The Bulletin - Law Society of South Australia - May 2021 by lawsocietysa

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 43 – ISSUE 4 – MAY 2021

IN THIS ISSUE

Considering climate change in SA's new planning code New environment impact assessments for mining projects The fight to save sacred Aboriginal sites

THE RISING TIDE OF ENVIRONMENTAL LAW

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 43 (4) LSB(SA). ISSN 1038-6777

CONTENTS ENVIRONMENT & THE LAW

FEATURES & NEWS

REGULAR COLUMNS

6 The role of climate change policy under the Planning, Development and Infrastructure Act – By Paul Leadbeter, David Cole and Michael Doherty

20 Equal Opportunity Commissioner hands down harassment report

From the Editor

President’s Message

Appointments & retirements

10 Onus v Minister for the Environment and Aboriginal cultural heritage protection – By Sophie Howe 14

26 Speech: Challenges to the rule of law in modern society By The Hon Justice Tom Bathurst 33 The execution of Michael Magee By JJ Steensma

he Environmental Defenders Office, T climate change & environmental advocacy – By Melissa Ballantyne

22 Wellbeing & Resilience: Fast-track to wellbeing – By Wellbeing & Resilience Committee 24 Tax Files: Allocation of professional firm profits to individual practitioners By Andrew Shaw

16 New environmental impact assessment processes for mining projects – By Kyra Reznikov

18 Oceans of ink: Environmental law past, present & future By Christina Lien

36 Family Law Case Notes By Craig Nicol & Keleigh Robinson

32 Risk Watch: Reform of the Retail and Commercial Leases Act – By John Doyle

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

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

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

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

Bookshelf

Gazing in the Gazette

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

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

FROM THE EDITOR

Spotlight on laws to protect environment from threats MICHAEL ESPOSITO, EDITOR

sobering report by former Chairman of the Australian Competition and Consumer Commission Graeme Samuel AC, in his review of the Environment Protection and Biodiversity Act which the Federal Government released earlier this year, warns warn that Australia’s natural environment is under grave threat, and current laws have not been effective in preventing the degradation of the country’s biodiversity. The report makes 38 recommendations, including establishing an independent regulator to oversee the application of the EPBC Act, and the formation of and legally binding national environmental standards. Laws that relate to protection of the environment are under increasing scrutiny amid the rising existential threats to the

IN THIS ISSUE environment and the urgency with which the need to address these threats. This edition of the Bulletin looks at environmental laws from a number of angles. Christina Lien explores the rapid rise of environmental law over the past 3o years and its contribution to administrative law jurisprudence. Paul Leadbeter, David Cole and Michael Doherty examine the role of climate change policy in the State’s new planning code. Kyra Reznikov details changes in the Mining Act with regards to assessing the impact of mining projects. Melissa Ballantyne explains the important role of the Environmental Defenders Office, and Sophie Howe summaries the Federal Court’s decision in relation to an appeal for the protection of sacred trees from a highway upgrade in Western Victoria.

GROWTH AREA The evolution of environmental law

VALE: BRIAN EDMUND WITHERS AM

he Law Society was saddened to learn of the passing of Brian Withers AM. Brian was a towering, yet extremely humble, figure in the South Australian legal profession. Brian was President of the Society in 1990-91, and Chair of the Legal Services Commission from 1997 to 2004. He was a long-standing Member and Chair of the Society’s Justice Access Committee, was instrumental in the creation of the Litigation Assistance Fund, and was appointed Master of the Supreme court in 2004. Brian was awarded the inaugural Law Society of South Australia Justice Award in 2004, for outstanding commitment to promoting access to justice in South Australia. In 2005, the Society introduced the “Brian Withers Award” for services to the Law Society and profession, in recognition of and gratitude for Brian’s contribution to the South Australian legal profession.

4 THE BULLETIN May 2021

CHANGING WORKPLACE CULTURE The EOC delivers harassment report

Mr Withers was awarded an Australia Day Honour in 2014 for significant service to the law through leadership in a range of professional organisations and to the judiciary in SA. The Law Society extends its deepest sympathies to Brian’s family. An obituary on Brian Withers will be published in the next edition of The Bulletin. B

DUE PROCESS Justice Bathurst on modern challenges to the rule of law

PRESIDENT’S MESSAGE

The law as a tool to drive action on climate change REBECCA SANDFORD, PRESIDENT

rowing up, one of my favourite poems was Dorothea Mackellar’s “My Country”. It is undeniably true that we live in a “sunburnt country”, full of beauty and terror (the latter especially so if you are, like me, an arachnophobe!) - but it’s also becoming hard to ignore that the “droughts and flooding rains” that sweep across this “wide brown land” now do so with increasing severity and frequency. Our horrendous bushfire season in 2020 was a clear signal that climate change is an issue significantly affecting Australia, which it seems is only going to get worse - and to be frank, time is running out for us to address it. Recent reports1 indicate it is almost certain that average global temperature rise over the next century will exceed 1.5C, and that this may even occur as soon as the 2030s. Focus is now shifting to trying to keep the rate of temperature rise this century to less than 2C, but Australia is being left behind when it comes to cutting greenhouse gas emissions, and in some quarters we are now regarded as the “global laggard” of developed countries in this respect - meaning we have further to go to even catch up, let alone lead, in this area. Quite apart from our global reputation, increased warming will specifically and seriously impact Australia, which is more susceptible to certain climate change impacts than other places in the world; already, at an average global temperature rise of 1.1C, we have experienced increased megafires, more powerful storms and increasingly severe droughts and heatwaves. Current research suggests that should global warming reach 3C (an outcome which looks increasingly possible even if serious action on climate change is taken now), we can expect far more megafires, over 250,000 Australian properties at risk of inundation from the rising of our “jewel-sea”, the death of the Great Barrier Reef, increasing tropical

diseases in southern cities and skyrocketing rates of death from heat stress. And that’s the optimistic position…! Of course, whilst Australia has particular vulnerabilities to bear in mind, the issue is a global one affecting everyone on the planet. From a legal perspective, concerned citizens are taking increasingly creative steps to ensure governments take the issue seriously - in Ireland, for example, environmental advocacy group ‘Friends of the Irish Environment’ (FIE) recently won a climate change lawsuit (known as Climate Case Ireland) against the Irish Government. The case alleged that Ireland had failed to take “adequate action” on climate change, and sought to hold the government accountable “for its role in knowingly contributing to dangerous levels of climate change” and failing to meet targets set in its National Mitigation Plan. It was the first case of its kind in Ireland and only the second in the world where a court held a government accountable to its greenhouse gas emissions targets, and as a result, the Irish government is now revising its national climate policy. In doing so, it could look to its neighbour Scotland, which has some of the most ambitious climate targets in the world after the Scottish parliament passed the Climate Change Bill in 2019, setting out a legally binding target of reaching net-zero emissions by 2045. Scottish ministers have committed to a target of at least 50% of energy demand for electricity, heat and transport across the country to be met by renewable energy generation by 2030. Though ambitious, this nonetheless seems achievable given that Scotland met 90.1% of its equivalent electricity consumption from renewables in 2019. Coming back home to our own “wilful, lavish land”, in mid-2020 Katta O’Donnell followed in FIE’s footsteps and is now leading a Federal Court class action against the Australian Federal

Government, asserting that investors trading in Australian government bonds face material risks from climate change which have not been disclosed by the Government, meaning it has breached its duty of disclosure and misled and deceived investors. The case is ongoing, but is the first of its kind in Australia, and certainly one to watch. Though Australia currently has a goal to reduce greenhouse gas emissions to 26–28 per cent below 2005 levels by 2030 and to achieve net zero emissions “preferably by 2050”, the rate of change to achieve this goal is slow and increasingly likely to be insufficient, given emissions have actually risen in Australia over the last 10 years. Comparatively, the US, UK and many European countries have reduced emissions over the last decade, and have publicly committed to much bolder targets going forward. Business is in many sectors moving ahead with net zero targets irrespective of government stances, and it is becoming progressively more likely that countries which are prioritising this issue will factor climate policies into trade arrangements into the future. The Law Council has “climate change” as one of its strategic policy focus areas for 2021, and has a working group which is currently considering the legal implications of climate change and developing a Law Council policy position about them. I’m closely following developments in this area - ultimately, legislation and regulation will be what drives change, and the role of lawyers in developing that framework is more critical than ever. Our “opal-hearted country” is far too precious for us to simply stand by. B

Endnotes 1 Climate Council of Australia, Aim High, Go Fast: Why Emissions Need to Plummet This Decade, (Report, 2021)

May 2021 THE BULLETIN

PLANNING LAWS

What is the role of climate change policy under the Planning, Development and Infrastructure Act and how relevant is it in determining development applications? PAUL LEADBETER, ADJUNCT SENIOR LECTURER, ADELAIDE LAW SCHOOL, DAVID COLE ENVIRONMENTAL LAWYER, MICHAEL DOHERTY PLANNING AND ENVIRONMENTAL LAWYER

outh Australia has implemented a major change in its system of land use planning regulation and policy with the replacement of the Development Act 1993 by the Planning, Development and Infrastructure Act, 2016 (PDI Act). The PDI Act commenced, in part, in March 2017. Following the gazettal of Phase 3 of the Planning and Design Code on 19 March 2021 the Act is in operation throughout South Australia. The purpose of the Act is to regulate the use, development and management of land and buildings in South Australia.1 The objects of the Act are set out in detail in section 12 and include supporting and enhancing “the State’s liveability and prosperity in ways that are ecologically sustainable”. The Act establishes the State Planning Commission (SPC) which is “the State’s principal planning advisory and development assessment body”.2 In the latter respect, the Commission has established the State Commission Assessment Panel (SCAP) under the Act to undertake that assessment function.3 Community participation in the preparation of statutory instruments under the Act (including State Planning Policies (SPPs) and the Planning and Design Code (the Code) is facilitated by the preparation and maintenance of the Community Engagement Charter.4 The Code is the principal document that must be taken into account by relevant authorities when determining development applications under the Act.5 SPPs establish planning direction for the State and also inform the content of the Code. Relevant authorities established under the Act are responsible for assessing development applications with respect to specified classes of development. Relevant authorities comprise assessment panels,

6 THE BULLETIN May 2021

assessment managers and accredited professionals. In some instances, the Minister is the relevant authority.6 Categories of Development are specified by the Act as follows: • Accepted development (s 104); • Code Assessed Development which is further categorised as “deemedto-satisfy” assessment (s 106) or “performance assessed development” (s 107); and • Impact assessed development (see Subdivision 4). Accepted development requires no planning consent. Code assessed development is subject to an assessment for that class of development against the relevant Code provisions. Performance assessed development and impact assessed development require assessment on the merits against the requirements of the Code.

HOW WILL CLIMATE CHANGE AFFECT SOUTH AUSTRALIA? It is now generally accepted that climate change is occurring and that if the current trend continues there are serious implications for the southern part of the Australian continent, particularly South Australia. The most recent State of the Environment Report for South Australia7 has noted that climate change will result in a significant decline in annual and spring rainfall across the state by 2050, and a projection of higher maximum temperatures and more days above 40 degrees each year. Sea Levels are rising and are projected to continue to do so. The Report notes that the Paris Agreement on Climate Change8 seeks to limit average global temperature rise to below 2 degrees above pre-industrial levels. A rise above that will have ‘dangerous and potentially irreversible impacts for humans and ecosystems’9. Furthermore, if

immediate action is not taken to contain and reduce greenhouse gas emissions by 2060-70 temperature rises of 3-4 degrees are likely. If there is an average global warming of 4 degrees, the consequences for Australian cities and the Australian environment will be significant and their management extremely challenging and costly. The South Australian Government has recently adopted an ambitious climate change mitigation target of reducing GHG emissions by more than 50% below 2005 levels by 2030 and achieving net zero emissions by 2050. It has also announced a plan to transition to 100%-net renewable energy. Meeting such targets will require significant efforts across various sectors and policy areas within the next decade. There are two key strategies that address global warming, namely ’mitigation’, which involves actions to reduce the overall volume of emissions, and ‘adaptation’, which necessitates an acceptance that the climate will change and the implementing of strategies to prepare for and minimise the impact of the inevitable changes. The land use planning system is important for implementing both strategies.

WHY IS IT IMPORTANT TO CONSIDER THE IMPACTS OF CLIMATE CHANGE IN DEVELOPMENT ASSESSMENT PROCESSES? Planning law and policy responses are needed in a range of areas to address climate related issues such as sea level rise and coastal hazards, bushfire hazards, heatwaves, intense rainfall and storm events and the consequential flooding and associated destruction, the reduction in the quality and quantity of water supply and increased vector activity from mosquitoes and the resulting spread of disease. How might land use planning policy and development assessment assist in addressing some of the climate change related issues

PLANNING LAWS

South Australia will experience? Land use planning responses might include: • Changes to land zoning and policy requirements and directives • More climate sensitive building and design standards10 • Restrictions on minimum ground levels for buildings and other development in low lying flood prone areas • Restrictions and specifications for development in bushfire prone areas11 • The prohibiting of development in certain areas such as those where land is flood prone, a bushfire hazard area or a coastal strip likely to be subject to inundation from higher tides or during storm events because of increases in sea level. • The facilitation of greener transport options12 • A focus on reducing the urban heat effect through design and vegetation • A general emphasis on sustainability measures In the case of urban development, addressing climate change is urgent in two fundamental respects. First, as mentioned above, the State Government has adopted GHG emission targets to be achieved in the relatively near future. Second, hardly any of the currently constructed 70% of the 2050 city is carbon neutral. An enormous amount of effort is required over the next thirty years to retrofit and adapt these already existing infrastructure and buildings so that they become carbon neutral by 2050. Under the Development Act there was support in some Council development plans to justify having regard to climate change impacts when undertaking an assessment of a development proposal, particularly re coastal development13 A ministerial amendment was also made to all development plans to facilitate and promote wind farm development across the state making it almost impossible for third party challenges to such proposals14. There was no direct reference to climate change in the Development Act itself.

Notwithstanding the paucity of references to climate change in Australian planning legislation, climate change has nevertheless been a factor previously considered as a relevant consideration in a number of development assessment processes across Australia. These have included development proposals for coal mines(NSW)15, a coal fired boiler(SA)16 and coastal land divisions(SA and Victoria)17. While there is climate change policy being developed at various levels of the State Government there appears to be a lack of coordination and synchronicity in some areas. In 2013 the Premiers Climate Change Council (PCCC) published ’South Australia’s climate change vision-Pathways to 2050’18. Recommendation 7 of that report seeks to ‘ensure that consideration of climate change is integrated into the South Australian land-use planning system by embedding climate change into the Objects of the relevant Act.’19 That object has not been directly achieved with the PDI Act as will be shown below. A similar situation appears to exist with the State Government’s Climate Action Plan 2021-2025, released in 2020.20 There are references in the Action Plan to the planning regulatory and policy system but there is little apparent evidence of actual coordination with those responsible for drafting the new planning legislation and key policy documents.

WHAT DOES THE PLANNING, DEVELOPMENT AND INFRASTRUCTURE ACT 2016 SAY ABOUT CLIMATE CHANGE? The Act Disappointingly, given its recent initiation, the well understood implications of climate change for the State of South Australia and the recommendations of the Climate Change Vision report21, the PDI Act contains no direct and substantive criteria in the Act or its objects clause requiring that climate change be addressed in policy formulation or the determination

of development proposals. It does, however, contain a machinery provision requiring the preparation by the Minister of a State Planning Policy on Climate Change (see below). Objectives The significance of climate change is implicit in the objects of the Act22. Section 12(1) states that ‘the primary object of this Act is to support and enhance the State’s liveability (sic) and prosperity in ways that are ecologically sustainable’. Given that climate change is a consequence of unsustainable land use, that object justifies putting climate change measures in planning policy and requiring that they be considered as part of the development assessment process. This argument is supported by the Act’s “Principles of Good Planning’ which are intended to assist in furthering the objects of the Act. These Principles emphasise that cities and towns being should be planned, designed and developed so as to be sustainable23 and that ‘particular effort should be focused on achieving energy efficient urban environments that address the implications of climate change24. The objects of the Act also require cooperation, collaboration and policy integration between state and local government bodies25 which arguably with respect to climate change, has not occurred as effectively as it might, given the disparity between the planning legislation and policy and the State’s climate change policies. The Act imposes a mandatory requirement on those involved in “the administration of this Act” (which would include policy makers and those responsible for making development assessment decisions) to further the Act’s objects26. If, as noted above, sustainability is an object of the Act, then policy and decision makers must have regard to it as a means of achieving sustainable development and thus consideration of the climate change impacts of a proposal should be taken into account. May 2021 THE BULLETIN

PLANNING LAWS

The Role of the Code Development assessment decisions under the PDI Act must be made by assessing a proposal against the Code27. Therefore, if there is to be consideration of climate change as a relevant factor in development assessment, there must be policies within the Code which make it a relevant consideration. Under the Act, the Code is the key development assessment policy. Above it sits the SPPs which cannot be taken into account for purposes of any development assessment28 but are to be given effect through other instruments, particularly the Code.29 State Planning Policy 5 As noted above, Section 62 of the Act requires that Minister ensure there is a specific Climate Change SPP specifying policies and principles that are to be applied with respect to minimizing adverse effects of decisions made under the Act on the climate and promoting development that is resilient to climate change. Accordingly, ‘State Planning Policy 5: Climate Change’ (SPP 5) has been developed with the objective of providing for development that is ‘climate ready’ so that the economy, community and environment will be resilient to climate change impacts30. SPP 5 is a four-page document comprising the topic headings Purpose, Objective, Policies, Principles for Statutory Instruments and Related State Planning Policies. There is only one objective in the Policy and it refers to adaptation, not mitigation, yet s62 of the Act contemplates that there would be mitigation strategies as well. However, the policies under the Objective actually contain a mix of mitigation and adaptation strategies.

THE PLANNING AND DESIGN CODE Given that development proposals must be assessed against it, the Code is the means by which SPPs are to be given effect. Therefore, it is imperative that the Code reflects the objectives, principles and policies of SPP 5 to ensure that climate change is a relevant and important consideration in the development assessment process. The Principles for Statutory Instruments in SPP 5 include the following for the purposes of the Planning and Design Code: • ‘The Planning and Design Code

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should include a range of overlays that identify both the hazards that need to be considered when proposing new development and the features that should be protected due to their contribution to climate resilience, e.g. coastal dunes and natural environments that store carbon. • Policies should allow for innovative adaptation technologies; promote climate-resilient buildings; improve the public realm; and identify areas suitable for green industries and carbon storage’ Section s66(3)(f) of the Act provides that the Code must comply with any principle prescribed by an SPP. The wording of s66(3)(f) is mandatory, adopting the term ‘must’ whereas the principle quoted above uses the word ‘should’, arguably lessening its strength. Does the principle in SPP 5 meet the statutory requirements of the Act? The Minister must ensure that an SPP on climate change is prepared but whether the mandatory obligations extend to the terms of the policy itself is uncertain. What is clear is that development proposals must be assessed essentially against the Code and that the Code is the main means by which the Principles in SPPs are to be given effect. It is imperative, therefore, not only that the Code should reflect the Principles included in SPP 5 but that the Principles themselves are sufficiently detailed and clear that they can be meaningfully reflected in the Code thus ensuring that climate change is a relevant consideration in the assessment of a development proposal. In this respect SPP 5 is deficient. If the Code31 is required to be the means by which climate change policies and principles in SPP 5 are to be implemented, what do the provisions in the Code currently provide regarding climate change? The specific words, “climate change” are only used nine times in the Code32. There is no general development policy for climate change nor any statement of desired outcomes for climate change mitigation and adaptation. Climate change is addressed implicitly in various Overlays particularly the Hazards Overlays (bushfire and flooding) and the Water Protection Overlay. This is important but does not represent a comprehensive set of provisions in the Code directed to ensuring that climate change mitigation and adaptation is considered in the widest possible range of

developmental circumstances and in a way that is meaningfully directed to achieving a climate-sensitive environment. Where inconsistencies exist in the Code a hierarchy exists for addressing them.33 Overlays prevail over all other policies, Subzones prevail over Zone policy or general development policy and a zone policy prevails over a general development policy. This setting of priorities argues for careful consideration of where climate change provisions are to be included in the Code.

WHERE THERE IS CLIMATE CHANGE RELATED POLICY WITHIN THE PLANNING AND DESIGN CODE, TO WHAT EXTENT CAN THAT POLICY BE TAKEN INTO ACCOUNT IN THE DEVELOPMENT ASSESSMENT PROCESS? Any climate policy which is part of the Code has to be one of the matters against which development is assessed.34 However, if previous authority is followed, in the absence of any statutory direction to the contrary, climate related matters are just one of a range of factors to be considered in the assessment process. A planning assessment is a ‘balancing process’ in which the planning authority must weigh up the factors both for and against a proposal when making its planning judgment35. Unless the legislation or Code specifies otherwise climate change issues will not be given any greater weight than any other factors. Many would argue that, given the dire predictions of the impacts of climate change, it perhaps should be given more weight than other factors in the development assessment process. The ‘planning balance’ approach is relevant largely to Performance and Impact Assessed development where a determination is made on the merits. Accepted development and Deemed-toSatisfy development are less likely to include climate related criteria. However, concerns exist as to how the cumulative climate change impact of allowing many relatively minor forms of development to be treated and assessed as Accepted and Deemedto-Satisfy development (meaning planning consent must be granted) is to be addressed. Should there be some form of climate related approval criteria included in the Accepted and Deemed-to-Satisfy tables?

WHERE COULD THERE BE IMPROVEMENTS? The South Australian Government’s

PLANNING LAWS

Climate Change Action Plan 2021-202536 is a government document prepared with input from the Premier’s Climate Change Council and also economist Professor Ross Garnaut37. It describes government led objectives and actions to help build ‘a strong, climate smart economy, further reduce greenhouse gas emissions and support South Australia to adapt to a changing climate’. It sets out seven Focus Areas under which are set out Key Objectives. Focus Area 5 dealing with ‘Climate Smart built and urban environments’ sets out three key objectives, namely: • Provide for development that is low emissions and climate resilient • Accelerate strategic urban greening • Understand and reduce climate change risks to infrastructure The Climate Change Action Plan refers to the South Australian planning system and recognises the importance of using it to implement climate smart practices but considerably more could be done in the Code to implement these actions. As things presently stand there seems to be sigificant disconnect between the Climate Change Action Plan and the Code. Greater cooperation between the entities responsible for the two areas is needed. The Code does indeed have in place a number of policies that can be seen to be relevant to implementing Climate Change strategies but more could done. Improvements to the machinery that drives the land use planning system in South Australia could include the following: Revision of SPP 5: Climate Change to ensure that it addresses climate change mitigation as well as adaptation; An elaboration of the Principles for Statutory Instruments in SPP 5 as they relate to the Planning and Design Code so that they provide greater direction to policy makers and facilitate the meaningful inclusion of climate change provisions in the Code; The use of the mandatory term “must” in the relevant Principles in SPP 5 to provide consistency between the intention of section 62 of the Act, the SPP and the Code; The inclusion of clearly identified and comprehensive climate change assessment provisions in the Code including Desired Outcomes that reference the need for carbon neutrality across all zones; The issuing of a practice direction (a procedural tool) or the use of other relevant statutory machinery that assigns an

appropriate weighting and priority to the application of climate change provisions in the development assessment process.

FINAL OBSERVATIONS Climate change issues, particularly those related to bushfires, water supply and use and the energy efficiency of buildings, are relevant development assessment factors under the Planning and Design Code. There is, however, no real guidance in the Code or the legislation as to the weight that should be given to climate change issues in the development approval process. It is just one of a number of considerations to which the planning authority must have regard. The predicted impacts of climate change on South Australia are highly significant. It is of prime importance that the State implements measures to try and minimize those impacts on South Australia’s environment, infrastructure and its society. Climate change issues must become a priority issue in policy formulation and in development assessment and determination. Greater coordination and cooperation is required between planning authorities and other government agencies responsible for addressing the State’s climate change strategy. In particular the State Planning Commission and the Premier’s Climate Change Council need to coordinate and synchronise their response strategies to the concerns about climate change and its predicted impacts for South Australia. B Endnotes 1 PDI Act, long title. 2 Ibid, s 22(1). 3 Ibid, s 29. 4 Ibid, s 44. 5 Ibid, s 102. 6 Ibid, s 95. 7 Government of South Australia, Environment Protection Authority ,7th State of the Environment report for South Australia,2018 http://www.epa. sa.gov.au/soe-2018 8 The Paris Agreement on Climate Change, FCCC/ CP/2015/10/Add.1, November 2015, https:// unfccc.int/process-and-meetings/the-parisagreement/the-paris-agreement 9 Government of South Australia, n.7 Key Messages 10 E.g. Building placement on site, window and room orientation, materials of construction, insulation requirements etc. Some of these matters are more a matter of requirements under the building rules and National Construction Code but can be driven through appropriate planning policies also. 11 E.g. sometimes built development may be excluded altogether in very hazardous areas. 12 Such as tramways, light rail, cycle pathways, and other mass transit options

13 E.g. the District Council of Yorke Peninsula had an extensive set of policies in its Development Plan https://www.dit.sa.gov.au/__data/assets/ pdf_file/0015/250026/Yorke_Peninsula_Council_ Development_Plan.pdf designed to ensure that new development along coastal areas was sufficiently set back to provide for a buffer against the anticipated effects of coastal land inundation by rising sea water over the next 100 years. This Plan has now been replaced by the Planning and Design Code under the new legislation. 14 Statewide Wind Farms DPA (Minister of Planning) 18 October 2012 15 Gray v The Minister for Planning and Others (2006) 152 LGERA 258 16 Thornton v Adelaide Hills Council (2006) 151 LGERA 1 17 Northcape Properties v District Council of Yorke Peninsula [2008] SASC 57, Gippsland Coastal Board v South Gippsland Shire Council [2008] VCAT 1545 18 Government of South Australia, Premier’s Climate Change Council,2013. Can be found at: https:// www.environment.sa.gov.au/files/sharedassets/ public/climate-change/sa-climate-change-visionpathways-to-2050.pdf 19 Govt of South Australia, Premiers Climate Change Council,n18, p.24 20 Government of South Australia, Climate Action Plan 2021-2025 https://www.environment.sa.gov. au/news-hub/news/articles/2020/12/climatechange-action-plan 21 Govt of South Australia, n18, Recommendation 7 on page 24. 22 PDI Act, s 12. 23 PDI Act, s14(e)(i) Note that there is no definition in the Act of ecological sustainability- unlike in the Environment Protection Act 1993-that of itself leaves issues as to what is encompassed in the term open to debate. 24 PDI Act, s14(e)(ii) 25 PDI Act, s12(1)(g). This means the Minister and State Planning Commission , State Climate Change Council, all government departments and local councils should all liaise cooperate and coordinate whenever developing climate change related policies. 26 PDI Act, s13 27 PDI Act, s102(1)(a) 28 PDI Act, s58(4) 29 PDI Act, s58(2) 30 State Planning Policy 5: Climate Change see: https://plan.sa.gov.au/__data/assets/pdf_ file/0005/552884/State_Planning_Policies_for_ South_Australia_-_23_May_2019.pdf 31 The Code is an online document designed to be used in that format with a wide range of interactive tools. It came fully into operation on 19 March 2021. It can be accessed from here: https://code.plan.sa.gov.au/ It applies across the whole state doing away with the previous set of 72 separate development plans applying to individual council areas which applied under the Development Act,1993. 32 The specific references to climate change occur principally in relation to bushfire risk, Ramsar Wetlands and water resource protection. 33 Planning and Design Code Part 1, Clause 4 34 PDI Act,s102(1) 35 City of Mitcham v Freckman[1999] SASC 234 36 Government of South Australia, n20 ,p.36 37 Professor Ross Garnaut is the author of the major Garnaut Climate Change Review commissioned by the Federal Government and released in September 2008.

May 2021 THE BULLETIN

CASE NOTE

“We are fighting to maintain and preserve what we have left”: Onus v Minister for the Environment and Aboriginal cultural heritage protection SOPHIE HOWE, ASSOCIATE, LIPMAN KARAS

n the wake of the destruction of the 46,000 year old caves at Juukan Gorge, the recent case of Onus v Minister for the Environment [2020] FCA 1807 highlights the roles played by the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘the Act’) and judicial review in protecting Aboriginal cultural heritage. Facts Two traditional owners of Djab Wurrung Country applied for judicial review of the Environment Minister’s 6 August 2020 decision not to make declarations under ss 10 and 12 of the Act. The decision related to applications by nine traditional owners for declarations to protect and preserve from injury or desecration a significant Aboriginal area and significant Aboriginal objects. The Applicants were concerned with the effect on the area and trees by the construction of a section of the Western Highway between Ararat and Buangor in Victoria. Relevant Provisions The Minister may make a declaration under s 12 if they are satisfied that the objects (in this case Trees E1-E6) are significant Aboriginal heritage objects and are under threat of injury or desecration, have considered the declaration’s effects on the pecuniary interests of third parties, and have considered such other matters as they think relevant. The Minister may make a declaration under s 10 if they are satisfied that the Specified Area (in this case the “Maximum Construction Footprint”) is a significant Aboriginal area and is under threat of injury or desecration, have received and considered a report under s 10(4), and have considered such other matters as they think relevant. Procedural History On 17 June 2018, an application was made to the then Minister (Josh Frydenberg) seeking declarations under ss 9, 10, and 12. A reporter was appointed and provided a report on 13 September 2018 (‘Philips Report’). On 12 September

10 THE BULLETIN May 2021

2018, the then Minister (Melissa Price) refused to make the s 9 declaration, and on 19 December 2018 refused to make the ss 10 and 12 declarations. This decision was quashed by consent and remitted to the Minister for redetermination.1 On 16 July 2019, the current Minister (Sussan Ley) refused to make the ss 10 and 12 declarations. This decision was quashed by Robertson J and the Minister was again directed to redetermine the matter.2 On 6 August 2020, the Minister again refused to make the ss 10 and 12 declarations. This was the third time the application had been refused. The 6 August 2020 Decision3 The Minister was not satisfied that Tree E1 is a significant Aboriginal object. Whilst the Minister was satisfied that Trees E2-E6 are significant Aboriginal objects, based upon Major Road Projects Victoria’s 29 May 2019 commitment that Trees E2-E6 were not at risk of injury or desecration (‘MRPV’s Commitment’), the Minister was not satisfied that Trees E2-E6 are under threat of injury or desecration. Whilst the Minister was satisfied that the Specified Area is a significant Aboriginal area and that it is under threat of injury or desecration, the Minister considered other factors relevant under s 10(1)(d), namely the effects of pecuniary

interests of third parties (the Victorian Government if construction was delayed), that community road safety would benefit from the upgrade, and the extent that the area is protected under State legislation, and concluded that the considerations against making a declaration outweighed those in favour. Appeal Determination Griffiths J held that the Minister’s decision not to make a s 12 declaration should be set aside, and that the application insofar as it relates to s 12 be remitted to the Minister with a direction to refer the application to another Minister with responsibility for administering the Act for reconsideration and determination according to law.4 Griffiths J dismissed the Applicants’ challenge to the Minister’s refusal to make a s 10 declaration.5 In reaching these conclusions, Griffiths J considered the following grounds of review: 1: Failure to commission and receive a report under s 10(1)(c) of the Act relating to the application The Applicants claimed that whilst the Philips Report was a valid report when provided to the then Minister in 2018, the current Minister put it aside in light of the MRPV’s Commitment in 2019.6 Thus the Phillips Report was no longer relevant

CASE NOTE

and ceased to be valid under s 10(1)(c).7 Griffiths J rejected this claim, holding that responses were provided subsequent to the Phillips Report, that the Minister consulted with various persons albeit unsuccessfully, that the legislation is silent on whether the Minister can direct the reporter to provide an updated report, and that s 10’s terms indicate that a report deals with the matters at the time of provision to the Minister.8

4: Failure to take into account relevant considerations, namely submissions The Applicants claimed the Minister should not have dismissed representations regarding biodiversity and conservation issues as irrelevant.18 This would be rejected as the Minister is not required to consider representations not relevant to the Minister’s statutory task (deciding whether to make a declaration).19

2: Unreasonable failure to exercise the power to obtain an up-to-date report Alternatively to ground 1, the Applicants claimed that even if the Phillips Report constituted a report per s 10(4), it was unreasonable for the Minister not to have obtained an updated report.9 Griffiths J rejected this claim, determining the Act did not require the Minister to obtain an updated report,10 and that even if so, the Minister’s failure was not unreasonable having regard to the matters relied upon in rejecting ground 1.11

5: Erroneous finding that an alternative route would have similar Aboriginal heritage protection issues The Applicants claimed that based on the information before the Minister, it was not rationally open for her to find no evidence that an alternative route would not have similar impacts on Aboriginal cultural heritage.20 This would be rejected as the Minister’s finding of “no evidence” was a peripheral comment which was not a finding of fact but an identification of a possibility and does not attract a “no evidence” ground of review.21

3: E rror in the treatment of the MRPV draft Framework The Applicants claimed the Minister’s assessment of the MRPV Commitment was flawed in its reasoning because the Minister treated the non-removal of Trees E2-E6 as entirely removing the threat of injury or desecration without appreciating that Trees E2-E6’s significance extended more broadly.12 Griffiths J held that the Minister’s state of satisfaction as to whether Trees E2-E6 are significant Aboriginal objects and are under threat of injury or desecration was attained unreasonably and/or without a correct understanding of the law.13 Section 12 requires the Minister to be satisfied whether the trees would likely be used or treated in a manner inconsistent with Aboriginal tradition, even if the trees were not destroyed.14 The Minister erred because material before her clearly described how the trees were under threat of injury or discretion with reference to Aboriginal tradition,15 there were no materials or maps before her which identified the physical proximity of the highway to the trees, and she failed to appreciate that the trees’ cultural significance extended to the area beyond the Specified Area.16 Griffiths J held that it was unnecessary to resolve the grounds 4-6 due to the Applicant’s success in ground 3, and indicated such grounds would be rejected:17

6: Error in the treatment of cost estimates The Applicants claimed the Minister’s conclusion that declarations would significantly detrimentally impact the Victorian Government’s pecuniary interests took into account irrelevant considerations by being based upon a costs estimate for an alternative route that was by then not possible.22 This would be rejected as the Minister did not make any findings about an alternative route’s construction costs, and her findings were instead based on assessment, termination, and wasted planning costs.23

CONCLUSION Reforming the Act was recommended in a 1996 independent review which noted that “Aboriginal people are critical of the Act because the power to protect areas and objects is discretionary. The Minister is not obliged to act, even if an area is of significance to Aboriginal people”.24 Reforms were discussed again in a 2009 Government discussion paper which noted the Act “has not proven to be an effective means of protecting traditional areas and objects. Few declarations have been made: 93 per cent of approximately 320 valid applications received since the Act commenced in 1984 have not resulted in declarations”.25 As recently as December 2020, the Act was described as “virtually

moribund” in Parliament’s Never Again interim report.26 Never Again recommended that ministerial responsibility for the administration of the Act “revert to the Minister for Indigenous Australians”, and that the Australian Government “urgently review the adequacy” of the Act.27 It is notable that Griffiths J commented similarly in Onus that “[s]trangely, the Minister for Aboriginal Affairs is not one of the Ministers with responsibility for administering the Act, despite its subject matter”.28 With the decision in Onus having been remitted now for the third time, it is perhaps more pertinent than ever to review the Act’s effectiveness and adopt appropriate reforms to ensure the protection of Aboriginal cultural heritage into the future. B Endnotes 1 Quashed by the Court’s orders dated 12 April 2019 in VID 168 of 2019. See Onus (n 1) 5-6 [11]. 2 Clark v Minister for the Environment [2019] FCA 2027 (‘Clark’). See Onus (n 1) 6 [12]. 3 See Onus (n 1) 6-10 [17]. 4 Order of Griffiths J in Onus v Minister for the Environment (Federal Court of Australia, VID 599 of 2020, 17 December 2020). 5 Onus (n 1) 3 [5]. 6 Ibid 13 [20]. 7 Ibid 28 [79]. 8 Ibid 29 [80]-[82]. 9 Ibid 14 [25]. 10 Ibid 30 [85]. 11 Ibid 29-30 [84]. 12 Ibid 14-15 [27]-[28]. 13 Ibid 31 [92]. 14 Ibid 37-39 [103]-[106]. As identified by Robertson J in Clark (n 3) at 48-50 [146]-[151]. 15 Onus (n 1) 40-41 [115]. 16 Ibid 39 [107]. 17 Ibid 47-48 [144]-[147], 48-49 [148]-[151], & 49-50 [152]-[156]. 18 Ibid 16-17 [34]. 19 Ibid 47-48 [144]-[147]. 20 Ibid 10-12 [18]. 21 Ibid 49 [151]. 22 Ibid 10-12 [18] & 18-19 [41]-[43]. 23 Ibid 49-50 [155]-[156]. 24 Elizabeth Evatt, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Report No 170, 1996) 15 [2.33] (citations omitted). See also Wamba Wamba Local Aboriginal Land Council v Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1989) 86 ALR 161, 170. Further, in Onus (n 1) 27 [74], Griffiths J noted that the Minister has ultimate discretion and that this is reflected by the use of the word “may” in ss 10 and 12. 25 Department of Environment, Water, Heritage and the Arts (Cth), Indigenous Heritage Law Reform (Discussion Paper, August 2009) 4. 26 Joint Standing Committee on Northern Australia, Parliament of Australia, Never Again: Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia (Interim Report, December 2020) vii. 27 Ibid xix [1.64] & [1.66]. 28 Onus (n 1) 50 [158].

May 2021 THE BULLETIN

APPOINTMENTS

Justice Kelly announces retirement, Justice Livesey to become Court of Appeal President Trish Kelly has announced that Justice she will retire from the bench on 1 September 2021. Justice Kelly, who was appointed President of SA’s new Court of Appeal on 10 December last year, was appointed to the District Court in 2003 and joined the Supreme Court in 2007. Prior to that she was a Prosecutor with both the Commonwealth and State offices of the Director of Public Prosecutions. Her Honour said it had been a “great privilege” to serve as the inaugural President of the Court of Appeal. “The Court rules and practices we have adopted provide a sound foundation for the just and efficient determination of appeals,” she said. Chief Justice Chris Kourakis congratulated Justice Kelly on “the excellent foundation she has laid for the Court of Appeal.” Attorney General Vickie Chapman said: “Justice Kelly has had a distinguished career, working across state and federal jurisdictions.” “Under Justice Kelly’s leadership, the Court has been established and is now efficiently handling its appellate work, resulting in consistent, high-quality judgments,” she said. Justice Mark Livesey, who was the first person appointed to the Court of Appeal, has been nominated by Ms Chapman to assume the role of President of the Court upon Justice Kelly’s retirement. Ms Chapman said Justice Livesey would be an “excellent leader” of the Court of Appeal and was a “highly respected litigator and has served in numerous professional appointments, including as President of both the South Australian and Australian Bar Associations.” In other news from the Court, Judge Tim Heffernan was sworn in as the newest member of the District Court bench on 11 April. Judge Heffernan joins the District Court having spent six years as a Federal Court Judge in the Federal Court’s Adelaide registry. Prior to his appointment to the Federal Court, Judge Hefferan practiced as a

12 THE BULLETIN May 2021

Justice Kelly

Justice Livesey

Judge Heffernan

barrister from Edmund Barton Chambers for 10 years. Carney appointed as new Equal Opportunity Commissioner Jodeen Carney, has been appointed as South Australia’s Equal Opportunity Commissioner. Ms Carney’s appointment follows a three-year stint as the Chief of Staff of the Attorney General’s Department. “Throughout her varied career Ms Carney has been widely respected for her integrity, professionalism, and work ethic,” Attorney General Vickie Chapman said. “She has represented Australia on the Commonwealth Women Parliamentarians network, was a member and Convenor of the Women’s Advisory Council in the Northern Territory, and was a founding member of the Central Australian Women’s Legal Service Inc. “During her time in the Northern Territory she worked as a bureaucrat, politician and solicitor, giving her a comprehensive insight into issues concerning equality and diversity. After she retired from politics Ms Carney was appointed to conduct a review into the Territory’s Youth Justice System, and oversee the implementation of its recommendations. She has also mediated enterprise bargaining negotiations, and drafted new policies and procedures for an educational institution in Central Australia following the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. Ms Chapman thanked Emily Strickland and Steph Halliday, who separately filled the role of Acting Commissioners and oversaw inquiries into the State Parliament and legal profession.

Jodeen Carney

Penelope Croser

Ms Carney said she is looking forward to embracing the challenges of her new role. “I intend to approach this role as I do any other – professionally and diligently,” Ms Carney said. “I am grateful for the opportunity, and will work hard to address issues of diversity and equality in South Australia,” she said. Ms Carney has been appointed for a term of five years, commencing on Saturday, April 10. New State Courts administrator announced. Penelope Croser has been appointed by the Governor to take up the role of State Courts administrator, effective from 15 June 2021. Ms Croser was selected by the State Courts Administration Council as its preferred candidate for the position from a strong field of applicants. Ms Croser is returning to South Australia after serving as the Executive Director, Social Policy Group, Department of Premier and Cabinet in Victoria, a role which oversees Justice Portfolio matters. Ms Croser will also bring relevant skills and insight to the role gained through extensive experience in public administration, including in Education and Training, Emergency Management and Police. Chief Justice Chrisk Kourakis said: “I welcome Ms Croser to the Courts Administration Authority and look forward to working with her. I am confident Ms Croser will lead the Authority well.” Ms Croser will be replacing Ms JulieAnne Burgess. B

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ENVIRONMENTAL LAW

THE ENVIRONMENTAL DEFENDERS OFFICE, CLIMATE CHANGE AND ENVIRONMENTAL ADVOCACY MELISSA BALLANTYNE, MANAGING LAWYER (SA), ENVIRONMENTAL DEFENDERS OFFICE

he Environmental Defenders Office (EDO) is the largest environmental legal centre in the Australia Pacific, dedicated to protecting our climate, communities and shared environment by providing access to justice, running ground breaking litigation and leading law reform advocacy. Our vision is a world where nature thrives; where robust laws protect our plants, animals and climate; and where communities across Australia are empowered to fight for environmental justice. Our legal staff are supported by a network of experts and barristers willing to give their time and expertise to our clients’ causes. The EDO provides advice on a range of environmental issues particularly projects with the potential to have wide ranging impacts on communities and their environment. For example, the EDO recently provided advice to clients concerned about possible environmental impacts arising from proposed gas exploration and production in the Simpson Desert. The Simpson Desert is one of Australia’s largest remaining areas of high-quality wilderness and is home to an incredible diversity of species and attracts birds from all over Australia for massive breeding events. Tri-Star Energy are proposing to explore the area with a focus on both conventional and unconventional oil and gas opportunities. The environmental concerns include possible impacts on regional biodiversity and the Great Artesian Basin water resource.

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The EDO’s litigation work focusses on significant public interest matters particularly around climate change and proposed fossil fuel projects. Many cases aim to stop or reverse planning approval of such projects through traditional legal means. The most significant climate litigation victory in Australia to date was a February 2019 judgment that prevented the proposed Rocky Hill coalmine in NSW’s Gloucester Valley. Chief Justice Preston of the NSW Land and Environment court explicitly cited the role coal from the mine would play in increasing global greenhouse gases. Locally in late 2019, the EDO commenced legal proceedings challenging the approval given to the Norwegian multinational Equinor to explore for oil in the Great Australian Bight. The controversial project involved deep water drilling to explore new oil reserves located under protected areas of the Bight. The pristine marine environment of the Bight is a haven for whales and dolphins, including the world’s most important nursery for the endangered southern right whale. Any oil spill would pose significant risks to marine and coastal life across southern Australia. The action, on behalf of the Wilderness Society SA, sought to overturn the project’s environmental approval, granted by the National Offshore Petroleum Safety and Environmental Management Authority. However, in February 2020 Equinor abandoned its plans. Following this

development, the case was discontinued. Other EDO cases of this type include challenges to the Burrup liquefied natural gas processing hub in the Pilbara region of WA and the Narrabri coal seam gas field in northern NSW. The EDO is also representing clients in cases seeking to break new ground which include arguing the government has a duty of care and failing to deal with climate change is a breach of human rights. These cases are also focused on the principle of carbon budgets, which aim to stop developments on the ground that if they proceed Australia’s emissions would go beyond what it can emit if the global community is to meet the goals of the Paris Agreement. The EDO is currently acting for Youth Verdict against Clive Palmer’s proposed open-cut and underground thermal coal in Queensland’s Galilee Basin. Youth Verdict is made up of a diverse group of young people from Queensland who advocate for the rights of the younger generations. The group is passionate about fighting for intergenerational equity and climate justice. The Waratah coal project would see 40 mega-tonnes of thermal coal mined per annum (after extracting 56 megatonnes per year before processing) which would be exported on a purpose-built rail line and shipped to China through the Great Barrier Reef. Across the mine’s 30-35 year lifespan, this would generate approximately 2.9 billion tonnes of greenhouse gas emissions.1

ENVIRONMENTAL LAW

It is one of nine proposed mines in the Galilee Basin in Queensland. In 2019 Waratah Coal applied for a Mining Lease and Environmental Authority. Youth Verdict, The Bimblebox Alliance and others objected to the Mining Lease and Environmental Authority applications in 20202. In response, Waratah Coal applied to the Land Court seeking to strike out the objections, arguing a lack of standing on behalf of the groups, as they are not individuals, and that the Human Rights Act 2019 (Qld) (‘HR Act’) does not apply in this case. The central HR Act provision in question is section 58(1), which Youth Verdict and the Bimblebox Alliance argue Waratah Coal will breach by developing the Galilee Coal Project. It states it is unlawful for a public entity to act or make a decision incompatible with human rights; or to not properly consider relevant human rights in making a decision.3 Firstly, it was found the Land Court is a public entity for the purposes of the HR Act, as although it is a court, it is acting in an administrative capacity.4 Secondly, the Land Court found that its making of a recommendation is a ‘decision’ and an ‘act’ under s 58(1). It found it not only has jurisdiction to consider human rights issues, but a duty to do so regardless of objections on human rights grounds per s108(1) of the HR Act. Thus, Waratah Coal was unsuccessful in this instance. Subsequently Waratah Coal again applied to the Land Court, this time

contending that inadequate particulars regarding the grounds of objection were provided in the objections to their Mining Lease and Environmental Authority. 5 In addition, Waratah Coal sought clarity among other things, when thermal coal should be phased out to achieve the aims of the Paris Agreement.6 On the 8th of February 2021 in a pre-hearing decision, Youth Verdict and The Bimblebox Alliance were ordered to provide an ‘exhaustive list of individuals whose human rights they say will be limited’ by the project going ahead.7 Essentially, the objectors must clarify, specifically, whose human rights will be infringed by the Galilee Coal Project’s development. The objectors were not required to clarify any further particulars such as when coal should be phased out or how the proposed mine’s emissions may affect human rights differently to other emissions.8 The matter is back in court in May. A difficulty for the applicants is that the Land Court may only provide advice on whether the objections should be upheld and its recommendations are not binding. EDO’s casework is integral to our efforts to improve both environmental regulation and access to justice. Environmental cases are notoriously difficult. There can be the usual cost barriers, finding lawyers and experts but also issues with whether a client has standing. These are issues the EDO has raised nationally in the recent review of the EPBC Act and on the local front in

response to the roll out of the State’s new planning system. The EDO also proactively contributes to law reform, most recently with suggestions to improve protection of South Australia’s significant trees. Many trees are exempted from legal protection and the community often have very little say in applications to remove such trees for development purposes. The EDO’s proposals were included in a landmark report which captures the latest data from across Adelaide’s suburbs and highlights the dangers to wellbeing and the economy if the trend towards tree loss continues. For further information on the work of the EDO and how community members can obtain legal advice: https://www.edo.org.au/ B

Endnotes 1 Environmental Defenders Office, ‘Young people and landholders unite to challenge Clive Palmer’s coal mine’ (2019) < https://www.edo. org.au/young-people-and-landholders-unite-tochallenge-clive-palmers-coal-mine/>. 2 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 3 Human Rights Act 2019 (Qld) s 58(1). 4 Ibid s 9(4)(b). 5 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 6 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 [84]. 7 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 [118]. 8 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4 [85], [112-113].

May 2021 THE BULLETIN

MINING LAWS

NEW ENVIRONMENTAL IMPACT ASSESSMENT PROCESSES FOR MINING PROJECTS KYRA REZNIKOV, SPECIAL COUNSEL, FINLAYSONS

he potential environmental impacts of mining developments in South Australia, along with the measures proposed by the mine developer to minimise and manage those impacts through the whole of the mine life, are subject to an extensive environmental impact assessment process that forms part of the assessment of the tenement application, known as the mining lease proposal (MLP). Under the Mining Act 1971 (SA) (Mining Act), the grant of a mining tenement following this MLP assessment process provides the mine developer with both the statutory authorisation to carry out the proposed mining activities, as well as tenure for the mine site. The new Mining Regulations 2020 (SA) and recent amendments to the Mining Act have introduced two new environmental impact assessment processes for mining projects that have the potential to significantly improve certainty in respect of the assessment approach. Firstly, the Mining Regulations, which have come into effect from 1 January 2021, have introduced a pre-application scoping process which is intended to facilitate early identification of key matters to be addressed in the MLP. It will also allow the mine developer to engage with the Department for Energy and Mining (DEM) to confirm the terms of reference for the technical studies that will then need to be completed in support of the MLP. Secondly, newly inserted Division 7 of Part 8B of the Mining Act, which also came into effect on 1 January 2021, sets out a process for the assessment of an application to change operations that are being carried out pursuant to an existing mining tenement. Until the introduction of these provisions, the Mining Act has not contained a formal process to enable

16 THE BULLETIN May 2021

operational changes to be made part-way through a mine life.

SCOPING Part 10 of the Mining Regulations introduces a pre-application scoping process under the Mining Act for the first time. The scoping process may either be triggered voluntarily by a “designated person”, or by the Minister issuing a direction to a designated person, at the Minister’s discretion, if a scoping report has not been provided to the Minister voluntarily.1 The class of “designated persons” not only includes a person who is an applicant for a “relevant tenement” (being a mining lease, retention lease or miscellaneous purposes licence) and an applicant for an approval to make a change in operations, but also the holder of a mineral tenement that “may lead to a relevant tenement”, even if a tenement application is yet to be made. The Minister is to be provided with a scoping report that is prepared in the manner and form determined by the Minister. Other than this requirement, the Mining Regulations contain little detail as to what information is to be included in the scoping report, or what is to happen once the scoping report is submitted to the Minister.2 Explanatory material published by DEM suggests that the scoping report should describe the proposed operations and identify the various potential environmental and social impacts of those operations.3 The explanatory material also indicates that the scoping report is to be accompanied by draft terms of reference that set out the scope of the technical assessments to be carried out in the preparation of the MLP. Further, DEM’s explanatory material

suggests that DEM will assess and endorse the scoping report and set finalised terms of reference for the technical studies. The expectation will then be that the MLP will be prepared in accordance with the terms of reference that have been set by DEM.4 Accordingly, it would seem that the scoping process is intended to operate in a similar manner to the setting of guidelines by the State Commission Assessment Panel for major developments being assessed under section 46 of the Development Act 1993 (SA) (Development Act), which operated from 1995 until the replacement of the Development Act with the Planning, Development and Infrastructure Act 2016 (SA) (PDI Act) in March 2021. Interestingly, an equivalent process for the setting of project-specific guidelines was not carried across into the new PDI Act.

CHANGE IN OPERATIONS The Mining Act provides for a mining tenement to authorise all of the proposed mining operations throughout the whole of the mine life, including post-closure rehabilitation of the land. Until 1 January 2021, the term of a mining lease could be up to 21 years (with a right to renew for a further term of up to 21 years).5 Conditions attached to the mining tenement provide that the only mining operations authorised by the tenement are mining operations that are consistent with those described in the MLP. Until the recent amendments, the Mining Act did not contain an express mechanism for the Minister to authorise the holder of the mining tenement to change the manner in which the mining operations were carried out part way through the term of the tenement. This presented difficulties for mine operators in situations where, for instance, technological advances in the

MINING LAWS

decades following the preparation of the original MLP would have allowed for the authorised activities to be carried out more efficiently, safely, cleanly or cost-effectively. It is intended that these difficulties have now been removed by the insertion of new Division 7 of Part 8B of the Mining Act, which incorporates an express right for a tenement holder to apply to the Minister for approval for a change in operations, together with a process for assessment of the application.6 Changes covered by the new process include changes to the authorised operations (which might include the manner in which materials are accessed or extracted, use of new technologies or changes to operating practices), a change to the mineral that is intended to be recovered, a change to criteria that are used to measure environmental outcomes of the existing activities, and changes to the terms or conditions of the tenement.7 Applications are required to describe any potential changes to the environmental impacts of the authorised activities that would arise if the change were to be approved, as well as changes to management measures to be applied in relation to those impacts. They must also describe the environmental outcomes that are expected to be achieved and criteria to be used to measure those environmental outcomes.8 Where proposed changes relate to measurement criteria, the application must include details as to what is to be measured and the form of the measurements, what is taken to constitute the achievement of the relevant outcome, the locations and frequency of measurements or monitoring, and an explanation of the proposed acquisition and use of any background or control data.9

Applications are also required to take into account any scoping report that has been accepted by the Minister under the new pre-application scoping process described earlier in this article.10 The Minister may elect to undertake public consultation in relation to applications for changes in operations, but is required to do so where the proposed change will result in a significant additional or different impact to the environment.11 The Minister may not approve a change unless satisfied that, among other things, the appropriate environmental outcomes will be able to be achieved.12 In approving the change, the Minister may add, vary or revoke a condition of the relevant mineral tenement, and in doing so must give proper consideration to any aspect of the environment, lawful activities or Aboriginal sites or objects that may be affected by the change.13 Accordingly, the new process should give mine operators much needed flexibility to adapt their activities and practices during a mine life to suit evolving markets or community expectations, or to take advantage of improved technologies, whilst continuing to ensure that there is considered analysis of potential impacts to the environment and community, and appropriate management measures in place.

CERTAINTY AND TRANSPARENCY Given that much of the detail as to how the new provisions will be applied is currently set out in policy and guidance documents rather than being fixed by legislation or regulation, there is opportunity for the new processes to be revised and fine-tuned through further consultation with industry and knowledge gained from the experiences of early adopters.

That being said, the new provisions appear to have broad, in-principle support from both industry and the public.14 If they are used as intended, they should provide improved certainty and transparency for all stakeholders with interest in the development and operation of mining projects in South Australia. B Endnotes 1 See subregulations 45(2) and 45(3) of the Mining Regulations 2020 (SA). 2 It should be recognised that the Mining Act does not contain powers to make regulations in respect of pre-application scoping, and as such there was limited opportunity to prescribe a more detailed process without further amendment to the Mining Act itself. If early use of the scoping process indicates that it is achieving its desired outcomes, it may be that the process will be formalised by incorporating a more detailed statutory scheme into the Mining Act. 3 See Information Sheet 74: Scoping, published by DEM in January 2021 at https://sarigbasis.pir.sa.gov. au/WebtopEw/ws/samref/sarig1/image/DDD/ ISM74.pdf (last accessed 22 February 2021). 4 Ibid. 5 From 1 January 2021, the term of a mining lease is to be set at the discretion of the Minister for Energy and Mining when granting the mining lease. It is common for mining projects to have a mine life of 20 to 30 years. 6 See section 56R of the Mining Act 1971 (SA). 7 See subsection 56Q(3) of the Mining Act 1971 (SA). 8 See subregulation 55(1) of the Mining Regulations 2020 (SA). 9 See subregulation 55(2) of the Mining Regulations 2020 (SA). 10 See subregulation 55(3) of the Mining Regulations 2020 (SA). 11 See section 56S of the Mining Act 1971 (SA) and regulation 55 of the Mining Regulations 2020 (SA). 12 See subsection 56T(4)(b) of the Mining Act 1971 (SA). 13 See section 56U of the Mining Act 1971 (SA). 14 See the Mining Regulations Consultation Report (November 2020) available at https:// energymining.sa.gov.au/__data/assets/ pdf_file/0005/375008/Mining_Regulations_ Consultation_Report.pdf (last accessed 22 February 2021).

May 2021 THE BULLETIN

ENVIRONMENTAL LAW

Oceans of ink: Environmental law past, present and future CHRISTINA LIEN, ADMINISTRATIVE AND PUBLIC LAW COMMITTEE MEMBER

ver the past 30 years, environmental law has emerged as a substantial area of law and an important area that shows no sign of stagnation or decline. With the recent rollout of ‘Phase 3 of the Planning, Development and Infrastructure Act 2016 (PDI) we look at environmental law and its influence on the legal profession. The rapid growth of environmental law can be attributed to the confluence of public awareness, political pressure and successive failure of government entities to make correct decisions. Matters brought before the ERD Court and matters considered on judicial review have enabled a comprehensive body of learnings, which have been especially influential in reforming administrative law principles.1 Ultimately, the inherent power imbalance between the decision maker, often a government authority, and an individual or group of concerned citizens has allowed the Court to take liberties to extend its legal reasoning on areas requiring clear answers to often complex situations. To illustrate, the interpretation of ‘Development Plan’ continues to build a body of case law.2 Environmental matters have assisted in furthering the administrative lawyers’ understanding of what is ‘manifest unreasonableness’,3 and similarly what is not unreasonable,4 ‘standing’,5 ‘relevant considerations’ - what is6 and what it is not,7 jurisdiction,8 and ‘procedural fairness’.9 It is no surprise then that

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environmental litigation has had a long history of public focus. Where the public interest is being served, Courts have been liberal in construing standing requirements, overlaid with the fact that a ‘no costs’ order is likely to be handed down there has been quiet? confidence in bringing matters to hearing, allowing for ‘democracy’s guarantee of the opportunity for all to play their part in the political process’10 (others however, brand this type of litigation as ‘lawfare’).11 Helpfully, for the applicant, the ERD Court as a ‘no costs’ jurisdiction court rarely order a costs against an unsuccessful public interest plaintiff.12 Oshlack v Richmond River Council, [1998] HCA 11, 72 continues to be the leading authority in upholding the exercise of a discretionary costs finding. In that case, the plaintiff pursued litigation because of his desire to preserve the habitat of the endangered koala; a significant number of members of the public shared the plaintiff ’s grievances as to the impact on the endangered fauna and this amounted to a ‘public interest’ in the outcome of the litigation. Stein J held in the first instance that the litigation had raised ‘significant issues’ for statutory interpretation and implications for the council, developer and public. The Land and Environment Court dismissed the action but made no order as to costs citing the special circumstances of the case. With the expansion of legislative activity, there has grown a large administrative apparatus, bringing into

existence a large body of administrative law.13 Regulatory activity in South Australia is currently dominated by environment related law, we need only glance at the Government Gazette each day to read the multiple proclamations under the Environment Protection Act 1993, Land Acquisition Act 1969, Landscape Act 2019 and Council Public Notices with respect to consultation on their Community Land Management Plans and finally, many more proclamations are being published due to the new Planning, Development Infrastructure Act 2016 (PDI Act). Now that ‘Phase 3’ of the PDI Act has taken effect on 19 March 2021, finally superseding the Development Act 1993 the new Planning and Design Code (the Code) applies to all future developments in South Australia, replacing the need to consider Council Development Plans. The Code promises to be a Rulebook providing certainty and consistency in decision-making, whilst also protecting our environment by placing limitations on unrestricted development in certain areas, protecting our agricultural resources and by placing further limitations on the environment. However, we suspect that with the rollout of Phase 3 of the PDI Act, will have its own teething problems. We look forward to the many interesting environmental matters that will raise nuanced questions about the PDI Act and The Code and introduction of ever more legislative provisions to regulate our environment. B

ENVIRONMENTAL LAW

Endnotes 1 ‘The Environment and its influence on the Law’, The Hon. Justice Brian J Preston, Keynote Address to Legal Aid New South Wales Civil Law conference, 26 September 2007. 2 See for example, the continuous refinement as to how ‘Development Plan’ ought to be interpreted and applied: Pacific Real Estate P/L; Rampack P/L; Kozuch v City Of Onkaparinga [2019] SAERDC 26 citing the authorities: The Strath Hub Pty Ltd v Alexandrina Council [2004] SASC 382; Telstra Corporation Limited v Corporation of The City of Mitcham [2001] SASC 166; St Ann’s College v Corporation of the City of Adelaide [1999] SASC 479; Hassen v District

Council of Murray Bridge (1984) 35 SASR 448 at 449; Claude Neon Ltd v City of West Torrens (1982) 29 SASR 260 at 270-271 3 For succinct case notes see: Bradbury, A (2009) “Administrative law and environmental disputes.” AIAL Forum, (60), pp. 10–27 and Bates v City of Holdfast Bay & Anor [2017] SAERDC 40. 4 Minicozzi v City of Norwood,Payneham & St Peters and Anor [2009] SAERDC 21 5 Boyce v Paddington Borough Council [1903] 1 Ch 109. 6 Coastal Ecology Protection Group Inc v City of Charles Sturt [2017] SASC 136. 7 Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126.

8 Bates v City of Holdfast Bay & Anor [2017] SAERDC 40 9 Chief Justice Robert S French, (2010) ‘Procedural Fairness – Indispensable to justice ?’ 1-2 10 Ibid. 11 See Senator George Brandis, (2017) ‘Green Lawfare and Standing: The View from Within Government’ 90 AIAL Forum 12. 12 Ibid 7. 13 Chief Justice The Hon P A Keane (2011), 4th National Lecture on Administrative Law ‘Democracy, Participation and administrative law, AIAL National Administrative Law Conference, Canberra 21 July 2011, P 3

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FEATURE

Equal Opportunity Commission report makes several recommendations to address harassment in the profession

he Equal Opportunity Commission’s Report on its Review into Harassment in the legal profession was released on 20 April.

PREVALENCE OF HARASSMENT IN THE PROFESSION The report “confirmed that sexual and discriminatory harassment was prevalent in the legal profession”, and made 16 recommendations to address this serious problem. The Commission received more than 600 responses to its survey, interviewed 16 participants and received 18 written submissions. Forty-two per cent of respondents to the survey indicated that they had suffered sexual or discriminatory harassment, with one-third of respondents reporting that they experienced such harassment more than once. Of the respondents who identified as female, 56.6% said they had experienced sexual harassment in the legal profession, while 13.6% of male respondents also reported experiencing sexual harassment. The most prevalent types of sexual harassment were sexually suggestive comments or jokes, inappropriate staring or repeated physical proximity, intrusive personal questions, and inappropriate physical contact such as unwelcome touching, hugging, patting, or brushing up against the body. Seven respondents reported that they were victims of sexual violence or sexual assault. Some 80% of victims reported that the perpetrator of the harassment was in a position of seniority in comparison to the victim. With regards to discriminatory behaviour, the survey indicated that the most common attributes for which people received unfavourable treatment were related to a person’s gender, age, and/or caring responsibilities. The results of the Commission’s survey broadly reflect the results in the Society’s 2018 survey of bullying, harassment and discrimination in the SA profession.

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KEY DRIVERS OF HARASSMENT The EOC’s report identified the following key drivers of harassment in the profession: • a patriarchal and hierarchical culture characterised by intense competition • a lack of cultural diversity, particularly in relation to people identifying as Aboriginal and / or Torres Strait Islander • deeply entrenched gender bias that underpins discriminatory behaviour • a ‘culture of silence’ whereby instances of harassment are minimised, normalised and kept quiet.

STRENGTHENING OUR WORK HEALTH & SAFETY FRAMEWORK The Report identified that legal workplaces needed to have systems in place aimed at reducing the risk of sexual harassment. This was critical in driving a respectful workplace culture that bears no tolerance for harassment of any kind. The report noted that while work health and safety (WHS) laws already impose duties on Persons Conduction a Business or Undertaking (PCBUs) to eliminate work health and safety risks, they were primarily being utilised to address physical risks. In the Commission’s view, the profession should better utilise the WHS framework to deal with workplace harassment. According to the report “a significant barrier to using the WHS framework to address harassment is that there is a cultural and institutional emphasis on WHS laws addressing physical risks and harm.” The report submits that WHS policies do not, generally speaking, give enough attention to psychological risks. In this regard the report endorses the Australian Human Rights Commission’s Respect@Work Report’s recommendation that the WHS framework be amended to deal with how to identify psychological risks and take appropriate measures to manage those risks. The EOC Report recommended that PCBUs in the legal profession review,

and where necessary, update policies, procedures and processes to eliminate or ameliorate, as far as practicable, risks of harm arising from harassment. This includes developing work health and safety systems that expressly deal with risks of psychological harm.

A BETTER SYSTEM FOR SUPPORTING COMPLAINANTS The Report recognised that making improvements to current complaints mechanisms were not going to solve the problem of sexual harassment, but it did identify shortfalls within the current complaints framework that, if addressed, would empower more victims to speak out and lead to more just outcomes. However, the report concluded there was no justification in establishing a new, independent complaints body, noting there were “already numerous reporting and complaints avenues available”. Instead, it recommended making changes to current complaints bodies. The report notes that there was generally a high awareness of the various bodies that could deal with harassment complaints, however the problem was a lack of trust that going to a complaints body would yield a satisfactory outcome. A number of respondents also expressed confusion about how the complaints bodies operate, and how to determine the most appropriate avenue of making a complaint. To address the lack of engagement with existing complaint mechanisms, the report recommended changes to the Office of the Legal Professional Conduct Commissioner (LPCC), including: • Expanding the current complaints mechanisms within the LPCC to include two full-time investigative solicitors • Providing for a dedicated enquiries officer within the LPCC to be the first port of call for victims seeking information and support, and to conciliate complaints made to the LPCC. • Provide LPCC with powers to conduct compliance audits and issue practice management directions

FEATURE

The Report also recommended that internal workplace channels of complaint clarify and reinforce the importance of maintaining confidentiality when managing complaints; ensure that policies and procedures satisfactorily address the risk of harm arising from harassment and discrimination; and, where possible, involve independent external entities in managing complaints. The Report suggested that the EOC itself was the most appropriate organisation to provide impartial information and advice to victims, assist people in pursuing avenues of complaint, and refer people to victim-centric support services.

a revised proposal for amendment to Rule 42, that aims to clarify that conduct occurring outside the legal practice workplace, but which is nevertheless connected to the practice of law, can be regarded as conduct that falls short of the standards of competence and diligence that a member of the public is entitled to expect of a lawyer. The EOC Report also recommended including the SA Bar Association Conduct Rules under the definition of “legal profession rules”, and to grant the LPCC and Legal Practice Disciplinary Tribunal the power to make an order that a respondent do, or refrain from doing, a specified unlawful act.

DEFINING SEXUAL HARASSMENT IN CONDUCT RULES

A POSITIVE DUTY TO SET BEHAVIOURAL STANDARDS

Rule 42 of the Australian Solicitors Conduct Rules (ASCR) states that “a solicitor must not, in the course of practice, engage in conduct which constitutes discrimination, sexual harassment or workplace bullying.” However, if conduct which breaches Rule 42 is deemed to amount to ‘unsatisfactory professional conduct’, it may not have any impact on a practitioner’s right to practice if the conduct does not occur “in the course of legal practice”. Conduct that would amount to “unsatisfactory professional conduct” (which is a lesser offence than “professional misconduct”), must relate to conduct that occurs “in connection with the practice of law”. The Report submitted that there were gaps in the statutory framework as currently constructed, as a large portion of harassment occurs outside of normal working environment, albeit at workrelated venues such as dinners, conferences, and other social or professional events. In fact, the EOC’s report revealed that about a quarter of respondents indicated that sexual harassment occurred at work-related events. The Law Council is presently consulting its Constituent Bodies on

The EOC Report noted that the Respect@Work report recognised the inadequacy of the current system which places an onus on victims to make complaints about harassment. The Respect@Work report recommended amending the Sex Discrimination Act to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment. Taking a leaf from the AHRC’s book, the EOC’s report has recommended that the Equal Opportunity Act be amended to impose “a positive duty upon employers to ensure their workplace adheres to the standards prescribed by the Equal Opportunity Act.” The report noted that the Equal Opportunity Act currently does not contain a positive obligation to set workplace behaviour standards. The Report notes that there were positive duties to maintain a safe workplace under the WHS act, but there were barriers to dealing with harassment via a WHS framework.

EDUCATING THE PROFESSION The EOC Report recognised that cultural awareness education needs to be delivered to people as early as possible in their career journey. This means that

university and practical legal training (PLT) students should receive education and training that is aimed at both fostering a culture of respect and inclusiveness, and providing practical guidance to reducing risks and dealing with inappropriate behaviour. The Report recommended that universities and PLT providers reviewed their ethics content “with a view to providing a profession-specific perspective of harassment.” The Report noted that the Law Council was in the process of developing national model sexual harassment policy and guidelines, and these guidelines could be tailored to suitable individual jurisdictions. The EOC Report notes that, due to the considerable work already being done in this area, there was no point in the EOC developing a set of practice guidelines. The Report also noted, and supported, the Society’s initiatives in providing educational resources, delivering additional education and training to the profession as part of a Law Foundation grant to the Society, the ongoing delivery of CPD sessions relating to harassment and discrimination, and the introduction of a mandatory annual CPD unit on bullying, discrimination and harassment, which was formally approved by LPEAC after sustained lobbying by the Society.

CONCLUSION The EOC report details some confronting examples of harassment in the legal profession which, sadly, did not come as a surprise given the results of 2018 survey into bullying, harassment, and discrimination which the Society conducted. The recommendations are designed to provide practical solutions to changing workplace culture and supporting complainants. The report and all its recommendations is being carefully considered by the Society’s Council in consultation with Committees and the broader membership, following which a detailed response will be issued. B May 2021 THE BULLETIN

WELLBEING & RESILIENCE

Fast-track to Wellbeing WELLBEING & RESILIENCE COMMITTEE

njoying good mental health means feeling satisfied with where your life is heading, coping with the daily ups and downs, and being able to bounce back.1 It incorporates mental wellbeing (when people feel good and are able to realise their abilities, cope with the normal stresses of life and feel a sense of belonging in their community) and resilience (when people feel they have enough resources to bounce back from and grow after stress and adversity).2 If you could just do one thing every day to safeguard this, you’d do it, right? Let’s face it – everyone loves a shortcut… Matthew Iasiello and his colleagues at SAMHRI’s Wellbeing & Resilience Centre have been interested in this very question: what is the most effective way to protect and build our own mental wellbeing and resilience? Their research shows that there are many ways to build wellbeing, but one of the most effective methods is through a regular mindfulness practice. What does this really mean? I’m glad you asked. Being mindful is about being fully present in the moment, being aware of where we are and what we’re doing. I asked Matthew why he thinks mindfulness is so effective and he replied: “I think it’s because it gives us a moment to respond to the world, rather than react. It allows us that moment to notice our thoughts, without judgement, and evaluate whether they are useful for us or not. This can help us to regulate our negative emotions and be more self-compassionate.” Other reports about why mindfulness is so beneficial include: • Being mindful at work means focusing on one task at a time instead of multitasking. This makes it more likely you will be able to perform a task well.3 • Research suggests that mindfulness may help people cope with long-term health issues such as cancer, pain and depression. 4 • A growing number of law schools and law firms are teaching mindfulness tools for improved focus/ concentration, emotional regulation and the many other scientifically

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proven benefits.5 • It can improve work productivity by improving concentration.6 • Without an anchor to the present, minds can get overwhelmed by stress. Mindfulness is that anchor. By focussing on the present moment we can learn to let those stressful thoughts and feelings come and go without getting caught up in judging or controlling them.7 In other words, when we are in the present moment, regardless of how we get there, we are neither ruminating on the past nor worrying about the future. This is an effective antidote to symptoms of depression, anxiety and stress. It also improves our focus and our enjoyment of the activity we are engaging in. Clearly, although mindfulness might previously have been seen as a fairly fluffy concept, mainstream medicine is increasingly acknowledging its benefits. We don’t yet know whether some forms of mindfulness are particularly more effective than others – this will be the next step in the research. However, for now, we can all find a mindfulness practice which works for us in our daily lives. Yoga, meditation and tai chi are just a few of the options and they might not appeal to you. What about craft activities, practising an instrument, really focusing on your morning cup of coffee, baking, or going for a hike… There are many ways to incorporate mindfulness into your day and thus many pathways to its benefits. When asked about his personal favourites, Matthew said: “The great thing about mindfulness is that there are so many ways to practice it, and you can find a style that suits you best; whether it be following a guided online meditation, practicing yoga, mindfully being in nature or exercising. My personal favourite would be breathing exercises or guided progressive muscle relaxation.” If a structured approach works best for you, you might want to embark on a specific mindfulness-based program. Matthew and his colleagues have developed the Be Well Plan which

includes an individual approach to finding wellbeing exercises (including mindfulness) which work best for you. And remember: “Resilience really is an outcome, it is not just something you are born with or a trait. We all face stressful times and as long as we feel we can snap back to our previous selves fast enough then we are resilient. And this doesn’t mean you don’t experience distress, grief or any other negative states. That’s all part of being human. We just need to make sure it doesn’t keep us out of action forever.”8 Some members of the Wellbeing & Resilience Committee have shared their reflections on incorporating mindfulness into their lives: “After many years of trying (and failing!) to make it stick, I seem to have finally developed a daily meditation practice this year and I’m feeling a huge amount of benefit from it. First thing every day I sit for about 15 minutes and meditate, often using a guided meditation on the Calm app. Starting off my day this way was challenging at first, especially when life and work are busy, but it has become something I now really look forward to. I have found it makes me calmer overall and less reactive during the day, even when things get stressful.” – Rebecca Sandford If you are curious about meditation, you might like to check out the Netflix doco, “Headspace: Guide to Meditation”. “I am a keen cyclist and find that going for a ride for a couple of hours on the weekend can take the mind off what is whirring around in my head. It helps me operate ‘without too many tabs open’. In fact, I can tell if it has been more than a few days since I have done any exercise – the tabs start to slow down the computer!” – Tim Dibden

WELLBEING & RESILIENCE

“Days where I feel positive about my mental health start with a workout of choice (hello oxytocin and happy endorphins to set the day right!) which makes me feel like I can conquer the challenge of the day and end with prioritising my family to honour my relationships with them.” – Emily Mortimer “I have terrible work life balance… Perhaps mindfulness is something I should consider!” – Amy Nikolovski “For me, it isn’t the doing of one particular thing, like going to the gym. Rather, it is a philosophy. What this means for me is that in all situations, I immediately assess what it is that I can control, and what I cannot

control. If I determine that I cannot control a component of a decision or event, I do not devote any mental energy to it at all. This means that I deliberately and mindfully devote energy only where it is useful.” – Edwin Fah “I find that a tough workout is my most effective anchor to the present moment – when I am concentrating on my form doing deadlifts or trying not to over-balance in my conditioning yoga class, this is when my busy mind switches off. Or at least slows down!” – Zoe Lewis Endnotes 1 https://salife.com.au/people-places/mentalwellbeing-its-a-state-of-mind/

2 https://salife.com.au/people-places/mentalwellbeing-its-a-state-of-mind/ 3 https://www.healthdirect.gov.au/benefits-ofmindfulness 4 https://www.healthdirect.gov.au/benefits-ofmindfulness 5 https://www.forbes.com/sites/ jeenacho/2016/07/14/10-scientificallyproven-benefits-of-mindfulness-andmeditation/?sh=11fb80c063ce 6 https://www.forbes.com/sites/ jeenacho/2016/07/14/10-scientificallyproven-benefits-of-mindfulness-andmeditation/?sh=11fb80c063ce 7 https://www.sane.org/information-stories/factsand-guides/mindfulness 8 https://salife.com.au/people-places/mentalwellbeing-its-a-state-of-mind/

May 2021 THE BULLETIN

TAX FILES

Allocation of professional firm profits to individual practitioners ANDREW SHAW, SHAW LAWYERS

“I

like traffic lights. I like traffic lights. I like traffic lights. But only when they’re green.” – Monty Python, “Traffic Lights” (1980). On 1 March 2021 the Australian Taxation Office (‘ATO’) released a draft Guideline setting out the ATO’s proposed compliance approach to allocation of profits by professional firms.1 The Guideline explains how the ATO intends to apply compliance resources when considering the allocation of professional firm profit or income in the assessable income of the individual professional practitioner (‘IPP’). The Guideline is in draft for consultation. Once finalised, the Guideline is proposed to apply from 1 July 2021.2

Who comes within the Guideline? The Guideline applies to professional firms including the legal profession, medical, accounting, architectural, engineering, financial services, and others. The Guideline is directed at professional services income of IPPs (‘PSI’). An IPP is an individual who provides services to clients of the firm, or to the firm itself, in circumstances where the IPP and/or associated entities have a legal or beneficial interest in the firm. PSI is income earned mainly as a result of personal effort or skill of an IPP, rather than being generated by assets or employees of the firm. What is the ATO worried about? The ATO is concerned about arrangements where taxpayers alter their tax liability by redirecting, to an associated entity, their income from their professional services. The ATO accepts that the profit or income of a professional firm may comprise different components - reflecting a mixture of income from the efforts, labour, and application of skills of the firm’s IPPs (personal exertion) and income generated from the business structure.3 The ATO also accepts that IPPs may use corporate structures and that “there may also be good non-tax reasons as to why the controller of a business receives significantly less

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of the business’ profits than would otherwise be the case”. However, where a business involves the provision of services, the ATO will be concerned with arrangements “where the compensation received by the individual is artificially low while related entities benefit (or the individual ultimately benefits), and commercial reasons do not justify the arrangement”.4

Ideal outcome If you are an IPP, the ideal outcome is to pass both Gateways such that the Guideline applies to you, but to achieve a low-risk (green) rating. The ATO will apply compliance resources to review allocation of profits of an IPP in the green zone only in exceptional circumstances.7

Guideline is not a safe harbour The Guideline is not a “safe harbour” that makes a firm immune to ATO scrutiny. Nor is the Guideline a public ruling which is binding upon the ATO. Instead, the Guideline provides a “traffic light” rating system to assess the risk of ATO compliance activity. If a firm’s circumstances align with a low-risk rating (green zone), the ATO will generally not allocate compliance resources to test the tax outcomes of the firm’s arrangements. If the firm has a moderate risk rating (amber zone) the ATO is likely to conduct further analysis and may seek further information. If the firm has a high-risk rating (red zone) the ATO is likely to commence reviews as a matter of priority and cases may proceed directly to audit.5 The Guideline applies only if the IPP’s circumstances pass two “Gateways”. There must be a genuine commercial basis for entering into and operating the arrangement or structure (Gateway 1). The arrangement must not have certain highrisk features (Gateway 2). Some arrangements may come within the Guideline but are nonetheless regarded by the ATO as high-risk (red zone) because they are designed to ensure the IPP is not directly rewarded for services they provide to the business, or the IPP receives a reward which is substantially less than the value of those services. Failing a Gateway, or passing both Gateways but being in the red zone, does not necessarily mean that the general antiavoidance provisions will apply, but the ATO is likely to give closer scrutiny to profit allocation arrangements including a deeper consideration of whether the antiavoidance provisions apply.6

The starting point – Gateway 1 – commercial rationale The Guideline applies only if both Gateways are passed. Gateway 1 requires that there must be a genuine commercial basis for the arrangement and also for the way profits are distributed. The arrangement must reflect the commercial needs of the business. The ATO also requires that the arrangement must be “appropriately documented” and there must be evidence that the stated commercial purpose was achieved as a result of the arrangement. A mere assertion of “asset protection” for an IPP is not sufficient if the arrangement does not actually provide improved asset protection. Legal form and documentation must be consistent with the economic substance of how the professional firm operates in practice. The ATO may look at internal management documents, procedures, and practices to determine whether a documented arrangement has, in fact, been correctly implemented. Indicators that a profit allocation arrangement lacks a sound commercial rationale include unnecessary complexity, steps that serve no real purpose other than to gain tax advantages (e.g. interposed entities, related party dealings that merely produce a tax result, circularity of funds/no real money), negligible risk where risk would be expected (e.g. nonrecourse loans), and dealings on nonarm’s length terms.8 Gateway 2 – high-risk features If Gateway 1 is passed, the IPP must assess whether the arrangement contains any high-risk features such as those covered by Tax Alerts issued by the ATO. High-risk features include financing

TAX FILES

arrangements for an associated entity to acquire an existing portion of the IPP’s equity interest in the firm, arrangements to create artificial differences between taxable and accounting income (e.g. different rates of amortisation), assignments of nonequity interests in the firm, and certain types of dividend access shares linked to the personal performance of non-equity holders. Next step – risk assessment framework If both Gateways are passed, a risk assessment framework assists an IPP to assess its level of compliance risk. The risk assessment is made up of the three risk zones: green, amber, and red. The applicable risk zone is determined by combining scores for each of three risk assessment factors (‘RAFs’).9 The objective is to achieve a low score (least number of points) to fall within the green zone. Risk assessment factors (RAFs) The scoring system for risk assessment factors is contained in tables with examples and case studies. It is too voluminous to reproduce in this article.10 In short, the three RAFs are: 1. (RAF 1) Proportion of firm profit taxed in the hands of the IPP;11 2. (RAF 2) Total effective tax rate on firm income received by the IPP and associates;12 3. (RAF 3) Remuneration taxed in the hands of the IPP as a percentage of the commercial benchmark.13 Scoring the risk zone The risk zone is calculated as follows: • (Green) 7 points or less (if only RAF 1 and 2) or 10 points or less (if all 3 RAFs).14 • (Amber) 8 points or less (if only RAF 1 and 2) or 11 - 12 points (if all 3 RAFs). • (Red) 9 points or more (if only RAF 1 and 2) or 13 points or more (if all 3 RAFs). What does the ATO really want to see? Although the scoring tables provide various permutations, eligibility for the

Green Zone probably requires an IPP to: (1) receive more than 60% of the profit entitlement from the firm, (2) have a total effective tax rate (including associated entities) of/above 30%, and (3) receive at least 90% of the commercial benchmark. Paragraph 66 of the Guideline indicates that anything other than a lowrisk (green) rating will result in compliance activity: “If your arrangement does not have a low (green zone) risk rating (per paragraph 71 of this Guideline), we consider your arrangement, or your treatment of that arrangement, is at risk of giving rise to an inappropriate tax outcome. Therefore, we will generally conduct some form of compliance activity to further test the tax outcomes of your arrangement”. Take home messages: 4. The ATO expects IPPs to assess annually their eligibility to apply the Guideline and to document their assessment of eligibility.15 Each IPP in the same firm will not necessarily have the same score. Each IPP should assess its own score annually. 5. Risk ratings are based on the most recently lodged tax return. An alternative approach may be justified in individual circumstances. 6. If the ATO reviews a profit allocation arrangement, its starting point will be the contemporaneous documentation substantiating the arrangement. The ATO may also fact-check an IPP’s selfassessment of its risk zone. Absence of evidence to support a self-assessment may result in further compliance activity.16 7. There are some anomalies where the applicable risk zone may be altered by minor shifts in profit entitlement arrangements or the impact of total remuneration packages including superannuation contributions and nonsalary benefits. 8. It also seems harsh that an IPP who is remunerated at 100% or more of the commercial benchmark is not automatically in the green zone. 9. The ATO has extended the period for feedback on the draft Guideline until

16 April 2021. Several professional bodies are preparing submissions to the ATO. Law firms should monitor progress of the Guideline and carefully review the final version once published. Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of Australia. B

Endnotes 1 Draft Practical Compliance Guideline PCG 2021/D2: “Allocation of professional firm profits – ATO compliance approach” (‘Guideline’). 2 Transitional provisions allow professional firms to continue to rely on the ATO’s (previously suspended) 2015 guidelines for years of income ending on or before 30 June 2021 provided those arrangements comply with the suspended guidelines, are commercially driven, and do not exhibit high-risk features identified by the ATO. 3 Guideline, at [8]. 4 Guideline, at [5] – [7]. 5 Guideline, at [60] – [62], [99] – [100]. See the conclusions in [100] in particular. 6 Guideline, at [32] - [33]. The general antiavoidance provisions, known as Part IVA of the Income Tax Assessment Act 1936 (C’th), allow the ATO to cancel a tax benefit if the ATO determines that a scheme was entered into with the sole or dominant purpose of obtaining a tax benefit. 7 Guideline, at [100]. 8 Guideline at [34] – [41]. 9 Guideline, at [65] – [69]. 10 The scoring tables are contained in paragraphs [70] – [93] of the Guideline. 11 Scored from 1 to 6 points, where more than 90% = 1 (best) and 25% or less = 6 (worst). If an IPP returns 100% of the profit entitlement of the firm in their personal tax return, the IPP is automatically in the green zone. 12 Scored from 1 to 6 points, where more than 40% = 1 (best) and 20% or less = 6 (worst). 13 Scored from 1 to 6 points, where more than 200% = 1 (best) and 70% or less = 6 (worst). Benchmarking should reflect the market comparability of remuneration for the role using a fact-based methodology that includes all components of remuneration to reflect the true cost to the business of employing a comparable individual: see [89] – [93]. 14 RAF1 and RAF 2 may be used, rather than all 3 RAFs, where it is impractical to accurately determine an accurate commercial remuneration against which to benchmark: see [73]. 15 Guideline, at [20]. 16 Guideline, at [62], [101].

May 2021 THE BULLETIN

SPEECH

CHALLENGES TO THE RULE OF LAW IN MODERN SOCIETY THE HON TOM BATHURST AC

The following speech was delivered by NSW Chief Justice Tom Bathurst at the District Court of NSW's Annual Conference, in which Chief Justice Bathurst reflects on what it means to be governed by the rule of law, especially at a time in which recent events in Federal Parliament have prompted intense public debate about the meaning and application of the rule of law.

would like to begin today by respectfully acknowledging the traditional custodians of the land on which we meet, the Gadigal people of the Eora nation, and pay my respects to their Elders, past, present and emerging. As we consider the rule of law, we acknowledge with deep regret the role our legal system has had in perpetrating many injustices against Aboriginal and Torres Strait Islander peoples and pay tribute to those who seek true equality before the law. It is a privilege to speak at the 2021 District Court of New South Wales Annual Conference. This Conference, in its scaled-down form, is probably a little different to how it was first imagined. So too the past year has been different to what we could have envisioned. Today I wish to make some brief reflections on the challenges to the rule of law in modern society. As judges, you are acutely aware of the importance of the rule of law, but I think this is a topic which will benefit us all as we confront current issues and others that are yet unknown. Far from languishing in obscurity, the concept of the rule of law has taken up prime position in recent times. Over the past month in particular, I have been troubled by the discourse around the rule of law playing out amongst politicians, the media and the public. What has become clear to me is that there are profound

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misunderstandings about what the rule of law actually is, and about the practical consequences of living in a society underpinned by a belief in the rule of law. “Upholding the rule of law” has become the argument in vogue to justify a range of divergent positions on current issues. What we find, then, is that one of our current challenges to the rule of law is a lack of public understanding as to what it really means. We must remember that “[t]he rule of law is such a powerful rhetorical weapon, both in legal and political argument, that care is needed in its deployment.”1 When the phrase is carelessly or incorrectly bandied around by the loudest voices in society, this undermines the reputation and mandate of rule of law processes. More fundamentally, however, is that the rule of law is weakened when the community or a sector of the community loses trust in its governing institutions.

WHAT IS THE RULE OF LAW? What, then, is the rule of law? Due to all the current confusion, while this is undoubtedly revision for you all, I shall set out a little of its content. Let me start with what the rule of law is not. It cannot be distilled into one reductionist definition. It is not merely synonymous with the presumption of innocence in criminal trials; it goes much

Justice Tom Bathurst. Photo: Supreme Court of NSW

further than that. It is not merely rule by law; it requires more than abiding by the law. It is not rule by lawyers, nor is it law of the ruler, nor is it law and order.2 The rule of law is, at its essence, an overarching concept concerned with protecting against the arbitrary exercise of power. This concept is then elaborated upon by more specific principles. These key principles are characteristic of a society where the rule of law is upheld. While there may be some divergence in agreement on the broader content of the overall concept, there is considerable overlap. Non-exhaustively, these principles include that:3 No one, including government, is above the law, and the law should apply equally to persons in like circumstances. There must be an independent, impartial judiciary, free from political pressure. As

SPEECH

a corollary, there must be a separation of powers between the legislature, executive and judiciary. This works to constrain the exercise of power. The content of the law should be accessible, and reasonably clear and consistent. The rights and duties of people in the community should be capable of objective determination. Laws must be administered fairly, rationally, predictably, consistently and impartially. Everyone must have a right to a fair trial, including the presumption of innocence. They should also have the benefit of procedural fairness. I should also add that from my point of view, it is key to remember that the rule of law is a two-sided covenant. It requires both that lawmakers respect the community, and that the community respect lawmakers. Those in positions of power are equally subject to the law, and the public must trust that this is indeed the case. This, then, is the framework we must keep in mind when we turn to look at some of the challenges facing the rule of law.

CURRENT RULE OF LAW DISCOURSE As I have mentioned, one of the recent challenges to the rule of law stems from a public misunderstanding of what the rule of law entails. I wish to address briefly a few of these misconceptions. First, criminal justice processes should not be conflated with the entire content of the rule of law. Impartial civil processes and inquiries, to which the rules of procedural fairness also apply, are another aspect of the rule of law. Second, insofar as it is a component

of the rule of law, the presumption of innocence is not “done away with” in civil matters, but the burden of proof rests with the instigator of the action. Indeed, in civil actions where serious allegations are made against a person, a court is to take into account the gravity of the allegations made in determining whether they have been made out. Third, while the law must apply equally to persons in like circumstances, the standard to which office holders are held is far higher than that of the general population by virtue of their position of public trust. The erosion of this trust may be fatal to the rule of law. One conspicuous difficulty is when the mainstream media, and social media users, pass judgment on persons in the absence of any adjudication or inquiry as to their guilt or otherwise. That does not mean that any inquiry outside the courts as to matters of public interest or civil liability falls outside the rule of law, provided at least the rules of procedural fairness are adhered to, and the proceedings do not have the effect of prejudicing an accused in a potential future trial. Whether such an inquiry should be ordered will always depend on the circumstances of the particular case. To confront these difficulties, I believe that those with knowledge of the law have a responsibility to clarify existing misconceptions. It is possible to do this without bringing a partisan viewpoint to the discussion. The statement released by the President of the New South Wales Bar Association4 is a good example of what it looks like to respond in this way. As the President set out in that statement, “[c] larity about [the meaning and operation of the rule of law] is critical to the public’s understanding of, and confidence in, our legal and political institutions.”5

I spoke earlier this year at length about just how important public trust in the judiciary is, and I again emphasise this. The same applies to our political institutions. If the public, or a group within it, loses respect for our lawmakers and leaders, this is when the rule of law is undermined. Those in power within our institutions must remain conscious of their task in retaining the trust of communities. They do this not only by the administration of law, but in their day to day conduct and in maintaining their personal integrity to the highest standard. In saying this, the Australian public has also in recent weeks received revelations into what has been described as the “toxic workplace culture” of Parliament House, and in particular how it relates to entrenched sexism, sexual harassment and inappropriate workplace conduct. This appears to be an issue at both State and Federal levels. Even though media dialogue around these issues has not involved an explicit “rule of law” discourse, it nonetheless has significant rule of law implications. I add that as members of the judiciary, we must also pay close attention to our own institution, which we know too well is not immune from such things. These are significant issues not merely because of the nature of the alleged activities and culture. Inappropriate conduct is never acceptable for lawmakers and representatives of the community, who should be striving to maintain public confidence in their commitment to the highest standard of work and public service. The rule of law is undermined when those in positions of public trust appear to abuse those positions with impunity. Calls for accountability and a change in culture and power structures are necessary if trust is to be restored. May 2021 THE BULLETIN

SPEECH

SOCIAL MEDIA, FAKE NEWS AND CHALLENGES TO THE RULE OF LAW Shifting the focus now, it would be remiss of me to speak about modern society without some discussion of social media and challenges to the rule of law. Social media is more central to people’s lives than ever, particularly due to the pandemic and increased virtual interactions in light of physical isolation. My tipstaff was astonished to hear that I know what TikTok is, although you will be unsurprised to know that I don’t have an account. The events of February this year threw into sharp relief for us that people are increasingly getting their news from social media platforms rather than directly from traditional media sources. We seemed to go into collective shock when Facebook temporarily removed news pages from its site, which it ostensibly deemed to include organisations such as community legal centres, domestic violence services, the Bureau of Meteorology, and, in bald-faced irony, even Facebook’s own Facebook page.6 We were both relieved and offended when the NSW Supreme Court Facebook page remained active – did Zuckerberg not consider our judgment summaries newsworthy? But I digress. One of the issues with digital platforms is that they are not neutral, but have algorithms designed to manipulate the content presented to individual users.7 This idea of the “echo chamber”, where users receive targeted content based on their own predispositions, reinforcing their views, was brought to global attention after the shock result of the 2016 U.S. election which brought Donald Trump to the presidency. Another major concern is the “fake news” problem. So ubiquitous is it, that the Macquarie Dictionary announced in February that “fake news” was its “Word of the Decade” (narrowly beating out “mansplaining” to take the top spot).8

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Lest we think that “fake news” is all about shady, underground trolls, two Australian examples spring to mind. First, in the 2019 Labor party “death tax” controversy, people including politicians and political parties spread false information about the supposed policy on Facebook pages and through Facebook advertisements.9 Second, social media posts and pages promoting an anti-vaccination agenda and sharing COVID-19 disinformation often circulate for some time before being taken down, if at all. One Australian Facebook group had more than 21,000 members and had accumulated around half a million interactions on 10,000 posts over ten months before Facebook deleted it for repeated breaches of its misinformation policies. There is also a link between accessing news through social media platforms and the risk of exposure to less reliable and lower quality news. According to an ACCC inquiry, “[t]his is because news and journalism accessed via digital platforms has been de-coupled from the news media business, often limiting a consumer’s familiarity with and knowledge of the original source of the story.”10 One of the serious challenges associated with fake news is the role it has in undermining the two-sided nature of the rule of law covenant. This may be done inadvertently, but more concerning is that it may be done maliciously by domestic or foreign actors seeking to bring a destabilising influence to our society. Social media is a relatively easy forum for this, as it provides a platform where content can be posted more or less indiscriminately and anonymously. Further, social media users can be exposed to algorithm-based recommendations to engage with extremist content.11 Conspiracy theories are one example

of the challenge of social media to the rule of law. Earlier this year, a conspiracy theory got major traction on TikTok which alleged that the devastatingly heavy snowfall from Winter Storm Uri in Texas was “government generated”. Closer to home, anti-vaccination and 5G conspiracies which, in the past, would have remained as a fringe view, have been given a stage and pulled into the mainstream. We also saw in the January storming of the U.S. Capitol the significant role of deep-rooted conspiracy theories and disinformation, spread through social media, in inciting violence and the attempted hijacking of democratic processes. Regrettably, fake news is not all that’s fake online. New AI technologies are developing which can be used to create “deepfakes”, which are videos “of a computer-generated likeness of an individual … often [created] for the purpose of misinformation, vindictiveness, or satire.”12 These are rapidly becoming increasingly sophisticated and hard to detect as false, even by machines.13 While such technology is undoubtedly extraordinary, it does have concerning implications for the propagation of disinformation through highly realistic videos which can appear to show whatever the creator desires. There is the potential for much harm to be done here. It is at least a start if digital platforms recognise the problem. Facebook, for example, has stated that it is “working to fight the spread of false news”, including by removing false claims about COVID-19 and vaccines.14 The success of that policy is debatable; however, it is an example of recognition of the problem. However, Facebook was also criticised, when it removed news content in February this year, as being “prepared to abandon the main source of fact- checked and accurate

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information on its platform” to avoid negotiating deals with media outlets. It was said that this made “its public commitment to fighting misinformation look farcical”.15 Fake news aside, social media is also a double-edged sword when it comes to public confidence in our institutions. On the one hand, institutions engaging with social media has positive rule of law connotations, insofar as social media use can enhance accessibility of the law and accountability of decision-makers. On the other hand, it also enables anonymous vilification and denigration of those in public office and their decisions. Let me take the Supreme Court’s social media use as an example. Providing snapshot case summaries in layperson friendly language engages the public with the workings of the court, particularly for high profile matters, and beneficially opens the courts to public scrutiny and criticism.16 It also helps the content of the law to be accessible and provides transparency as to how those laws are being administered. However, while some engagements on our Facebook posts or tweets are genuine points of view or thoughtful commentary, too many are malicious or demonstrate mere superficial engagement with the content. A recent post on the Supreme Court Facebook page became the fruitless battleground for arguments, couched in abusive language, over the correctness of a decision. Another post received the unqualified comment that “This is a disgusting verdict and [the judge] should be removed from her position.” On other occasions, magistrates and judges have received personal threats.17 Of course, magistrates and judges are routinely criticised for their decisions, which is compatible with judicial accountability in a democracy.18 One of the difficulties with controlling comments

is if they are consistent with free speech and the implied freedom of political communication. We must be careful with solutions that can have a chilling effect. However, the potential for social media to be used to denigrate the judiciary threatens public respect for the courts.

JUDGES IN MODERN SOCIETY AND CHALLENGES TO THE RULE OF LAW Since this is a judicial conference, let me now turn to where we find ourselves as judges in modern society, and challenges to the rule of law. As judges, we don’t need convincing about the importance of an independent and impartial judiciary. However, we should be alert to encroachments to these principles, as they can have severe consequences for the rule of law. The potential for such encroachments has in recent times shifted from the seemingly theoretical to the possible. We watched on late last year as Donald Trump sought to delegitimise the result of the federal election in the U.S. court system. Perhaps he believed that his judicial appointees would unquestioningly follow his whims; however, judicial independence prevailed. These events were a stark reminder of the centrality of an independent judiciary in preventing arbitrary exercise of power, and hold important reminders for us too. Judges who are not afraid of losing tenure or facing executive sanctions will be more fearless and robust in their decision-making. Even though the courts in that example remained firm against an attempted political intrusion on judicial independence, this is not something to be complacent about. A politicised judiciary weakens the separation of powers. One thing I will ask rhetorically: is it supportive of the rule of law to conduct hearings and inquiries into judicial candidates, including into their

political and personal views, such as in the U.S. system of judicial appointments? Perhaps such an emphasis undermines what should be a judge’s commitment to political impartiality from an early stage. In a robust system of government where freedom of expression, including the freedom to dissent, is allowed, it is perhaps inevitable that judges will experience political or societal pressure to make certain decisions for certain reasons. This is of course one of the reasons that an independent judiciary is so important, which can resist pressures to conform. However, there is a real danger when commentary is designed to undermine respect for the rule of law.19 To take another Trump example, this time from earlier events, in 2017 a Republican- appointed, Federal Court judge issued a temporary restraining order against the implementation of a Presidential Executive Order.20 The President followed the decision up with a tweet which read, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Apart from demonstrating an attitude of being above the law, such disdain appears calculated to decrease public respect for the judicial institution, which is so essential to a healthy rule of law. We too are not immune from these challenges.

LAWYERS IN MODERN SOCIETY AND CHALLENGES TO THE RULE OF LAW It is not just judges who must be alert to challenges to the rule of law. Lawyers also have a vital role in maintaining public confidence in institutions by communicating the law clearly and ensuring that cases are brought fairly and on their merits in accordance with law. I turn once again to the example of Trump and the 2020 election. To me, May 2021 THE BULLETIN

SPEECH

far more concerning than Trump’s loud assaults on the courts was the way his cause was enabled by lawyers willing to promote his cause, despite the lack of evidentiary basis or sound legal argument upon which a case could be made. This is a most troubling development. In Australia just as in the U.S., our professional conduct rules obligate our solicitors and barristers to not act as the mere mouthpiece of a client and to exercise independent forensic judgment, and to make responsible use of court processes on the merits of a case since they owe their paramount duty to the administration of justice.21 The advancement of untenable legal arguments runs counter to the constraint of arbitrary power. If any and all arguments can be promoted in defiance of the knowable content of the law and its consistent application, the rule of law is threatened.

CONCLUSION I began this morning by saying that I am troubled by the way the “rule of law” has been misunderstood and misapplied in recent public discourse. So too am I troubled by what I see as the current trajectory in social media and the challenges of the spread of disinformation. One of the difficulties is that ethics and the law have always struggled to keep up with advances in technology, particularly as they occur at an extraordinary pace. The judiciary and the legal profession must also be alert to specific threats which can affect public confidence in the rule of law. These are not light or inconsequential issues. At risk of seeming alarmist, we cannot afford to be complacent about these things. The questions we must ask, then, are first, what has happened, second, why has it happened, and third, how can we solve it? All branches of government, within their respective spheres, need to face these questions to ensure that the challenges we have dealt with today do not undermine

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the rule of law. One important thing is that there is increasing recognition of the problems. And recognition of the problem is always the first step to solving it. I express my thanks to my Research Director, Ms Rosie Davidson, for her assistance in the preparation of this address. B

Endnotes 1 Murray Gleeson, ‘Courts and the Rule of Law’ in Cheryl Saunders and Katherine Le Roy (eds), The Rule of Law (Federation Press, 2003) 178, 181. 2 Nicholas Cowdery and Adrian Lipscomb, ‘The Just Rule of Law’ (2000) 4 (December) Southern Cross University Law Review 1, 4. 3 JJ Spigelman, ‘The Rule of Law and Enforcement’ (2003) 26(1) University of New South Wales Law Journal 200; JJ Spigelman, ‘Judicial Appointments and Judicial Independence’ (2008) 17 Journal of Judicial Administration 139; Ruth Bader Ginsburg, ‘Foreword’ in Robert A Stein and Richard J Goldstone (eds), The Rule of Law in the 21st Century (International Bar Association, 2015) 7; Robert A Stein, ‘The Rule of Law’ in Robert A Stein and Richard J Goldstone (eds), The Rule of Law in the 21st Century (International Bar Association, 2015) 11, 13; Richard J Goldstone, ‘Independence of the Judiciary’ in Robert A Stein and Richard J Goldstone (eds), The Rule of Law in the 21st Century (International Bar Association, 2015) 19, 23; Cowdery and Lipscomb (n 2); Gleeson (n 1). 4 <https://inbrief.nswbar.asn.au/ posts/08b347d11316f1372f3414b4c452e82a/ attachment/MS_rule_law. pdf>. 5 Ibid. 6 Nicholas McElroy, ‘Posts Disappear from Pages of Health Authorities, Bureau of Meteorology amid Facebook News Ban’ ABC News (online, 18 February 2021) <https://www. abc.net.au/news/2021-02- 18/bom-healthauthorities-betoota-caught-in-facebook-newsban/13166394>. 7 Nicolas Suzor, ‘Digital Constitutionalism: Using the Rule of Law to Evaluate the Legitimacy of Governance by Platforms’ (2018) 4(3) (JulySeptember) Social Media + Society 3. 8 ‘The Macquarie Dictionary Word of the Decade Winner is…’ Macquarie Dictionary (Blog Post, 4 February 2021) <https://www. macquariedictionary.com.au/blog/article/780/>. 9 Danny Tran, Michael Workman and Lachlan Moffet Gray, ‘Federal Election 2019: ‘Death

Taxes’ Scare Campaign Continues to be Promoted, but Labor Says it’s Fake News’, ABC News (online, 9 May 2019) <https:// www.abc.net.au/news/2019-05-09/moneypumped-into-federal-election-death-tax- scarecampaign/11092802?nw=0>; Katharine Murphy, Christopher Knaus and Nick Evershed, ‘‘It Felt like a Big Tide’: How the Death Tax Lie Infected Australia’s Election Campaign’, The Guardian (online, 8 June 2019) <https://www.theguardian. com/australia-news/2019/jun/08/it-felt-likea-big-tide- how-the-death-tax-lie-infectedaustralias-election-campaign>. 10 Australian Competition and Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) <https://www.accc.gov. au/system/files/Digital%20platforms%20 inquiry%20%20final%20report.pdf>. 11 Olivia Little, ‘TikTok is Prompting Users to Follow Far-Right Extremist Accounts’, Media Matters (Web Page, 26 March 2021) <https:// www.mediamatters.org/tiktok/tiktok-promptingusers-follow-far- right-extremist-accounts>. 12 Macquarie Dictionary (online at 6 April 2021) ‘deepfake’. 13 Matthew Bodi, ‘The First Amendment Implications of Regulating Political Deepfakes’ (2021) 47(1) Computer and Technology Law Journal 143, 145. 14 Adam Mosseri, ‘Working to Stop Misinformation and False News’, Facebook (Blog Post, 6 April 2017) < https://about.fb.com/news/2017/04/ working-to-stop-misinformation-and-falsenews/>; Guy Rosen, ‘An Update on Our Work to Keep People Informed and Limit Misinformation About COVID-19’, Facebook (Blog Post, 16 April 2020) <https://about. fb.com/news/2020/04/covid-19-misinfoupdate/#removing-more-false-claims>. 15 Ibid. 16 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 33; [1992] HCA 46 (Mason CJ). 17 Steven Rares, ‘Social Media – Challenges for Lawyers and the Courts’ (2018) 45 Australian Bar Review 105, 121 18 Ibid 120 19 Robert French, ‘Rights and Freedoms and the Rule of Law’ (2017) 28 Public Law Review 109, 113. 20 Ibid 112. 21 Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 4, 42, 60; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) rr 3.1, 4.1.4, 17.1, 19.1, 21; see also for example, New York State Bar Association, New York Rules of Professional Conduct (at 31 March 2021) rr 3.1, 8.4(c).

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fiscal provisions in legislation. The discussion also includes the application of statutory interpretation to the Australian Constitution, to private law instruments such as contracts, deeds, wills and trusts, and in international law. The making and interpretation of delegated legislation is also covered. A chapter on researching legislation provides context to the practical application of legislation in solving legal problems.

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May 2021 THE BULLETIN

RISK WATCH

Reform of the Retail and Commercial Leases Act 1995 JOHN DOYLE, SENIOR SOLICITOR, LAW CLAIMS

pplication of the Retail and Commercial Leases (Miscellaneous) Amendment Act 2019 (the Act) came into operation 1 July 2020. The Act significantly amends the existing legislation governing retail shop leases and commercial tenancies in South Australia. Lawyers need to be aware that retail leases may move in and out of the scope of the Retail and Commercial Leases Act 1995 (RCLA) and that the reforms contain new exemptions for Leases from the operation of the RCLA which are subject to certain conditions being met. Diakou Nomineees Pty Ltd v Gouger Street Pty Ltd & Ors [2017] SASC 72 The Lease subject to Stanley J’s decision was entered on 1 September 2006. It is referred to in the pleadings and Stanley’s decision as the “New Lease”. The Lease had an initial term of 5 years, with 6 rights of renewal each for a further 5-year term (hence reference in the judgment to a lease with a potential 35 years’ duration). The starting rent for the Lease was $250,500, deliberately to take it outside of the RCLA, which (at that time) had a prescribed rent threshold of $250,000. Diakou (the Landlord) wanted the Lease to be exempt of the RCLA. An exempt lease would allow for provisions including a ratchet clause to stop reduction of rent in any future rent review and to provide that the tenant pay land tax as assessed on the property. On 4 April 2011 the Retail and Commercial Leases Variation Regulations 2010 commenced with the effect that prescribed rent threshold subject to the RCLA was increased from $250,000 up to $400,000. In litigation between Diakou and the tenant in respect to the proper construction of the Lease a preliminary question arose as to whether the RLCA applied to the Lease on and from 4 April 2011 or as renewed from 1 September 2011. Stanley J determined that the Lease was subject to the operation of RCLA as and from 4 April 2011 (paragraph 67).

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The effect of Stanley J’s decision is that leases can move in and out of the operation of the RCLA (paragraphs 49-52). Prescribed Rent Threshold to be calculated exclusive of GST The prescribed threshold, in relation to rent payable under a retail shop lease under the Act has been clarified in that the amount of the prescribed rent threshold (currently $400,000) is to be calculated exclusive of GST: s.3(1a) (a) RCLA. The Act also provides that the prescribed rent threshold will be regularly reviewed by the Valuer-General, with the first review by 30 October 2022 and thereafter every 5 years: s. 6A RCLA. New Exemption – Registered leases with rent over the rent threshold: s.4(3) (a) RCLA The Act has created a new exemption from the operation of RCLA for registered leases. Where the rent at the time of registration of a lease exceeds the prescribed threshold, the lease will not be subject to the RCLA for the life of the lease even if: • The rent threshold is later increased, such that the rent payable under the lease falls under the rent threshold; or • The rent decreases to under the threshold (e.g. after a negative rent review). However this exemption applies to registered leases only, and only if each of the following criteria are met: • The lease must be lodged for registration by the Landlord and within 3 months of signing; • The landlord must provide written notification of lodgment within one month of lodgment to the tenant; • The lease must remain registered for the life of the Lease; and • The rent exceeds the prescribed threshold when the lease is lodged for registration. New exemption – Renewal of an exempt lease: s.4(3)(b) RCLA If the exemption applies, then the exemption also applies to a renewal of the exempt lease, provided that:

• The renewal is lodged for registration by the landlord and within 2 months of the previous term expiring; • The landlord provides written notification of lodgment of the renewal within one month of lodgment to the tenant; and • The renewal remains registered for the life of the renewal. Existing leases prior to 1 July 2020: s.4(4) RCLA The new exemption applies to new leases only, that is, leases entered into after commencement of the Act. The exemption does not apply to: • Leases entered into before 1 July 2020; or • Renewals pursuant to a right of renewal granted before 1 July 2020. However the exemption can apply to a new lease between an existing landlord/ tenant, whether on the same or different terms: s.4(4)(b) RCLA. It is good risk management for lawyers to regularly review their commercial lease files and to remain current on legislative and case law developments. It puts them in the best position to advise their clients (whether Landlord or Tenant) in respect to commercial leasing matters. Lawyers are reminded that the Society earlier this year launched its Commercial Leasing Risk Management Package for SA Practitioners. Access to the Commercial Leasing document package is available only to practitioners insured with the SA PII Scheme (i.e. through Law Claims) at https://www.lawsocietysa.asn.au/Public/ Publications/Commercial_Law_Package/ Leasing/leasing_landing.aspx (requires login).

FEATURE

The execution of Michael Magee DR AUKE ‘JJ’ STEENSMA, BARRISTER & SOLICITOR, STEENSMA LAWYERS1 I say, I shot the Sherriff, oh Lord And they say it is a capital offence, yeah I Shot the Sheriff Bob Marley 19732

n Wednesday 2 May, 1838, an Irish Catholic by the name of Michael Magee, would have the dubious and ignominious honour of being the first person executed in South Australia. Aged 25, Magee would die near Montefiore Hill, ‘just below the junction of Mills and Strangways Terrace’,3 at the hands of an incompetent executioner. His crime? Magee was ‘found guilty of shooting at with intent to kill, Mr Samuel Smart, the Sheriff of the province’,4 after a failed attempt to rob the hut of the Sheriff. ‘Jack Ketch’, the name was given to executioners of the time, was almost comically dressed in clothes that were packed with padding and a large protruding hump on his back. His face, it is said, was covered ‘with a horrible hand-made mask painted white around the eyes’,5 to prevent his identification. At the time, South Australia had no state-appointed executioner. On the day of the execution, despite £10 being offered to anyone who would conduct the execution, no one took up the offer. It is suspected that eventually, a cook of the South Australian Company, who was said to be a person known to Magee, was convinced into taking the appointment of ‘Jack Ketch’.6 He reluctantly did so. The South Australian Gazette and Register noted; ‘The unfortunate man was perfectly resigned to his fate, and had to all appearance made the best use of the short time allotted to him’ and ‘during the whole time, he envined the greatest firmness’.7 The reality of what happened that day on Montefiore Hill is far grimmer…

THE PROCLAMATION OF THE PROVINCE OF SOUTH AUSTRALIA On the 28 December, 1836, Governor Hindmarsh would land at Holdfast Bay

and would proclaim the province of South Australia. As the colony started to grow, it did so without a Gaol. The Adelaide Gaol would not be built and operated until 1841. South Australia, after all, was a free state, of people who came as migrants, and not transported convicts. The colony did not require infrastructure to house the ‘Prisoners of Mother England’ that had been transported to the shores of Terra Australis. Any petty offenders were taken aboard HMS Buffalo. HMS Buffalo was moored in Glenelg, and the perpetrators were placed in irons and placed in the hold. Any more serious offenders were sent to the colony of Van Dieman’s Land, to serve their time or punishment at Port Arthur. However, in 1837, HMS Buffalo returned to England and therefore denying the fledgling colony a gaol. To facilitate the need for housing criminals, a series of tents with set up on the banks of the Torrens River. To prevent the prisoners from escaping, they were chained to logs. By this stage, throughout the colonies of Australia, there was an increasing number of escaped convicts, roaming the settlements, and often undertook a violent ‘robbery under arms’ and upon completing their task, would flee into the vast expanse of bush. South Australia however, did not suffer the scourge of bushrangers as the other colonies had. No gangs were roaming the Adelaide plains, stagecoaches being robbed, though there was petty crime, but not undertaken by the stereotypical bushranger. However, local settlers of the fledgling state accused the perpetrators of the pestilence of petty crime on: an ‘illegitimate’ class who threatened to destroy their utopian dream. Members of this ‘class’, which included escaped or emancipated convicts, associates or anyone tainted by convictism like runaway sailors and those living at whaling stations such as Encounter Bay on Fleurieu Peninsula.8

In May, 1837, pursuant newly legislated Supreme Court Act (1837), the colony’s first Sherriff, Samuel Smart, a solicitor,9 was appointed by Governor Hindmarsh. The act ‘provided that the Court should have ministerial and other officers as might be necessary for the administration of justice in the Court and for the execution of its judgments and other orders’.10 Samual Smart had been a solicitor in Van Dieman’s Land, and by some accounts; ‘zealously pursued escaped convicts and ticket-of-leave men for Van Diemen’s Land (Tasmania), who’d terrorised whole Adelaide neighbourhoods’.11 The Bunyip newspaper of Gawler later wrote of him; ‘Mr. Smart was well-known here as being a co-trustee with the late Mr Phillips for the Gawler Special Survey’.12

THE CRIME OF MICHAEL MAGEE The crime that Michael Magee committed was that he and two other felons, one identified as Morgan, broke into the hut of Sherriff Smart. Sherriff Smart would be targeted by those described as ‘three “Vandemonian” convicts in Adelaide’.13 As they committed the crime, Michael Magee discharged his musket pistol at Sherriff Smart. The South Australian Chronicle wrote that ‘he failed in his object, the ball having merely grazed Mr Smart’s ear, and done him providentially no further injury than a few gunpowder marks on his left cheek’.14 Magee and the other were subsequently captured. Morgan escaped and would May 2021 THE BULLETIN

FEATURE

later be captured at the whaling station at Encounter Bay, and returned the trial. He would then be sent to Van Dieman’s Land, to serve his time and punishment at Port Arthur. Governor John Hindmarsh was outraged by what had occurred. He would establish what was to be the first-ever, not just in Australia, but in the world, a ‘centrally organised, armed, mobile, uniformed and paid police force’.15 On Thursday, 12 April, 1838, Michael Magee was found guilty and sentenced to death, as he had committed the act. Governor Hindmarsh felt it prudent that Michael Magee be publicly hanged as ‘a forceful display of emigrant resolve’,16 and their first task would be ‘to preserve order at the public hanging of Michael Magee’.17 The site of the execution chosen was some 100 yards from the iron stores in North Adelaide.18 The reason for this location was simply that the tree that they had chosen, had ‘a thick, horizontal bough over which the noose could be thrown, and because it was the only such tree on government land’.19 Unfortunately, the fledgling colony did not have an executioner to undertake the act. A sum of £5 was offered for any person taking the role of ‘Jack Ketch’. No person came forward. After referring to the State charter, it was noted that if a ‘Jack Ketch’ could not be appointed; the role should fall onto the colony Sherriff, Samuel Smart. It was decided that if Sheriff Smart were to execute Michael Magee, the person who had attempted to kill him, it ‘would have been unseemly’.20 Later the sum rose to £10. Again no one came forward. The task would eventually, it is suspected, fall on an acquaintance of Magee, a cook of the South Australian Company. Making matters even worse for the young Irish Catholic Magee; the fledgling state was without a Catholic priest, and therefore there would be no Catholic Priest in attendance. Magee agreed that attendance would be made by the colony Chaplain a person of the Catholic persuasion.

WEDNESDAY 2 MAY 1838 - THE BOTCHED EXECUTION OF MICHAEL MAGEE Wednesday, 2 May, 1838, was the day of the execution. Many of the locals, it is estimated that between 500 and 1000 people, depending on the accounts which you read. The crowd, including women and children, made their way to the site on

34 THE BULLETIN May 2021

the bank of the Torrens River, to witness the spectacle of the demise of Magee, and have a picnic on the river bank. Just before 9 AM, the crowd witnessed the ‘execution procession’ surrounded by Governor Hindmarsh’s recently established mounted police. Two horses pulled the carriage. Upon the carriage; ‘sat a timber coffin - and upon the coffin sat Magee’.21 Sitting next to him was ‘Jack Ketch’ in his grotesque outfit. As Magee, was taken to the place of execution, he could only be; ‘attended by Mr Phillip, a gentleman of the Catholic persuasion, and the Rev. C. B. Howard, the Colonial Chaplain’.22 He remained in constant prayer till he reached the site of his execution. After ascending the makeshift scaffolding on the carriage, Magee asked if he could address the crowd. He stated that he was guilty and accepted his fate. Magee then uttered that he was not an escaped convict from Van Dieman’s Land, but had come to the fledgling state as a free man, ‘as any man present’.23 The South Australian Gazette and Colonial Register noted that; ‘during the whole time, he envined the greatest firmness’.24 As Magee spoke ‘Jack Ketch’ was ‘busied in adjusting the rope and greasing it up with his filthy fist’.25 ‘Jack Ketch’ then placed the noose over the head of poor Magee and put it on the left side of his face, near the ear. A cap was placed over his face, and the two horses were given some gentle encouragement with a whip, and the carriage began to roll forward. As it rolled forward, Magee slid ever so slowly off the wagon. The noose, not being firmly placed, slipped and came to rest under his chin. Magee began to struggle, and it was clear to ‘Jack Ketch’ that the poor wretch’s neck was not broken. Magee left hanging and swinging, managed to loosen the binds around his hands and proceeded to attempt to relax the noose around his neck and relieve the constriction. He began to scream;’ Oh God! O Christ! Save me!’.26 ‘Jack Ketch’ jumped down off the carriage, not knowing what to do, or stop Magee’s pitiful screaming, ran to his horse, got on and rode into the distance, still dressed in clothes that were packed with padding and a large protruding hump on his back. His face, covered ‘with a horrible hand-made mask painted white around the eyes’,27

The crowd angrily cried to the mounted police who were present at the execution, too; ‘fetch him back!’. They immediately gave chase. Magee desperately tried to save himself and screamed ‘Lord save me! Christ have mercy upon me!’.28 The horrified crowd screamed to the Marines that were also present; to shoot him and put him out of the agony and misery that he was going through, or cut him down. In the meantime, the mounted police caught up with ‘Jack Ketch’, and he was returned to the execution site, to witness the ‘execution jig’29 of poor Michael Magee. Not knowing what to do, ‘Jack Ketch’ ran to where Magee was hanging, jumped and grabbed his legs and shoulders, pulled down as hard as he could, in an attempt to asphyxiate him, in what the South Australian Chronicle described as; ‘choking him to death in mediaeval style’.30 Magee continued to struggle. Disturbingly; Magee took about 13 minutes31 to succumb to what was a botched execution. The crowd grew upset, angry and directed their disgust at the methodology of ‘Jack Ketch’. The South Australian Gazette and Colonial Register of the day wrote; ‘the executioner having performed his part in rather a slovenly manner’.32 The other protagonist of this tale; Mr Smart, the Sheriff, stood up and began to convey to the angry crowd, with the assistance of the mounted police and Marines. Many stayed and watched as Michael Magee’s lifeless body was cut down, and ‘then carried on with their picnic’.33

THE FAMOUS DRAWING BY JOHN SKIPPER In the State Library of South Australia, there is a pencil sketch, drawn by John Michael Skipper (1815-1883). The picture that graces the beginning of this paper is known as; ‘First Execution in South Australia, in 1838, for shooting Sheriff Smart’, and it is speculated that Skipper had made the sketch at the execution, as his handiwork is engrossed with ‘Sketched on the ground by J. M. Skipper’.34 The sketch depicts the executioner, complete with mask and hump, on a ladder, as Magee awaits atop of the carriage with his arms bound between the shoulders and elbows. The executioner ‘was busied in adjusting the rope and greasing it up with his filthy fist’.35

FEATURE

Permission was sought and granted for the use of the sketch for this paper.

PERHAPS THE ULTIMATE IRONY The State Library of South Australia walking tours state: There is some speculation that the body of Michael Magee was buried in what is now the bottom north-east corner of the grounds of Government House and it is possible to walk down Kintore Avenue and look over the fence into that corner of the grounds.36 The ultimate irony… Young Magee, the Irish Catholic, would find himself in the presence of English Lords and gentry, and fine South Australian Governors, perhaps greeting them with a cheeky; “It’s a fine day, begorrah (by God)”. I would like to think it correct. B Endnotes 1 Dr Auke (JJ) Steensma, BBus (Log Mgt), JD, P.Cert Arb, G.Cert Constr Law, GDLP, MPM, MMR, PhD PRI Arb 3, Adj (WA & NT), Med, NMAS, MAICD. Dr Steensma is a Barrister and Solicitor, specialising in Construction Law and ADR at Steensma Lawyers in Port Adelaide. He is an Arbitrator (Gde 3), Adjudicator (WA & NT), Mediator (NMAS), and Expert Determination Practitioner. He has been a member of the LS-SA ADR committee since 2017. He was conferred as a PhD in Business Law in Feb 2019. ‘This paper is dedicated to my friend and mentor, the late Laurie Edmund James AM (12 April 1942 – 20 March 2020). As a lawyer, arbitrator, adjudicator, and mediator; you always had the time to offer sound counsel and wisdom to me as I grew. Thank you old friend, you shall be missed.’ 2 BobMarley, I shot the Sheriff, (Directors Cut), by Bob Marley and the Wailers, released 1973, by the Tuff Gong – Island label, on the sixth album released by Bob Marley and the Wailers; Burnin’. Bob Marley (6 February 1945 – 11 May 1981), the great Jamaican reggae musician, and Rastafarian. 3 Allen Tiller, ‘Michael Magee – Adelaide’s first Execution’, (‘The Haunts of Adelaide’ website), <https://hauntedadelaide.blogspot. com/2014/04/michael-magee-adelaides-firstexecution.html?fbclid=IwAR2uAk0Mh_jiuK4kUXJJ9yJBE8KB8eaVgAKcU4sIzphUYT477ZeFfbtgs>. 4 The South Australian Gazette and Colonial Register - 19 May 1838, South Australian Gazette and Colonial Register (19 may 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=>.

he Observer, ‘‘Horrific’ end to execution’, T The Observer (Gladstone, QLD, 9 July 2018, an edited extract from Last Woman Hanged by Caroline Overington, published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 6 Alison Painter, ‘2 May 1838 The Hanging of Michael Magee’, Professional Historians Australia (South Australia), (Adelaide, South Australia), <http://www.sahistorians.org. au/175/chronology/april/2-may-1838-thehanging-of-michael-magee.shtml>. 7 The South Australian Gazette and Colonial Register - 19 May 1838, South Australian Gazette and Colonial Register (19 may 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=>. 8 SA History Hub, ‘Bushrangers’, Website < http://sahistoryhub.com.au/subjects/ bushrangers>. 9 The Bunyip, ‘The Late Mr. Samuel Smart’, The Bunyip Newspaper, (Gawler South Australia, Saturday 25 March 1865, p4). <https://trove.nla.gov.au/newspaper/ article/97205674?searchTerm=samuel%20 smart&searchLimits=>. 10 Association of Queensland Bailiff ’s, ‘South Australia History’, (Website), <http://www. bailiff.com.au/sa/sa-bailiff-history.htm>. 11 Adelaide AZ, ‘Michael Magee hanged in botched grisly affair in 1838 after shooting Samuel Smart, South Australia’s first sheriff ’, Website. <https:// adelaideaz.com/articles/michael-magee-hangedin-botched-grisly-affair-in-1838-after-shootingthe-first-sheriff-of-south-australia>. 12 Ibid. 13 Adelaide AZ, ‘Michael Magee hanged in botched grisly affair in 1838 after shooting Samuel Smart, South Australia’s first sheriff ’, Website. <https:// adelaideaz.com/articles/michael-magee-hangedin-botched-grisly-affair-in-1838-after-shootingthe-first-sheriff-of-south-australia>. 14 The South Australian Chronicle, ‘The Death Penalty in South Australia’, The South Australian Chronicle (Adelaide, SA, Saturday, 1 September 1894, page 7), <https://trove.nla.gov.au/newspaper/ article/92313628?searchTerm=Michael%20 magee&searchLimits=>. 15 SA History Hub, ‘Bushrangers’, Website < http://sahistoryhub.com.au/subjects/ bushrangers>. 16 Ibid. 17 Ibid. 18 The South Australian Gazette and Colonial Register - 19 May 1838, South Australian Gazette and Colonial Register (19 may 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=>. 19 The Observer, ‘‘Horrific’ end to execution’, The Observer (Gladstone, QLD, 9 July 2018, an edited extract from Last Woman Hanged by Caroline Overington,

published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 20 Allen Tiller, ‘Michael Magee – Adelaide’s first Execution’, (‘The Haunts of Adelaide’ website), <https://hauntedadelaide.blogspot.com/2014/04/ michael-magee-adelaides-first-execution. html?fbclid=IwAR2uAk0Mh_jiuK4k-UXJJ9yJB E8KB8eaVgAKcU4sIzphUYT477-ZeFfbtgs>. 21 The Observer, ‘‘Horrific’ end to execution’, The Observer (Gladstone, QLD, 9 July 2018, an edited extract from Last Woman Hanged by Caroline Overington, published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 22 South Australian Record (SA: 1837 - 1840) – Wednesday, 12 December 1838, South Australian Record, (12 December 1838, South Australia, page 125), <https://trove.nla.gov.au/newspaper/ article/245932171?searchTerm=Michael%20 magee&searchLimits=>. 23 The South Australian Gazette and Colonial Register - 19 May 1838, South Australian Gazette and Colonial Register (19 May 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=> 24 The South Australian Gazette and Colonial Register - 19 May 1838, South Australian Gazette and Colonial Register (19 may 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=>. 25 Geni, ‘About Michael Magee’, website, (Geni, a MyHeritage company), < https://www.geni.com/people/MichaelMagee/6000000081545786822>. 26 The Observer, ‘‘Horrific’ end to execution’, The Observer (Gladstone, QLD, 9 July 2018, an edited extract from Last Woman Hanged by Caroline Overington, published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 27 The Observer, ‘‘Horrific’ end to execution’, The Observer (Gladstone, QLD, 9 July 2018, an edited extract from Last Woman Hanged by Caroline Overington, published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 28 Ibid. 29 ‘Execution jig’ was a ghastly term used to describe the motions of a dying person, where their deaths were not immediate, and the long drawn out death by asphyxiation, causes the dying person to kick out and wriggle in an attempt to gain breath. 30 The South Australian Chronicle, ‘The Death Penalty in South Australia’, The South Australian Chronicle (Adelaide,

May 2021 THE BULLETIN

FAMILY LAW CASE NOTES

Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK Financial agreements – That the wife was advised against signing the BFA, but did so anyway, may be an “indicium of undue influence” as held in Thorne v Kennedy [2021] FamCAFC 9 n Beroni & Corelli [2021] FamCAFC 9 (10 February 2021) the Full Court (Strickland, Aldridge & Kent JJ) dismissed with costs the husband’s appeal from Tree J’s decision in Corelli & Beroni [2019] FamCA 911 where a hairdresser’s testimony corroborated the wife’s case that she was not proficient in English when she signed a Part VIIIAB financial agreement, the Court setting it aside for unconscionability and undue influence. The agreement was signed a few months before the wife was granted a spouse visa. While the agreement and advice provided to the wife was in English, the Court accepted that the wife did not understand the nature of what she signed; the content of the agreement; nor the advice provided to her, despite the wife having not called evidence from her then solicitor. The Full Court said (from [31]): “It is the husband’s contention that … in circumstances where the wife’s solicitor advised her against signing the BFA …, the wife acted on her own free will. ( … ) [35] ( … ) Given the 30 minute duration of the meeting along with the wife’s lack of proficiency in English, any explanation given to the wife would have been wholly inadequate for her to understand the advantages and disadvantages of signing the BFA. [36] ( … ) [T]hat the wife was advised against signing the BFA, but did so anyway, may be an ‘indicium of undue influence’ as was held to be the case by the plurality in Thorne v Kennedy [ed. full citation: Thorne v Kennedy [2021] FamCAFC 9] ( … ) [64] … [I]t is one thing for the wife to have had an understanding of the effect of the BFA not radically different from its actual effect … but it is a very different

36 THE BULLETIN May 2021

thing for a person to have sufficient knowledge and understanding adequately to protect their own interests ( … ) Costs – No error in trial judge’s order that applicant’s barrister and solicitor pay respondent’s costs where property case improperly pursued In Beamish & Coburn (Deceased) [2021] FamCAFC 20 (22 February 2021) the Full Court (Aldridge, Austin & Tree JJ) dismissed with costs an appeal in a case where a live in carer had sought a declaration as to the existence of a de facto relationship and property orders. The Court found that there was no evidence of the breakdown of a de facto relationship. The applicant’s barrister and solicitor appealed the order that they be jointly and severally liable for the respondent’s costs, fixed at $100,000. The Full Court said (from [14]): “The initiating application … was signed by [the applicant] …. At line 27, a cross indicated that a date of final separation was ‘[n]ot applicable’ ( … ) [27] In her affidavit … [the applicant] … said: ... I believe [we] are still a couple but for the restrictions placed on me to visit him at his nursing home ( ... ) ... [The deceased] did not voluntarily leave me but was forced to... [28] … [D]ifficulties emerge from this evidence. [29] The first is whether the parties had … separated at all. This issue can arise when one party … is moved to a hospital or an aged care facility. This does not … mean there has been a separation or breakdown of the … relationship ( … ) [30] The second is identifying the date of the breakdown of the … relationship … [31] … [T]he … judge found that the … practitioners were … negligent in failing to come to grips with these difficulties. … [T]he [barrister] … said that she considered withdrawing … but did not do so because the [solicitor] … threatened to sue her for negligence.( … )

[79] The … various forms of the initiating application filed by [the applicant] … failed to assert a breakdown of the relationship or identify a date that it occurred. … [T]he first three versions of the initiating application sought a declaration that the relationship had not ended. … [The applicant’s] … affidavit evidence was consistent with … no breakdown of the relationship.” Children – Father’s loss of confidence in family report writer insufficient to support his application to appoint a new expert In Behrendt & Cadenet (No. 2) [2021] FamCA 19 (29 January 2021) Harper J dismissed a father’s interim application in a parenting case for the appointment of a new family report writer in respect of a 10 year old child, where the family report writer, Dr B, referred in an interim report to the mother’s allegation that she had in her possession a large amount of pornography downloaded by the father which, when appraised, might become a finding of paraphilia on the father’s part ([3]). A USB stick of “about 500 professionally shot stack static images of young attractive women” and “pornographic digital movies” was provided to Dr B who recommended that reports be obtained from an IT expert (as to viewing patterns) and a paraphilia expert ([5]-[6]). The Court said (from [16]): “The father … argued that the USB materials have negligible probative value. … [17] … [T]he father contended that the material Dr B had … seen may have contaminated his opinion … he may … have prejudged factual issues such as the ownership of the pornographic material and the nature of the father’s viewing patterns ( … ) [20] I reject the argument based on the assertion that the USB materials have negligible probative value. … [I]t is not possible or appropriate to attempt to form any view about the probative value of the USB materials at this point. ( … )

FAMILY LAW CASE NOTES

[21] … Although the father disavowed any reliance upon apprehended bias, it seems to me that that is … what lies behind his assertions of loss of confidence in Dr B. … [22] … The … fact that [Dr B] … considered that further expert evidence was necessary demonstrates that he himself was not offering any opinion about the father’s habit of viewing material ( … ) [26] I accept the submission of Counsel for the mother that if loss of confidence alone was a broadly applicable criterion for discharge of a single expert, such discharges would be happening on a regular basis. ( … ) Property – Husband appointed codirector of corporate trustee but failed in his application for removal of the wife as director In Crawford [2021] FamCA 15 (29 January 2021) Berman J allowed a husband’s interim application to be made a director of G Pty Ltd, which was a corporate trustee of a family trust and owned land associated with the husband’s

family’s business operations. The husband sought orders compelling the removal of the wife as director, arguing that the company required finance for the development of the real property it owned so as to sustain business operations, which would ordinarily be sourced from his father, but where his father had refused to assist financially so long as the wife participated in the business structure. The wife consented to the appointment of the husband as co-director, but opposed her removal as director. The wife also sought that she be appointed as co-director of another corporate trustee, V Pty Ltd, which owned shares in the family business. The Court said (from [48]): “[The husband’s father] … considers that G Pty Ltd would not be able to obtain commercial finance whilst the wife remains in control [and further] … considers that the finance arrangements would in any event be unsuccessful unless he was prepared to commit $1 million in support of the finance application. He is not prepared to do so whilst the wife remains involved.

[51] There has not been evidence presented that would support the financial viability and implication for [the business] … and therefore the husband’s direct and indirect interest in same. [52] There is potential merit in the position adopted by each of the parties. In the absence of evidence the Court has no ability to determine, whether if orders are made as sought by the husband, they will have the effect of preserving the value of the assets of the parties. [53] I do not ignore the potential for difficulty to be created … [difficulties for the business] in the absence of a suitable business venue development ( … ) [55] I accept that at this stage there is not sufficient evidence that would enable the Court to make an informed decision and on that basis whilst I consider there is merit in the husband becoming a co-director of G Pty Ltd, I am not prepared to order the wife’s removal as a director …” The parties were directed to appoint the husband as co-director of G Pty Ltd and also directed to appoint the wife as co-director of V Pty Ltd. B

The execution of 'Michael Magee - endnotes continued SA, Saturday, 1 September 1894, page 7), <https://trove.nla.gov.au/newspaper/ article/92313628?searchTerm=Michael%20 magee&searchLimits=>. 31 The Observer, ‘‘Horrific’ end to execution’, The Observer (Gladstone, QLD, 9 July 2018, an edited extract from Last Woman Hanged by Caroline Overington, published by HarperCollins.), <https://www. gladstoneobserver.com.au/news/womanshorrific-end-after-botched-execution/3461938/>. 32 The South Australian Gazette and Colonial Register - 19 May 1838, South Australian Gazette and Colonial Register (19 May 1838 ,South Australia, page 107), <https://trove.nla.gov.au/newspaper/ article/31749933?searchTerm=Michael%20 magee&searchLimits=> 33 The Observer, ‘‘Horrific’ end to execution’,

The Observer (Gladstone, QLD, 9 July 2018, an edited extract from Last Woman Hanged by Caroline Overington, published by HarperCollins.), <https:// www.gladstoneobserver.com.au/news/ womans-horrific-end-after-botchedexecution/3461938/>. 34 The State Library of South Australia, SA Memory - First Execution in South Australia, in 1838, for shooting Sheriff Smart’, Memory , South Australia: past and present, for the future Website (Adelaide South Australia). <https://www.samemory.sa.gov.au/site/page. cfm?c=3224>. The website states: Chiefly remembered as an artist, Skipper combined an enthusiastic approach with acute observation and a natural and cultivated skill with some aesthetic sensibility. His sketches

and paintings of the landscape, the flora, fauna, the Aboriginal people of South Australia, and of the streets, buildings, every day life and notable events of Adelaide are of some artistic and great historical interest. Skipper retired in 1872 and lived on a small pension on his farm at Kent Town. He died 7 December 1883. He was survived by three sons and four daughters; his eldest son, Spencer John (1848-1903), was a journalist and satirist in Adelaide (Radford, R, Hylton, J. Australian colonial art : 18001900 Adelaide : Art Gallery Board of South Australia, 1995). 35 Ibid. 36 The State Library of South Australia walking tours, ‘I Shot the Sheriff - The first hanging and a Government House murder’, Website, (South Australia). <https://331.myt.li/tours/70 I 030414/stops/1838154190/index.html>.

May 2021 THE BULLETIN

GAZING IN THE GAZETTE

3 MAR 2021 – 2 APR 2021 ACTS PROCLAIMED Planning, Development and Infrastructure Act 2016 (No 14 of 2016) Commencement Sch 6 Parts 2-4 and 9; Sch 8 cl17: 19 March 2021 Gazetted: 4 March 2021, Gazette No. 14 of 2021 Statutes Amendment (Planning, Development and Infrastructure) Act 2017 (No 5 of 2017) Commencement Part 3 (except s14(2); Part 4; Parts 6-8; Part 10 (except s40(1); Part 11(except ss 41-42); Part 12; Parts 14-16; Parts 18-20; Parts 23-27: 19 March 2021 Gazetted: 4 March 2021, Gazette No. 14 of 2021 Planning, Development and Infrastructure Act 2016, Commencement Sch 8 clauses 9, 14, 17, 27 and 38: 19 March 2021 Gazetted: 4 March 2021, Gazette No. 14 of 2021 Evidence (Vulnerable Witnesses) Amendment Act 2020 (No 45 of 2020) Commencement: 19 March 2021 Gazetted: 11 March 2021, Gazette No. 16 of 2021 Statutes Amendment (Attorney-General’s Portfolio) Act 2020 (No 34 of 2020) Commencement ss 8; 9; Part 6: 1 April 2021 Gazetted: 25 March 2021, Gazette No. 18 of 2021

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

Education and Children’s Services (Miscellaneous) Amendment Act 2021 (No 6 of 2021) Commencement: 1 April 2021 Gazetted: 1 April 2021, Gazette No. 20 of 2021

ACTS ASSENTED TO (3 MARCH 2021 Termination of Pregnancy Act 2021, No. 7 of 2021 (amends Criminal Law Consolidation Act 1935 and Intervention Orders (Prevention of Abuse) Act 2009) Gazetted: 11 March 2021, Gazette No. 16 of 2021 Motor Vehicles (Motor Bike Driver Licensing) Amendment Act 2021, No. 8 of 2021 Gazetted: 11 March 2021, Gazette No. 16 of 2021 Statutes Amendment (National Energy Laws) (Stand-Alone Power Systems) Act 2021, No. 9 of 2021 (amends National Electricity (South Australia) Act 1996 and National Energy Retail Law (South Australia) Act 2011 Gazetted: 11 March 2021, Gazette No. 16 of 2021 Coroners (Inquests and Privilege) Amendment Act 2021, No. 10 of 2021 (amends Coroners Act 2003 and Guardianship and Administration Act 1993) Gazetted: 25 March 2021, Gazette No. 18 of 2021

APPOINTMENTS Her Majesty’s Counsel Revocation of appointment Benjamin John Doyle Gazetted: 11 March 2021, Gazette No. 16 of 2021 Appointment Benjamin Joseph Doyle, appointed Senior Counsel on 2 December 2020 Gazetted: 11 March 2021, Gazette No. 16 of 2021 Judge District Court of South Australia Environment, Resources and Development Court of South Australia Licensing Court of South Australia from 12 April 2021 Timothy James Heffernan Gazetted: 1 April 2021, Gazette No. 20 of 2021

RULES Magistrates Court Rules 1992 Amendment No. 90 Gazetted: 11 March 2021, Gazette No. 16 of 2021

REGULATIONS PROMULGATED (3 MARCH 2021 – 2 APRIL 2021) REGULATION NAME

REG NO. DATE GAZETTED

Road Traffic (Miscellaneous) (Roadworks) Variation Regulations 2021

21 of 2021 4 March 2021, Gazette No. 14 of 2021

Cost of Living Concessions (Eligibility) Variation Regulations 2021

22 of 2021 4 March 2021, Gazette No. 14 of 2021

Planning, Development and Infrastructure (General) (Phase 3 of Code) Variation Regulations 2021 Planning, Development and Infrastructure (Fees, Charges and Contributions) (Phase 3 of Code) Variation Regulations 2021 Planning, Development and Infrastructure (Swimming Pool Safety) (Fencing) Variation Regulations 2021

23 of 2021 4 March 2021, Gazette No. 14 of 2021

Development (Horticultural Netting) Variation Regulations 2021

26 of 2021 4 March 2021, Gazette No. 14 of 2021

Planning, Development and Infrastructure (General) (Horticultural Netting) Variation Regulations 2021

27 of 2021 4 March 2021, Gazette No. 14 of 2021

Planning, Development and Infrastructure (General) (HomeBuilder) Variation Regulations 2021 Planning, Development and Infrastructure (Fees, Charges and Contributions) (HomeBuilder) Variation Regulations 2021 First Home and Housing Construction Grants (Confidentiality) Variation Regulations 2021

28 of 2021 11 March 2021, Gazette No. 16 of 2021

Local Government (General) (Differentiating Factors) Variation Regulations 2021 Land and Business (Sale and Conveyancing) (Planning, Development and Infrastructure) Variation Regulations 2021 Planning, Development and Infrastructure (General) (Site Contamination) Variation Regulations 2021 Planning, Development and Infrastructure (General) (Planning and Development Fund) (No 2) Variation Regulations 2021 Criminal Law Consolidation (General) (Appropriate Form of Custody) Variation Regulations 2021

31 of 2021 18 March 2021, Gazette No. 17 of 2021

Primary Industry Funding Schemes (Eyre Peninsula Grain Growers Rail Fund) Revocation Regulations 2021

36 of 2021 25 March 2021, Gazette No. 18 of 2021

Liquor Licensing (General) (Emodka Prohibition) Variation Regulations 2021

37 of 2021 1 April 2021, Gazette No. 20 of 2021

38 THE BULLETIN May 2021

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24 of 2021 4 March 2021, Gazette No. 14 of 2021 25 of 2021 4 March 2021, Gazette No. 14 of 2021

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29 of 2021 11 March 2021, Gazette No. 16 of 2021 30 of 2021 11 March 2021, Gazette No. 16 of 2021 32 of 2021 18 March 2021, Gazette No. 17 of 2021 33 of 2021 18 March 2021, Gazette No. 17 of 2021 34 of 2021 18 March 2021, Gazette No. 17 of 2021 35 of 2021 25 March 2021, Gazette No. 18 of 2021

DISALLOWANCE OF REGULATIONS General Regulations under Planning, Development and Infrastructure Act 2016 concerning Planning and Development Fund (No. 4), made on 18 February 2021

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and laid on the Table of the Executive Council on 2 March 2021 Gazetted: 25 March 2021, Gazette No. 18 of 2021

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Family Law - Melbourne

CONSULTING ACTUARIES

LawCare

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

The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems. If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you. Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse. The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year. All information divulged to the LawCare counsellor is totally confidential. To contact Dr Jill 08 8110 5279 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher

Marita Bajinskis

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The Bulletin - Law Society of South Australia - May 2021

Articles inside

Gazing in the Gazette

Family Law Case Notes By Craig Nicol & Keleigh Robinson

under the Planning, Development and Infrastructure Act – By Justice Paul Leadbeter, David Cole and Michael Doherty

Onus v Minister for the Environment and Aboriginal cultural heritage protection – By Sophie Howe

Risk Watch: Reform of the Retail and Commercial Leases Act – By John Doyle

Tax Files: Allocation of professional firm profits to individual practitioners By Andrew Shaw

President’s Message

Wellbeing & Resilience: Fast-track to wellbeing – By Wellbeing & Resilience Committee

The role of climate change policy

From the Editor