ, Bell and Keane JJ stressed that “it is a matter of public policy that under the law of contract a defaulting party is not to be punished for its breach.”14 This was echoed by Nettle, Gordon and Edelman JJ at paragraph [205] of the decision. Their Honours held that where there is an enforceable contract, but terminated for repudiation, “there are no reasons of practicality and few in principle to eschew the contract price.”15

APPLICATION OF THE ACT The application of the Act, both generally and section 38(1) was dealt with by Nettle, Gordan and Edelman JJ. Their

Honours concluded that s 38(1), required that notice under that section must be provided in writing.16 The remaining subsections, their Honours determined, had the purpose of preventing a builder from obtaining any money in respect of ownerinitiated variations except in accordance with those subsections: the subsections were protective, designed to prevent the issues that would arise from an informal dealing with the business contract.17 Should the parties fail to meet the required degree of formality, the builder may not recover any money unless the builder were to suffer exceptional hardship. Their Honours determined that a proper construction of the relevant subsections excluded restitutionary relief for variations unless s 38 had been followed. As Peterson had not received and did not request written notice of the variations, Ground 3 was upheld and the question of the amount payable for variation remitted to VCAT.18

PRACTICAL IMPLICATIONS The High Court’s abolition of the rescission fallacy and redirection of quantum meruit claims towards, at most, the contract’s “ceiling price” provides only a partial clarification. Experienced building & construction practitioners are aware of the often-complicated nature of building contracts (particularly commercial projects) and the difficulties in determining just what the contract price is. Security of payment legislation19 also adds another dimension. This legislation operates on a “pay now, argue later”20 basis. Accordingly, payments made under a payment claim are provisional in nature and not always the final amounts owed. Another example is the AS 43001995 (General Conditions for Design and Construct) standard form contract. Clause 42.1 of that contract allows for provisional interim payment claims: “[these payments] shall not prejudice the right of either party

to dispute… whether the amount …paid is the amount properly due and payable… shall not be evidence of the value of the work or an admission of liability or evidence that work has been executed satisfactorily but shall be payment on account only…” This standard term will no doubt add unwanted complications to future claims. Generally speaking, practitioners can now take a level of comfort that the outcome of a quantum meruit dispute is more aligned with a claim for contractual damages, at least with simpler building projects. At the very least, parties should think more carefully before terminating for repudiation during a dispute. B Endnotes 1 LLB (Hons) (UniSA), GDLP, Associate at Charlton Rowley. 2 LLB (Hons) (UniSA), GDLP, Associate at Lipman Karas. 3 [2019] HCA 32. 4 Ibid [140]. 5 Ibid [148] citing Mann v Paterson Constructions Pty Ltd [2018] VSCA 23 at [142], [144]. 6 [1904] AC 442. 7 Mann v Paterson Constructions Pty Ltd [2019] HCA 32 [8]; see Baltic Shipping Co v Dillon (1993) 176 CLR 344, 355 (Mason CJ). 8 Mann v Paterson Constructions Pty Ltd [2019] HCA 32 [13]. 9 See, for example, Lumber v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 for further discussion concerning the Court’s reluctance to interfere with the parties’ contractual allocation of risk. See also Mason, Carter and Tolhurst, Mason & Carter’s Restitution Law in Australia (LexisNexis, 3rd ed, 2016) 610 [1430]. 10 Mann v Paterson Constructions Pty Ltd [2019] HCA 32, 85 [205] (Nettle, Gordon and Edelman JJ). 11 (1992) 26 NSWLR 234. 12 Ibid 277-8. 13 Mann v Paterson Constructions Pty Ltd [2019] HCA 32, [36]. 14 Ibid [37]. 15 Ibid [205]. 16 Ibid [152]. 17 Ibid [157]. 18 Ibid [161]. 19 For example, Building and Construction Industry Security of Payment Act 2009 (SA). 20 See Justice Vickery’s comments in Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd [2009] VSC 156 with respect to the Building and Construction Industry Security of Payment Act 2002 (Vic).

March 2020 THE BULLETIN

TAX FILES

Residence Issues for Trust Estates with Foreign Corporate Trustees JOHN TUCKER, DW FOX TUCKER LAWYERS

he notional taxpayer described in Australian law as a “trust estate” is required to calculate its net income as if it was a resident. “Resident trust estate” is defined in s 95(2) of the Income Tax Assessment Act 1936 (ITAA 36), and is relevant to determining whether liability exists under s 99 or 99A of the ITAA 36, and whether accruals taxation applies under Division 6AAA of the ITAA 36. A trust estate is a “resident trust estate” for the purposes of Division 6 if either: 1. a trustee of a trust estate was a resident at any time during the year of income; or 2. the central management and control of the trust estate was in Australia at any time during the year of income. Note that this differs from a “resident trust for CGT purposes” which is defined in s 995-1 of the Income Tax Assessment Act 1995 (ITAA 97) as a trust that at any time during the income year has: 3. for a trust that is not a unit trust, a trustee that is an Australian resident or the central management and control of the trust is in Australia; or 4. for a unit trust, either; 4.1 any of the property of the trust is situated in Australia or the trust must carry on a business in Australia; and 4.2 the central management and control of the trust is in Australia or Australian residents hold 50% of the beneficial interest in the income or property of the trust. Therefore, the central consideration is to whether the trustee of a trust estate is a resident of Australia for tax purposes. This

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note dominantly focuses on trust estates which operate with a corporate trustee rather than an individual trustee. Individual Residence Briefly, to determine the residence of an individual, s 6 of the ITAA 36 provides a definition of “resident” for Australian tax purposes: a. a person, other than a company, who resides in Australia and includes a person: i. whose domicile is in Australia, unless the Commissioner is satisfied that the person’s permanent place of abode is outside of Australia; ii. who has actually been in Australia, continuously or intermittently, during more than one-half of the year of income, unless the Commissioner is satisfied that the person’s usual place of abode is outside Australia and that the person does not intend to take up residence in Australia; iii. who is: A. a member of the superannuation scheme established by deed under the Superannuation Act 1990; B. an eligible employee for the purposes of the Superannuation Act 1976; or C. the spouse, or a child under 16, of a person covered by subparagraph (A) or (B); and b. a company which is incorporated in Australia, or which, not being incorporated in Australia, carries

on business in Australia, and has either its central management and control in Australia, or its voting power controlled by shareholders who are residents of Australia. Therefore, an individual will be treated as a resident of Australia for taxation purposes if they: 5. are a resident under the ordinary meaning of the term; 6. spend 183 or more days in Australia; 7. are domiciled in Australia (unless their “usual place of abode” is outside of Australia); or 8. are an eligible employee as defined in certain Government superannuation schemes. As mentioned above, this note does not consider the amassed case law and Tribunal decisions or Australian Taxation Office (ATO) guidance regarding the above factors in their determination of whether an individual is an Australia resident. The above factors are provided to indicate a general starting point and demonstrate what tests are considered when determining the residence of an individual. Ultimately decisions about individual residence are made from an exhaustive examination of all relevant facts and acute distinctions can arise as between one set of facts and another.

CORPORATE RESIDENCE Corporate residence of a trust estate will be established by a foreign corporate or resident corporate trustee being found resident in Australia at any time during a year of income through the exercise of central management and control in Australia at any time during that year.

TAX FILES

Specifically, the term “at any time” indicates that a foreign corporate entity is not required to reside in Australia for a specified period of time, it merely has to be resident at any given time during the year of income for the trust estate to be considered an Australian resident. There are a number of considerations when determining where the central management and control of the trust estate or a corporate entity is operated. The several landmark cases provide guidance for determining the location where a corporate trustee has exercised its central management and control and whether the company is consequently considered to be an Australian resident for taxation purposes. In Koitaki Para Rubber Estates Ltd v Federal Commissioner

of Taxation (1941) 64 CLR 241 the High Court considered the location to be where the exercise of management and control decisions of the company made at the highest level in the company. Alternatively, in Malayan Shipping Co v Federal Commissioner of Taxation (1946) 3 AITR 258, where the company’s board was not in fact the highest-level decision maker of the company, the impact of that factor had a major effect in determining on the residence of the company. More recently, in the case of Bywater Investments Limited & Ors v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation [2016] HCA 45; 2016 ATC 20-589, the taxpayers had argued that because all of its directors were nonresidents, and all of the directors meetings

here held abroad, the central management and control of the company could only be determined to be outside of Australia. The High Court unanimously disagreed, stating that the question is one of degree and requires a determination of where the management and control is actually exercised, rather than merely looking to what the constituent documents say. TR 2018/5 was released by the ATO following the decision in Bywater Investments. It sets out the ATO view on how to apply the “central management and control test of residency” following that decision. The Ruling appears to have reversed the previous ATO view of Malayan Shipping by now taking the position that if a company’s central management and control is exercised

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in Australia, then it necessarily carries on business in Australia. In this regard, the ATO contends that the central management and control of a business is factually part of carrying on that business. Additionally, the ATO issued Practical Compliance Guideline 2018/9 (PCG 2018/9) which considers the “Central management and control test of residency: identifying where a company’s central management and control is located”. PCG 2018/9 provides ATO guidance to assist foreign incorporated companies and their advisors to apply the principles set out in TR 2018/5, to help them determine whether they are resident under central management and control test of company residency in s 6(1) of the ITAA36. PCG 2018/9 states that generally the board minutes are the starting point for determining this. At paragraph 16 Taxation Ruling of TR2018/5, acts of central management and control of a company are considered to include: 9. setting investment and operational policy including; 9.1 setting the policy on disposal of trading stock, and/or the use and development of capital assets; 9.2 deciding to buy and sell significant assets; 10. appointment of officers and agents and granting them power to carry on the company’s business (and the revocation of such appointments and powers); 11. overseeing and controlling those appointed to carry out the day-to-day business of the company; 12. matters of finance, including determining how profits are used and the declaration of dividends.

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The Ruling has generated concerns for multi-national corporates including that decisions made through communications with one or more board members in Australia may be deemed an exercise of management and control and the conduct of business in Australia. The Board of Taxation is reviewing such concerns with a view to possibly making recommendations for law reform. For a trust estate with a corporate trustee the time perspective concerning residence may be momentary rather than judged across a more extensive period. For example, if the sole director of a foreign corporation takes a holiday for a few weeks in Australia and during that time makes management decisions concerning the trust investments, will that period of management and control constitute the trustee a resident at the time of the decisions or will the trustee, looked at from a broader perspective, remain a non-resident. In TR 2018/5 the ATO contends that activities consisting of passive receipts from investments and their distribution are likely to amount to carrying on a business for the purpose of the central management and control criteria. Also, if resident beneficiaries delegate to a foreign corporate trustee the investment decisions to be made by that trustee TR 2018/45 suggests that the central management and control criterion would be satisfied. There are a number of consequences which may arise where a corporate trustee is determined to be an Australian resident for taxation purposes for any part of a taxation year. Notably, a trust estate cannot be a resident trust estate for part of the

year and a non-resident trust estate for the remainder of the year, the status of the trust estate is definite. If a trust estate is determined to be a resident trust estate, consideration may need to be given to a variety of other provisions of taxation laws along with any relevant Double Taxation Agreement to determine the net income of the trust estate and liability of beneficiaries presently entitled or in receipt of amounts derived from the trust estate. Additionally, CGT events I1 and I2 (i.e. when the trust estate becomes and ceases to be a resident trust for CGT purposes) will also need to be considered along with any withholding obligations arising upon the trustee. Foreign resident beneficiaries may have Australian taxation obligations and liabilities even though the trustee is a foreign incorporated corporate considered outside of Australian taxation law to be a foreign resident and in receipt of foreign sourced income. In summary, determining the residency of a trust estate with a foreign corporate trustee has received a different emphasis as a result of the Bywater Investments discussion and TR2018/5. It is important for foreign corporate trustees and foreign beneficiaries of trust estates, where decisions about their activities are made in Australia, to understand what can result in a period of residence in Australia for the trustee and consequently the trust estate and what is now required for such entities to appropriately manage this tax residency risk. Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B

RISK WATCH

Proper Use of the Inactive Case List can save time, money and claims GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

he Masters of the District Court have, over the past two years, presented several papers at Law Society Seminars on the topic of the Inactive Case List and the Moratorium of Steps procedure under the Rules – see “Inactive Actions: The Consequences if actions are placed in the Inactive cases list and are not removed, Establishment of “Special Reasons” and the Moratorium of Steps Procedure”, Master Norman, Law Society Forum 15 February, 2018 and “Moratorium Upon Steps”, Master Blumberg, Port Lincoln Country Seminar, 19 July, 2019. This is because the Masters place importance on the use of this procedure as a useful tool in managing their lists efficiently. If cases are appropriately in the Inactive Case List, and only come out when they become truly active, then the Court’s time is not wasted by adjourning inactive matters numerous times when they come up in the normal lists. Notwithstanding the two papers presented recently, the Masters have advised that it is still the case that matters which should be in the Inactive Case List are still in the normal lists and that the profession should use the Inactive Case List more extensively. The current Rule that governs the Inactive Case List and the Moratorium on Steps is R.123. There are two ways in which a matter can be placed into the Inactive Case List. The first is under R. 123(1) where, in effect, the Court notifies the plaintiff that the Court will place the matter in the Inactive Case List if three months after the time the action should have been served no application for extending the time for service has been made, no defendant has filed an address for service and the plaintiff has not applied for judgment in default of the filing of a defence. The second is under R. 123(5) where the plaintiff can, upon filing the originating process, nominate that the case be entered into the Inactive Case List. Where this occurs the plaintiff must serve notice (in the prescribed form) to the defendant

informing the defendant that the case is to be placed in the Inactive Case List and notifying the defendant of their right to seek to have the matter proceed. It is the use of the procedures under R. 123(5) by plaintiffs (rather than have the Court take the steps under R. 123(1) or for there to be adjournment after adjournment) that the Masters wish to promote. Master Blumberg’s paper (referred to above) states that “[i] nfant claims, unsettled medical conditions, actions requiring further negotiation, are all types of proceedings amendable to the procedure”. The sting in the tail where cases are entered by the Court onto the Inactive Case List is contained in R. 123(4) which provides that, subject to R. 123(5), if an action remains on the list for inactive cases two months after being entered onto the list, the action is automatically dismissed for want of prosecution. Further, R. 123(7) provides that there must be special reasons for the Court to reinstate the action if it has been dismissed for want of prosecution. Clearly, any such application for reinstatement will be difficult and costly and should be avoided wherever possible: if a matter is placed into the Inactive Case List by the Court then urgent action to avoid a dismissal for want of prosecution is imperative. Should a plaintiff elect

to use the process under R. 123(5) though the action will not be liable to be dismissed under R. 123(4). Once a plaintiff is ready to proceed or where a defendant wants the matter to progress, then any party may apply to have the matter removed from the Inactive Case List having given all parties 14 days written notice. The new Rules will contain similar provisions to those contained in Rule 123 so these issues will be just as important after the new Rules come into effect. Rule 30 is the current new Rule dealing with these issues however the numbering in the final version of the Rules may change. There are also sound reasons from a Risk Management point of view for these procedures to be widely used. This is because if proceedings are issued early and within time there should be fewer cases where time limits are missed. The significant tightening up of the instances where extensions of time are granted (see Ireland v Wightman [2014] SASCFC 52) means that the days of holding off the issue of proceedings because you are negotiating with the defendant are over. The proper use of the Inactive List / Moratorium on Steps procedures can keep costs down as well as avoiding unnecessary adjournments and the ire of the Court. March 2020 THE BULLETIN

THANK YOU The Law Society of South Australia offers its deepest sympathy to those who have suffered in the recent bushfires and takes this opportunity to express its gratitude for members of the legal profession who contributed to the bushfire relief effort, whether by being on the front line fighting the fires, helping with the clean-up, contributing time and funds to charities and support services, providing pro bono legal advice to victims of the fires, or helping out in any other way.

The Society has activated its disaster relief and recovery plan in the wake of the recent bushfires in SA, and manages a register of practitioners who can provide free legal advice to disaster victims. If you are available to provide pro bono assistance, you can register by contacting disaster.planning@lawsocietysa.asn.au.

VOLUNTEER COMPO

Society supports fairer workers compensation scheme for volunteer firefighters, as well as broader workforce

he Society recently made a public statement in relation to reports that the Government has agreed to bolster the compensation scheme for injured volunteer firefighters to bring entitlements to volunteer firefighters into line with their paid counterparts from the metropolitan area. The Society supported the campaign to improve workers compensation entitlements for volunteer firefighters, but noted some of the shortcomings of the workers compensation system identified by firefighters extended to the broader workforce. Currently, Metropolitan Fire Service firefighters who are injured in the course of duty are eligible for medical payments in relation to an eligible in injury whenever medical expenses are incurred, and eligible for weekly income payments until retirement age.

However, volunteer firefighters (who comprise the majority of CFS members) whose injuries do not reach a whole person impairment assessment of 30% are only eligible at present for a maximum of two years of weekly payments to cover loss of income and three years of medical expenses. For a number of injured fireys, the extremely high threshold of 30% whole person impairment (WPI) means serious injuries, sustained while protecting lives and defending properties, that force them out of work for more than two years and require medical treatment for their injuries for far beyond three years, are essentially on their own after the cut off periods. The media reports which have described this “double standard” as an “injustice” highlight the flaws with the current workers compensation regime

more broadly, as the limitations of the scheme that apply to volunteer firefighters apply to most South Australian workers. The biggest victims of the Return to Work Scheme are those who suffer significant work injuries who have not reached the onerous 30% WPI threshold to receive ongoing maintenance, but will not be able to successfully return to work before their entitlements are cut. While Society supports volunteer firefighters being covered by the same scheme as paid firefighters, and notes some other groups also have separate workers compensation schemes under their own agreements, discussion is needed about how the Return to Work scheme could be reformed to improve outcomes for injured workers more generally, so that “splinter” schemes are not necessary. B

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

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EVENTS

An International Law Memorial: Ivan Anthony Shearer RODERICK O’BRIEN

n 9 December, 2019, the University of South Australia held an international law workshop to honour Ivan Anthony Shearer, especially as an international lawyer. Opening addresses came from the Hon Michael Kirby, the Hon Professor Christopher Pyne and Ivan’s niece. The workshop attracted about twenty scholars from fields such as the law of the sea, extradition (Ivan’s earliest field), international humanitarian law, and human rights law. A number of these scholars, now experts in their own right, had been Ivan’s students. In 1956, when Ivan Shearer began to study law at the University of Adelaide, public international law was not available on the curriculum. Ivan graduated and qualified for admission with a year as a law clerk and a year as a judge’s associate. This was the beginning of a great career in law, especially international law, which ended with his death earlier this year. Yet he never forgot his roots as a practising lawyer. When students would ask him “How do I get a job in international law?” Ivan’s answer was “First, become a good all-round lawyer.” His advice was that “one cannot leap into international law, leaving all the so-called boring subjects behind. Those so-called boring subjects are a vital part of one’s formation as a lawyer and in inculcating skills in legal reasoning. Whether then the opportunity arises to enter international law is largely a matter of luck or happenstance.” For Ivan it was luck: it was his prizewinning knowledge of German, which enabled him to take a placement at the Max Planck Institute for Foreign Public and International Law in Heidelberg, and from there to advance his academic and professional life. His academic career was

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Ivan Shearer portrait

Shearer Paris

stellar: quickly moving to chairs at the Universities of New South Wales and of Sydney, and then to adjunct positions in Adelaide and UniSA after formal retirement. Ivan’s practice and writing of international law was extensive, including two terms on the United Nations Human Rights Committee. His practice included the law of the sea, following the lead of his mentor Professor Daniel O’Connell. He became an advisor to governments at home and overseas. He served on the International Tribunal for the Law of the Sea, and on ad hoc tribunals. It would take many pages to recall his achievements. Another part of his legal work was in the laws of armed conflict (international humanitarian law), in the RAAF and then the RAN, rising to the rank of Captain. He advised on and wrote on rules of engagement – always practical and yet principled. At Ivan’s funeral on 22 July, the most visible group were the robed Knights

and Dames of the Order of Malta, but there were also the gold trimmed caps of naval officers. Most of those attending knew Ivan personally. They recalled not only his legal and technical ability, but also his unfailing kindness, his generosity to generations of students, his commitment to a rule-based order in international law, his humour, and his principled ethics. They also remember Ivan as a South Australian lawyer who once wrote: “If we are to participate in this world, we lawyers need to be steeped in traditional legal doctrine and methodology, and keep our feet firmly on the ground.” Ivan’s last academic post was as adjunct Professor at the UniSA School of Law. The School is the beneficiary of his generosity, including his personal library, and the School has responded by naming parts of the facilities for Ivan. The workshop was held in the Ivan Shearer Moot Court and in the Ivan Shearer Memorial Library. B

WELLBEING & SUPPORT

The desire to be resilient is infectious…. WELLBEING AND RESILIENCE COMMITTEE

et another early morning breakfast event is a challenge in motivation on a cold and blustery winters morning but on this occasion the room was filled with over 300 people with energy to burn awaiting our keynote speaker, Dr Rhonda Cornum. Instantly putting the room at ease Dr Cornum starts by saying that she is not a psychologist nor a psychiatrist, just someone who encountered an adverse experience that made her realise the true power of resilience in the practice of an occupation, in her case the Army. Dr Cornum promoted a few key messages throughout her presentation which are transferable to our legal profession -:

THE WORST TIME TO LEARN SOMETHING IS WHEN YOU NEED IT Think back to the night before exams and the amount of cramming of new information that could be asked the following day was your first lesson in this life statement. There is a science to “good timing” called chronobiology and it reveals that peak performance is hardwired into our DNA. Being able to learn about personal development or professional development is as matter of routine as is washing the shampoo out of your hair but sadly it is not taken quite as seriously. Allocating time to mental health should be equal to your pursuit of physical health. Professional development and personal development intertwine when it comes to the maze that is the burning question of “what is good mental health and how do I get it?”. Push yourself to read broadly, watch a TedTalk once a month but most importantly surround yourself with people that you can talk to open and honestly that will be your true achievement of good mental health.

Army Brig. Gen. (Dr.) Rhonda Cornum stands in front of a photo showing the remains of the Blackhawk helicopter she was aboard when it was shot down. Photo: Steve Pivnick – US Air Force

IF YOU DON’T TRY TO CHANGE IT CERTAINLY WON’T WORK Repeating the same mistakes is sadly human nature at times. It can take a repeat of occurrences for humans to realise that we are not getting the desired result. Steve Jobs once said “you certainly won’t get it right all the time, but if you do nothing you will always get it wrong”. Taking the opportunity to review and self-reflect on your personal and work patterns allows you to build resilience to realise that there are other pathways and other outcomes to the situation you are in today. Dr Cornum suggests even small changes should be celebrated as it will build the physical response to continue to want to change.

NEGATIVE EMOTIONS ARE ONLY VALUABLE IF THEY MOTIVATE YOU DO TO SOMETHING WITH THEM In our relentless pursuit of happiness,

it’s easy to shove aside, make light of, or otherwise evade negative emotions. But the truth is that unpleasant feelings are not only inevitable, they can also play a key role in health and well-being. In her own experience of what she considers “ordinary catastrophes” (ie being tortured for days on end in hope of information on the American Army…..hmmmm ordinary catastrophe huh?) she said that turning negative emotions into creative solutions, celebrating the lessons learnt from life’s challenges and loss led to a feeling of gratitude for what is still around. The work that Dr Cornum has done for the US Army has been recognised worldwide with her message being aptly put that “when your attitude changes to the battle, then the whole battle changes”. If you missed out on the opportunity to see Dr Cornum take a look at her videos on the SAHMRI website. March 2020 THE BULLETIN

FAMILY LAW CASE NOTES

Family Law Case Notes ROB GLADE-WRIGHT, THE FAMILY LAW BOOK CHILDREN – UNILATERAL RELOCATION BY MOTHER (WHICH DID NOT PREVENT HER FROM ADHERING TO INTERIM ORDER FOR FATHER’S CONTACT) ALLOWED ON APPEAL

n Franklyn [2019] FamCAFC 256 (23 December, 2019) the Full Court (Watts, Austin & Rees JJ) allowed the mother’s appeal against an interim order of the Federal Circuit Court that the appellant, who had unilaterally relocated with the parties’ four year old child from central west NSW to south eastern Queensland, return with the child enabling the child to spend five hours each Saturday with the father. Upon separation the child had little or no contact with the father for seven months due to the mother’s concealment of her address and a family violence order obtained by her. That order was ultimately discharged ([9]). On the father’s application an interim order was made with his consent to his having two hours a fortnight with the child at a contact centre. Four months later the father filed an application for variation of that interim order, at the hearing of which the mother disclosed that she had already relocated with the child ([11]). After a two month adjournment the father (and ICL) sought an order that the mother return to NSW, he to have unsupervised time, and that if the mother failed to relocate, the child live with him. The Full Court said ([28]-[29]): “While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF … U v U … ). Parents enjoy as much freedom to live where they please as is compatible with their obligations

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pertaining to the children … Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests … When the mother relocated with the children from central west NSW to south eastern Queensland, she did so in the knowledge she would still need to adhere to the interim parenting orders made in May 2018 requiring her to present the children to the father at a contact centre in Town H, NSW once every fortnight. ( … )”

PROPERTY – COURT’S FAILURE TO COMPLY WITH GUIDELINES FOR LITIGANTS IN PERSON DOES NOT NECESSARILY ESTABLISH ERROR In Laremore & Speidell [2019] FamCAFC 215 (19 November, 2019) the Full Court (Ainslie-Wallace, Ryan & Tree JJ) dismissed with costs fixed at $16,426 Mr Laremore’s appeal against a property and maintenance order made by the Federal Circuit Court on the ground that he was not given a fair trial. Represented until the eve of trial, the appellant appeared at the trial in person but appealed contending that the Court had not followed Re F: Litigants in Person Guidelines [2001] FamCA 348. He complained that the Court had not explained that, if not challenged by crossexamination, a single expert’s testimony might be more readily accepted than if he had challenged it; and that in the context of the … case for … maintenance, the judge failed to explain sections 90SE and 90SF … to him.

The Full Court said (from [11]): “A failure to comply with the Re F guidelines does not automatically establish error. … [T]he guidelines are only informative of the overarching obligation upon a … judge to conduct the hearing in a way which affords each party a fair trial, and … to provide a self-represented litigant with the opportunity to fairly present their case. … [T]hat opportunity may require such a litigant to be apprised of information … for them to make informed choices … whether to call evidence, cross-examine … or make submissions … Error will only be established if the failure to provide such information … meant that, in the … circumstances of the case, a fair trial did not ensue. However a new trial will not be ordered if it can be shown that the … judge’s decision was inevitable despite the procedural irregularity, in that it could have had no bearing on the outcome. ( … ) [19] We cannot see how [expert] Ms B’s evidence could have been materially undermined even if the appropriate explanation about cross-examination … had been given. ( … ) [22] … [T]he appellant was … represented until the … eve of trial. It is … inconceivable that his solicitors had not explained the law relating to … maintenance … prior to … termination of their retainer ( … )”

CHILDREN – GRANTING OF OVERSEAS RELOCATION SET ASIDE ON APPEAL In Soulos & Sorbo [2019] FamCAFC 231 (3 December, 2019) the Full Court

FAMILY LAW CASE NOTES

(Strickland, Aldridge & Austin JJ) allowed the father’s appeal of an order permitting the mother to relocate the parties’ eight year old child from Australia to “Country N” in Europe where the mother was raised. At the hearing the ICL opposed relocation, proposing that the child continue to live with the mother and spend time with the father. The father sought an order that the child live with him. Hannam J found that the father had been violent towards the mother … although … [not] … since separation. The father appealed the Court’s finding that there was a risk of harm to the child in his care, arguing that that finding was in error and resulted in the Court’s failure to consider the inevitable loss of the paternal relationship due to relocation overseas. The Full Court agreed, saying ([35]): “ … [W]hilst the father had been violent when the parties were … together, there had been no violent conduct in the six years since the parties had separated. There was no suggestion that the father was violent in his new relationship and the evidence was to the contrary. Whilst it was relevant to future interactions between them, it is too far a stretch to suggest that because of the earlier violence, there was an existing risk of harm to the child. The mother did not suggest that there was. The Full Court concluded ([63]): “In short, we accept the father’s submission that nowhere in the reasons did the primary judge adequately consider and weigh in the balance the effect of the changes of the child

relocating to Country N, other than the loss of his relationship with his father. This was then weighed against the erroneously found risk of harm that the father presented to the child. In doing so, her Honour omitted to take into account a relevant factor and took into account a mistaken factor ( … )”

PROPERTY – NO PROPERTY ORDER FOR HUSBAND WHO HAD EFFECTIVELY BEEN SUPPORTED BY WIFE AND HER PARENTS DURING SIX YEAR COHABITATION In Babray [2019] FCCA 3514 (9 December, 2019) Judge Kelly dismissed the husband’s application for property settlement in respect of a marriage where the parties lived together for 5.75 years and had a six year old child. At commencement of cohabitation in 2009 or 2010 the husband effected a property settlement with his former de facto partner, borrowing $90,000 from the wife’s parents so as to achieve that settlement. The parties married in 2011. When the husband’s Suburb D property was sold in that year he received net sale proceeds of $47,750. He put those proceeds towards buying a motor vehicle for $70,000, but he could not afford it so he borrowed more money from the wife’s parents to make up the shortfall. At cohabitation the wife owned an unencumbered property which remained in the asset pool. The husband worked for three years as a labourer before being made redundant. He was then unemployed for 3 years, retraining in occupational health and safety and re-joining the workforce before separating. The husband sought 30 per cent of the wife’s property, which the

wife opposed. The parties had kept their finances separate, save for a joint bank account established for living expenses. The Court said (from [48]): “ … Although the parties had established a joint account, the applicant’s contributions were sporadic …[When] the applicant made contributions they barely covered his personal expenditure and … when he did not, he was effectively supported by the respondent. ( … ) [51] In terms of contributions … [the wife] worked throughout … cohabitation, applying the whole of her income to the support of the relationship and the maintenance or improvement of her property. ( … ) [53] … [W]hen challenged … [the applicant] agreed that … his [$8,000] redundancy … had been … applied … in … reduction of his indebtedness to the respondent’s parents. ( … ) [128] … [T]he respondent’s … property was kept strictly separate in the parties’ dealings, … [she] meeting all costs and discharging all liabilities … The property was brought into the relationship by the respondent ( … ) [129] … [H]is work around the property came nowhere near to supporting a conclusion that he had equity … ( … ) [132] Additionally, the respondent met the parties’ living expenses … [while] the applicant was unemployed. … [T]he respondent effectively bore the whole of the parties’ living expenses for at least half of … the relationship.” B March 2020 THE BULLETIN

HISTORICAL CRIME

The execution of Charles Patrick Joseph O’Leary DR AUKE ‘JJ’ STEENSMA, MANGING DIRECTOR, STEENSMA PTY LTD Like a candle that’s set In the window at night, Your fond love has cheered me And guided me right. Mother Machree, by Rida Johnson Young & Ernest Ball1

t 7.50am on Thursday, 14 November 1946, Charles Patrick Joseph O’Leary2 was heard to sing the 1910 American-Irish song; Mother Machree, a song that he claimed his mother would sing to him when he was a young lad. Ten minutes later, O’Leary, whose mortal body had been given to the Sheriff Mr A.S. Blackman, was taken from the cell that held the condemned on the first floor of the A-Wing, New Building at the Adelaide Gaol. His hands and arms were pinioned to a belt that went about his waist, by the hangman. O’Leary was led to the trap of the gallows a small distance away. He faced south, looking towards the large windows that were covered by a sheet. The identity of the hangman being only known to the Gaol keeper and the Sheriff. Outside a large contingent of mounted motor traffic and foot police encompassed the Gaol as it was feared that demonstrations would break out;3 though the prepurted trouble did not eventuate. The Barrier Miner newspaper of Broken Hill quoted that other than the hangman, the only people that were present at the execution were; “the Sheriff, the Prison Medical Officer, Gaol Keeper, two police officers, two priests, and four prison guards”.4 O’Leary was asked if he had anything to say, to which he replied with a smile on his face; “Thank you, gentlemen”.5 Morton et al. claim that “on the scaffold, O’Leary is reputed to have sung, ‘it’s a great day for the Irish’.”6 In a matter of seconds, the hangman’s assistant pinioned the ankles of O’Leary. A hood was placed over his head, and the hangman’s rope was placed on the left side of his neck with the knot placed under his left ear. Two prison guards stood on boards on either side of O’Leary to ensure that he remained upright. The hangman

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moved into the adjourning cell, waited for the signal from the Sheriff, which came immediately, and the lever was pulled. O’Leary dropped the “prescribed distance” and paid the ultimate price for the murder of Walter ‘Spoggy’ Ballard, a 58-year-old sawmill hand, at Nangwarry, on 7 July of that year. It was the 60th execution to be conducted in South Australia. O’Leary was left to hang for the mandatory one hour. The body of O’Leary was then taken down, and an inquest was conducted by the Acting City Coroner, Mr Zeesing, who had arrived at Adelaide Gaol at some time before 9am.7 Ironically the inquest was performed to determine whether the cause of death was attributed to the breaking of the spinal cord, as should and was the case, or from a heart attack or strangulation. O’Leary’s death was instantaneous. Mr Zeesing would have asked the Sheriff whether the execution had been conducted in a manner per the rules with the law. The sheriff acknowledged the conduct. After the inquest, the body of O’Leary was buried in the grounds of the New Building at the Adelaide Gaol, “in a pre-dug grave at the southern end of the building”,8 colloquially known as “Murderer’s Row”. His initials and the date of his execution are painted on the wall and read: 29 C.P.J. O’L. 14-11-46.9 O’Leary had been found guilty of the murder of Ballard. O’Leary and several other employees at a timber cam at the Government sawmill at Nangwarry had started drinking early on Saturday morning and continued well into the night. The next morning Ballard was found in his cubicle, in what the High Court would say was a “dying condition”.10 He had been hit on the head some eight or nine times by a bottle, after which he was doused in kerosene was then set on fire. A group of sawmill workers removed the burning clothes of Ballard. The group “then had to restrain a snarling O’Leary, who was threatening to finish him off with an axe”.11 Ballard died from his injuries “at the Mount Gambier Hospital at about 2 PM the same day without regaining consciousness”.12

The local police this is were called in to investigate. O’Leary had a bottle in his possession and a pullover that had belonged to Ballard.13 O’Leary had also been accused of the unprovoked assault of several other employees, that “consisted of brutal blows at the head”.14 The police found that “O’Leary had already served a prison sentence for manslaughter. The Police suspected he had robbed Ballard, and when Ballard died they charged him with murder”.15 On Thursday, 25 July 1946, the coroner, Mr H C LeLievre, after conducting the inquest, found that deceased Ballard came to his death by murder at the hand of Charles Patrick O’Leary, Nangwarry, on July 7, 1946.16 Mr V R Hague, of Adelaide, appeared for the Commissioner of Police, to assist the Coroner and Mr R L Badenoch, of Mount Gambier, appeared for O’Leary.17 O’Leary, who was 34 years old at the time, was committed for trial. The case against O’Leary was heard at the Mount Gambier Sittings of the Supreme Court, by the South Australian Chief Justice, Sir Thomas John Mellis Napier KCMG KStJ QC,18 and a jury.19 O’Leary was found guilty and “sentenced to death on October 9 for the murder at Nangwarry on July 7 of Walter Edward Ballard”.20

HISTORICAL CRIME

O’Leary then appealed his sentence to the Full Court of the Supreme Court of South Australia, stating that specific evidence had not been admitted. The quorum of Mayo, Reed, Abbott JJ, turned down the appeal.21 An application was then made to the High Court, then located in Sydney, seeking special leave to appeal against the conviction. O’Leary’s appeal was laid on three grounds: (i.) that the trial judge wrongly admitted evidence of certain assaults, abuse and threats by O’Leary upon and to a number of men other than Ballard and misdirected the Jury that they could take into account and act upon that evidence for the purpose of determining whether the identity of O’Leary as the person who caused Ballard’s death was. proved; (ii.) that the trial judge wrongly admitted as evidence two photographs of Ballard taken after his death; and (iii.) that there was no evidence or sufficient evidence to prove O’Leary guilty of murder.22 Latham C.J., Rich, Starke, Dixon, and Williams JJ (McTiernan J dissenting), held that the evidence was admissible, and held (with Starke and McTiernan JJ dissenting), that the evidence disclosed a connected series of events which should be considered as one transaction.23 The court records stated that the trial judge had: directed the jury that they could consider the challenged evidence as evidence of the disposition of the accused “as a man who had no care for the ordinary feelings of pity or humanity which restrain ordinary people”.24 Latham C.J., Rich, Dixon, and Williams JJ, (McTiernan J. dissenting), held “that the misdirection was not such as to warrant special leave”.25 Latham C J found that;“the direction was inconsistent with the well-established rule that evidence of bad character was not admissible against an accused person”.26 27 No grounds for leave to appeal were granted against the conviction of O’Leary. The die had been cast and the fate of O’Leary soon to be meted out. The law was taking its course. Porter noted that while O’Leary was being held in custody and awaiting the result of his appeal, a warder said to O’Leary that he should keep his hopes up

for a reprieve, to which O’Leary remarked: “I won’t get a reprieve because, during the war, I killed another man in a fight and served time for manslaughter. They would not be willing to give me another chance, because if I got out and got drunk, I might kill someone else.”28 The Border Watch recorded that on the day before his execution, telegrams seeking support to reprieve O’Leary and commute the sentence of death to life imprisonment were sent by Mr S Rosenburg, the secretary of the Howard Reform League. Rosenburg implored the Governor-General, the then Duke of Gloucester and the Governor of South Australia, Sir Willoughby Norrie, to intervene and commute that sentence.29 No reprieve was granted. At 7.50am on the morning of Thursday, 14 November 1946, the prison guards heard Charles Patrick Joseph O’Leary singing Mother Machree,… B Endnotes 1 A 1910 American Irish song with lyrics by Rida Johnson Young and singer Chauncey Olcott, and music by Ernest Ball. <https://en.wikipedia. org/wiki/Mother_Machree_(song)>. 2 Charles Patrick Joseph O’Leary born in Liverpool UK, circa 1912 (date not known), died Thursday, 14 November 1946, at Adelaide Gaol. According to Porter; Went to sea at 14 years old and had served on the Queen Mary. In 1942, O’Leary missed his ship at Port Adelaide, and enlisted in the AIF. O’Leary would be the 60th person executed in South Australia. 3 The Barrier Miner, ‘Murderer Smiled on Gallows’, The Barrier Miner, (Broken Hill, Thursday, November 14, 1946), 1. < https:// trove.nla.gov.au/newspaper/article/48482891>. 4 Ibid. 5 Trevor J Porter, Seven Lengths of Rope (TJ Porter & The Wednesday Press1995), 38. 6 James Morton et al, Dangerous To Know: An Australasian Crime Compendium (Melbourne University publishing, 2009), O’Leary, Charles Patrick. < https://books.google.com.au/ books?id=2GVhAqukVA0C&pg=PT430&lpg =PT430&dq=charles+o%27leary+ manslaughter&source=bl&ots=yv83e51m Ro&sig=ACfU3U1mlpYpmzJIVklK2 yrCvB8jT7nK1Q&hl=en&sa=X&ved=2ahUKE wjj8L_u2tTmAhXjmeYKHdG1A0QQ6AE wEXoECAoQAQ#v=onepage&q=charles%20 o’leary%20manslaughter&f=false>. 7 The Barrier Miner, ‘Murderer Smiled on Gallows’, The Barrier Miner, (Broken Hill, Thursday, November 14, 1946), 1. < https:// trove.nla.gov.au/newspaper/article/48482891>. 8 Trevor J Porter, Seven Lengths of Rope (TJ Porter & The Wednesday Press1995), 38.

9 Find a grave website, Charles Patrick O’Leary <https://www.findagrave.com/ memorial/90949400/charles-patrick-o_leary>. The memorial ID is 9094 9400. A picture of the painted inscription on the wall, can be found at this website. 10 O’Leary v R [1946] HCA 44; 73 CLR 566; [1946] SASR 175; [1946] ALR 535, [566]. 11 True Crime Library, Charles O’Leary, London UK, < https://www.truecrimelibrary.com/ crimearticle/charles-o%C2%92leary/>. 12 The Border Watch, ‘O’Leary hanged today - final efforts to commute death sentence fail’, The Border Watch you (Mount Gambier, Thursday, July 25, 1946), 1. < https://trove.nla.gov.au/ newspaper/page/7655470>. 13 O’Leary v R [1946] HCA 44; 73 CLR 566; [1946] SASR 175; [1946] ALR 535, [566]. 14 Ibid. 15 True Crime Library, Charles O’Leary, London UK, < https://www.truecrimelibrary.com/ crimearticle/charles-o%C2%92leary/>. 16 The Border Watch, ‘O’Leary hanged today - final efforts to commute death sentence fail’, The Border Watch (Mount Gambier, Thursday, July 25, 1946), 1. < https://trove.nla.gov.au/newspaper/ page/7655470>. 17 Ibid. 18 According to Wikipedia Sir Thomas John Mellis Napier KCMG KStJ QC (born 24 October 1882 – died 22 March 1976 (93 years)), was the fifth Chief Justice of South Australia and the Lieutenant-Governor of South Australia from 30 April 1942 to 1973. In 1912 (together with Thomas Poole) he resuscitated the Law Society of South Australia, and served as its Vice President in 1923.< https://en.wikipedia.org/ wiki/Mellis_Napier>. 19 The Advertiser, ‘Appeal in Murder Case’, The Advertiser (Adelaide, Saturday, 26 October 1946), 9. < https://trove.nla.gov.au/newspaper/ article/35763337> 20 The Border Watch, ‘O’Leary hanged today final efforts to commute death sentence fail’, The Border Watch (Mount Gambier, Thursday, November 14, 1946), 1. <https://trove.nla.gov. au/newspaper/article/79864761>. 21 Trevor J Porter, Seven Lengths of Rope (TJ Porter & The Wednesday Press1995), 38. 22 O’Leary v R [1946] HCA 44; 73 CLR 566; [1946] SASR 175; [1946] ALR 535, [567]. 23 O’Leary v R [1946] HCA 44; 73 CLR 566; [1946] SASR 175; [1946] ALR 535, [566]. 24 O’Leary v R [1946] HCA 44; 73 CLR 566; [1946] SASR 175; [1946] ALR 535, [567]. 25 Ibid. 26 Ibid. 27 Latham CJ cited Thompson v. The King, (1918) A.C. 221, and R. v. Sims, (1946) 62 T.L.R. 431. 28 Trevor J Porter, Seven Lengths of Rope (TJ Porter & The Wednesday Press1995), 38. 29 The Border Watch, ‘O’Leary hanged today final efforts to commute death sentence fail’, The Border Watch (Mount Gambier, Thursday, November 14, 1946), 1. <https://trove.nla.gov. au/newspaper/article/79864761>.

March 2020 THE BULLETIN

BOOKSHELF

THE LAW AFFECTING RENT REVIEW DETERMINATIONS Abstract from Federation Press The new edition has a narrow focus in relation to the legal and valuation principles concerning rent review determinations and associated matters, but it contains valuable material relating to the interpretation of commercial and retail shop leases, nature of

valuations, and the duties of valuers undertaking rent review valuations. It covers a complex and specialised subject, provides valuable assistance to lawyers and valuers who practise in the area, and teaching institutions which conduct courses in property and valuation law.

Alan A Hyam 3rd ed The Federation Press 2019 HB $170.00

ONG ON TRACING

Denis SK Ong The Federation Press 2019 HB $135.00

Abstract from Federation Press Ong on Tracing, by Professor Denis SK Ong, is the first scholarly monograph published in Australia to analyse and explain the complex principles relating to the tracing of ownership of property at common law and in equity. Topics addressed with Ong’s characteristic clear and forthright consideration of both Australian and English authorities include: the

differences between tracing at common law and in equity; whether there is any distinction between tracing and “following”; whether “backward tracing” is conceptually sound; situations where tracing is impossible; tracing the ownership of property into bank accounts and other assets; the relationship between tracing and constructive trusts; the application of statutes of limitation to tracing claims.

THE MORTGAGEE’S POWER OF SALE Abstract from LexisNexis The Mortgagee’s Power of Sale 4th edition provides an up-to-date, practical guide to the steps that a mortgagee must take to obtain possession of and sell the land and a detailed analysis of a mortgagee’s duty in selling land. Registered and unregistered mortgages are

considered together with different issues that arise in Torrens system and general land. There is also a comprehensive discussion about a mortgagor’s rights including the lodging of caveats and obtaining an injunction to prevent a sale.

Clyde Croft & Robert Hay QC 4th ed LexisNexis Butterworths 2019 HB $245.00

CONSUMER PROTECTION LAW IN AUSTRALIA

Alex Bruce 3rd ed LexisNexis 2019 PB $125.00

44 THE BULLETIN March 2020

Abstract from LexisNexis Consumer Protection Law in Australia provides a clear and detailed explanation of the application and effect of consumer protection and product liability law in Australia, fostering a sound understanding of the legislative landscape in force since the introduction of the single regulatory scheme. The author explains

the mechanism under which the federal and state and territory laws operate and provides a ’road map’ to all aspects of the consumer regime, including regulation and public and private enforcement. Key areas such as consumer guarantees, unfair contract provisions and product liability are comprehensively discussed.

GAZING IN THE GAZETTE

3 JAN 2020 – 2 FEB 2020 ACTS PROCLAIMED Architectural Practice (Continuing Professional Development) Amendment Act 2019 (No 40 of 2019) comes into operation on 1 July 2020. Commencement: 1 July 2020 Gazetted: 23 January 2020, Gazette No. 8 of 2020 Crown Land Management (Section 78B Leases) Amendment Act 2019 (No 43 of 2019) Commencement: 28 January 2020 Gazetted: 23 January 2020, Gazette No. 8 of 2020 Statutes Amendment and Repeal (Simplify) Act 2019 (No 25 of 2019) Commencement

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

Parts 6 and 36: 1 July 2020 Gazetted: 23 January 2020, Gazette No. 8 of 2020 Statutes Amendment and Repeal (Classification of Publications, Films and Computer Games) Act 2019 (No 35 of 2019) Commencement: 3 February 2020 Gazetted: 30 January 2020, Gazette No. 11 of 2020

ACTS ASSENTED TO (3 JANUARY 2020 – 2 FEBRUARY 2020)

Puisne Judge Judge of the Court of Appeal of South Australia from 28 January 2020 Primary judicial office to be Puisne Judge until Supreme Court (Court of Appeal) Amendment Act 2019 commences after which primary judicial office to be Judge of the Court of Appeal Mark Christopher Livesey QC Gazetted: 23 January 2020, Gazette No. 8 of 2020

RULES

Nil

APPOINTMENTS Supreme Court of South Australia

REGULATIONS PROMULGATED (3 JANUARY 2020 – 2 FEBRUARY 2020) REGULATION NAME

REGULATION NO. DATE GAZETTED

Controlled Substances (Poisons) (Emergency Supplies) Variation Regulations 2020 1 of 2020 Criminal Law Consolidation (General) (Relevant Industry Regulatory Authority) 2 of 2020 Variation Regulations 2020

13 January 2020, Gazette No. 4 of 2020 23 January 2020, Gazette No. 8 of 2020

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Family Law - Melbourne LITIGATION ASSISTANCE FUND The Litigation Assistance Fund (LAF) is a non-profit charitable trust for which the Law Society acts as trustee. Since 1992 it has provided funding assistance to approximately 1,500 civil claimants. LAF receives applications for funding assistance from solicitors on behalf of civil claimants seeking compensation/ damages who are unable to meet the fees and/or disbursements of prosecuting their claim. The applications are subjected to a means test and a merits test. Two different forms of funding exist – Disbursements Only Funding (DOF) and Full Funding. LAF funds itself by receiving a relatively small portion of the monetary proceeds (usually damages) achieved by the claimants whom it assists. Claimants who received DOF funding repay the amount received, plus an uplift of 100% on that amount. Claimants who received Full Funding repay the amount received, plus 15% of their damages. This ensures LAF’s ability to continue to provide assistance to claimants. LAF recommends considering whether applying to LAF is the best course in the circumstances of the claim. There may be better methods of obtaining funding/ representation. For example, all Funding Agreements with LAF give LAF certain rights including that funding can be withdrawn and/or varied. For further information, please visit the Law Society’s website or contact Annie MacRae on 8229 0263.

46 THE BULLETIN March 2020

CONSULTING ACTUARIES

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The Bulletin - Law Society of South Australia - March 2020 edition

Articles inside

The execution of Charles Patrick Joseph O’Leary – By Dr Auke ‘JJ’ Steensma

Gazing in the Gazette

Family Law Case Notes By Rob Glade-Wright

Wellbeing & Resilience: The desire to be resilient is infectious

Risk Watch: Proper use of the Inactive Case List can save time, money & claims – By Grant Feary

Tax Files: Residence issues for Trust Estates with Foreign Corporate Trustees – By John Tucker

High Court judgment puts Aboriginal Australians beyond “Alien” powers By Matthew Rismondo

Mann v Paterson Constructions Pty Ltd: The end of the rescission fallacy By Travis Shueard & Seamus Brand

Oral Histories profi le: Morry Bailes By Lindy McNamara

Society outlines key asks in State Budget submission

Commercial space law: launch and operation of spacecraft By Donna Lawler

The Security of Payment Act: considering the cope of the mining exclusion

Space mining: Commercial opportunities & legal uncertainties By Dr Matthew Stubbs

Shaya to ride 500km for charity

Australia’s Essential Contribution to space domain awareness By Duncan Blake

The crucial role that lawyers will play in the space industry – By John Caruso

Event wrap-up: Happy New (Legal) Year event

President’s Message

ANGELS project creates one stop shop for space laws – By Alice Osborne

From the Editor

International space law and military uses of space Professor Melissa De Zwart