THE
BULLETIN THE LAW SOCIETY OF SA JOURNAL
VOLUME 44 – ISSUE 4 – MAY 2022
CHANGES TO THE LEGAL PRACTITIONER CONDUCT RULES:
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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 44 (4) LSB(SA). ISSN 1038-6777
CONTENTS LEGAL PRACTITIONERS CONDUCT RUES
REGULAR COLUMNS
Legal Practitioners Conduct Rules: Structure & application By Rosalind Burke
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National model framework addressing sexual harassment in the profession
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New rules on bullying, discrimination and sexual harassment in legal profession – By Greg May
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Conflict of interest requirements in short term legal assistance services By Rosalind Burke
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Thinking of being a sperm donor? Do you need a sperm donor agreement? – By Julie Redman & Tayla Inglis
4
President’s Message
5
From the Editor
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Budget boos for Federal and Family Court
22
Risk Watch: The importance of verification of identity By Kate Marcus
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Disability discrimination and reasonable adjustments in residential tenancies – By Kayla Dickeson & Laura Snell
26
Tax Files: Professional practices: what to do with the money you make By Paul Tanti
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Parliamentary report considers reforms to Australia’s Space (Launches and Returns) Act) – By Mark Giddings, Sophie Howe, & Ashwini Ravindran
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Wellbeing & Resilience: Building wellbeing culture in the workplace By Wellbeing & Resilience Committee
32
Young Lawyers: Performing at your performance review Mikayla Wilson, Laura Corbett & Molly Shanahan
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Family Law Case Notes By Craig Nichol & Keleigh Robinson
FEATURES & NEWS 28 10
Was it really that bad? What satisfies the ‘serious harm’ element in the Defamation Act – By Peter Quinn & Jarrad Napier
Executive Members President: President-Elect: Vice President: Vice President: Treasurer: Immediate Past President: Council Member: Council Member:
J Stewart-Rattray J Marsh A Lazarevich M Tilmouth F Bell R Sandford M Mackie E Shaw
Metropolitan Council Members T Dibden M Tilmouth A Lazarevich M Mackie E Shaw J Marsh C Charles R Piccolo M Jones Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region) Metropolitan Council Members D Colovic E Fah N Harb L MacNichol L Polson M Young Junior Members A Douvartzidis A Kenny Ex Officio Members The Hon K Maher, Prof V Waye, Prof T Leiman Assoc Prof C Symes
An analysis of the Law Society’s Cloud computing guidelines: Confidentiality – By Mark Ferraretto
KEY LAW SOCIET Y CONTACTS Chief Executive Stephen Hodder stephen.hodder@lawsocietysa.asn.au Executive Officer Rosemary Pridmore rosemary.pridmore@lawsocietysa.asn.au Chief Operations Officer Dale Weetman dale.weetman@lawsocietysa.asn.au Member Services Manager Michelle King michelle.king@lawsocietysa.asn.au Director (Ethics and Practice) Rosalind Burke rosalind.burke@lawsocietysa.asn.au Director (Law Claims) Kiley Rogers krogers@lawguard.com.au Manager (LAF) Annie MacRae annie.macrae@lawsocietysa.asn.au Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au Programme Manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au
THE BULLETIN Editor Michael Esposito bulletin@lawsocietysa.asn.au Editorial Committee A Bradshaw P Wilkinson S Errington D Sheldon J Arena A Douvartzidis B Armstrong D Misell M Ford C Borrelli The Law Society Bulletin is published monthly (except January) by: The Law Society of South Australia, Level 10-11, 178 North Tce, Adelaide Ph: (08) 8229 0200 Fax: (08) 8231 1929 Email: bulletin@lawsocietysa.asn.au All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.
Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions. PUBLISHER/ADVERTISER Boylen 3/288 Glen Osmond Road, Fullarton SA 5063 Ph: (08) 8233 9433 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Elliott Layout: Henry Rivera Advertising Email: sales@boylen.com.au
FROM THE EDITOR
People with disability should not be missing out on legal services
IN THIS ISSUE
MICHAEL ESPOSITO, EDITOR
L
ast week, Janelle MacMillan OAM published a powerful story on the ABC website about the condescending and judgmental way she is often treated due to her disability. Janelle has cerebral palsy. She has trouble talking and has to deal with constant uncontrollable body movements. She is a highly intelligent woman, prolific charity fundraiser, artist and children’s book author. But she says she has “been made to feel like a child, talked down to, patted on the head like a dog and made to feel invisible”. “I am fighting a war every day to get people to see who I am and stop the discrimination”. There are about 1.2 million Australians with communication disabilities, and many would be fighting a similar battle. It is one reason why the Society has embarked on a project to increase access to legal services for people with disability. Many people with disabilities do not receive the legal assistance they need because there are not enough lawyers who have the skills or willingness to properly communicate with them. And that sad reality is that physical disability is often mistaken for mental incapacity. As Janelle explained, just because she has difficulty expressing herself verbally, does not mean she is intellectually lacking. It is dreadful to think that people are missing out on essential legal services
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because of ill-informed assumptions that they lack the capacity to give instructions or understand the legal process. The Society’s Disability Access Project seeks to change these attitudes and equip practitioners with the skills and resources to serve clients with various disabilities. We think it is a win-win proposition. Not only do we enhance access to justice for people with disability, but we increase the pool of potential clientele for law firms. Law practices that are willing to invest in access to legal services for people with disability will expand their potential to bring in more work. About 1 in 5 Australians have some sort of disability. Firms that are not set up to provide legal services to people with disability are therefore missing out on significant business growth opportunities. On 24 June, the Society will be running a free CPD session (at this stage both in person and via webinar), to assist firms in providing legal services to people with disabilities. The session will include a mock lawyer-client interview involving a person with cerebral palsy. Attendees will also be provided with a consultation copy of the Society’s Disability Access Guide for the Legal Profession, and there will be a demonstration of a soon to be launched online tool to help people with disabilities connect with suitable law firms. The event is worth three CPD points. Click here to register for the free event, or send an email to cpd@lawsocietysa.asn.au. B
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DEFAMATION REFORMS New serious harm threshold
14
SPERM DONOR LAWS Do you need an agreement?
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DISABILITY DISCRIMINATION Tenants’ rights to modify rental properties
PRESIDENT’S MESSAGE
Model Framework gives guidance on effective policies to stamp out harassment JUSTIN STEWART-RATTRAY, PRESIDENT
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ost practitioners would be well aware by now of the important changes to the Legal Profession Conduct Rules, which came into force on 1 January. An examination of these rules, as well as an explainer on the disciplinary ramifications, are included in this edition of the Bulletin. The Society has hosted a CPD to help practitioners understand the Rules and has sent several notifications to practitioners, but we thought it would be helpful to explain the key changes to the Rules in this edition of the Bulletin, so practitioners have an easily accessible guide to the Rules. I extend a large vote of thanks to the Society’s Ethics & Practice Director Rosalind Burke, and Legal Profession Conduct Commissioner Greg May, for their contributions to this edition and their ongoing education and guidance. One of the changes to the Rules concerns bullying, discrimination and harassment. The rules clarify that a practitioner must not engage in bullying, discrimination or any form of harassment in connection with legal practice or their profession. The Rules regarding bullying, discrimination and harassment aim to make it clear that this type of conduct is completely unacceptable. It is a positive step towards building a more inclusive and respectful culture in the profession. In this vein, the Law Council of Australia’s National Model Framework aims to stamp out sexual harassment in the profession.
The National Model Framework was released on 23 December 2021 is available on the Law Council’s website. It provides a comprehensive guide to help firms implement effective policies that protect the safety and dignity of staff, particularly with regards to preventing and responding to sexual harassment. Law practices are encouraged to either: • adopt the Model Framework in its entirety as that organisation’s own sexual harassment policy; or • use the Model Framework to augment and/or refine their existing policies. A checklist included in the Model Framework can assist firms to identify gaps in their existing policies. These gaps can be filled with extracts from the Model Framework. The Model Framework also provides guidance for people making a complaint against sexual harassment and people facing a complaint of sexual harassment. Of course, having an effective policy is just one component of a wider response to harassment in the profession. It is important that all staff are familiar with their workplace policies, and management is committed to enacting the policies. The opening line of the Model Framework is the foundational premise on which the comprehensive policy is built. It says “Sexual harassment is unacceptable, in any context”. We still have a long way to go before a culture of zero-tolerance permeates throughout the whole profession, but progress is being made.
It was pleasing that the Equal Opportunity Commissioner Jodeen Carney recently reported that there had been a significant drop in sexual harassment complaints coming to her office, and expressed the view that the legal profession’s response to last year’s EOC Report on sexual harassment in the profession had been “focused and impressive”. Ms Carney suggested that while the decline in complaints to the Equal Opportunity Commission may indicate that there have been fewer instances of sexual harassment in the profession, it may also be partly due to there being more pathways for complaints being available. The introduction of a specialised service by Legal Profession Conduct Commissioner by which people seeking to discuss instances of inappropriate personal conduct in the legal profession can contact a dedicated experienced practitioner in confidence for support and advice, is a significant new option. The Society offers informal and confidential advice and a range of specialised support services. The greater accessibility of complaints mechanisms is a positive step. It is crucial that those who report harassment are supported. We know from various surveys that a fear of speaking out leads to practitioners leaving the profession prematurely. I encourage all practice managers to consider the National Model Framework, and review their policies to ensure they are robust enough to minimise the risk of bullying, discrimination and harassment. B May 2022 THE BULLETIN
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CONDUCT RULES
LEGAL PRACTITIONERS CONDUCT RULES: STRUCTURE AND APPLICATION ROSALIND BURKE, DIRECTOR, ETHICS & PRACTICE
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his paper provides an overview of the implementation of the Legal Practitioners Conduct Rules, their structure and application. On 1 January 2022 the Society revoked the SA Australian Solicitors Conduct Rules (SAASCR) (which were first adopted in SA in 2011) and implemented the South Australian Legal Practitioners Conduct Rules (LPCR). The SAASCR comprised the Law Council of Australia’s Australian Solicitors Conduct Rules (ASCR) with the addition of some SA-specific content. The LPCR constitute legal profession rules that are applicable to all members of the SA legal profession regardless of the mode in which they practise. The LPCR are the product of reviews undertaken by the Society into the application and content of the SAASCR. Application In addressing concerns about the application of the SAASCR to all legal practitioners, attention was focussed on the statutory references to legal profession rules contained in the Legal Practitioners Act 1981 (Act). Sections 68, 69 and 70 of the Act provide as follows:
68—Unsatisfactory professional conduct In this Act— unsatisfactory professional conduct includes conduct of a legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. 69—Professional misconduct
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In this Act— professional misconduct includes— a. unsatisfactory professional conduct of a legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and b. conduct of a legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to practise the profession of the law.
70—Conduct capable of constituting unsatisfactory professional conduct or professional misconduct Without limiting section 68 or 69, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct: a. conduct consisting of a contravention of this Act, the regulations or the legal profession rules; The Act defines ‘legal profession rules’ as follows: legal profession rules means— a. the Society’s professional conduct rules; b. any other rules prescribed by the regulations for the purposes of this definition; The Legal Profession Conduct Commissioner advised the Society that a small number of legal practitioners who were the subject of allegations of beaches of the SAASCR had raised an argument that they could not be found guilty of a breach of legal profession rules
under section 70 because the SAASCR did not apply to them. The practitioners argued that as they practised exclusively as barristers at the time of the alleged conduct, and the SAASCR only referred to solicitors, the SAASCR did not constitute legal profession rules and meant that section 70(a) could not be invoked in disciplinary charges against them. This argument was concerning for the following reasons: • It conflicts with the fact that the profession in SA is a fused one pursuant to section 6 of the Act in which all legal practitioners are admitted and enrolled as solicitors and barristers of the Supreme Court, and regulated by a single regulatory and disciplinary regime, regardless of the mode in which they choose to practise. • The definitions of unsatisfactory professional conduct and professional misconduct refer to conduct by ‘legal practitioners’ not ‘solicitors’ or ‘barristers’. • Section 70 does not exclude any class of practitioner from its ambit. • The only substantive distinction between the practice of solicitors and barristers in the Act relates to the provisions in relation to trust money which is only relevant because practitioners who choose to practise exclusively as barristers are not permitted to receive trust money. The argument also implied that community expectations that all practitioners be required to comply with the same obligations in relation to discrimination, harassment and workplace bullying (as raised in the Equal Opportunity Commissioner’s Report of
CONDUCT RULES
Sexual Harassment in the Legal Profession that was published on April 2021) could not be met under the current version of the Act. Content From 2019 to 2021 the Law Council of Australia (LCA) carried out an extensive review of the ASCR. As a constituent body that adopted the ASCR (as the SAASCR) at its inception in 2011, the Society participated in that review and made some valuable contributions to it. The review was stimulated by the need to ensure that professional conduct rules respond to a world in which changing community expectations, and the development and use of new technologies, mean that the control of legal practitioner conduct can no longer be confined to physical places such as the office, Court or chambers. As a result of that review a number of important modifications to the ASCR were adopted. These include the implementation
of new rules modifying requirements in relation to conflict of interest in relation to short-term legal assistance services (LPCR Part A Rule 11A) and broadening and clarifying requirements in relation to harassment, discrimination and workplace bullying (LPCR Part A Rule 42 and Part B Rule 123). The LPCR The structure, terminology and content of the LPCR have effectively addressed and put to bed the concerns about the SAASCR referred to above. The LPCR consists of two sections, Part A and Part B. Part A comprises a new SA version of the ASCR in which: • changes to ASCR content as a consequence of the LCA review are incorporated; and • ‘solicitor’ is replaced by ‘legal practitioner’ or ‘practitioner’; and • Rule 16A Legal Assistance is added; and
•
ASCR numbering is retained for crossrefencing purposes and to simplify use of the LCA’s commentary. The rules contained in Part A apply to all SA legal practitioners to whom Part B does not apply. Part B comprises rules that apply to legal practitioners who hold a Category BA practising certificate or who have otherwise elected to practise exclusively as a barrister by qualifying for the barrister contribution under the South Australian Professional Indemnity Insurance Scheme. It comprises an amended version of the South Australian Bar Association Rules and are designed to reflect expectations in contexts that specifically apply to practitioners who choose to practise exclusively as barristers. If you have any questions about the LPCR, or need advice on professional obligations, please contact the Ethics and Practice Unit by email at ethicsandpractice@lawsocietysa.asn.au. B Rosalind Burke
National Model Framework Addressing Sexual Harassment for the Australian Legal Profession
O
ne of the outcomes of the Law Council of Australia’s (LCA) recently concluded review of the Australian Solicitors Conduct Rules (ASCR) was to extend the ambit of the rules prohibiting harassment and discrimination in the legal profession (ASCR 42). The subsequent amendments adopted by the LCA have been incorporated into the Legal Practitioners Conduct Rules (LPCR) that were implemented by the Society in January 2022 (see Part A Rule 42 and Part B Rule 123). The prohibition of conduct comprising sexual discrimination, harassment or workplace bullying is no longer limited to conduct that is ‘in the course of legal practice’ but has been
extended to include conduct by legal practitioners that occurs ‘in the course of, or in connection with, legal practice or their profession’. In conjunction with the implementation of the amendments the LCA has developed and published its National Model Framework Addressing Sexual Harassment for the Australian Legal Profession (Model Framework). The Model Framework provides: • best practice recommendations for complaints procedures for disciplinary bodies and workplaces; • an auditing tool/checklist which enables organisations to assess and identify any gaps in their existing policies; and
•
Guidance Notes as follows: ○ Information for organisations implementing the Model Framework; ○ Information for persons wanting to make a complaint about sexual harassment; and ○ Information for persons facing a complaint about sexual harassment. To access the Model Framework please just click on the links provided or go to the resources page of the LCA website. Please contact the Society’s Ethics and Practice Unit if you have any questions about the Model Framework or the LPCR. B May 2022 THE BULLETIN
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FROM THE CONDUCT COMMISSIONER
New rules on bullying, discrimination and sexual harassment in legal profession GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER RULE 42 – BULLYING, DISCRIMINATION AND SEXUAL HARASSMENT
• •
Background ection 70(a) of the Legal Practitioners Act provides that “conduct consisting of a contravention of this Act, the regulations or the legal profession rules” is capable of constituting unsatisfactory professional conduct or professional misconduct. Section 5 of the Act defines the “legal profession rules” as meaning “the Society’s professional conduct rules” or “any other rules prescribed by the regulations for the purposes of this definition”. The old ASCRs clearly fell within that definition. In my view, the old ASCRs applied to both solicitors and barristers. Not everyone shared that view. Some barristers took the view that they were only bound by the Bar Rules, not the ASCRs – and that the Bar Rules weren’t caught by the section 5 definition. In my submissions to the Acting Commissioner for Equal Opportunity for the purposes of her review into harassment in the legal profession, I suggested that this particular issue should be put beyond doubt. That has now been done by the adoption of the new SA Legal Practitioners Conduct Rules from 1 January 2022.
New rules Rule 42.1 of Part A of the SALPCRs now provides as follows (with the new wording underlined): A solicitor must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes: • discrimination; • sexual harassment; • any other form of harassment; or • workplace bullying. The same wording is used in rule 123 in Part B, other than that it refers to “a barrister” rather than “a solicitor”.
S
Old rule 42 Rule 42 of the ASCRs provided as follows: A solicitor must not in the course of practice, engage in conduct which constitutes: • discrimination;
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sexual harassment; or workplace bullying.
The impact of the changes The previous requirement was that any such conduct had to be “in the course of practice”. The use of that phrase was somewhat problematic. Anecdotally, it seems often to be the case that sexual harassment occurs after work hours – whether that be at client functions, conferences etc. It can be a grey area as to whether conduct in those circumstances is occurring “in the course of practice”. Of course, even if a lawyer sexually harassed someone in circumstances that were not “in the course of practice”, such that there was no breach of old rule 42, it could still have amounted to misconduct under the definitions “unsatisfactory professional conduct” in section 68 and of “professional misconduct” in section 69. In the new version of rule 42 / rule 123, the use of the phrase “in connection
with practice” broadens the reach of the rule considerably. It is “a phrase of wide import”, which requires only “a mere relation between one thing and another and [does] not necessarily require a causal relationship between the two things”.1 It is also the same phrase as is used in the relevant definitions in sections 68 and 69. In my view, this new rule will now clear up that grey area I have referred to. The use of the term “their profession” adds another dimension. It is no longer only conduct that has some connection to a person’s practice that is regulated, but literally anything to do with the legal profession. So, it seems to me that this type of conduct is now clearly prohibited at (simply by way of some examples) the Law Society’s annual dinner, other Law Society social events, professional development sessions, committee meetings, functions run by other legal organisations (eg Australian Lawyers Alliance, the Association of Corporate Counsel etc). While a practitioner’s involvement in those types of events could well have been in connection with his or her practice, again any doubt about that is removed. A new definition of “harassment” has been added the rules as well. It is defined to mean “harassment that is unlawful under the applicable state, territory or federal antidiscrimination or human rights legislation”. B
Endnotes 1 Ewin v Vergara (No 3) [2013] FCA 1311 at [230]
CONDUCT RULES
Conflict of interest requirements in short term legal assistance services ROSALIND BURKE, DIRECTOR, ETHICS & PRACTICE
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PCR 11A is new rule which introduces modified, but still prescriptive, conflict of interest requirements for practitioners engaging in the provision of short-term legal assistance services. For the purpose of 11A, short term legal assistance means: Services offered by a legal practitioner to a client, whether through a legal assistance service provider or on a pro bono basis, with the expectation by the practitioner and the client that the practitioner will not be providing continuing legal advice or representation in the matter. The rule is expected to be most relevant to community legal practices and legal services that are funded or provided by the Legal Services Commission in contexts where urgent short term legal assistance is required and it is not possible to perform a robust conflict check prior to the provision of those services. In its recently concluded review of the Australian Solicitors Conduct Rules (ASCR), the Law Council of Australia (LCA) gave consideration to the existing rules in relation to conflict of interest in the context of increasing community concerns about access to justice
especially for remote and economically disadvantaged communities. After consultation with its constituent bodies and key access to justice stakeholders, the Law Council concluded that the existing conflict of interest requirements can have unintended consequences for practitioners providing short term legal services which might contribute to an inability for recipients to access those services. Rule 11A recognises that in the provision of short term legal assistance services there may be limits on the extent to which conflict of interest identification can be carried out especially in urgent matters, and in which conflict of interest does not necessarily apply while continuing to provide robust protection of clients’ rights in relation to confidentiality and the requirement that their lawyer act in their best interests at all times. Rule 11A provides, essentially, that if it is not reasonably practicable for a legal practitioner providing short-term legal assistance to screen for conflicts, the practitioner can act in a limited context as long as, as far as reasonably practicable, they: • have disclosed to the client the nature of the services to be provided; and • are satisfied (at that time) there is no
actual or potential conflict between the duties owed to that client and one or more other clients; and • the client has given informed consent to the provision of the services on those terms. Rule 11A then goes on to provide that a practitioner must not provide or continue to provide short-term legal assistance to a client if they: • are or become aware that the interests of the client are adverse to the interests of a current client; or • while providing short-term legal assistance, obtain confidential information of a current or former client that might reasonably be concluded to be material to the client matter and detrimental to the current or former client if disclosed. Finally, 11A provides that a practitioner providing short-term legal assistance services may act for that client and another client of the practitioner or law practice if each client has given informed consent and measures are put in place to ensure confidential information will not be disclosed. Please contact the Society’s Ethics and Practice Unit if you have any questions about Rule 11A or the LPCR. B May 2022 THE BULLETIN
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DEFAMATION
Was it really that bad? What satisfies the ‘serious harm’ element in s 10A of Defamation Act PETER QUINN, MURRAY CHAMBERS & JARRAD NAPIER, NORMAN WATERHOUSE LAWYERS
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he Defamation Act 2005 (SA) (‘Act’) underwent a number of amendments that became effective as of 1 July 2021. Those amendments included s 10A, which has now altered the essential elements of the cause of action in defamation. The introduction of s 10A(1) of the Act added a “serious harm” element to the tort of defamation that limits the cause of action to matters where the defamatory matter ‘has caused, or is likely to cause, serious harm to the reputation of the person’. The addition of the ‘serious harm’ element appears to have displaced the common law presumption that harm flows as a natural incident of the publication of defamatory matter. Presumption of harm displaced In Lachaux v Independent Print Ltd and Anor [2019] UKSC 27 (‘Lachaux’), the UK’s Supreme Court held that the common law presumption of harm to reputation has been altered by the introduction of the threshold element of seriousness1. It is open to Australian courts to simply follow Lachaux, accept the presumption is displaced and to, thereby, avoid the ‘spiralling numbers of expensive, stressful but ultimately minor matters in our courts, many of which could be solved better over a coffee or a barbecue or even a handshake.’2 In Newman v Whittington [2022] NSWSC 249 (‘Newman’), a pleadings strike-out case, Sackar J followed Lachaux and held that s 10A of the Act has the effect of abolishing the common law presumption of harm3. As yet, Australian intermediate courts have not dealt with the question of
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whether s 10A of the Act has displaced or altered the presumption of harm. There are, however, several reasons as to why the presumption of harm should not be displaced in Australia. Primary among them is that the “serious harm” element is a direct transplant from the UK. In the UK, the foundation for the serious harm element appears in the decisions of Jameel (Yousef) v Dow Jones & Co Inc [2005] All ER (D) 43 (‘Jameel’) and Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (‘Thornton’). Both decisions questioned the basis for the presumption that damage naturally flows from the publication of defamatory matter, instead finding that attention must be given to the seriousness of the matter and the circumstances of publication, as a substantive threshold. The reasoning in Lachaux drew heavily on Jameel and Thornton. However, English Courts dealing with actions in defamation are subject to the Human Rights Act 1998 and a requirement to administer the law in a manner compatible with Article 10 of the European Convention on Human Rights. Article 10 provides protection for the “right of freedom of expression”, such that English Courts are required to treat “defamation proceedings that are not serving the legitimate purpose of protecting the claimant’s reputation” as an abuse of process. That approach distinguishes Australian jurisprudence, which is not subject to the policy considerations defined by the UK’s Human Rights Act and the European Convention on Human Rights. Australian courts have considered
Jameel on the question of the presumption of harm prior to the introduction of s 10A of the Act4. However, there was no blanket acceptance of the reasoning in Jameel on that issue, and no apparent indication that the presumption of harm should be displaced. Jameel, Thornton and Lachaux were considered in Armstrong v McIntosh (No 2),5 (‘Armstrong’) where, on an interlocutory application seeking to stay or dismiss the applicant’s action, Le Miere J considered whether the test for what is defamatory includes a threshold test of seriousness. On that question, Le Miere J reasoned that there ‘are significant differences between the law of defamation in Australia and the law of defamation in England’ which included ‘the absence of a Human Rights Act in Western Australia and the presence of the statutory triviality defence.’6 Armstrong was decided prior to the introduction of s 10A of the Act, however, Le Miere J’s reasoning leaves open the possibility that Lachaux and Thornton may be followed more generally on the ‘serious harm’ element by Australian courts. Another reason that the presumption of harm should not be displaced, is that the long-standing principle that harm flows naturally from the publication of defamatory matter is bound up in the nature of the tort and its historical underpinnings as an alternative to the chivalrous (but deadly) practice of duelling over reputational slights.7 At a policy level, providing a remedy for victims of the harsh and untrue was seen as preferable to pistols at dawn.
DEFAMATION
What is serious harm? The question remains how Australian courts will determine what amounts to “serious harm”. Under s 10A of the Act, on the application of a party or its own initiative, courts are empowered to determine, at a threshold level, whether an applicant is capable of establishing the “serious harm” element. The early determination of that issue should have the
amendment’s desired effect of preventing the litigation of trivial claims, freeing court resources to hear and determine those claims with substantial merit. Writing extra-judicially, Gibson DCJ said that courts must be not simply ‘sideline’ the consideration of the ‘serious harm threshold’ as a ‘minor trial issue’.8 Consistent with that view, establishing the ‘serious harm’ element should not be treated as a
formulaic exercise and the threshold to be satisfied should be considered as a matter of substance, not form. Newman is the first reported decision considering the meaning of ‘serious harm’ in Australia under the Act. Save to say that it considered Lachaux to be the starting point when assessing serious harm, which may include an analysis of the scale of the publication, and the print runs of the
DEFAMATION
readership of the publications,9 there was little analysis as to what might constitute serious harm. For corporate applicants the nature of what constitutes “serious harm” is spelt out in the legislation; they must establish ‘serious financial loss’ to their business. However, what does it mean for the individual to establish “serious harm” to their reputation? Lachaux held that the consideration of the harm caused relates to the consequences of the publication and ‘can be established only by reference to the impact which the statement is shown actually to have had.’10 The assessment is dependent upon the inherent tendency of the words to cause harm, coupled with the impact that the words had on those to whom they were communicated11. This is consistent with the South Australian Full Court of the Supreme Court decision in Lesses v Maras12 (and McCallum J’s observations in Kostov v Nationwide News Pty Ltd13) namely, that an examination of the seriousness and nature of the defamatory meaning is necessary to determine the seriousness of the defamatory matter.14 It is apparent that the question of serious harm focuses on the particular applicant and the publication complained of. While always a matter of degree, the test is concerned with the seriousness of the injury caused to that applicant’s reputation. It is likely that, as in Newman, Australian courts will engage in a ‘parity of reasoning’ and align with the English authorities, including Lachaux, on the question of serious harm. Therefore, potential applicants should first consider how they will satisfy the serious harm element. Doing so will depend on a combination of the following matters: • whether the serious reputational harm has been suffered or will more likely than not occur in the future15; • a contextual investigation of the facts
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(i.e. a move away from the objective meaning of the words as discussed in Thornton)16; • how many publishees heard or read the publication; • would the publishees believe the words used17; • financial loss (similar to the considerations raised by corporations demonstrating serious harm); • whether there is a reasonable need for vindication or an apology18; • can it be inferred from the words that are used in the publication (the use of words such as ‘paedophile’ or ‘terrorist’ may be enough to satisfy the inquiry)19; and • whether there is any actual impact that can be demonstrated20. As serious harm is now an essential element of their cause of action, applicants must plead a sufficient factual basis, including proper particulars of the matters that go to establish serious reputational harm and whether such harm has been suffered or is likely to be suffered in future. If an applicant’s claim fails to plead that necessary factual basis, they can expect a challenge on the ‘serious harm’ element at an early stage in proceedings. Further, an applicant must also consider the evidence available to prove his/her reputation, as it existed before the publication and the harm caused to that reputation in consequence of the publication. Courts often divide an applicant’s reputation into several sectors or domains, and in the UK it has been held that an applicant’s bad reputation can be taken into account when considering the ‘serious harm’ question. Therefore, evidence of a prior bad reputation will be relevant, provided ‘it goes to the same sector of the claimant’s reputation’21. The procedural mechanisms of s 10A of the Act allow for the determination of whether the serious harm element
is established as a preliminary issue, at any time before the trial commences are consistent with the policy underpinning that provision; namely, ensuring that applicants are unable to pursue trivial claims to trial and judgment. Providing respondents with the opportunity to challenge the applicant’s ability to establish the ‘serious harm’ element from the outset, is a significant step. However, any applicant responding to such a challenge may continue to benefit from the general reluctance of courts to deprive applicants of a chance to have their matters heard and determined. As with summary judgment or summary dismissal applications, dismissing an action because the ‘serious harm’ element is not established may only occur in the most obvious cases. This will be particularly so in cases where courts are invited to dismiss an action based on an assessment of the pleadings alone without recourse to any, or further, evidence22. With that in mind, applicants will be well advised to ensure that their claims provide a proper factual basis for the ‘serious harm’ element, as it relates to the (serious) nature of the defamatory meaning of the publication in issue and the (wide) scope of that publication. Ultimately, an applicant will need to establish the ‘serious harm’ element with admissible evidence and should expect that the respondent is likely to bring evidence to the contrary. Applicants seeking damages for defamation now face a significant hurdle and may do so at an early stage in the proceedings. If courts give due weight to the intended the purpose of s 10A of the Act, that provision has the potential of preventing (or discouraging) the pursuit of trivial and otherwise meritless claims, provided that the onus of establishing the element is placed squarely on applicants and is treated as a substantial threshold that an applicant must inevitably meet. B
DEFAMATION
Endnotes 1 [2019] UKSC 27 [12], [13], and [17]. 2 New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020, 2 (Mark Speakman, Attorney-General). 3 [2022] NSWSC 249 [69]. 4 Manefield v Child Care New South Wales [2010] NSWSC 1420 (Kirby J); Bristow v Adams [2012] NSWCA 166 (Basten JA, Beazley JA and Tobias AJA agreeing); Bleyer v Google Inc [2014] NSWSC 897 (McCallum J); Lazarus v Azize & Ors [2015] ACTSC 344 (Mossop AsJ). 5 [2019] WASC 379.
6 7
8
9 10 11 12 13 14
Armstrong v McIntosh (No 2) (n 5), [75] (Le Miere J). Patrick George, Defamation Law in Australia (LexisNexis Butterworths Australia, 3rd ed, 2017), 30-32. Judith Gibson, ‘Identifying defamation law reform issues: A “snapshot” view of defamation judgment data’ (2019) 23 Media and Arts Law Review 4, 20. Lachaux (n 1), [14]. Lachaux (n 1), [14]. Lachaux (n 1), [14]. (2017) 128 SASR 292. [2019] NSWCA 84. NB: the considerations of seriousness in these
15 16 17 18 19 20 21 22
decisions are in relation to the defence of triviality and damages. Cooke v MGN [2014] EWHC 2831 (QB) [33]. Lachaux v Independent Print [2015] EWHC 2242 (QB) [47]-[48] (Warby J) (‘Lachaux (HC)’). Lachaux (n 1) [16]. Theedom v Nourish Training [2015] EWHC 3769 (QB) [28]. Cooke (n 15) [43]; Lachaux (HC) (n 16) [57]; Lachaux (n 1) [16]. Lachaux (n 1) [15]. Monroe v Hopkins [2017] EWHC 433 (QB) [228] (Warby J). Defamation Act 2005 (SA) s 10A(7).
Our comprehensive Transition Program at Year 5 and Year 7 inspires each girl to continue her story.
Her Story is Our story College Principal, Dr Helen Steele invites you to attend a
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inspiring confidence May 2022 THE BULLETIN
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BVDA
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THINKING OF BEING A SPERM DONOR? DO YOU NEED A SPERM DONOR AGREEMENT? JULIE REDMAN AND TAYLA INGLIS, ADELTA LEGAL
A
dvances in technology and legislative changes including recognition of same sex marriage have seen an increase in the number of children conceived through artificial conception procedures. Many people including same sex couples and single women may wish to seek the assistance of a sperm donor to enable them to start a family. Important consideration needs to be given to the role of each person involved in the artificial conception process and to the role it is intended each person play in the life of the child to be conceived. Whatever the scenario may be, there are legal complexities that should be carefully considered, and legal advice is recommended. There is a difference between “parentage” of a child and “parenting”. Parentage means the determination of whether a person is the parent of the child. Parenting is the process of raising and educating a child from birth until adulthood.
STATUS AS PARENTS In South Australia there are two statutory frameworks that need to be considered in relation to children born as a result of artificial conception procedures – the Family Law Act 1975 (Cth) and the Family Relationships Act 1975 (SA). The term ‘parent’ is not defined in the Family Law Act. Under the Family Law Act where a child is born to a woman as a result of
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an artificial conception procedure and the mother has a partner (either married or de facto) at the time of the procedure who consented to the procedure then the child will be a child of the mother and that “intended parent”.1 Where a child is born to a single mother, the question of whether the sperm donor is the father is considerably more complex. Section 60H of the Family Law Act does not prima facie exclude a sperm donor from possibly being a parent as would be the case for a mother with a partner. In contrast, under the Family Relationships Act (SA) if a woman becomes pregnant in consequence of a fertilisation procedure and a man (not being the woman’s spouse, or if she is in a qualifying relationship, her partner) produced sperm used for the purposes of the procedure then for the purposes of the law of the State, the man – 1. will be conclusively presumed not to have caused the pregnancy; and 2. will be taken not to be the father of any child born as a result of the pregnancy. The High Court decision in Masson v Parsons & Ors [2019] HCA 21 (“Masson”) considered both the provisions of the Commonwealth and State law in considering similar provisions under the Status of Children Act 1996 (NSW). The High Court found that Mr Masson (the man who donated his sperm to a woman who was single at the time of the conception procedure) was a ‘parent’ of
the child within the meaning of the Family Law Act. The Court held that section 60H of the Family Law Act was not exhaustive of the circumstances in which someone may be deemed a parent. Masson is now the leading case in this area of law. The factors the court considered in making this determination are discussed in more detail later in this article. In determining whether a sperm donor is a parent of a child born to a mother, careful consideration of a range of factors is required, including the intentions of the mother and sperm donor, whether the sperm donor was known to the mother and who is listed on the birth certificate.
PRESUMPTION OF PARENTAGE AND THE CHILD’S BIRTH CERTIFICATE There are presumptions of parentage under the Family Law Act.2 Most commonly in artificial conception matters, this presumption arises when a person’s name is entered on the child’s birth certificate as a parent.3 It is essential that all parties involved understand and record their intentions in relation to the parents to be recognised on the birth certificate, currently this can be only two people.
DO YOU HAVE TO BE FOUND TO BE A PARENT TO HAVE A RELATIONSHIP WITH A CHILD? The Family Law Act does not restrict applications for parenting orders to only
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those persons who are a ‘parent’ of a child. If a person can demonstrate that they are a ‘parent’ of the child, then there is a presumption as to parental responsibility.4 Under section 65C of the Family Law Act however, a parenting order can be applied for by a parent or grandparent or by “…any other person concerned with the care, welfare or development of the child”.5 A parenting order may deal with a range of issues such as whom a child is to live and spend time, the allocation of parental responsibility, the communication a child is to have with another person or persons, maintenance of a child and any other aspect in relation to the care, welfare, or development of the child.6
DOES A SPERM DONOR AGREEMENT ASSIST TO DEFINE PARENTAGE OR TO OBTAIN PARENTING ORDERS? What is evident from recent case law in the area7 is that the intention of the parties at the time of conception and the actions which follow after the birth of the child are significant factors taken into consideration when disputes arise as to parentage and potential parenting orders. When embarking on the process of artificial conception, it is recommended that parties enter into a Sperm Donor Agreement prior to conception.8 This is particularly so if the birth mother (and/ or her partner) does not want the sperm donor to be considered a parent of the
child or if the donor intends to be a parent but will not be registered on the birth certificate. Case scenario Tim and Anna are close friends. Anna is 37, single and seeks to have a child of her own. Tim is 36, married to Lisa. They have two children. Tim and Lisa have agreed Tim can donate his sperm to Anna for her to have a child provided Tim has no legal status as a parent. Tim wants a level of protection to ensure he will not be a parent required to pay any form of child support to Anna for his biological child. They are also concerned about potential claims on Tim’s estate if the child is legally found to be his child. What guarantees can be provided to Tim? If parties enter into a Sperm Donor Agreement this will set out in writing the parties’ intentions and understanding of roles each party will have in the child’s life, including Tim’s wife Lisa. A Sperm Donor Agreement can encompass a range of issues including, for example: • Tim’s involvement in pregnancy, appointments and scans; • What will be Tim’s role in the child’s life; • Whether the parties intend Tim will be a parent or a donor; • What will Lisa’s role be in the child’s life; • When will the child be told about their conception;
• •
The upbringing of the child once born; Provisions around dispute resolution in the event an issue arises in the future. In our case scenario, the Sperm Donor Agreement would seek to identify Tim as a donor only and not a parent of the unborn child. The intention of the parties would be to absolve Tim from legal, financial and other parental responsibilities in relation to the child to be conceived and to seek to waive his rights to obtain orders under the Family Law Act 1975. Sperm Donor Agreements operate to provide evidence of the intention of the parties to the artificial conception procedure at the time they entered into the procedure. Although they are unable to legally define a person as a parent or not a parent of a child the evidence of the intent of the parties can be very significant in any subsequent legal determination of the status of a party as a parent or otherwise. By way of example, in our scenario if Tim decided he now wanted to have a parenting role in the child’s life once the child was born, a signed Sperm Donor Agreement would be a crucial piece of evidence that Anna could produce as evidence of the intention of the parties at the time the child was conceived. A written agreement setting out the parties’ intention of Tim’s involvement in the child’s life, entered into pre-conception is far more useful than a “he said, she said” understanding, or interpretation of a verbal agreement reached between the parties. May 2022 THE BULLETIN
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If we flip the scenario, and say Tim always planned to play a more significant role in the child’s life – such as spending time with the child during the week and on weekends, attending the child’s schooling events and involving the child with his family then is a Sperm Donor Agreement recording this worth anything? What can be discerned from the recent case law is that actions pre-conception, during pregnancy and following the child’s birth will be taken into consideration by the Court when looking at donor disputes.9 In some cases, a sperm donor has been determined by the Court to be a parent of the child born of artificial insemination.10 In cases where a sperm donor has been considered to be a parent the relevant factors have included the following11:• A donor always held and continued to hold the expectation that he would be involved with the child. • The parties jointly informed others that the birth mother was pregnant, and the donor was the biological father. • The parties discussed the naming of the child. • The birth mother indicated that following the birth of the child the donor and his family would be actively involved with the child. • The parties discussed the donor’s level of involvement with the child and the donor indicated that he wanted visits and an opportunity to baby sit. • The donor was registered on the child’s birth certificate. • The donor gave his genetic material on
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the express or implied understanding that he would be a parent of the child. • The donor cared for the child financially and emotionally. • The child identified with the donor as her father and referred to him as “daddy.” In our scenario, if a determination was made by a Court that Tim was a parent of the child, and a paternity order was made this would enable him to be registered on the child’s birth certificate. Tim would then have obligations as a parent for child support and provision for a child in the event of his death. An order that Tim was a parent of the child would not automatically mean that Tim would be granted parenting orders, but he would be entitled to apply for them under the Family Law Act.12 The Court’s paramount consideration in making parenting orders is to make orders that are in the best interests of the child. The case law in this area is evolving and changing at a rapid pace. If a Sperm Donor Agreement has been signed by the parties which clearly sets out their intentions and a later dispute arises, the Agreement can become an important piece of evidence that the Court will consider in determining whether the donor was intended to have a more significant role in the child’s life than being merely a donor. A clear, concise and prescriptive Sperm Donor Agreement that confirms each party has obtained legal advice and explains the roles each party is to have in the child’s life, will give parties
a greater level of clarity as to intention and hopefully avoid future disputes about parentage or involvement of a donor in a child’s life. There are also qualified fertility counsellors to assist parties to explore these issues. All parties considering an artificial conception procedure should consider accessing counselling together to talk through their expectations and intentions. We often work with fertility counsellors to provide a comprehensive service for people before they enter into a legal agreement. This should also be part of the overall preparation by parties to embark on this complex but exciting journey of assisted conception and parenthood. Adelta Legal is LGBTIQ+ friendly and are proudly listed as a legal service in the Rainbow Directory SA (www.rainbowdirectorysa.com.au). B Endnotes 1 Section 60H Family Law Act. 2 Sections 69P to 69T Family Law Act. 3 Section 69R Family Law Act. 4 Section 61C Family Law Act. 5 Section 65C Family Law Act. 6 Section 64B(2) Family Law Act. 7 Masson v Parsons; Griffin & Laidley [2021] FCCA 1515. 8 Re Patrick (2002) 9 Masson v Parsons; Griffin & Laidley [2021] FCCA 1515. 10 Masson v Parsons; Griffin & Laidley [2021] FCCA 1515. 11 Masson v Parsons; Griffin & Laidley [2021] FCCA 1515. 12 Section 65C Family Law Act 1975.
FEDERAL BUDGET
Budget boost for Federal Circuit and Family Court
T
he Federal Circuit and Family Court of Australia received a funding boost of $63.75 million over four years in the 2022-23 Federal Budget, which was handed down on 29 March. The Chief Justice, the Hon Will Alstergren, said “This funding is very good news for the Australian public. The Courts have been piloting the Lighthouse Project in Adelaide, Brisbane and Parramatta registries, where it has not only shed light on the high prevalence of risk in family law cases, but assisted the Courts to manage those risks appropriately.” Justice Alstergren said the funding ensures the Courts can extend the Project nationally to all 15 family law registries Together, the newly announced and recent funding allows for: •
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Expansion of the Lighthouse Project: A comprehensive funding package for family law officers to support the expansion of the Lighthouse project to 15 registries in the Courts, including funding for registrars, including Senior Judicial Registrars, Court Child Experts, and support staff for registrars and Court Child Experts. This equates to $54.9m in funding over the forward estimates, including $2.461 million in capital. It provides funding from 1 July 2022, equivalent to 71 family law positions, comprising 21 registrarrelated positions (at varying levels), 21 registrar-related support positions, 15 positions for Court Children’s Services plus 5 support staff, 6 case coordinators and 3 managerial/technical roles. Enhance culturally responsive support funding: Funding from 1 July 2022 for staffing to support the expansion of Indigenous Family Liaison Officers in the Courts. This equates to $8.85 million in funding over the forward estimates. It provides funding from 1 July 2022, equivalent to 16 family law positions, comprising 11 Indigenous Family Liaison Officers, 1 registrar, 1 Court Child Expert plus 3 support staff. The Budget also included funding of
$24.2 million over three years for Legal Aid Commissions to raise their capacity to meet increased demand for representation services resulting from the extension and expansion of the Lighthouse Project pilot. Other family law related funding measures include: • $52.4 million over four years to Legal Aid Commissions to meet expected demand for support under the Family Violence and Cross Examination of Parties Scheme. • $22 million over five years from 202122 to support the placement of state child protection and policing officials in the family law courts across Australia to facilitate information sharing between the family law, child protection and family violence systems. • $16.5 million over two years from 202122 to support Legal Aid Commissions to meet the cost of legal representation, including independent children lawyers as ordered by the Federal Circuit and Family Court of Australia as part of the Government’s enhanced case management arrangements for family law proceedings. The Law Council of Australia welcomed these initiatives, but remained concerned at the underfunding of frontline legal services. Law Council President Tass Liveris said: “Investment in frontline legal services not only improves outcomes for individuals it has demonstrated benefits in terms of downstream costs savings for the Government, “A stated focus of this Budget is on guaranteeing essential services. It is time to recognise that legal services are an essential service.” Other notable Federal Budget measures included: • $8.4 million over three years for a pilot of a new service delivery model to provide survivors of sexual assault with greater access to dedicated legal services to support their recovery and engagement with the criminal justice system. • $7 million over two years for nine Women’s and Community Legal
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Services nationally, to help women access legal assistance and migration support. $5.4 million over two years from 2021-22 to existing legal assistance services operating within Queensland and NSW to support individuals and businesses affected by the recent floods. $9.3 million over four years to support legal assistance services involved in coronial inquiries and expensive and complex cases. $1.4 million over two years from 2022-23 to the Attorney-General’s Department to progress a national approach to modernise the execution of common legal documents. $5.6 million over four years to the Fair Work Commission (FWC) for a small business support unit to improve employer/employee experiences when navigating the Fair Work system. $17.0 million over two years from 2022-23 to support the Office of the Australian Information Commissioner in undertaking its privacy and regulatory functions $15.7 million over four years from 2022-23 (and $4.0 million per year ongoing) to increase the Commonwealth Director of Public Prosecution’s capacity to respond to its increasing caseload. $2.5 million over two years from 202223 to support the Financial Rights Legal Centre’s National Insurance Law Service to continue to provide legal advice and advocacy for consumers in financial distress due to insurance claim disputes. $1.6 million in 2022-23 to continue a pilot for a single case management solution for the Administrative Appeals Tribunal (AAT), with the cost to be met from within the existing resources of the AAT. $6.7 million in 2022-23 to support the work of the Office of the Special Investigator’s (OSI) investigation and prosecution of potential war crimes in Afghanistan. $1.8 million over three years for advice and support services for women who experience sexual harassment. B May 2022 THE BULLETIN
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DISABILITY DISCRIMINATION AND REASONABLE ADJUSTMENTS IN RESIDENTIAL TENANCIES KAYLA DICKESON & LAURA SNELL
Final year Adelaide Law School students Kayla Dickeson and Laura Snell completed a six week intensive clinical placement at the Adelaide Law School Equal Opportunity Legal Advice Service over summer 2022. As part of their role advising clients on Equal Opportunity and SACAT cases, they investigated the challenges disabled people can experience accessing rental accommodation. This article explains the various options that people have when navigating this difficult environment. The authors would like to thank Jodeen Carney, Commissioner for Equal Opportunity, and Natalie Wade, Founder and Principal Lawyer at Equality Lawyers, for sharing their time and their insights with us for this article.
H
ow do we protect against discrimination of persons with disability1 in Australia who wish to enter (or remain in) a residential tenancy agreement yet require a home modification? This is an important question, with particular relevance now as a new generation of persons with disability are starting to move into independent or private accommodation, as opposed to earlier generations that were historically forced to reside in institutional settings or group-homes. Yet, the answer to our question has proven to be quite complex, with the relevant law being unclear, as well as difficult to understand and apply. Our aim is to start a conversation about the shortcomings of the current law on disability discrimination. We argue the current law is inadequate in protecting and promoting the rights of persons with disability in residential tenancies because it
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is unclear. We propose that law reform is needed to address this issue. However, we suggest a bi-focal approach to law reform to not only further protect persons with disability, but to emphasise promotion of human rights.2 We will use a hypothetical case study to better illustrate the issue. In this case, James is a tenant living with multiple sclerosis and requires the installation of grabrails in his bathroom. His landlord will not allow the modification, claiming that it will ruin the tiles in the new bathroom.
WHAT IS THE CURRENT LAW? Disability discrimination is when an individual experiences ‘unfavourable treatment’ that causes loss or detriment, which would not have the same effect on persons without disability. It must be causally linked with the individual’s
disability and occur in a specified ‘area of life’ such as accommodation.3 If James thinks he has experienced disability discrimination in South Australia, he must first make a complaint to either the Office of the Commissioner for Equal Opportunity (OCEO) under the Equal Opportunity Act 1984 (SA) (EOA)4 or the Australian Human Rights Commission (AHRC) under the Disability Discrimination Act 1992 (Cth) (DDA).5 Establishing a discrimination claim over the refusal to provide a home modification would require the requested home modification to be considered a ‘reasonable adjustment’. In the EOA, the term ‘reasonable adjustment’ is not specifically stated. The concept arises in section 66(d)(i)6 which provides that discrimination may occur where it is unreasonable to fail to provide ‘special assistance’ or ‘equipment’ that is needed by a person because of their disability. The Act does not clarify the definition of ‘special assistance’ or ‘equipment’. Additionally, there is no positive obligation to provide the adjustment. Instead, James will need to prove that the grab rails were not provided when it was reasonable to provide them. Imposing this burden on James does not provide protection in the same way that it would if there was an obligation on his landlord to provide the grabrails in the first place. It also makes it difficult for him to know what his landlord should provide because the Act does not provide examples of what ‘special assistance’ or ‘equipment’ means in practice. James may have more success making
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a claim to the AHRC under the DDA because it includes and defines the term ‘reasonable adjustment’.7 However, the definition of ‘reasonable adjustment’ is problematic because it does not provide a clear example of what a reasonable adjustment should be, only stating it is something that does not cause ‘unjustifiable hardship’ to a provider.8 And there is no clear definition of ‘unjustifiable hardship’ either. The DDA does provide a multifactorial definition when determining whether a request for a reasonable adjustment may be ‘unjustifiable hardship’.9 A factfinder needs to balance whether an adjustment would cause unjustifiable hardship, considering the potential benefit and detriment of the request to each party. Although this can still be a difficult task because the definitions are not clearly stated and there are minimal guidelines to assist factfinders. As with the EOA, James’ landlord has no obligations under the DDA to provide a home modification. The Residential Tenancies Act 1995 (SA) does not impose obligations on landlords to provide home modification. Landlords must not unreasonably withhold their consent to alterations of a ‘prescribed kind’.10 Under the regulations this is limited to a digital television or a carriage service for accessing the Internet.11 These prescribed alterations are arguably minor when compared with the potential scale of some home modifications. For example, home modifications could include smaller installations such as putting in handrails and grabrails. Or it could involve structural changes such as widening doorways, removing steps, lowering benchtops, or installing sensory lighting.
Due to differing and vague definitions, and potential confusion over which legislation to use, it is unclear if James could rely on the DDA or the EOA to offer him legal recourse if his landlord rejects his request for home modification. Specifically, the legislation lacks clarity about the terms ‘reasonable adjustment’, ‘special assistance’ and/or ‘equipment’, so James does not have clear guidelines to depend on. We suggest law reform is required to provide clarification over legal recourse available to tenants with disability.
LAW REFORM The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) takes the approach of promoting human rights and equal recognition before the law.12 Comparatively, the EOA and the DDA take the approach of protecting rights. In domestic law the onus is on tenants like James to come forward with complaints, meaning there is no obligation or accountability on organisations or people to prevent discrimination. This puts pressure on vulnerable and marginalised groups who may fear they would be putting their accommodation at risk if they make a complaint. We suggest law reform is needed to emphasise promoting human rights, which would remove some of the pressures on individuals from having to make a complaint in the first place. As of 2021, 96% of the 4.4 million Australians with disability reside in non-specialist housing, compared with 4% that live in Specialist Disability Accommodation (SDA) for people with high care needs. This means that a considerable portion of
Australia’s population (17.7%) are living with disability and potentially require adaptable housing.13 Promoting Human Rights The Disability Inclusion Act (SA) (DIA) Access and inclusion laws can complement anti-discrimination protections by promoting rights and preventing their violation. For example, under South Australia’s DIA government agencies must establish Disability Access and Inclusion Plans (DAIPs). According to the SA Housing Authority Disability Access and Inclusion Plan 2020-2024, people with disability comprise 39% of public housing tenancies.14 Across 2015-2020, 17,453 disability modifications were undertaken in these properties.15 However, the DIA only applies to government agencies. Private landlords are not accountable to a DAIP. This is despite many persons with disability renting privately, due to the massive reduction of available public and community housing places,16 and home ownership decreasing over time. We propose that the DIA be amended so it extends to private rental organisations. This could mean that all landlords and agents would be obligated to implement a DAIP, similar to existing obligations to undertake entry inspections and lodge a bond. Universal Design While Housing SA has developed sustainable housing principles, which include detailed requirements for housing accessibility,17 private rentals do not have to meet the same standards. This is despite the social benefits that accessible housing May 2022 THE BULLETIN
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can bring, including increased quality of life, independence, safety, fall prevention and improved function.18 With the increase in housing demand and rising cost of rent, persons with disability may have to take what is on offer, despite it not meeting their needs. Disability rights campaigners have frequently called for an overhaul of Australia’s building regulations to ensure that universal design is considered in all new housing developments. However, currently there are no mandatory accessibility standards in the National Construction Code.19 James and other persons with disability could benefit greatly from increased regulations over building design standards to ensure they are accessible. Human rights bills Another approach could be to enact legislation that promotes rights and prevents the violation of said rights. These types of legal regimes are found in countries that have a Bill of Rights20 or even in some Australian jurisdictions, such as Queensland, the ACT and Victoria, which have Human Rights Acts or Charters.21 Protecting Human Rights Though law reform which promotes rights is highly necessary, we also think legal protections in the EOA and DDA need to be further strengthened to ensure that persons with disability are empowered to make complaints when things go wrong, and to reduce the likelihood of discrimination occurring in the first place. The UNCRPD emphasises that preventing disability discrimination and allowing for ‘reasonable adjustments’ ensures equality for persons with disability in the enjoyment and exercise of all human rights and fundamental freedoms.22 We suggest that the DDA and EOA be reformed to sufficiently define reasonable adjustments. These reforms should emphasise the importance of ensuring equal enjoyment, rather than
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only emphasising the prevention of unjustifiable hardship to a provider. A schedule of examples of reasonable adjustments could be created and included in the EOA and DDA. This would be beneficial in bringing clarity to the definition of reasonable adjustments. However, disadvantages could arise if narrow interpretation inadvertently excluded certain adjustments. Alternatively, it could impose financial hardship on the provider. To prevent these potential issues, it would be important to create a schedule that is specifically ‘non-exhaustive’ and to include protections against financial hardship of the provider.
CONCLUSION We argue that South Australia should adopt a bi-focal approach of promoting and protecting human rights. We need to prevent the violation of human rights from the start, but we still need sufficient legal protections for individuals to seek legal recourse if this promotion of rights fails. This is particularly true in residential tenancies due to the power imbalance between agents and landlords compared with tenants. Access and inclusion legislation is an example of rights-promotion, but it should be extended to apply to both privately and publicly run organisations. Employing universal design in Australia’s building standards so all new housing is accessible will also ensure equal access to housing. Parliament should also amend the DDA and EOA to increase clarity around what reasonable adjustments are and put a positive obligation on organisations to provide them. This would mean that landlords would have an obligation to provide home modifications, and tenants like James would have clear guidelines to refer to when requesting adjustments. For more information about EOCLAS contact Margaret Castles or Skye Schunke at the Law School, University of Adelaide, or go to our website: https://law.adelaide.edu.au/free-legalclinics/equal-opportunity-legal-advice-service B
Endnotes 1 Due to limitations on words, we will refer only to disability in terms of the protected ground of ‘disability’ as defined in legislation. However, we wish to note that the discussion here is relevant to elderly individuals who would arguably benefit from home modifications. We question whether law reform should include protections on the ground of age as well as disability. 2 Australia’s anti-discrimination laws are arguably already focused on protection of rights, rather than promotion. Our laws are aimed at providing adequate legal avenues for individuals to get recourse as a result of wrongdoing from discriminators. 3 Disability Discrimination Act 1992 (Cth) s 5 and 6; Equal Opportunity Act 1984 (SA) s 66 4 Equal Opportunity Act 1984 (SA) s 93 5 Disability Discrimination Act 1992 (Cth) s 67 6 EOA s66(d)(i) 7 DDA s4 8 DDA s11 9 DDA s11 10 Residential Tenancies Act 1995 (SA) s 70(1a) 11 Residential Tenancies Regulations 2010 (SA) s 12 12 Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) Article 2; Committee on the Rights of Persons with Disabilities, General Comment No. 1: Article 12 Equal recognition before the law, 11th sess, UN doc CRPD/C/GC/1 (19 May 2014) 13 Monash University, Adaptable Housing for People with Disability in Australia: A scoping study, Monash Urban Lab Department of Architecture (Faculty of Art Design and Architecture), 2021, commissioned by the Australian Human Rights Commission, p 7 14 SA Housing Authority Disability Access and Inclusion Plan, 2020, Government of South Australia, p 5 15 Ibid p 7 16 South Australian Council of Social Services, Supplementary submission to the Select Committee Inquiry into Privatisation of Public Services in South Australia p 2 17 SA Housing Authority, Sustainable Housing Principles (SAHT Universal Housing Design Criteria 2020), Government of South Australia 18 Phillipa Carnemolla and Catherine Bridge, Housing Design and Community Care: How Modifications Reduce Care Needs of Older People and People with Disability, 1 June 2019, International Journal of Environmental Research and Public Health p 3 19 n13 p 23 20 US Bill of Rights, UK Magna Carta, Canadian Bill of Rights 21 The Charter of Human Rights and Responsibilities Act 2006 (VIC); Human Rights Act 2019 (QLD), Human Rights Act 2004 (ACT). 22 Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) Article 2
A roundup of recent Society meetings & conferences ROSEMARY PRIDMORE, EXECUTIVE OFFICER
SA Law Reform Institute meeting ustin Stewart-Rattray (President), Stephen Hodder (Chief Executive) and Nathan Ramos (Policy Coordinator) met with representatives of SALRI on 7 April 2022 for the purpose of receiving an update as to its current and future references and to discuss the ways in which the Society can assist with that work. SALRI is presently focussing on its witness competence reference and aspects of the Oaths Act.
J
which primarily focused on consideration of various amendments to the Uniform Civil Rules.
reports had found that the patients had been advised by their lawyers not to answer questions.
Joint Rules Advisory Committee Justin Stewart-Rattray, Alex Lazarevich (Chair of the Civil Litigation Committee) and Philip Adams represented the Society at a meeting of meetings of the Joint Rules Advisory Committee on 7 April 2022,
Medico-Legal Advisory Group A videoconference meeting of the Medico-Legal Advisory Group was held on 11 April 2022. The Society was represented by Justin Stewart-Rattray, Guy Biddle (Co-Chair of the Accident Compensation Committee), Tim Bourne, Rosemary Pridmore (Executive Officer) and Annie MacRae (Manager of the Litigation Assistance Fund). Issues discussed included a review of the Medico-Legal Joint Statement and a report from the medicos that some doctors who had been requested to provide independent medical
Meeting with the Attorney-General The Society’s first meeting with the new Attorney-General, the Honourable Kyam Maher MLC was held on 20 April 2022. Justin Stewart-Rattray and Stephen Hodder took the opportunity to raise a number of issues including the setting of Practising Certificate fees for 2022-23, the approval of the Professional Indemnity Insurance Scheme for 2022-23, the need to address the decline of the Fidelity Fund and the Society’s key policy issues (as put to parties in the run up to the State election). B
May 2022 THE BULLETIN
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RISK WATCH
Inventing Anna or [insert name here]: The importance of verification of identity KATE MARCUS, RISK AND CLAIMS SOLICITOR
“T
his whole story is completely true. Except for all the parts that are totally made up,” begins every episode of Netflix’s recent mini-series, “Inventing Anna”. For those practitioners who have seen the series, many may have been left wondering how in this age of Google searches could anyone have a remote chance of fooling New York’s high society, investment bankers and real estate moguls into believing that they were a German heiress? As unlikely as it seems, Anna Delvey/Sorokin did just that. Maybe The Tinder Swindler documentary is more your style? This film follows the elaborate catfishing of unsuspecting victims, who get captivated by a charming and apparently wealthy jet-setting Shimon Hayut. Identity theft might seem entertaining in the realm of blockbuster TV series but a recent case in the Victorian Supreme Court serves as a reminder that identity fraud is a real threat. In February, 2022, Justice Taylor of the Victorian Supreme Court sentenced a defendant to 4 years’ jail after the defendant pleaded guilty to 17 offences which had seen him fraudulently acquire $418,497.00 by obtaining the identities of real people, changing crucial details, setting up different addresses via post office boxes and creating false pay slips. Using this documentation, the defendant could then set up loans and credit cards through banks. Practitioners need to be alert to the risks of identity fraud and take steps to ensure that the person before them is the person they claim to be. If any of these perpetrators found themselves before a South Australian legal practitioner, could a VOI process have prevented their scams? Further, and more worryingly, could the practitioner be liable for not preventing such a scam? The answer is “yes”. In Graham v Hall [2006] NSWCA
22 THE BULLETIN May 2022
208 a practitioner had been informed by a husband that his wife was too unwell with cancer to attend at the practitioner’s office and that she was unwilling to speak to the practitioner by phone. In fact, the husband was committing fraud by refinancing the mortgage on the jointly held family home, paying off debts and taking the balance for himself. It was only after the husband’s death that the wife learned of the new indebtedness secured against her home. The practitioner was held to be negligent for failing to identify the client thereby allowing the fraud to occur. Current claims experience in South Australia shows similar frauds are occurring here. There may well be much to gain from committing a fraud and the purpose of a VOI is to minimise the chances of someone’s identity being falsely used. The dangers of identity theft are to be taken seriously and the Risk Management packages on the Law Society of SA website (available to practitioners insured with the SA Professional Indemnity Scheme) provide useful tools including a VOI Checklist which can minimise the risks when identifying someone.
The circumstances for requiring a VOI particularly arise in the following situations: • land dealings; • mortgages, guarantees and loans; • making of wills and powers of attorney; • where an asset is moving (e.g. shares, personal property); • matters that are high risk Sometimes there may be “warning signs” e.g. email only instructions, urgency, or the client seems hesitant to provide basic identification. There may be inconsistencies in documents, or the matter may involve novel features which may give rise to concern. Without being an exhaustive list, practitioners should pay particular attention to the following: • Is the person “known” to you? • If they are a new client - have they been referred by someone you know? • Is the transaction ongoing or a one-off appointment? • Does the person have something to gain e.g. a loan, inheritance? • It is NEVER just a matter of witnessing a document.
RISK WATCH
It is essential that attention to detail is demonstrated. Practices need to have standard policies and procedures for client identification. Obviously, good management is not just about having the policies and procedures but ensuring that they are understood and used. In this regard, appropriate file notes and copies of the proof of identity should be maintained. Some essential steps in a VOI: • Check the picture on the drivers’ licence, passport – is it a reasonable likeness? • Check the address on the identification documents – do they match? • Check the signature – does it match the identification documents? • Is anything odd about the documents does it look like the document has been tampered with? • If the transaction is urgent – ask why?
Some alarm bells may be ringing and extra caution needs to be taken if: The client is borrowing money on the security of a mortgage on a property owned by a family member. Consider: • Is there a relationship between the borrower and the mortgagor? • Is there potential for undue influence? • Does the client need advice? If satisfied then: • Open a file • Use the VOI checklist in the Risk Management documents package • Record full name, date of birth and address • Detail the nature of the attendance • Photocopy/scan the identification • Photocopy/scan the executed documents
It is essential that a practitioner can demonstrate that reasonable steps were taken to establish the identity of the client. The VOI checklist provides a comprehensive list which should be followed. As the documents in the Risk Management package are regularly updated, always check the Society website to ensure you are using the current version of the relevant document. Not all clients who attend on practitioners are committing frauds or pretending to be someone they are not – in fact, the vast majority of clients are genuine but - truth can be stranger than fiction. What would you do if a would-be German heiress or the supposed son of a diamond billionaire turned up in your office seeking legal advice? We need to be aware that identity theft poses risks and we need to remain alert.
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9 Springbank Street, Tullamarine, 3043 May 2022 THE BULLETIN
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SPACE REPORT
Parliamentary report considers reforms to Australia’s Space (Launches and Returns) Act 2018 (Cth) MARK GIDDINGS, SOPHIE HOWE, AND ASHWINI RAVINDRAN, LK LAW
A
t the end of last year, the House of Representatives Standing Committee on Industry, Innovation, Science and Resources (Committee) handed down its report into Australia’s space industry and the associated legal framework: ‘The Now Frontier: Developing Australia’s Space Industry’.1 The report makes 38 recommendations directed at improving policy and legislation in order to facilitate growth within the sector. This article considers some of the most significant recommendations as well as some recent announcements by the Commonwealth Government. The last round of reforms occurred when the Space Activities Act 1998 (Cth) was amended and renamed the Space (Launches and Returns) Act 2018 (Cth) (Act), following a long period of consultation and review. The amendments were focused on opening up access to small to medium enterprises, including by dramatically lowering the insurance requirements for launch licenses and other monetary barriers. This was balanced by the introduction of a stronger framework of civil penalties to deter non-compliance with the requirements of the Act. The amended Act also sought to accommodate technological developments in the way payloads were launched and the move away from government controlled space programs towards greater involvement by private companies. However, not all stakeholders were convinced that the reforms went far enough to modernise the Act in the global context, or that the amendments created a regulatory regime that strongly encouraged innovation and investment. The current process of review and the resultant recommendations provide a welcome opportunity for further reform.
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SEPARATING THE INDUSTRY ENGAGEMENT AND REGULATORY ROLES OF THE AUSTRALIAN SPACE AGENCY The report recommends that consideration be given to separating the industry engagement and regulatory functions of the Australian Space Agency (Agency), as well as transforming the Agency into a better funded statutory body engaging more staff who possess industry experience and expertise.2 Since its establishment in 2018, the regulatory role of the Agency has been to administer the licensing regime under the Act. The Agency is responsible for granting the array of licenses and permits required under the Act, which include: • Launch facility licenses – to allow a person to operate a launch facility in Australia; • Australian launch permits – to allow a person to launch a space object from either a launch facility in Australia, an Australian aircraft in flight, or a foreign aircraft in airspace over Australian territory, and can also authorise return to Australia; • Australian high power rocket permits – to allow a person to launch a high power rocket from a facility or place in Australia; • Overseas payload permits – to allow a person to launch a space object from a facility or place outside Australia; • Return authorisations – to allow a person to return a space object to Earth; and • Authorisation certificates – to allow specified conduct that might otherwise be prohibited under the Act. Given the Agency’s regulatory function, one submission to the Committee noted the potential for
conflicts of interest or direction with the Agency’s concurrent role of industry promotion and advocacy.3 Other submissions proposed establishing the Agency as a better funded statutory body that would improve Government coordination and promote greater efficiency in the application assessment process.4 Although the Committee did not go as far as recommending the division of the Agency’s roles or its transformation into a statutory body, it did recommend that these matters be given “careful consideration” as part of the Agency’s upcoming post operational review. 5
REDUCING THE COMPLEXITY AND DELAY ASSOCIATED WITH APPLICATIONS FOR LICENCES It is no surprise that submissions to the Committee by industry and stakeholders focussed on reducing the regulatory burden.6 There was some frustration with the length of time it can take to obtain a licence, with one submission estimating that even simple applications can take up to 6 months to approve.7 The Committee recommended that the Government consider further reforms to the Act, in consultation with industry, to simplify the application process so as to ensure the growth and competitiveness of the industry, the safe and responsible management of the space environment, and consistency with regulations in other countries.8 One particular suggestion made by industry participants was to remove the requirements in the Act to have a “suitably qualified expert” undertake various assessments of the proposed space activity, and to instead have these assessments undertaken either in-house or by the Agency.9 Currently, the rules under
SPACE REPORT
the Act require that risk hazard analyses, flight safety plans, and return safety plans must be performed or confirmed by a suitably qualified expert who is not a related party of the applicant. However, there are few external organisations that are able to provide such expertise10 and often greater expertise is located within the applicant company.11 Industry participants also noted the inconvenience of having to obtain separate licences from multiple jurisdictions.12 Currently, a party seeking to conduct a space activity will need to ensure that they comply with all the necessary licensing schemes separately. For example, an overseas payload permit will satisfy the Australian requirements for launching a space object overseas, but the applicant will also need to obtain the appropriate authorisation from the host country. It was suggested that a system of mutual approval of licences could be considered.13
MINIMISING THE COSTS INVOLVED IN SEEKING LICENCES Another recommendation was directed at minimising the costs involved in applying for a licence or permit under the Act. The focus of the Committee here was on a proposed partial cost recovery scheme, under which the Government proposed to charge application fees of approximately $189,894 per launch permit application.14 Such fees were described by industry as making Australia an uncompetitive launch location.15 One industry submission identified that although Australia had certain technical advantages for launch operations, it would be a less suitable location if the costs for launches were “grossly disproportionate to other like-minded commercial space-faring nations”.16
It was noted that, in comparison, New Zealand charges $60 and the USA $0.17 The proposed fee posed a particular detriment to small launch vehicle operators as it failed to adequately take into consideration industry trends towards lower launch costs for small satellites. One industry participant observed that the proposed fee would have been up to three times the cost of mission and rocket development.18 Ultimately, in a submission from the Queensland Government, it was said that there would be a negative impact on jobs and economic growth, particularly in a start-up industry that already faced high levels of competition from overseas.19 The Government had deferred the introduction of the partial cost recovery scheme until 1 July, 2022,20 but the Committee recommended that the Government consider further suspending or amending these fees.21 Following the release of the report, the Government announced on 3 March, 2022 that fees for launch permit applications will not be introduced.22
COMMENT The handing down of this report shows that the Government recognises the need for ongoing reform of the policies and laws regulating the space industry. If the Australian space industry is to remain competitive it is important for the Government to avoid disincentives to private enterprise such as the imposition of disproportionate license fees. The recent announcement that launch application fees will not be introduced will be welcomed by those involved in the space sector, particularly small launch vehicle operators. Beyond that, however, there is a real need for reforms to decrease the complexity of the licence application
process and to improve the efficiency of the Agency in processing applications. Legislative amendments to the Act that make it simpler, quicker and less costly to apply for and obtain licence and permits are needed to keep up with the pace of commercial activity in this rapidly developing sector. On this note, it was recently announced that the Agency has been tasked with making improvements to the regulatory framework by “strengthening the environment around those regulations, to identify improvements to procedures and practices, and to streamline interaction with industry”.23 Mark Giddings is a Special Counsel, Sophie Howe is an Associate and Ashwini Ravindran is a Law Clerk at LK Law. Sophie Howe is also a member of the Society’s Space Law Committee. B Endnotes 1 House of Representatives Standing Committee on Industry, Innovation, Science and Resources, The New Frontier: Developing Australia’s Space Industry (Report, November 2021) (Report). 2 Report, 41 at [2.115]. 3 Report, 105 at [4.63]. 4 Report, 16 at [2.29]-[2.30]. 5 Report, 41 at [2.115]. 6 Report, 97-99 at [4.33]-[4.39]. 7 Report, 97-98 at [4.34]. 8 Report, 109-110 at [4.78]. 9 Report, 99-101 at [4.40]-[4.46]. 10 Report, 99 at [4.40]. 11 Report, 100-101 at [4.44]. 12 Report, 98 at [4.35]-[4.36]. 13 Report, 98 at [4.36]. 14 Report, 101 at [4.47]. 15 Report, 101-103 at [4.47]-[4.54]. 16 Report, 101 at [4.48]. 17 Report, 102 at [4.50]. 18 Report, 102 at [4.49]. 19 Report, 102 at [4.52]. 20 Report, 103 at [4.53]. 21 Report, 110 at [4.79]. 22 The Hon Melissa Price MP, Minister for Science and Technology (Cth), ‘Keeping Australia’s space sector soaring’ (Media Release, 3 March 2022). 23 The Hon Melissa Price MP, Minister for Science and Technology (Cth), ‘Address to the Australian Space Forum’ (Speech, 3 March 2022).
May 2022 THE BULLETIN
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TAX FILES
Professional practices: what to do with the money you make PAUL TANTI, PARTNER, THOMSON GEER
S
ince the release of guidelines in 2016 by the ATO, taxpayers have been on notice that the ATO had concerns regarding the distribution of profits from professional practices. The ATO’s views have been finalised in Practice Compliance Guideline 2021/4 (PCG). Under the original guidelines released in 2016, if income derived from a professional practice was distributed to individuals or their associated entities and one of three benchmark tests was passed, the ATO was unlikely to take any audit or review action. Those benchmarks were that 50% or more of the income derived from the professional practice (which included the practice entity and its associated entities) was distributed to the individual professional practitioner (IPP) or the average tax rate of the IPP and its associated entities was 30% or more or the remuneration received by the IPP was at least equal to the amount paid to employees who performed a similar role. Due to concerns about the way the guidelines were being implemented by taxpayers, the Commissioner withdrew the guidelines and replaced them with the PCG. The PCG sets out requirements which,
26 THE BULLETIN May 2022
if satisfied, reduce the risk of any ATO audit activity. The PCG applies from 1 July, 2022 with various transitional provisions (which can extend until 2025). Under the PCG, taxpayers must pass two gateways to be able to rely on the PCG. These gateways are: 1. the structure of the professional practice has a valid commercial rationale and has been properly established; and 2. the professional practice does not contain any high risk features. If the two gateways are passed the IPP must consider three tests. These tests are essentially those in the 2016 guidelines. However, rather than being able to rely on passing one of those tests, each of the tests is now allocated points. The lower the points, the lower the risk of audit activity. Depending on the points allocated for each of the tests, the taxpayer will fall into either a green/low risk category, an amber/moderate risk category or a red/ high risk category. If taxpayers do not pass the gateways and therefore cannot rely on the PCG, the PCG indicates that taxpayers should contact the ATO to discuss their particular circumstances.
In order to satisfy gateway 1, taxpayers should review their constituent documents (e.g. company constitutions, trust deeds, partnership agreements) and relevant documentation (e.g. minutes of meetings, distribution statements) to ensure the entities have been validly established and that they reflect the structure of what occurs in practice. For example, if the practice is a partnership of discretionary trusts, minutes of the meetings of the discretionary trusts should reflect the fact that the attendees at the meeting are trustees of trusts or representatives of trustees of trusts, rather than individual partners. In relation to gateway 2, some of the features which the Commissioner considers high risk are: 1. multiple classes of shares or units with different rights. In particular, when shares or units are issued to individuals who do not have an equity interest in the practice or their associated entities; 2. Everett assignments done on terms which are different to the assignments in the Everett case; and 3. the differences between tax income and accounting or trust law income are exploited to provide advantages to taxpayers.
TAX FILES
If the professional practice or the individual IPP breaches the terms of the PCG, the ATO will consider applying the general anti-avoidance provisions in Part IVA. The PCG does not, in many respects, reflect the law regarding the distribution of income. If the income is derived by a business structure, rather than by the IPP, there is no legal requirement for income to be distributed in any particular manner. Therefore, the original common law provisions in the cases such as Gulland and Tupicoff and the PSI rules in divisions 86 and 87 of the Income Tax Assessment Act 1997 continue to apply. However, even if the structure of the professional practice and the distribution of its income comply with these legal requirements, the PCG should be considered. The ATO’s rationale for its views appears to be that, originally, professionals had to practice either in their own name or in a partnership of individuals. As the rules of the various professions have been amended to allow them to practice through entities such as companies and trusts, the ability to alienate income has increased. This appears to be the reason why the PCG is limited to professional practices and not other practices.
However, even under the original structures (individuals and partnerships of individuals), income could be alienated by way of Philips Case service trusts and/or Everett assignments. Taxpayers and their advisers should do a health check of the professional practices and/or their professional practice clients and IPP clients. Taxpayers should consider their position and the risks of the ATO taking audit activity if the structure and pattern of distributions remain unchanged. If changes are to be made, taxpayers must consider whether there are any adverse tax, stamp duty (unlikely in South Australia) or commercial difficulties or liabilities in making those changes. In many circumstances, changing the distributions of professional practices to come within the low risk/green zone or to move from a high risk/red zone to a moderate risk/amber zone or a low risk/ green zone, may not result in a significant tax or commercial cost to taxpayers. In these circumstances, making changes should be considered. If a professional practice does not pass the gateways and therefore cannot rely on the PCG, taxpayers and their advisers must consider whether they should contact the
ATO. If the professional practice does not satisfy the gateways, for example because the practice entity is a company or trust with different classes of shares and units, taxpayers must consider whether the ATO would take any action if the distribution of income by the practice and the IPP came within the low risk/green zone outlined in the PCG. All of these issues must also be considered in light of the ATO’s recent releases regarding the application of section 100A of the Income Tax Assessment Act 1936. These ATO releases target distributions by trusts and the potential application of section 100A. Based on the draft releases, many situations which would have been considered normal and acceptable, will now, potentially, be subject to section 100A. If section 100A applies, income which was previously distributed to beneficiaries would be assessable to the trustee and subject to tax at the top marginal rate. While these provisions are still draft and the ATO has stated that it will consider the feedback on the draft documents, the potential application of section 100A may impact on the distributions by professional practices. B May 2022 THE BULLETIN
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CLOUD COMPUTING
AN ANALYSIS OF THE LAW SOCIETY OF SOUTH AUSTRALIA’S CLOUD COMPUTING GUIDELINES: CONFIDENTIALITY MARK FERRARETTO, SOLICITOR, EZRA LEGAL
T
his is the second of five articles that analyse the Law Society’s Cloud Computing Guidelines against candidate cloud systems and on-premises systems. My thesis is that the caution expressed in the Guidelines should be applied as much to on-premises systems as cloud systems to obtain the best risk profile for a practice’s information systems. In this article we analyse the confidentiality issues that the Guidelines raise. Confidentiality Confidentiality is clearly an important obligation imposed on legal practitioners. Rule 9.1 of the Australian Solicitor Conduct Rules1 (ASCR) prevents disclosure of client data to third parties. ASCR rule 9.2 provides a list of exceptions to rule 9.1, of which only rule 9.2.1, which allows access by third parties with the express or implied authority of the client, could apply to cloud (and on premises) data. Paragraph 31 of the Cloud Computing Guidelines recommends alerting a client that their data could be disclosed by third parties because of its storage on cloud services. The Cloud Computing Guidelines recommends practitioners include a clause in their practice’s terms of engagement to reflect this. The use of cloud services does require the data to be disclosed to third parties, being at least the cloud service provider. Most cloud providers usually provide webbased tools to access data stored in the
28 THE BULLETIN May 2022
cloud, such as Microsoft’s online versions of Outlook or Word. Although most cloud providers encrypt the data they store, they also possess the keys to decrypt the data and must do so to process the data and display it in the web services they provide. However, the issue of third-party access also exists in the on-premises context. Many practices make use of a practice management system to which they usually subscribe and is usually maintained by a service provider, that is, a third party. These service providers will invariably have full ‘administrator’ access to the practice management system and the data stored within it. This is also the case for firms that engage IT service providers to support their IT infrastructure, such as servers, email systems, laptops and so-on. Clearly these providers are third parties and these providers also usually have ‘administrator’ access to a firm’s IT assets, resulting in potential access to confidential data. It follows that third-party access issues arise in the on-premises context as well as in the cloud context. However, risks arise in the on-premises context, especially with smaller practices who may not possess enough IT expertise to regulate the activities of third-party providers. Also, some providers may not be aware to the risks around confidential data leading to activities such as backing up client data unencrypted to a USB drive. In general, local providers do not provide the same level of control over data as cloud providers, especially the larger
providers. This could lead to a greater risk of unauthorised disclosure in an onpremises context than in a cloud context. At a minimum, the confidentiality risk is at least as prevalent in on-premises as it is in cloud. Regardless, a clause in a practice’s terms and conditions regarding thirdparty access by cloud services and/or IT providers is advisable. Another aspect of confidentiality is the destruction of data. If a practitioner deletes a file or an email is it really deleted? In cloud systems the effects of data ‘deletion’ vary depending on the service provider and the terms offered. Dropbox, for example, may keep data that has been deleted for up to 30 days.2 Google’s terms say that it may keep data for up to six months.3 Microsoft 365 retains deleted email for 30 days and files for 90 days.4 However, these can be configured by a practice’s administrator. LEAP may keep deleted data indefinitely!5 The long retentions in cloud services are usually a result of backup cycles. Although data may be ‘permanently’ deleted on the service itself, there may be copies kept on backup media and it may take some time for data to percolate out of the service provider’s backup cycle. On-premises data gives an impression of greater control, but still needs to be managed carefully. Desktop and laptop computers contain ‘Recycle Bins’ that may never be emptied. In addition, the backup issue also exists in the on-premises
CLOUD COMPUTING
Table 2 Confidentiality CONFIDENTIALITY PROVISIONS IN TERMS
THIRD-PARTY ACCESS TO DATA
RE-SELL DATA
DELETE/DESTROY DATA
Not specified
Not specified
Do not sell personal information
30 days
Dropbox Business
Yes
Subcontractors
Google Workspace
Yes
Subcontractors
Do not sell data for advertising purposes
Up to six months after deletion
Microsoft 365
Yes
‘Subprocessors’
No
Up to 180 days, option for permanent
LEAP
Yes
Not specified
Not specified
Up to 7 years
Actionstep
Yes
Yes, for analytics
No
30 days after termination
Depends on IT provider(s)
Yes
No
Depends on backup cycle
Dropbox
On Premises
context. Data permanently deleted from a computer system may still persist on backup media for some time. A 12 month backup cycle would be common amongst most practices, although many would have longer retentions, possibly extending to indefinite retention. Verdict At first glance, one would think that on-premises would win the data destruction issue, but if it does it doesn’t by much. Overall, my preference would be for the cloud system. The data disclosure risk is managed better and, while there may be less control over data destruction,
Use anonymised data for Default 180 days, option any purpose for permanent
data is likely to be retained for a shorter period than an on-premises system. Regardless, it is advisable to heed the Guidelines’ recommendation to include a clause in your terms of service regarding access of client data by third parties. In the next article we discuss data security, an issue widely perceived to be a risk with cloud systems, but which we will see is potentially a greater risk with onpremises systems. B Endnotes 1 ‘Australian Solicitors’ Conduct Rules (SA) 2011 V3 with Commentary’ (Law Society
2 3
4
5
of South Australia, 1 July 2015) <https:// www.lawsocietysa.asn.au/pdf/Australian%20 Solicitors’%20Conduct%20Rules%20(SA)%20 2011%20V3%20with%20commentary.pdf>. Dropbox, Privacy Policy (n 10). Google, ‘How Google Retains Data That We Collect – Privacy & Terms – Google’, Google <https://policies.google.com/technologies/ retention?hl=en-AU>. Microsoft, ‘Data Retention, Deletion, and Destruction in Microsoft 365 - Microsoft Service Assurance’, Microsoft <https://docs.microsoft. com/en-us/compliance/assurance/assurancedata-retention-deletion-and-destructionoverview>. ‘Supply and Support Terms and Conditions (with 12 Month Money Back Guarantee)’ (LEAP, 1 August 2016) [12].
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WELLBEING & RESILIENCE
Building wellbeing culture in the workplace WELLBEING AND RESILIENCE COMMITTEE
H
ere we are in May 2022 and we find ourselves continuing to adjust to the “new normal” of COVID-19. Many in our workplaces, families and communities have contracted COVID-19 and had first-hand experience; health mandates are changing at an incredible pace and there are some signs of a return to normal with overseas travel again available - but how are we dealing with this at a workplace level? Unsurprisingly the 2021 International Bar Association report, Mental Wellbeing in the Legal Profession: A global study (https:// www.ibanet.org/document?id=IBA-reportMental-Wellbeing-in-the-Legal-Profession-AGlobal-Study), confirms that over a third of legal professionals globally feel their work negatively affects their mental health and that a stigma around mental wellbeing remains. The pandemic has undoubtedly upended how we think about wellbeing and mental health. It is no longer a “nice to have” but key to the strategy of attracting and retaining the talent within our firms. The culture of wellbeing and psychological health are key drivers for success at a firm and at an industry level but where do you start? Naturally the legal profession is vulnerable to poor mental health given the stressful nature of the work itself, intensive demands, time pressure and often a lack of resources. The Society’s Wellbeing and Resilience Committee is committed to providing practical suggestions on how firms and practitioners can revisit their current plans and create some goals to continuously improve the wellbeing culture within their workplace. 1. Events are not enough Before COVID-19, recognising mental health through a few events per year, say
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R U OK and mental health month were seen as acceptable. The focus is not on events but on taking care of ourselves and our teams. Events are great; they are about connecting and sharing knowledge but do they demonstrate that you really care about your team or are they just a tick box exercise? 2. Leadership 101 According to the 2021 Global Burnout Study (https://infinite-potential.com.au/2021global-burnout-study), burnout levels have increased by 5 percent. Burnout occurs when an organisation’s culture or structure creates unmanageable stress for its people. Two major causes are a lack of manager support and unclear communication. Being a good leader is complex and more of an art than a science. Partners of firms are charged with a heavy burden to be an expert in their area of law and an expert leader, the latter often with no training nor support. As a leader there are two things you can do without formal leadership training, that you already have expertise in as a legal practitioner. The first is active listening: put down your phone, look away from your filling inbox and focus on what your employees are saying. The second is to identify any changes in behaviour and ask the question R U Ok?. Be an empathetic leader; the days of ‘suck it up’ are long gone. Replace that with ‘it sounds like what you are going through is really challenging, how can I support you?”. 3. Culture Audit The commitment to wellbeing is not an easy journey at an individual or organisational level. Inaction is not always intentional, but it perpetuates the impression that wellbeing is not important and speaks louder than attempts at small steps that lead to sustainable change.
Consider a culture audit for your team/ practice/firm: • Who in the team/practice/firm is a role model for wellbeing? What are those characteristics/behaviours and how can they be emulated? • What are the issues in the workplace leading to wellbeing concerns? Do people feel comfortable to raise them? • How can work be better delegated? Delivery expectations managed? • What actions can be taken to foster a better culture? How can leaders be better ambassadors? 4. Keep it on your agenda The impact of wellbeing is not just on the individual or on culture as standalone issues. Poorly handled wellbeing can cause economic and reputational damage to individuals and firms through PI claims and by clients being poorly serviced and seeking alternative legal services, impacting the revenue of your practice. This alone should encourage you to put wellbeing on your team / practice / firm agenda each month for genuine conversation. 5. Know your resources • The Law Society of South Australia ∘ Use the free Wellbeing and Resilience Online programme as part of your firm induction program (https://www.lawsocietysa. asn.au/Public/Lawyers/ Practitioner_Support/Wellbeing_ Online.aspx). ∘ Promote the confidential Lawcare service - a general practitioner (Dr Jill) with experience supporting social and psychological problems (https:// www.lawsocietysa.asn.au/Public/ Lawyers/Practitioner_Support/ LawCare_Support_Groups.aspx).
WELLBEING & RESILIENCE
∘ Professional Advice Service – access to a panel of experienced lawyers wiling to assist colleagues with personal and professional problems (at link above). ∘ Young Lawyers’ Support Group – assistance from practitioners to young lawyers who may feel the need for some independent guidance from experienced colleagues (at link above) ∘ Lawyers’ Complaint Companion Service – for members who are the subject of a complaint to the Legal Profession Conduct Commissioner (first hour free, at link above). ∘ Women Lawyers Mentoring
Program – guidance and support from more experienced practitioners for professional development of early career female lawyers (at link above). • Sole Practitioners Committee ∘ Self-employed legal professionals are particularly affected by a lack of support and uncertainty. The LSSA recognises this and encourages all sole practitioners to be involved in the activities of the Sole Practitioners Committee. • Beyond Blue 1300 224 636. • Lifeline 131 114. • Relationships Australia 1300 364 277. Investing in a wellbeing culture within
a workplace future-proofs your workplace culture, your delivery to clients and long term health. The legal industry is subject to constant change and this constant evolution of innovation, creation and adaption is near impossible to do when our wellbeing is running on empty. We have come a long way during these COVID years but a continuing concerted effort is what will drive sustainable change. References https://www.ibanet.org/ document?id=IBA-report-MentalWellbeing-in-the-Legal-Profession-AGlobal-Study. https://infinite-potential.com.au/2021global-burnout-study.
Why I chose the Heart Foundation as the President’s Charity Partner JUSTIN STEWART-RATTRAY
T
he Heart Foundation has been chosen as to be the President’s Charity Partner this year. I chose the Heart Foundation for a number of reasons. Like many people, I have several loved ones who have been affected by heartrelated illness. I have friends around my age who were supremely fit who all of a sudden needed major heart surgery. Lawyers often work in high-pressure environments which cause considerable stress. The Society’s Wellbeing Survey conducted last year showed just how widespread the negative health effects are working in the legal profession. The recent tragic deaths of Shane Warne, Senator Kimberley Kitching and
Taylor Hawkins, the drummer of the Foo Fighters, serve as stark reminders of the fragility of life and how severe heart problems can strike with little warning. It is so important that we monitor our health and have regular check-ups. This year the Society will host a number of fundraising events for the Heart Foundation. Dr Marie Ludlow, Manager of the SA branch of the Heart Foundation, will also attend some Society events to provide educational sessions about heart health. Some upcoming events and campaigns include: • 2-8 May: Heart Week - raising awareness about heart health. • Commencing July: Campaign to raise awareness of the Heart Age Calculator
•
September (date TBC): Give with Heart Day - fundraising campaign. • October: MyMarathon fitness & fundraising challenge. We have all been impacted in some way by COVID-19 in the past two years. For many, it has exacerbated previous health issues, and unfortunately, it has made it more difficult for people to visit their doctor and undergo essential health check-ups. My message is: Don’t delay - get your heart health checked. For more information about heart health checks and booking a health check, visit the Heart Foundation’s Heart Health Check webpage. Donate to the Heart Foundation. May 2022 THE BULLETIN
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YOUNG LAWYERS
Performing at your performance review MIKAYLA WILSON, SEDSMAN LEGAL, LAURA CORBETT, DICKSON WRIGHT LAWYERS AND MOLLY SHANAHAN, FINLAYSONS LAWYERS
T
he Young Lawyers’ Committee were grateful to be able to hold the annual ‘Performing at Your Performance Review’ Seminar which (despite on-going COVID complications) we were glad to hold inperson (and via webinar) on Thursday, 31 March, 2022 at Finlaysons Lawyers. The seminar featured panellists Rebecca Sandford (Special Counsel, HWL Ebsworth and Former President of the Law Society of South Australia) and Will Snow (Partner and Practice Leader, Employment, Finlaysons Lawyers) who shared observations they have garnered over their successful careers respectively, and offered practical advice on how practitioners can get the most out of a performance review. Sam Burford (Partner, Dispute Resolution and Litigation – specialising in construction, Finlaysons Lawyers) also attended the seminar and offered some further insights and advice on the topic as an informal panel member. We are thankful for the advice and tips received from all three panellists. The panellists agreed that the most stand-out performance reviews come from those who noticeably prepared and had done the groundwork prior to their review. This includes having a goal/outline of what topics you would like to discuss in the performance review. In their view, being thoroughly prepared can help to alleviate the stress of what may be considered a confronting experience for many young practitioners. Another tip for a smooth performance review was for practitioners to do some groundwork during the year to open up the communication channels early on and minimise any surprises when the review comes around. A short informal meeting or coffee break with their supervisor every three months was suggested as an excellent way to implement this. This will enable issues to be addressed as they arise, and for feedback to be provided on a regular basis, so that when the time comes, a performance review can be spent reflecting on the practitioner’s accomplishments and learnings, discussing individual goals, and forming productive plans for the year ahead. It was suggested that whilst
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performance reviews can be a daunting time of year, they can also provide the opportunity for young lawyers to discuss with their superiors the progress of their learning and discuss which tasks they excelled in and would like to do more of in the future. The panellists both agreed that not only is performance review season daunting for the young lawyer, but it is also daunting for the performance reviewer, suggesting that it can be a difficult task for some to give constructive feedback, especially if there are some areas of concern with the practitioner’s performance. The panellists encouraged the young lawyers to ask “what do I need to be doing better” or “how can I improve”. They suggested that asking questions along these lines can assist the reviewer to discuss areas of concerns more openly, which although may be difficult to hear, is ultimately of high value to enable a practitioner to grow and develop. The topic of salary was raised, with panellists flagging the importance of keeping in mind the difference between a performance review (open discussion about development and career progression) as opposed to a salary review (an evaluation of base salary), noting however that these can often be combined into one review at some firms. On the topic of salary increases, the panellists commented that it is helpful for practitioners to have discussions within their social circles to gain an insight into salary benchmarks. The topic of self-reflection was also discussed and the panellists highlighted that prior to a practitioner’s performance review, they should think about opportunities for growth and development of skills. These areas can be brought up within the performance review in addition to the practitioner highlighting what they believe they have been doing well. It was discussed that although self-reflection can be difficult, it is a great process to ensure that a practitioner’s career doesn’t end up somewhere the practitioner doesn’t want it to go. Practitioners should reflect on their career by looking at where they are currently, where they want to be and what
facebook.com/YLCSA they need to change to get there. Attending a performance review with clear feedback from clients and colleagues makes it easier for the reviewer to fairly assess performance resulting in a more productive performance review and better outcomes for the practitioner, reviewer and the firm as a whole. The panellists also emphasised the importance of contributing to the social fabric of the firm, by attending Friday night drinks, social club events and just being part of the social culture of the firm. While billable hours and technical legal skills are important, firms are looking for more than practitioners that simply come to work, do the hours and go home. Firms are generally looking for a wellrounded person so it is also important at performance reviews to discuss extracurricular and developmental activities that a practitioner has been involved in throughout the year. This could include being involved in Law Society committees, attending marketing or business development events, drafting a summary from a webinar to circulate internally, getting involved in the firm’s social events, providing a case law update for clients and collaborating with colleagues in other practice areas. Participating in these activities showcase to the firm the potential that a practitioner may have in the future when being more involved with interacting with clients and importantly helps to answer the question; “does this person have potential to bring in new work to the firm”. The panellists concluded this part of the discussion by emphasising that collegiality, networking with colleagues and building connections are extremely important and should be discussed during performance reviews to assist with showing the reviewer how the practitioner is an asset to the firm. Overall, practitioners should reflect on and discuss what value they bring to the firm. The Young Lawyers’ Committee would like to thank Burgess Paluch Legal Recruitment and legalsuper for their ongoing support, Finlaysons Lawyers for generously hosting and the panellists for their valuable time and insight.
FAMILY LAW CASE NOTES
Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK
PROPERTY – REGISTRAR ERRED WHEN AN APPLICATION FOR CONSENT ORDERS WAS DISMISSED AFTER HUSBAND’S DEATH WHEN WIFE WITHDREW CONSENT
I
n Hullet & Benton [2022] FedCFamC1A 13 (11 February, 2022) the Full Court (Austin, Tree & McEvoy JJ) dismissed an appeal from Macmillan J’s decision in Hullet & Benton [2021] FamCA 449. Upon a review of his decision, a Registrar was held by Macmillan J to have erred when an application for consent orders was dismissed following the husband’s death and the wife’s withdrawal of consent. Macmillan J held that the proceedings could continue where the rules enabled the husband’s executor as legal personal representative to apply as to the future conduct of the proceedings. The wife appealed, arguing that when determining the review application, Macmillan J’s power was limited to either granting the application for consent orders or dismissing it; the latter being the only option in the absence of the wife’s consent. She argued that an application for consent orders was a “different species of application to an adversarial application … and had to be treated differently” (at [10]). The Full Court said (from [15]): “… The existence of a ‘judgment’ is the pre-requisite for a competent appeal (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCA Act’)), for which purpose a ‘judgment’ is defined to include an order or decree, whether it be final or interlocutory (s 7 of the FCFCA Act).
[16] … [A] ‘judgment’ does not include a mere ruling on a question of law which is not decisive of the parties’ rights in the justiciable dispute, even if it is expressed in the form of an order … [17] … [N]one of the orders amount to a ‘judgment’ since none is decisive of the parties’ rights under Pt VIII of the Act. The orders do no more than achieve the continuity of the proceedings. … [18] Leave to appeal must be refused once it is understood that no appeal validly lies. ( … )”
PROPERTY – ERRONEOUS DISMISSAL OF THE PARTIES’ COUNTERVAILING APPLICATIONS FOR SOLE OCCUPATION In Sarto [2022] FedCFamC1A 16 (10 February, 2022) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed an appeal in a case where the Court heard countervailing applications for sole occupation of the former matrimonial home. The wife had vacated the home upon separation, but sought an exclusive occupation order to move back in, despite being the sole registered owner of the property. The husband had lived in the property since separation and sought a sole occupation order. The Magistrates Court of Western Australia dismissed both applications. The wife appealed. Austin J said (from [11]): “… Being the sole legal proprietor of the property, absent an injunction to
the contrary, [the wife] … is entitled to exclusive possession ( … ) [14] Regardless of whether or not persons are married, property law governs the ascertainment of their property rights and interests (Wirth v Wirth [1956] HCA 71 …). ( … ) [19] The husband … seeks to obtain a property settlement order which substitutes him as the exclusive legal proprietor of the property … [T]he success of the husband’s claim depends upon an eventual exercise of discretion … under Pt VIII of the Act adjusting the … existing property interests. ( … ) [20] In the face of the wife’s withdrawal of consent, the only way … the husband could evade ejection from the property was by securing an injunction to restrain the wife from exercising the rights which attend her legal title … [21] … Evidently, the magistrate concluded it was not proper to do so, because the injunction sought by the husband was refused. ( … ) [24] … [T]he magistrate also refused to make the orders sought by the wife … The magistrate decided no order was necessary, but that conclusion was reached on the false premise that making no order at all would then permit the husband to continue residing in the property ( … ) [30] … The husband … has not demonstrated it would be ‘proper’ to grant an injunction depriving the wife of her legal entitlement to possession of the property. An order should be made requiring the husband to immediately vacate the property. … ” May 2022 THE BULLETIN
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FAMILY LAW CASE NOTES
CHILDREN – ORDER FOR VACCINATION OF CHILD AGAINST COVID-19 – EVIDENCE OF PUBLIC HEALTH RESEARCHER PREFERRED In Palange & Kalhoun [2022] FedCFamC2F 149 (16 February, 2022) Judge B Smith heard an application for a 10 year old child to be vaccinated against Covid-19. The Court directed each parent to file any expert evidence that they sought to rely upon. The mother filed an affidavit of “Dr E”, a public health researcher in the area of vaccination, who had a PhD in public health amongst other qualifications. There was no other expert evidence. The mother also sought to rely upon publications by the World Health Organisation and the Center for Disease Control Prevention. The Court said (from [68]): “ … [E]ach party has given evidence of what various bodies have said, and what is contained in the pamphlets provided, to seek to prove the truth of those statements. ( … ) [81] Dr E … has a PhD on the topic on which she has given her opinion. She currently works in the field in which she has given her opinion and her role is to study the area on which she gave an opinion. There was no challenge to Dr E’s expertise. ( … ) [83] … I am satisfied that Dr E’s opinion evidence sufficiently satisfies the criteria for admissibility pursuant to s.79 Evidence Act ( … ) [109] … I do not consider it appropriate to give any weight to either of [the parties’] opinions on the medical and public health issues associated with COVID-19 infection or vaccination. ( … )
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[111] … I also give no weight to the pamphlets tendered by the mother. [112] … I give substantial weight to the unchallenged and uncontested evidence of Dr E who is a highly qualified expert. (…) [154] My role is to consider and weigh the relative risks … taking into account the evidence before me, and … to make a decision as to what course of action I believe is in his best interests. … [155] … I am satisfied that it is in the child’s best interests to be vaccinated against COVID-19 … ”
PROPERTY – COURT ERRED BY NOT PROVIDING REASONS WHEN REJECTING A VALUATION THAT WAS NOT FROM A SINGLE EXPERT In Cantoni [2022] FedCFamC1A 11 (7 February, 2022) the Full Court (McClelland DCJ, Williams & Wilson JJ) allowed an appeal from a decision of Foster J, reviewing an interim order for the sale of a property made by a Senior Registrar. The property had been subject of construction that had stalled. The husband sought interim orders for the immediate sale of the property. The wife sought the appointment of a single expert as to value and orders for a builder to complete the construction, and for the property to be sold upon completion. After the Senior Registrar ordered an immediate sale; the matter came to the Court for review, where Foster J refused the wife’s solicitor’s oral application for leave to rely upon adversarial evidence as to value, the only reason given being “she’s not a single expert” ([18]).
The Full Court said (from [22]): “The obligation to give reasons varies with the circumstances of the case (Police Federation of Australia and Another v Nixon and Another [2011] FCAFC 161 … at [67]). ... While there is generally no need to give detailed reasons when exercising a procedural discretion such as, whether in the context of this case the affidavit of [the adversarial expert] … should have been admitted into evidence, the reasons provided must nonetheless disclose the process of reasoning … [23] The primary judge in this matter was placed in an invidious position as a result of the appellant not having complied with the requirements of the then applicable Family Law Rules 2004 (Cth) (‘the Rules’). First, the appellant did not file a formal application seeking leave to rely on an adversarial report. Second, the appellant failed to support such an application with an affidavit addressing the requirements of the Rules as required of a party seeking to rely upon an adversarial report. … ( … ) [27] … [T]he primary judge did not, in giving reasons for rejection of the report … refer to those matters. Instead, the reason provided by the primary judge for rejecting the report … was solely that she was not ‘a single expert.’ ( … ) [29] The failure of a trial judge to provide adequate reasons makes it impossible for the party aggrieved by the ruling and for an appellate court to determine whether the ruling was based on an error of law and, in those circumstances, the failure to give reasons will itself constitute an error of law … ( … )” B
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LawCare
The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems. If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you. Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse. The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year. All information divulged to the LawCare counsellor is totally confidential. To contact Dr Jill 08 8110 5279 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher
The Litigation Assistance Fund (LAF) is a non-profit charitable trust for which the Law Society acts as trustee. Since 1992 it has provided funding assistance to approximately 1,500 civil claimants. LAF receives applications for funding assistance from solicitors on behalf of civil claimants seeking compensation/ damages who are unable to meet the fees and/or disbursements of prosecuting their claim. The applications are subjected to a means test and a merits test. Two different forms of funding exist – Disbursements Only Funding (DOF) and Full Funding. LAF funds itself by receiving a relatively small portion of the monetary proceeds (usually damages) achieved by the claimants whom it assists. Claimants who received DOF funding repay the amount received, plus an uplift of 100% on that amount. Claimants who received Full Funding repay the amount received, plus 15% of their damages. This ensures LAF’s ability to continue to provide assistance to claimants. LAF recommends considering whether applying to LAF is the best course in the circumstances of the claim. There may be better methods of obtaining funding/ representation. For example, all Funding Agreements with LAF give LAF certain rights including that funding can be withdrawn and/or varied. For further information, please visit the Law Society’s website or contact Annie MacRae on 8229 0263.
Marita Bajinskis
formerly of Howe Martin & Associates is a Principal at Blackwood Family Lawyers in Melbourne Marita is an Accredited Family Law Specialist and can assist with all family law matters including: • • • •
matrimonial and de facto property settlements superannuation children’s issues
3/224 Queen Street Melbourne VIC 3000 T: 03 8672 5222
Marita.Bajinskis@ blackwoodfamilylawyers.com.au www.blackwoodfamilylawyers.com.au
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