The Bulletin - November 2019

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 41 – ISSUE 10 – NOVEMBER 2019

INSIDE

Who has jurisdiction over activity in a plane?

100th anniversary of the famous England to Australia flight Diary of a travelling lawyer

OVER THE SEAS NAVIGATING THE LAWS OF LONG DISTANCE TRAVEL

PIONEERS OF LUXURY SAFARI ADVENTURE Handcrafted Private & Small Group Journeys Abercrombie & Kent invented the luxury tented photographic safari in East Africa in the early 1960s, and we’ve remained the benchmark for quality and adventure on the continent in the many decades since. Today, we operate dozens of local offices, luxury camps, and conservation and community development projects throughout Sub-Saharan Africa, with experts on the ground to serve the world’s most discerning, intrepid and enlightened travellers in South Africa, Botswana, Namibia, Zimbabwe, Zambia, Mozambique, Tanzania, Rwanda, Kenya, Uganda and Ethiopia. Whether you’re tracking predators along the waterways of the Okavango Delta, climbing Mt Kilimanjaro, trekking to a remote gorilla community in the Impenetrable Forest, following the Great Migration across the Serengeti or Masai Mara, or on another bespoke cultural and wildlife experience anywhere in Africa, an A&K luxury safari is quite simply the greatest outdoor adventure holiday you will ever have. Act now to secure the finest properties, the most knowledgeable guides and the best game-viewing experiences on earth.

Talk to your travel agent or call Abercrombie & Kent on 1300 851 800. www.abercrombiekent.com.au

A&K’s 2020 Africa, Arabia & Persia portfolio is out now. Visit abercrombiekent.com.au to download or to order your copy.

This issue of The Law Society of South Australia: Bulletin is cited as (2019) 41 (10) LSB(SA). ISSN 1038-6777

CONTENTS LONG DISTANCE TRAVEL 6

10

Territorial limits on flights: Aircraft and jurisdiction – By Andrew Harrington & Auguste Hocking Epic flight centenary: The flight that took aviation to new heights

By Nathan Ramos

23

The establishment of Lloyds of London and the history of marine insurance – By Ian Maitland

REGULAR COLUMNS

32

Relocation after relationship breakdown: An introductory guide

By Melissa Boyle

4

From the Editor

5

President’s Message

19

Dialogue: a round-up of Society meetings and conferences

37

Young Lawyers: Making the ‘Ethics Point’ fun since 2012

38

From the Conduct Commissioner: The investigation process – how long is a piece of string? – By Greg May

34

Bon Voyage: The International Human Rights of Travel and Tourism

By Raffaele Piccolo

12

Consumer Protection and the end of the Travel Compensation Fund

By Dr Susan Errington

14

The ongoing burden of visa cancellation even after serving time

By Christina Lien & Chris Johnston

26

Mock trial gives personal injury lawyers a taste of the court room

40

Tax Files: Legal practice structures A call to arms – By Stephen Heath

28

Vale: Professor Ivan Shearer

42

16

Diary of a travelling lawyer

29

43

Military aviation safety in the Department of Defence

By FLTLT Barrie Bardoe

Gazing in the Gazette

20

Taking instructions for a will – notes on Howe v Fischer – By David Barnfield

Risk Watch: New Family Law Risk Management Package – By Grant Feary

30

“Eynesbury Senior College wins Mock Trial Grand Final – By Lauren Roberts

44

Bookshelf

45

Family Law Case Notes

Executive Members President: A Nikolovski President-Elect: T White Vice President: R Sandford Vice President: M Frayne SC Treasurer: F Bell Immediate Past President: T Mellor Council Member: E Shaw Council Member: S Hooper Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich S Hooper T Vozzo V Gilliland F Bell M Mackie M Boyle M Smith E Shaw R Shaw J Stewart-Rattray J Marsh C Charles Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region)

FEATURES & NEWS

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

Junior Members R Piccolo

Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au

Ex Officio Members The Hon V Chapman, Prof R Sarre, Prof M de Zwart, Prof T Leiman

Programme manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au

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

Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia.

No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions.

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FROM THE EDITOR

Travel warning: The pleasures and pitfalls of travelling

IN THIS ISSUE

MICHAEL ESPOSITO, EDITOR

A

s the end of the year approaches, some of you may be preparing for a well-earned holiday. Whether you’re planning to experience a white Christmas, looking forward to uninterrupted relaxation on a tropical island, going on a journey of self-discovery in a far-flung locale, or organising a road trip to catch up with family and friends, we are fortunate in Australia to have the means to access relatively safe and affordable travel.

But things can go wrong. There are countless horror stories of tourists getting into strife due to bad behaviour, misunderstandings of foreign laws, lost or stolen belongings, illness, and cultural clashes.

The trouble can start before travellers leave for their even destination, as Dr Susan Errington explains in her article on the collapse of several travel agents.

Australians have little recourse for compensation if they pay for a holiday package through a travel agent and the agent goes bust, unless that travel agent has relevant consumer protections in place.

Australian customers of travel agents did have greater protection when the Travel Compensation Fund was in operation, but it was abolished in 2012 due to the cost burden it placed on travel agents.

The most high-profile recent collapses of tourism industry companies have been BestJet and Thomas Cook. Luckily for British customers of Thomas Cook, the UK has a government-funded protection

4 THE BULLETIN November 2019

scheme that allowed stranded tourists to get home at no financial expense.

This is just one of many fascinating issues relating to law and travel. The nature of long-distance travel raises complexities with regards to who has jurisdiction over travellers in a moving aircraft that crosses borders. Solicitor Andrew Harrington and Auguste Hocking, Assistant General Counsel at the International Air Transport Association, explore this multidimensional issue in this edition of the Bulletin.

Elsewhere, Raffaele Piccolo examines the rights of people to travel freely with the rights of locals to not have their quality of life undermined by tourism. Sadly, there are examples around the world of locals who work in the tourism industry being exploited (and not reaping the benefits of the tourism dollar), or tourism construction displacing locals or compromising the natural resources they rely on.

Also in this edition is a primer on how the safety of military aircraft is regulated and enforced in Australia, and a history of maritime insurance going back to 1719 when Lloyds of London had a monopoly on this form of insurance.

Last, but certainly not least, I implore you to read the “Diary of a travelling lawyer”. Written by a jet-setting practitioner who goes by the nom de plume “Marco Polo”, the article takes us on a hilarious, and at times hair-raising, journey to some of the most fascinating places in the world. While the byline is fake, the stories are very real. B

12

FLYING BLIND The impact of travel agents going bust

23

SEAFARER PROTECTION The evolution of maritime insurance

32

MOVING AWAY Relocation after family break-down

PRESIDENT’S MESSAGE

Practical advocacy yields positive change AMY NIKOLOVSKI, PRESIDENT, LAW SOCIETY OF SOUTH AUSTRALIA

T

he Society has been particularly active on the advocacy front in the past few months, and it has been pleasing to see several instances where the Society’s recommendations have been adopted.

Last month, The Hon Brian Martin’s Report into his review of major indictable reforms was released. The review examined the impact of reforms to the major indictable process that came into effect on 5 March 2018.

The Society, represented by Co-Chair of the Society’s Criminal Law Committee Craig Caldicott, met with Mr Martin on several occasions to highlight issues with the current system and make practical recommendations on improving the major indictable process so that cases are managed more expeditiously.

We also presented a written submission to the Review, in May, setting out key asks for improving the system and reducing the lengthy delays in the system the system.

Pleasingly, Mr Martin’s recommendations reflected a number of the Society’s own recommendations. Some of Mr Martin’s key recommendations include: • The DPP undertake adjudications in all matters involving major indictable matters; and the DPP, rather than SA Police, should appear at the second appearance and thereafter.

• A time limit of eight weeks should be prescribed as the standard period following the first appearance for service of the preliminary brief upon the DPP and the accused.

• Amendment to the legislation to provide, specifically, that immediately following a plea of guilty the offender is to be committed to the superior court for sentence.

• Amendment to the legislation to provide that, following committal for sentence, within an appropriate time after service by the DPP of a Crown statement of facts, the offender is required to respond to the Crown statement of facts, specifically identifying any areas of dispute.

The Society strongly supports the Report and urges the Government to adopt the recommendations and ensure the DPP is sufficiently resourced to take charge of matters early in the major indictable process.

The Society also recently made a submission on a draft Land Acquisition (Miscellaneous) Amendment Bill 2019, which related to the process of compulsorily acquiring property to build the North-South Corridor Upgrade, and dealing with disputes in relation to property acquisitions.

The Bill as introduced to Parliament contained a number of amendments that reflected the Society’s submission, providing for a more level playing field for claimants whose properties are being acquired to resolve disputes.

The Attorney General recently made the big announcement that SA will be getting a Court of Appeal. Our consultation with practitioners seems to indicate tentative support for the establishment for a stand-alone appeals jurisdiction, however we have raised some questions on behalf of Members with the Attorney over the constitution and resourcing of the proposed Court of Appeal. Pleasingly, the Society’s suggestion that the Court of Appeal be constituted by three judges as opposed to two judges (as originally proposed) was adopted.

One of the most contentious State

Government policies this year has been the proposed reforms to South Australia’s land tax regime. While the Society is not in the business on critiquing tax policy, we did feel an obligation to examine the Bill to reform the Land Tax Act from a legal perspective, particularly as the reforms would apply retrospectively.

The Society pointed out the amendments target legitimate structures people have established over the years to plan for their tax obligations, to protect assets, and for the purposes of estate planning and family succession planning, and that these new measures will create liabilities and obligations which were never envisaged at the time these structures were put in place.

Another controversial issue has been the introduction of a Bill that seeks to remove restrictions on reporting on sexual offences. The Society remains of the view that the current restrictions in the Evidence Act should remain. Sexual offences are a special class of offence and attract a serious stigma for both the accused and the victim, which, if the accused is ultimately found not guilty, has lifelong consequences.

In debating such emotive issues such as this, it is important to differentiate between what is in the public interest and what is interesting to the public.

Despite being close to Christmas, things certainly are not slowing down.

Over the next few weeks the Society will formally advocate for the minimum age of criminal responsibility to be increased from 10 years of age to 14 years of age, consider the SA Law Reform Institute’s Reference on abortion laws, and work with the Law Council on Australia on responding to the Federal inquiry into the Family Law system. B November 2019 THE BULLETIN

5

TRAVEL

TERRITORIAL LIMITS ON FLIGHTS: AIRCRAFT AND JURISDICTION ANDREW HARRINGTON, SOLICITOR, NORTON WHITE LAWYERS AND AUGUSTE HOCKING, ASSISTANT GENERAL COUNSEL, INTERNATIONAL AIR TRANSPORT ASSOCIATION for activity on board aircraft Jurisdiction has posed legal and practical problems for the international community over many years. First drawing inspiration from maritime law, a complex body of treaties, national law and practice has gradually arisen for aircraft, their nationality and for when a State (or States) has jurisdiction.

This article attempts a summary of the main principles, rules and scenarios relevant to these questions.

It is helpful to recall States have claimed for themselves unquestioned jurisdiction within their borders “territorial sovereignty” in the classic Westphalian sense. The Chicago Convention restates this, providing that “every State has complete and exclusive sovereignty over the airspace above its territory.”1 Aircraft and oceangoing vessels are an uncomfortable problem for territorial jurisdiction, naturally, because they are movable and will frequently pass through different States, or in or over the high seas. Once in a foreign State, they are subject to its navigational rules and general territorial jurisdiction - yet they also have a temporary interior community of sorts, being a place in which people interact and things can happen, such as crime, birth, death and commerce.

“Aircraft” reportedly had no original common law definition2 but treaty law from 19193 attributed nationality to them according to their place of registration.

6 THE BULLETIN November 2019

Nationality is important for our discussion as one nexus allowing a State to regulate persons outside its territory at general international law.4 As a supplement to this unwritten principle, the Tokyo Convention was devised in the 1960s to cure a perceived absence of criminal law on board aircraft.5 It reaffirms that States are competent to apply jurisdiction to aircraft on their registry but also requires them to establish jurisdiction for “offences and acts committed on board”.6 Tokyo’s jurisdictional base was not intended to be exclusive, however, with the Convention acknowledging other bases could operate concurrently.7 It should also be noted that Tokyo does not codify or define “offences against penal law”, leaving the matter to criminal law.8 Restating this concretely, an aircraft enters or exits Australian territory at the 12 nautical mile mark, which is the boundary of the territorial sea.9 Upon entering Australia’s airspace, a foreign aircraft would be obliged to apply Australian rules applicable to air navigation and Australian law.10 Jurisdictionally speaking, and applying just the Tokyo Convention, the applicable law would be that of the aircraft’s State of registration over the high seas and—once over Australia—the law of the State of registration and Australian law. So—for the scenario of an arriving UAE-registered aircraft—a punch could be thrown outside Australia and, once the aircraft lands, only

the UAE would have jurisdiction.11 This socalled “jurisdictional gap” creates obvious problems. In Hong Kong, the Court of Appeal case of The Queen v Duggam is emblematic and dealt with the situation of fraud offences committed on board a Qantas aircraft.12 Because the aircraft was not “British-controlled”, the offences were not considered offences against Hong Kong law and the accused was acquitted.13 The general position described above for the Tokyo Convention is modified in Australia. Conduct on board aircraft is dealt with by Commonwealth statute law.14 The Crimes (Aviation) Act 1991 deals with offences directed against aircraft and airports.15 Importantly, the Act defines aircraft as either “Division 2 aircraft”16 or “Division 3 aircraft”17 and applies extraterritorially under Section 12, which states that the Act extends to acts, omissions, matters and things outside Australia, whether or not in or over a foreign country. The Act also states application “to all persons, irrespective of their nationality or citizenship.”18 Part 2 of the Act, which applies to Division 2 and Division 3 aircraft separately, deals with offences such as assaulting crew members, endangering the safety of the aircraft, threats and false statements. Broad jurisdiction is therefore adopted, including in effect State of landing jurisdiction, to allow Australian authorities to receive and prosecute persons believed to have

TRAVEL

committed a relevant offence, regardless of the nationality of the aircraft in question.

Australia is among a number of States, including Canada, France, the UK and the US, to have extended their jurisdiction to crimes occurring on foreign aircraft that subsequently land in their territory.19 The “Special Aircraft Jurisdiction of the United States” is often cited in this connection as a longstanding innovation,20 and includes by statute any of the following aircraft as within US jurisdiction: a. a civil aircraft of the United States;21 b. another aircraft outside the United States that has its next scheduled destination or last place of departure in the United States, if the aircraft next lands in the United States;22 c. any other aircraft leased without crew to a lessee whose principal place of business is in the United States or, if the lessee does not have a principal place of business, whose permanent residence is in the United States.23 The US Code provides for offences specific to the operation of aircraft, such as aircraft piracy,24 interference with flight crew members and attendants,25 carrying a weapon or explosive on an aircraft26 and false information or threats.27 This legislation also extends the application of certain criminal laws that are applied domestically in the US28 to acts on board aircraft, including crimes such as assault,29 theft,30 homicide31 and sexual abuse.32

Such extraterritorial legislation is asserted to be consistent with the Tokyo Convention, which has savings language33 for “criminal jurisdiction exercised in accordance with national law”, and ICAO Circular 288,34 which contains model provisions on jurisdiction to similar effect.

The Montreal Protocol to the Tokyo Convention, concluded in 2014, aims to provide a treaty basis for State of landing jurisdiction but is presently one State short of entry into force.35 It provides that a “State shall take such measures as may be necessary to establish its jurisdiction over offences on board aircraft … as the State of landing where: (i) the aircraft on board which the offence is committed has its last point of departure or next point of intended landing within its territory, and the aircraft subsequently lands in its territory with the alleged offender still on board; (ii) the safety of the aircraft or of persons or property therein, or good order or discipline on board, is jeopardised.”36 The attraction of the Protocol is that it would offer a degree of global uniformity to the issue and provide—if widely ratified—the assurance that there would be jurisdiction at both ends of a given route, regardless of aircraft registration.37 Other events of significance occur in flight and these can only be briefly described. The analysis is usually one of national law, dependent on what recognition a State will choose to attach

to an act or circumstance on board. Birth is an interesting example given the jus soli principle of citizenship applied by some countries. Canadian nationality law deems a birth on board a Canadian-registered aircraft to have occurred in Canada,38 while US authorities will only consider births occurring in over flight above US territory, irrespective of aircraft registration.39 The registration of in-flight deaths is typically dependent on aircraft nationality.40 There are also provisions for wills executed on aircraft, with importance attached in South Australia to the place of registration or otherwise to the place the aircraft is “most closely connected”.41 There are other more frequent scenarios, such as the sale of duty-free goods or the supply of alcohol on board. The law of the State of registration is a good starting point, although other States may assert jurisdiction (most commonly the territorial State). “Foreign air transportation” is a divergent example under US law, defined to include the whole length of a flight to or from the US regardless of territorial limits and aircraft registration.42 Under this assertion of jurisdiction, electronic gambling is prohibited on aircraft in service to or from the US43 Extraterritorial regulation of aircraft on economic matters is a contemporary flashpoint, as litigation in the EU on aircraft emissions has demonstrated.44 This short treatment has outlined some of the different principles and November 2019 THE BULLETIN

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sources of law relevant to jurisdiction over aircraft in flight. As can be observed, the analysis for any scenario is likely to be nuanced, even with a major emphasis on aircraft registration. In respect of crimes on board, the position is reasonably clear for any aircraft landing in Australia. For other routes, however, the national law position may be different until the Montreal Protocol, referred to above, achieves broad implementation. B Endnotes 1 Chicago Convention 1944, Article 1.

2 Shawcross and Beaumont, 2nd Edition (1951) at [20]. The Air Navigation Act 1920 (Cth), Section 3, defines an aircraft as “any machine or craft that can derive support in the atmosphere from the reactions of the air.”

3 Paris Convention 1920, Article 6; Chicago Convention 1944, Article 17.

4 I Brownlie, Principles of Public International Law, 7th edition (2008) at p 303.

5 United Kingdom, Parliamentary Debates, House of Commons, 16 December 1966, 885, Mr Robert Maclennan.

6 Tokyo Convention 1963, Article 3(1).

7 Tokyo Convention 1963, Article 4.

8 Tokyo Convention 1963, Article 1(1).

9 Territory can be defined, in respect of airspace, as a State’s land territory in addition to its territorial sea.

Such territory is not considered to include airspace above an exclusive economic zone or airspace over which a State has an administrative delegation for air traffic management purposes.

10 Chicago Convention 1944, Article 11.

11 While the Tokyo Convention has provisions on “disembarkation” or “delivery” of accused persons, no provision would give the State of landing the ability to prosecute a person not otherwise within its jurisdiction. If an offence is serious enough, the person could be held for extradition but there is no obligation in that respect. Tokyo Convention 1963, Article 13. Note however that, for specificallydefined hijacking offences, a State of landing jurisdiction does exist under the Hague Convention 1970, Article 4(1)(b).

12 R v Remy Martins Duggam [1995] HKCA 470.

13 Ibid, at [21].

14 While crimes and related offences are dealt with in both Commonwealth and State legislation, the

8 THE BULLETIN November 2019

15

16

17

18 19 20

21 22 23 24 25 26 27 28

latter is not applicable to foreign international airline flights unless expressly stated.

Section 29 of the Crimes (Aviation) Act 1991 (Cth) expressly provides that certain provisions of the Tokyo Convention have force of law in Australia, including the provisions of Chapter III relating to the powers of the aircraft commander, the extradition provisions under Article 16(1) and the scope of the Convention to the extent that it affects the application or interpretation of the provisions of Chapter III or Article 16(1).

Division 2 aircraft are, relevantly, Australian or foreign aircraft: (a) engaged in a flight in the course of trade and commerce with other countries or among the States; or (b) engaged in a flight within a Territory, between two Territories or between a State and a Territory; or (c) outside Australia while engaged in a flight that started in Australia; (d) engaged in a flight between a part of Australia and a place outside Australia; or (e) an Australian aircraft (other than a Commonwealth aircraft or a defence aircraft) that is engaged in a flight wholly outside Australia.

A Division 3 aircraft is, relevantly: (a) an Australian aircraft (other than a Commonwealth aircraft or a defence aircraft) that is mainly used for the purpose of any of the following flights, or is engaged, or is intended or likely to be engaged, in such a flight: (i) a prescribed flight; (ii) a flight between a part of Australia and a place outside Australia; (iii) a flight wholly outside Australia; or (b) a foreign aircraft that is in Australia; or (c) a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or that was, when the flight started, intended to end in Australia.

Crimes (Aviation) Act 1991 (Cth), Section 12(b).

ICAO Doc 10117, Manual on the Legal Aspects of Unruly and Disruptive Passengers (June 2019) at [1-2].

A Mendelsohn, In-Flight Crime: The International and Domestic Picture Under the Tokyo Convention, 53 Va.L.Rev. 509 (1967); K Enroth, United States v. Georgescu: Special Aircraft Jurisdiction in the United States, 18 Brook. J. Int’l L. 225 (1992).

49 USC 46501(2)(A).

49 USC 46501(2)(D).

49 USC 46501(2)(E).

49 USC 46502.

49 USC 46504.

49 USC 46505.

49 USC 46507.

49 USC 46506.

29 30 31 32 33 34 35

36 37

38 39

40

41 42

43 44

18 USC 113.

18 USC 661.

18 USC 1111–1113.

18 USC 2241-2248.

Tokyo Convention 1963, Article 3(3).

ICAO Circular 288, LE/1, Guidance Material on Legal Aspects of Unruly/Disruptive Passengers (June 2002).

Montreal Protocol 2014, Article IV (which has the effect of inserting Article 3(1) bis and (2) bis to the Tokyo Convention as amended). In addition, Article IV provides for “State of the operator” jurisdiction which can be relevant when the airline company is not domiciled in the State of registration. This can occur in the context of leasing arrangements structured under Article 83 bis of the Chicago Convention 1944.

Ibid.

IATA Working Paper, A40-WP/335, LE/9, Progress with regard to the Promotion of the Protocol to Amend the Convention on Offences and Certain Other Acts Committed On Board Aircraft (August 2019).

Citizenship Act (R.S.C., 1985, c. C-29), Section 2(a).

US Department of State, Foreign Affairs Manual and Handbook (2009) at 8 FAM 301.1-5, available at https://fam.state.gov/ FAM/08FAM/08FAM030101.html. See also 301.13: “A US-registered aircraft outside US airspace is not considered to be part of US territory. A child born on such an aircraft outside US airspace does not acquire US citizenship by reason of the place of birth.”

Registration of Deaths Abroad Act 1984 (Cth), Section 8. If an aircraft is not Australian-registered, the position appears to be that the aircraft in question must have been engaged on an “Australian flight” (as defined in section 3) for the death to be registrable. For the UK, only a death taking place on board a UK-registered aircraft is registrable in the UK, otherwise a foreign death certificate will need to be obtained. See Registration of Overseas Births and Deaths Regulations 2014 (UK), Regulation 9(1).

Wills Act 1936 (SA), Section 25C(a).

49 USC 40102(23). By contrast, EU legislation on consumer protection invokes the nationality principle and limits application to “Community carriers” outside EU territorial boundaries (as written). EU Regulation 261/2004, Article 3(1)(b).

49 USC 41311.

C-366/10 – Air Transport Association of America and Others v Secretary of State for Energy and Climate Change.

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EPIC FLIGHT CENTENARY: 100TH ANNIVERSARY OF THE FIRST ENGLAND TO AUSTRALIA FLIGHT

The flight that took aviation to new heights NATHAN RAMOS

O

n Creswell Gardens, in the shadow of Adelaide Oval stands a monument, depicting a man literally standing on top of the world. He’s dressed in aviator’s gear, with a scarf draped across his left forearm, standing proudly upright gazing towards Mount Lofty.

He is the legendary aviator, Sir Ross Smith who, along with his brother Sir Keith Smith as well as two mechanics, James Bennett and Wally Shiers, completed the first flight from London to Adelaide 100 years ago this month. During 1922 Sir Ross Smith and James Bennett were killed in a horrific plane crash in England, but the story of the Smith brothers and their heroic cross-continental journey endures.

The potential subject matter for a Hollywood adventure blockbuster, their legendary twenty-eight-day journey began on 12 November 1919. It resulted from the Australian Government’s offer of 10,000 pounds in prize money for the first aviators who could fly from England to Australia in the space of thirty days.

TRIP With a modified Vickers Vimy bomber plane, the crew of four set off from Hounslow, England.

The conditions were poor, with the crew bracing the worst of the weather as the Vimy offered them virtually no protection. After reaching France, the crew headed towards Italy, where they were forced to stop overnight and had a delayed take off due to a flooded runway. Despite a short mechanical stopover in Tuscany, the crew soon landed in Rome.

The crew then travelled to Crete where they were faced with heavy rain, dark clouds and imposing mountains. Captain Ross Smith later wrote that he had to execute sharp right angle turns to avoid crashing into mountains.

The Vickers Vimy then travelled more than seven continuous hours to Cairo, and then made another stop in Damascus, Syria, before flying to Iraq, where the crew overcame a sand-clogged engine.

10 THE BULLETIN November 2019

Members of the crew in front of their Vickers Vimy twin-engine bomber: Sir Keith Smith (left), Sir Ross Smith, Sgt Jim Bennett, and Sgt Wally Sheirs. Photo: Australian War Memorial

The crew travelled across the subcontinent, and through South-East Asia, where they encountered a number of challenges, including torrential rain, a halfsubmerged airfield in Malaysia, and even a black bull threatening to charge the aircraft in India.

RETURN TO AUSTRALIA On 10 December 1919, the crew finally landed on Australian soil, touching down in Darwin, some 27 days and 20 hours after taking off from England.

While the arrival of the Vimy and its crew to Fanny Bay at 3.40pm, 10 December 1919 is the date of historical significance, the homecoming of the Smith brothers to Adelaide on 23 March, 1920 is worth recounting. The exhausted crew had visited various other places in Australia, but the return to Adelaide seemed a fitting end to their trip.

In an almost poetic scene, the rickety plane descended over Mt Lofty in the early afternoon before circling the city and Walkerville and landing at the Northfield aerodrome. This newspaper article

published in The Advertiser on 24 March gives a sense of the hysteria: “Eager eyes were strained towards Mount Lofty, and at 1.38pm precisely, low and to the left of the mount there appeared to be a dark fast-moving object. Instantly there was a cry from thousands of throats, “There she comes!”

The movements of “the dear old Vimy” from that moment monopolised attention. Several loud cannon shots heralded the arrival, and thousands of frightened pigeons fluttered into the air and circled round the city.”

The scene at the Northfield aerodrome was frenzied as some 20,000 people came to see the home-grown heroes and their state-of-the-art machine.

The plane had made it to Australia - the Smith brothers were knighted and Bennett and Sheirs were made honorary Lieutenants.

By now, the crew had also received their cheque from the Government.

Once the exhaustion of the famous England to Australia trip had worn off, the Smith brothers were ready for another adventure. This time, around the world in a new and improved Vickers plane, leaving

EPIC FLIGHT CENTENARY: 100TH ANNIVERSARY OF THE FIRST ENGLAND TO AUSTRALIA FLIGHT

The unveiling of Sir Ross Smith’s memorial commemorating the first successful flight by aeroplane from England to Australia at Creswell Gardens, Adelaide,10 December 1927. Front row: Sir George Murrary (in top hat), Sir Keith Smith, Miss Murray, Lady Bonython, Lady Smith, and Sergeant Shiers. Behind Sir George is Mr James Gosse, Mr and Mrs Barr Smith, and Mrs J Gosse. Photo: State Library of South Australia

Ross and Keith Smith’s arrival at Northfield, South Australia. Photo: State Library of South Australia

The Sir Ross Smith Memorial

and returning to England. In April, 1922, during a test flight of the new plane, Ross Smith and Jim Bennett were killed after the plane crashed in front of a large crowd of people. Heartbreakingly, Keith Smith was in the crowd, witnessing the accident.

to express to the public of South Australia the very sincere and deep appreciation of my mother and myself for their great generosity in subscribing towards such a magnificent memorial. The statue is a very fine piece of work, and I cannot imagine a more striking or fitting design, while the choice of a position was a particularly happy one looking as it does towards Mount Lofty from over which we obtained our fierst (sic) view of Adelaide.” B

THE SIR ROSS SMITH MEMORIAL It was not long before the people of Adelaide were contributing significantly to a fundraiser to build a monument to commemorate their fallen hero.

The unveiling of the memorial on 10 December, 1927, eight years to the day after the Darwin landing, is a story in itself. A news report from the 10 December edition of the now defunct Adelaide newspaper, The News, describes the day as one of “glorious sunshine, tempered by a delightful breeze”,

in which three Royal Australian Air Force planes circled above the proceedings.

The Lieutenant-Governor, Sir George Murray, unveiled the monument and gave a speech detailing the heroics of Ross and his crew.

“This statue is the tribute of South Australia to the memory of her most famous son, Sir Ross McPherson Smith”1 Today the statue still stands proudly amongst a modern setting, reflecting on the heroic adventure of two Adelaide boys and their friends one-hundred years ago.

Nathan Ramos is a Law and Journalism graduate who recently undertook an internship at the Law Society as part of his Bachelor of Journalism.

KEITH SMITH LETTER – PUBLISHED IN THE REGISTER (ADELAIDE) 14 DECEMBER 19272

Endnotes 1 "Sir George Murray quoted in The News (Adelaide) 10 December, 1927 2 https://www.adelaide.edu.au/library/special/ mss/smith_k/

“After viewing the statue to my late brother, Ross, which was unveiled yesterday, I would like

November 2019 THE BULLETIN

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Flying Blind: Consumer Protection and the end of the Travel Compensation Fund DR SUSAN ERRINGTON, MEMBER, BULLETIN COMMITTEE

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ntil 2014 Australian travellers who lost money whether deposits, airfares or other payments through the acts or omissions of a licensed Australian travel agent could apply for compensation to the Travel Compensation Fund. The Fund, which was established in 1986, covered negligent and fraudulent behaviour and the insolvency of travel agents.

It owed its existence to the fact that alternatives such as taking out insolvency insurance or establishing trust accounts were not at the time financially viable options for the travel industry.

In a general sense the money paid to travel agents by travellers was trust money as the agents were effectively the intermediaries between the traveller and the suppliers of travel and accommodation services.

Over the 18 years of its operation, the Fund paid out in excess of $56 million in compensation. Following a payment of compensation, the Fund was subrogated to the rights of the traveller and able to sue to recover the amount of the compensation or be listed as a creditor.1 However, the Fund did not cover travellers for the financial failure of the suppliers of travel services, such as the collapse of Ansett Airlines in 2002.

The Fund was enormously unpopular with travel agents as they were required to pay large sureties into the Fund to sustain it. The only beneficiaries of the Fund were travellers.

Businesses, such as suppliers, hurt by the insolvency of a travel agent were not eligible to claim compensation. As inevitably happens in such circumstances, the law-abiding operators were paying for the bad behaviour of the minority cowboys in the industry.

In November 2010, Price Waterhouse Coopers was commissioned to prepare a report on the Fund for Commonwealth Treasury. The report recommended that the Fund be discontinued arguing that it placed an unfair financial imposition on the travel industry. It

12 THE BULLETIN November 2019

Thomas Cook LY-VEH Airbus A321-231 (CC BY-SA 2.0) by Aircaft @ Gloucestershire Airport By James (Flickr)

further recommended that licensing of travel agents, in place since 1974, also cease.2 The travel industry argued that its members would step up with new voluntary insurance products once the Fund was closed.

The Australian Federation of Travel Agents (AFTA) developed its own voluntary accreditation scheme (ATAS) to replace the State-based licensing regimes and established a new complaint resolution process. While ATAS-accredited travel agents were required to have public liability and professional indemnity insurance, they were encouraged but not required to have insurance against their own insolvency.

Around 12 months after the Fund’s abolition, the financial failure of three Australian travel agents showed how varied the outcomes could be for travel consumers. When the ATAS-accredited Helloworld was placed in liquidation, travellers were covered by customer protection insurance. But the customers of the ATAS-accredited CTS Travel were not so lucky as this agent did not have any protection scheme in place. It was a similar situation when a third travel agency, the unaccredited and uninsured Getaway

Escapes and its subsidiary AusFlights collapsed.3 The collapse of Bestjet and more recently Thomas Cook has shown Australian travellers the financial risks they now face when handing over their money for expensive holidays. For many their only option is to approach their banks to recover lost funds paid by credit card via chargeback. An array of personal travel insurance policies are available for consumers but care needs to be taken to read the fine print as most standard policies do not cover insolvency either of agents or suppliers.4 Since 2014, when the Fund closed, the changing nature of travel where travellers book their travel and accommodation directly with suppliers over the internet has raised questions about the roles of travel insurance schemes and travel agents in the future. The internet has continued to foster a blurring of the lines around who is a travel agent and who is a supplier, who is in business and who is more of a “hobby provider� of services, particularly in accommodation.

Following the collapse of Bestjet, there were some calls in the media for the

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reinstatement of the Travel Compensation Fund.5 How such a Fund would operate and who it would cover in the age of internet direct travel bookings would require a substantial reinvention of the old Fund model. However, amongst travellers there is appetite for a new compensation scheme. A report by consumer lobby group Choice published in 2016 found that “Three-quarters of Australian travellers would be willing to pay a ticket levy if it were linked to compensation for flight delays.”6 In a final irony for Australian travellers, English and Belgian tourists who booked holidays through their local Thomas Cook office and lost their money due to its collapse have nothing to worry about.

They‘re covered by travel compensation funds for package holidays in their own countries. B Endnotes 1 Travel Compensation Fund v Robert Tambree t/asR Tambree and Associates [2005] HCA 69, HCA, 16 November 2005,

https://www.judgments.fedcourt.gov.au/ judgments/Judgments/hca/2005/2005hca0069 2 Price Waterhouse Coopers, Review of Consumer Protection in the Travel and Travel-related Services Market, Prepared for the Department of the Treasury, on behalf of the Standing Committee of Officials of Consumer Affairs, November 2010 https://treasury.gov.au/sites/default/ files/2019-03/Final_Report_Review_of_ Consumer_Protection_in_Travel_Industry.pdf 3 Rosemarie Lentini, The little-known consumer loophole costing Australian travellers thousands, 9FinanceBusinessNews, 2 May, 2019. https://finance.nine.com.au/business-news/ bestjet-collapse-travel-compensation-fundinsolvent-travel-agencies-australia-news/ fa56d903-2729-49d4-bc05-a96c83d079f9 Daisy Melwani, Helloworld Agency Goes into Liquidation, Travel Weekly, 26 May 2015 http://www.travelweekly.com.au/article/ helloworld-agency-goes-into-liquidation/ Are you covered? Agent exploits loophole, Traveller, 2013, https://www.traveller.com.au/are-you-coveredagent-exploits-loophole-2vhi9 4 Zoya Sheftalovich, ATAS-accredited travel agents: What are your rights when a travel agent doesn’t deliver what they promised?

Choice Australia, 24 November 2014,

https://www.choice.com.au/travel/on-holidays/ advice/articles/atas-accredited-travel-agents Thomas Cook has collapsed. What happens to everyone who had holidays booked? ABC News, 24 September 2019 https://www.abc.net.au/news/2019-09-24/ thomas-cook-what-happens-to-travellers-withholidays-booked/11541410 Nassim Khadem and Peter Lusted, Thomas Cook collapse leaves consumers asking, is the travel agent dead? ABC News, 25 September, 2019 https://www.abc.net.au/news/2019-09-25/ thomas-cook-bentours-king-&-co-travel-agentdead-questions/11544512 5 Anthony Klan, Bestjet’s Collapse Exposes Law Flaws, The Australian Business Review, 7 January, 2019, https://www.theaustralian.com. au/business/aviation/bestjets-collapse-exposeslaw-flaws/news-story/ c71ade8da3271967a 775e786f6cde1bb?from=htc_rss&utm_medium =Twitter&utm_content=SocialFlow&utm_ campaign=EditorialSF&utm_source =TheAustralian 6 Choice, Australian Consumers in the Travel Market, February 2016, file://lsc. internal/Public/Home/susan.errington/ Downloads/201602%20CHOICE%20-%20 Australian%20consumers%20in%20the%20 travel%20market%202015.pdf

Book now at www.adelaidecc.com.au or call 08 8210 6734 November 2019 THE BULLETIN

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MIGRATION LAW

Pardon or punish? The ongoing burden of visa cancellation even after serving time CHRISTINA LIEN & CHRIS JOHNSTON, WORK VISA LAWYERS With the Federal Government recently proposing broader powers to cancel a person’s Australian visa, migration lawyers Christina Lien and Chris Johnston examine how the country’s migration laws deal with those who may fall foul of the character test.

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ll non-citizens who are in Australia (and more precisely, who are in the Australian migration zone) are subject to the powers vested in the Migration Act 1958 (Cth) (the Act).

Section 501(3A) of the Act was introduced in December of 2014, which required mandatory cancellation of visas for non-citizens wherever a person does not pass the character test: (3A) The Minister must cancel a visa that has been granted to a person if: (a) t he Minister is satisfied that the person does not pass the character test because of the operation of: i. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or ii. paragraph (6)(e) (sexually based offences involving a child); and (b) t he person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

In FY2016/17, mandatory cancellations consisted of approximately 96% of cancellation decisions made under section 501 of the Act.1 Those charged with criminal offending may have their visa cancelled on a discretionary basis, even if the charges have not been proved. Usually, if the Departmental delegate determines that the

14 THE BULLETIN November 2019

visa holder is a risk to the community, their visa will be at risk of cancellation.2 Handy Tip 1: The best protection for your clients from potential cancellation is to obtain Australian Citizenship where possible.

Hundreds of Australian Permanent residents have not taken that next step to become an Australian Citizen. When taking instructions from a client it is worth enquiring about their residency status and advise accordingly. If your client is free from any alleged criminality, advise them to apply for Australian Citizenship. The Australian Citizenship Act 2007 sets out that the person must be of “good character”. If there are past indiscretions, see Tip 3.

CHANGES TO CHARACTER PROVISIONS The Federal Executive are again introducing changes to the character provisions in the Act that may have a profound impact on any non-Australian in the migration zone, including long-term permanent residents of Australia.

On 4 July 2019, the Migration Amendment (Strengthening the Character test) Bill 2019 was introduced into Federal Parliament3. At the time of writing, the Bill is scheduled for its second reading. With 74 ‘Ayes’ and 63 ‘Noes’4 it is likely that this Bill will be passed and made law.

The Bill seeks to amend the Act to further broaden its discretionary powers to refuse or cancel a visa if the visa holder

has been found to have committed serious offences, and who pose a risk to the safety of the Australian community.

A proposed paragraph section 501(6) (aaa) into the Act provides that a person does not pass the character test if they have been convicted of a designated offence.

Refusal or cancellation of a visa on the grounds of a designated offence conviction will be discretionary.

Proposed subsection 501(7AA) defines a designated offence as an offence against a law in force in Australia or a foreign country5, which: • involves one or more of a list of specified “physical elements” and • must be by either imprisonment: for life; for a fixed term of not less than two years; or imprisonment for a maximum term of not less than two years.

The first physical element of a designated offence includes the following6: • An offence involving violence against a person; • Non- consensual conduct of a sexual nature; • Breach of a court or tribunal order for the protection of another person; • Aiding, abetting, counselling or procuring the commission of a designated offence The actual sentence imposed on that person will not be the determining factor for discretionary cancellation.

What will be the effect of these changes?

Given that the mandatory cancellation provisions introduced in 2014 saw a spike in the number of cancellations, it is likely the upward trend will continue. The following outlines Department figures:

Table 1: Section 501 (discretionary and mandatory) visa cancellations and refusals by financial year Financial Year 2014/2015 2015/2016 2016/2017 2017/2018 to 31 March 2018 TOTAL

135 423 629 372

Section 501(3) Section 501(2) cancellations cancellations** & refusals*** 73 6 35 15 28 9 41 9

Section 501(3A) – mandatory cancellations**** 491 927 1234 647

1559

177

3299

Section 501(1) refusable*

39

Total 705 1400 1900 1069 5074

Source: Department of Home Affairs, Submission to Joint Standing Committee on Migration, Inquiry into review processes associated with visa cancellations made on criminal grounds, [Submission no. 29], 11 May 2018, p. 4.

MIGRATION LAW

In recent years, the full effect of mandatory cancellation of a visa based on failing the character test has made headlines. New Zealand Prime Minister Jacinda Ardern’s recent comments on Australia’s deportation powers bear truth.7 New Zealanders are the number one cohort who were deported from Australia on the basis of failing the character test.8 The Bill is likely to have a disproportionate negative impact on this cohort. New Zealanders who become long term residents in Australia, many mistakenly believing themselves to be Australian Citizens, before finding out that they simply are not. Apart from New Zealanders, at risk groups include long term permanent residents who came to Australia either as adults or as children on their parents passport via the “ten pound pom” program in the 1940s and the waves of migrants after the dismantling of the White Australia Policy.

SENTENCING SUBMISSIONS Removal from Australia on the basis of failing the character test can be a relevant consideration where the term of imprisonment will be more burdensome on the offender than it otherwise would have been. The often cited decision of Guden v The Queen (2010) 28 VR 288, [25] deems removal from Australia to be a relevant factor: “the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release”.

At the time of that decision, s 501(3A) had not yet been incorporated into the Act and only the discretionary cancellation existed. Due to this, it was also stated in that decision that “deportation may properly be viewed as “a completely speculative possibility”.

Since the enactment of the amendment in 2014, including the mandatory cancellation provision pursuant to section 501(3A) in the Act, cancellation is no longer a speculative possibility.

Various state jurisdictions have given due consideration to whether deportation bares any relevancy to the sentence.9 It is pertinent that the sentencing Judge be informed of the likely outcomes

your client faces and that the risk of deportation is assessable rather than merely speculative before it may be taken into account by way of mitigation.

Handy Tip 2: If you have identified that your client is a visa holder and that they are at risk of a visa cancellation, submissions regarding the clients residency status ought to be made during Sentencing Submissions.

RETROSPECTIVE APPLICATION OF PROPOSED AMENDMENTS Additionally, if enacted into law, the Bill may have a retrospective application to people who have previously spent time in prison many years ago, meaning that historical offences could be taken into account when deciding to cancel or refuse a visa. The Explanatory Memorandum to the Bill sets out the practical effect (and intention) of the amendment: “The practical effect of these amendments will be greater numbers of people being liable for consideration of refusal or cancellation of a visa as they would not, or no longer meet, character requirements set out in section 501 of the Migration Act.”10[Emphasis added] A noticeable inference of the proposed legislative change is that a person may be penalised twice: having served their time incarcerated and now many years later facing a fate in immigration detention awaiting the outcome of a visa cancellation leading to possible deportation. When a client is placed in immigration detention, it can be indefinite. The proposed Bill oversteps many wide ranging concerns, such as fairness to the individual and their families, commitment to the Rule of Law, proper use of taxpayer money to name but a few.

CONCLUDING COMMENT There is a broad discretion to cancel a person’s visa from the moment that person is charged with an offence. The Bill seeks to go beyond this already wide discretion by allowing for cancellation for offences committed in the past. For past and present clients it is important to consider

Australian Citizenship as some form of protection from the powers under the Migration Act.11 Handy Tip 3: If your client does have a serious criminal record, applying for Australian Citizenship may instead trigger a visa cancellation. There is good case law that will assist your client to make that decision on whether to apply for Australian Citizenship now or whether to maintain their permanent residency and plan their Australian Citizenship application in the future.

Endnotes 1 Department of Home Affairs, Submission to Joint Standing Committee on Migration, Inquiry into review processes associated with visa cancellations made on criminal grounds, [Submission no. 29], 11 May 2018, p. 6 2 In particular see Section 116(e) of the Act. 3 The Migration Amendment (Strengthening the Character test) Bill had been introduced in 2018.

4 Parliament of Australia, House of Representatives Votes and Proceedings, No 18, Wednesday 18 September 2019; https://parlinfo.aph.gov.au/parlInfo/download/ chamber/votes/825a59e4-c92e-4e11-8fa33067d934a757/toc_pdf/reps-vp.pdf; fileType=application%2Fpdf#search =%22chamber/votes/825a59e4-c92e4e11-8fa3-3067d934a757/0000%22 5 If committed in a foreign country, the relevant designated offence must also have been an offence for a law of the Australian Capital Territory and be punishable for the periods as set out.

6 For full proposed amendments see Migration Amendment (Strengthening the Character Test) Bill 2019, page 3,4 7 The Prime Minister has said “I consider that to be a corrosive part of that policy. And it’s having a corrosive effect on our relationship.”

Lisa Martin, ‘Jacinda Ardern says deportation of Kiwis isn’t ‘fair dinkum’ after Scott Morrison meeting’, The Guardian (online), 19 July 2019 <https://www.theguardian.com/world/2019/ jul/19/jacinda-ardern-to-raise-corrosivedeportation-of-kiwis-with-scott-morrison>.

8 See Department of Home Affairs ‘ Top 10 Nationalities’at https://www.homeaffairs.gov.au/ research-and-statistics/statistics/visa-statistics/ visa-cancellation 9 Rv Zhang[2017] SASCFC 5; R v Norris; Ex parte Attorney-General (Qld) [2018] QCA 27; R v Zhao [2018] NSWDC 449; Lim v The Queen [2017] VSCA 246 [12]; DPP (Cth) v Long [2017] VCC 1306 [59-60]; DPP v Woldesilassie [2017] VCC 1332 [51].

10 Cth. Explanatory Memorandum, Migration Amendment (Strengthening the Character Test) Bill 2019 (Cth) p 10.

11 Subject to meeting character requirements in the Australian Citizenship Act 2007.

November 2019 THE BULLETIN

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DIARY OF A TRAVELLING LAWYER MARCO POLO#

17 JULY, 2018 | JOHANNESBURG & CAPE TOWN

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fter the long flight to JNB on a rather dated QF Boeing 747-400, it was a short jump and a hop to CPT. After checking in at the hotel, I changed into a suit and had the hotel car drive me to the university, where I had a meeting with the world’s leading expert on hydrogen embrittlement in steel structures.

The university was secured like a military base, and I did not see a single person in a suit. Way to blend in with the ‘hood, Marco#!

On the way there, I was told by the driver to make sure my bag and possessions are out of sight when we are on the road for safety reasons – apparently thieves would come up next to cars, smash the window, and grab bags. I hid my bag so well on the way back I forgot to take it with me when I got out of the car.

I went to the “South Quay” pub and after a few drinks, I thought I would walk the four blocks back since one cannot hail a cab on the streets in South Africa. As it turned out, for about two of those blocks I got to sprint with a few guys helping me keep pace with sticks. I did not think they were fitness instructors. While I won the race to my hotel, turns out I could have called the hotel to have them send a car and pick me up. D’oh.

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9 AUGUST, 2018 | MUSCAT, OMAN After a delay of three hours, I landed in MCT in a foul mood. That said, MCT is magnificent and only a few months old; the regional boycott of Qatar has done wonders for civil aviation in Oman. I was careful yesterday to get a Dubai stamp in my passport rather than use the SmartGate to take advantage of the Oman’s joint-visa programs with Dubai and Qatar. However, when I got here, the officer told me that I needed a special Dubai joint-visa stamp in my passport. I protested that nothing on their official website said anything about a special stamp. After arguing for nearly an hour, he tells me that I can get a visa on arrival for USD 17. Why did he not say that earlier? Would have saved both time and angst, especially when I can bill that as a disbursement.

I got my first taste of Mideast driving today. I thought those websites were just taking the piss when they say that Mideast drivers ignore traffic lights, lane markings, speed limits, and road warning signs, and never indicate or check blind spots. Nope, all true. It is just crazy … but so much fun, like I am in Fast & Furious 6. The lawyers with whom I had dinner were shocked that a new foreigner dared to drive there at night. I told them I had hundreds of street racing hours on Midnight Club II for Xbox.

10 AUGUST, 2018 | MUSCAT, OMAN On reflection, I think the omission on the website about the special visa stamp is deliberate so that they would get to collect visa fees despite the goodwill and tourism promotion they get from having the joint visa programs. After all, not many places on Earth make you pay all your traffic fines at the airport before you leave.

18 OCTOBER, 2018 | DAEJEON, SOUTH KOREA Third day of the conference. The morning routine continues – opening the windows and unplugging the heater in my room, before going to the morning session on cross-border insolvency developments, only to come back at lunchtime to find the heater plugged in and turned on with all the windows closed. If I never told them the air-

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conditioning does not work, they would not have brought me that damn heater. I asked reception today if I can just change rooms and they were like really offended because the captain of the South Korean football team stayed in my room during the 2002 World Cup. I joked that I hope they have changed the sheets a few times since then.

They did not laugh. I checked the sheets.

Our committee had our informal dinner tonight at a Korean restaurant near the hotel and Bang* thought it would be funny to order me an octopus that is washed and chopped up into bite size pieces while it is still alive. He forgot that I am fat and eat everything. They tasted okay, the wriggling is annoying, and one piece I did not chew thoroughly so the sucker got stuck in my throat and had to be washed down with soju.

The worst thing is that I cannot get him back – I can never win a contest of adventurous food in Korea with a Korean, especially Bang*! Even if I dragged him to Madagascar and served him a still-beating cobra heart, he would just eat it and go, “yum, it’s just like an angry oyster!” Grrrr.

7 DECEMBER, 2018 | TASHKENT The [local lawyers] working on the project told me that they have booked me a room at the Hotel Uzbekistan, the most special and iconic hotel in Tashkent.

I could barely contain my anticipation … until I arrived and realised the words “special” and “iconic” do not necessarily have positive meanings.

I secretly checked myself in the Hyatt Regency Tashkent and shuttled back and forth to the Hotel Uzbekistan every day.

Hope they did not notice or find out.

We had the client presentations in the afternoon at her office, and then I walked back to the hotel. The best thing about these December trips to Central Asia is the cold – at -6°C, I can never get enough of being able to wear suit, overcoat, gloves, hat, and scarf, and walk for hours past piles of snows with not a drop of sweat.

12 DECEMBER, 2018 | NOVOSIBIRSK 10 DECEMBER, 2018 | ALMATY After a light breakfast, I organised to meet with Aiday* at her office in Nurly Tau, a few blocks away from the InterContinental, before going off to lunch nearby. Turns out it is a complex of three buildings that do not connect with each other. None of the reception staff or building directories had any English. Finally gave up after an hour of going building to building and called Aiday for help, and we ended up meeting at the restaurant instead.

I asked her to just order for the both of us.

Must never do that again, especially after trying the warm horse meat salad followed by pasta with horse meat, arugula, and pine nut. Arugula is really not my thing.

Could have been worse – she could have ordered me seafood pasta in landlocked Kazakhstan [but then, pasta …

Marco Polo# … how fitting].

After collecting my baggage, I was asked by Customs to take it with me to a large “Examination Room”. There were two other passengers there with their bags. We were told in English that our luggage is to be searched, and they took our passports. One of the other passengers reached his hand into his bum-bag, and as he pulled out his passport, a large gold ingot fell out and went “klonk” on the floor. We all looked at the ingot, looked at his face, and looked at the ingot. The officers then gave me back my passport and told me I was free to go.

What I wrote about loving the cold two days ago – I take it all back.

At -17°C plus snow and wind chill, even the fire training plane at the airport froze over.

November 2019 THE BULLETIN

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TRAVEL

1 MAY, 2019 | SYDNEY, DALLAS, AND CHICAGO The kewl-ness of flying to North America across the International Date Line so that I land on the same day or even before the flight left never gets old, I say – especially that time going from Apia to Pago Pago when the 25-minute flight landed the day before I left and confused the hell out of the practice management software.

At DFW today, the automated clearance machines had broken down and so there were very long queues at passport control. Although I was able to rebook on the next flight to ORD along with others who also connected from QF7, I missed my onward flight to YUL and had to stay the night in Chicago. The worst thing was that, despite searching the system for over an hour, they could not locate my luggage. I do not think I would get much sleep worrying about the adventures of my luggage – hope at least I get sent regular selfies like that Travelocity gnome.

2 MAY, 2019 | CHICAGO AND MONTRÉAL As predicted, I got hardly any sleep and got back to ORD bright and early to track down my luggage. The American Airlines staff spent nearly an hour helping me on her computer and making phone calls – until a light bulb came on and she called baggage services at YUL. Turns out my bag made all the connecting flights I missed and have been on the carousel there overnight. It was still on there – no one thought to take it off and, oh, y’know, scan the barcode, check if it has a bomb or live chickens inside, or something.

Anything.

I said to her this is surely the first time that a passenger’s baggage arrived in a country ahead of the passenger that it is supposed to be flying with, instead of arriving days later via Anchorage and Tallahassee. She laughed. What I did not say was that this was not supposed to happen anymore since the terrorist plane bombings requiring passenger-baggage

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reconciliation – do not think she would laugh at that. Comedy equals terrible sense of humour minus terrorism talk at airports.

Arrived at YUL. Picked up my luggage, which was still on the carousel.

I then went to the [car hire place] to pick up my little cute Chevrolet Spark, which’d be perfect for the narrow streets of Montréal. When I was served, the guy goes, “Good news, we upgraded you.”

“To what?”

“A Dodge Durango. It’s a beautiful SUV. Brand new …”

“Um, no. I wanted a tiny car so I can park easily and save some gas.”

“But it has seat heaters, steering wheel heater …”

“I don’t really care if it came with a rear-mounted bazooka. This is like going into a diner and being told that, oh, we upgraded your mixed greens salad to a ribeye steak. Can I have a sedan?”

“No, sorry, we don’t have one available now.”

4 MAY, 2019 | TORONTO Ah, the weekend! After leaving the Dodge Monstrosity in Montréal at the hotel and taking taxis everywhere for a couple of days, I was very glad to see the back of that tank. The short hop from YUL to YYZ was uneventful, and when I arrived, I got to the [car hire place] to pick up my Chevrolet Spark (finally!) for the drive down to Niagara Falls. The guy said, “Good afternoon, sir. Thanks for your loyalty with us, we have upgraded you today.”

Oh no. “To what?”

“A new Hyundai Tucson …” “#$%¥ ¤‡¶¿#!! ¢&@*$£ #$% ¥¤‡¶¿# …”

I cancelled my booking, went to the next counter, and asked, “Hi, I didn’t book one, do you have a sedan available for two days?”

“Yes, we do. What size car would you like?”

“Oh, at this point I would take any sedan, but I’d prefer a smaller one.”

“Tell you what, I’ll charge you for a sedan and upgrade you …”

The loud bangs that followed was made by my forehead repeatedly meeting the counter.

26 SEPTEMBER, 2019 | PORT MORESBY I arrived at POM via BNE. On our transfer to the hotel, David* [former Austrade commissioner to PNG] pointed out the Australian embassy and consular staff compound at the top of a hill, surrounded by high fences and barbed wire. Apparently, they called it “Camp S%#$scared”. Not very comforting.

We were in town to help negotiate an agreement for [an Australian contractor] to get involved in [a developing mining project]. We were picked up from the carpark under our hotel in a black 4WD with an armed guard in the front passenger seat, followed by another 4WD with a couple of armed guards inside. We drove out of the driveway, turned into the street, drove to the next block, and we got out. After the meeting, we insisted on walking the 130 metres back to our hotel without the crazy security escort.

We survived to travel another day.

Note: These are selected excerpts from the Diary. Funny things and privileged bits omitted. # Not the real Marco Polo, of course. That would be ridiculous. He did not fly. * While the events are real, people’s and some places’ names were changed to avoid the defamatory imputation that they were around when the real Marco Polo travelled in the 13th Century. B

DIALOGUE

A roundup of recent Society meetings and conferences ROSEMARY PRIDMORE, EXECUTIVE OFFICER 12-14 September 2019 Meetings of Chief Executives of Constituent Bodies of the Law Council of Australia (LCA); Chief Executives of Law Societies; the Conference of Law Societies; and Directors of the Law Council of Australia The Chief Executive, Stephen Hodder attended the above quarterly meetings, which were held in Melbourne. Key topics of discussion included bullying, discrimination and harassment activities being undertaken by law societies; LCA capitation fees and a strategy for reserves; a protocol regarding legal professional privilege being drafted by the Australian Taxation Office; reports of the LCA’s Sections; approval of the LCA’s Financial Statements for the 2018-19 year; and a draft revision of the Australian Solicitors’ Conduct Rules (more work being required).

Meeting with the Attorney-General – 30 September 2019 Amy Nikolovski (President), Stephen

Hodder and Anna Finizio (Policy Lawyer) met with the Attorney-General, the Honourable Vickie Chapman MP. Matters discussed included the Society’s wish for there to be a method by which Senior Counsel can be appointed in SA (the Society and the SA Bar Association having previously presented a proposal to the Attorney); the timing of the introduction of amendments to the Legal Practitioners Act 1981 to include foreign lawyers provisions in line with other jurisdictions; the proposed model for a Court of Appeal, with the Society subsequently providing a submission to the Attorney-General that expressed concern with the practicality of proposal for a two-judge panel; and queried the need for and cost of such reform, noting the restrictions faced by the Courts due to funding.

Joint Rules Advisory Committee – 3 October 2019 The Joint Rules Advisory Committee, under the guidance of the Chair, the

F ISHE R BRENNAN CON SULTING

LITIGATION AND PRE-LITIGATION ADVICE AND EXPERT REPORTS EXPERT WITNESS SERVICES - CONSTRUCTION Magistrates Court District Court Supreme Court COMMERCIAL AND RESIDENTIAL PROPERTY DISPUTES ALTERNATIVE DISPUTE RESOLUTION: Facilitated Negotiation Mediation Expert Determination

Honourable Justice Blue, has commenced the development of draft Uniform Court Civil Rules, which will apply to civil matters in the Magistrates, District and Supreme Courts upon the commencement of the Electronic Court Management System in the civil jurisdiction (scheduled to occur late February 2020). Amy Nikolovski attended a meeting on 3 October 2019 at which a draft of the Rules was discussed. The draft has now been provided to relevant Society Committees for comment. A more advanced draft will be provided to the Society for broad consultation with the profession, in due course. The JRAC also considered proposals by the Society for an increase in the Supreme Court Scale (which has since been approved by the Judges, to be effective 1 November 2019 subject to gazettal); and for a tiered scale to apply for solicitor attendances. The Society’s proposal has been provided to all legal practitioners (by email) with an invitation to comment. B

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PROPERTY CONDITION REPORTS: Practical Completion End of Lease – Defects And Making Good Dilapidation Surveys November 2019 THE BULLETIN

19

AIR SAFETY

Military aviation safety in the Department of Defence: moving to a globally recognised model FLIGHT LIEUTENANT BARRIE BARDOE, PUBLIC AFFAIRS OFFICER, DEFENCE AVIATION SAFETY AUTHORITY

T

he thirtieth of September 2016 was a significant date for Australian Defence aviation in more than one way. It marked the transition to a new European based global airworthiness convention – the Defence Aviation Safety Regulation or DASR. It also saw the inception of the Defence Aviation Safety Authority (DASA), which incorporated the three existing Defence aviation safety agencies into a new body that more closely conformed to internationally recognised organisational structures. To understand the need for DASA and a globally recognised approach to airworthiness and safety it is important to look at the safety record of military aviation in the late 1980s and early 1990s.

In the late 1980’s and early part of the 1990’s, the ADF suffered a series of aviation accidents including 6 aircraft in 1991 alone. These events prompted the creation of an airworthiness regulatory set that would prove to deliver a high level of safety. At the time it was arguably world leading, but a weakness was the fact that it was specific to Australia. In more recent times a growing number of operations with coalition partners, and globalised procurement and sustainment, made the system expensive and unwieldy to operate.

A significant issue with a bespoke airworthiness system is the need to “translate” regulations each time a new aircraft is acquired, or even for aspects of sustainment and maintenance. With

20 THE BULLETIN November 2019

more maintenance and engineering being outsourced to industry, and the use of civilian based platforms, this problem was worsening, creating mounting expense, and significant logistical issues. The ADF’s system also used terminology and constructs that were unfamiliar to other nations and industry partners. As problems and deficiencies emerged it became clear that taking contemporary ideas and trying to affix them to the existing regulations was a ‘band aid’ approach that could not continue indefinitely.

It was around 2011 that the Directorate General Technical Airworthiness – ADF (which handled “technical” aspects of airworthiness at the time) acknowledged the need for a new regulatory system and began exploring options. Given the ADF’s use of American aircraft types, consideration was given to aligning with the US, however each American service has its own regulatory system. Discussions with the International Civil Aviation Organisation (ICAO) led to an investigation of the merits of aligning with an emerging European based convention, being used by around 30 other nations. The European Defence Agency had taken the European civilian airworthiness regulations and applied them to the military, resulting in the European Military Airworthiness Requirements, or EMARs which are around 95 percent identical with their civilian counterparts.

The benefits of aligning with the EMARs were many and varied. Industry partners already had experience of them in many instances. They allowed for greater interoperability with coalition partners, which was an important consideration with the ADF’s operational tempo. It also increased domestic supply and sustainment options as EMARs were also similar to Australian Civil Aviation Safety Regulations. They allowed for international “traceability” of qualifications and “blended workforce” options; reduced the need to “translate” regulations; and provided a benchmark for world best practice in military aviation safety.

The result is the Defence Aviation Safety Regulation, or DASR, which is as closely aligned with the European system as possible with additions of existing ADF Flight Operations regulations. In a sense the ADF’s alignment with the European based system has been world leading in terms of the extent to which they have been adopted. Military airworthiness regulations do have some differences to civilian counterparts, and need to have inbuilt flexibilities to allow for operational requirements. The Director General of DASA Air Commodore Jason Agius states “The DASR’s have in built flexibility provisions. Considering the operational context, these provisions enable Commanders to exploit Air Power whilst satisfying their statutory safety obligations.”

AIR SAFETY

F/A-18F Super Hornet aircrew from No. 1 Squadron, Royal Australian Air Force walk back to the crew room after a sortie during Exercise Thai Boomerang 2019.

Photo: CPL Colin Dadd. © Commonwealth of Australia, Department of Defence

DASR was recommended to the Defence Aviation Authority (also the Chief of Air Force) in 2013. A period of due diligence and mapping of requirements followed resulting in a first draft, which was published at the end of January 2016. This allowed feedback and comment from stakeholders as well as assisting with planning for implementation

by Defence and industry partners. A review of all Defence aviation platforms was completed in July 2016, and the first phase of implementation began on 30th September. A two phase approach was developed to ensure safety levels were maintained during the transition. The first phase saw Defence organisations and selected industry partners adopting the DASR, whilst the second phase was different for each aircraft type, and allowed organisations to explore the benefits at a rate they were comfortable with.

There are many benefits to the new system. Air Commodore Agius said: “By aligning airworthiness regulations with the European system we can harness the efficiencies of the domestic and global supply chain; increase interoperability; allow civilian partners to more easily exploit ‘blended workforce’ options; improve mutual recognition of the approvals and certifications provided by other military and civilian airworthiness authorities for common aircraft types; exploit contemporary improvements in

aviation safety arrangements globally; and drive aircraft sustainment and aircraft costs down. By aligning with global best practice we derive many benefits, and further enhance capability and military aviation safety into the future.”

DASR promotes mutual recognition and interoperability with civilian and military design and maintenance organisations and the many benefits have attracted strong regional interest.

It is anticipated that many of Australia’s regional partners will now also align with DASR, underlining Australia’s commitment to constant improvement, and world leading excellence in Defence aviation safety.

The DASA is an integrated military aviation safety organisation consisting of seven directorates, with three Executive Directors responsible for Initial and Continuing Airworthiness, Flight Operations and Flight Safety. The creation of DASA provided scope for removing ‘stovepipes’ between the three agencies that previously handled military aviation safety, improved efficiency by utilising common business systems, and provided greater consistency. An integrated authority makes it easier to identify and resolve gaps in functions and helps focus on tasks that cross agency boundaries. Much of the effectiveness of any approach to aviation safety is dependent on analysis of data from common systems which is easier

with the one authority. DASA provides a more cohesive approach consistent with an exemplar aviation authority. It provides greater transparency to commercial and international organisations, and increased engagement with civil authorities such as CASA. It also enhances engagement with military authorities, and increases mutual recognition of other aviation authorities and frameworks. The simplification of international global recognition activities inherent in the new structure is also a strong advantage.

Air Commodore Agius believes the Authority strongly supports the success of the new regulatory system. “Greater alignment and less duplication will improve efficiency”, he said. “Improved consistency and clarity will result across the seven directorates, and we will have a framework in place that will support mutual recognition of other organisations, products, and services internationally.

DASA provides a more integrated approach to regulation and common administrative systems”.

The DASA was established to support the Defence Aviation Authority (the Chief of Air Force) by a Joint Directive issued by the Chief of the Defence Force and the Secretary of the Department of Defence under section 10 of the Defence Act 1903. While styled as a ‘regulation’, the DASR is internal Defence policy issued pursuant to the Joint Directive, rather than true subordinate legislation. B November 2019 THE BULLETIN

21

PROMOTION

High speed internet network rolling out in Adelaide

I

n December 2017, the City of Adelaide partnered with TPG Telecom to construct and operate Australia’s first ten gigabit-capable city-wide fibre optic network. Ten Gigabit Adelaide provides secure, reliable and symmetrical 10Gbps data speeds, giving local businesses a competitive advantage nationally.

Two of the CBD businesses who are already capitalising on the advantages of Ten Gigabit Adelaide are Keystone Capital and Capital United. Keystone Capital, a licensed fund manager, specialises in the origination and management of loans secured by mortgages over real property assets across Australia. Capital United provides financial intermediary services to its clients nationwide including the negotiation of optimal rates, loan structures, and terms and conditions.

Ten Gigabit Adelaide has transformed Keystone Capital and Capital United’s use of a cloud-based platform which allows the transfer of live and up to date data and documents. Both businesses are able to seamlessly optimise client support in collaboration with their Sydney teams - right from the comfort of a shared Flinders Street office in Adelaide’s CBD. “We were looking for something that

could give us speed, reliability and minimal downtime with the server and certainly Ten Gigabit Adelaide offered that and has exceeded our expectations,” says Tom Waltham, Director.

“Previously we were running off an ADSL service and the download time was 23Mbps and 1Mbps on upload, so the speed change has just been fantastic.”

The rollout of Ten Gigabit Adelaide is now well-underway, with over 400 buildings already connected, and a total of 1,000 buildings on track for completion by mid-2020.

The City of Adelaide has subsidised the cost of the network build, enabling 1,000 commercial Building Owners in the CBD and North Adelaide to receive a free lead-in. Each business customer within a connected building can order their own dedicated fibre service; this allows your practice to upload and download high volumes of data via a clean, super-fast and uncontended connection.

With a Ten Gigabit Adelaide service, downtime is a thing of the past with TPG’s 99.95% service availability, and a business-grade commitment to resolving issues within four-hours.

“As the businesses continue to grow,

we will be able to offer market leading IT capabilities. We’ll be able to continue to compete more efficiently and effectively with the ever-increasing online and digital platform requirements that the businesses have,” says Mr Waltham.

“That’s why we chose Ten Gigabit Adelaide which has been absolutely fantastic for our business.”

Find out if your address is Ten Gigabit Adelaide ready and connect today. Learn more about the project and the rollout plan at: www.cityofadelaide.com.au/ business/ten-gigabit-adelaide/ To connect to Ten Gigabit Adelaide, phone TPG on 13 61 78 or email 10GA@tpgtelecom.com.au. B

MEMBERS ON THE MOVE H

oward Zelling Chambers welcomes Marita Pangallo, who commenced at the Chambers on 1 October. Members are asked to update their contact details for Marita, as she can now be contacted on mpangallo@hzc.com.au or (08) 8211 7677.

Marita joined the Independent Bar in November 2018 and specialises in Family Law (Parenting and Property Matters),

22 THE BULLETIN November 2019

Wills and Estates, and Trust Structures.

She also practises in the following areas: • Trusts and Equity; • Corporate Structures; • Corporations Law; • State Taxation; • Real Property; • Contract Law;

• Commercial Litigation and Alternate Dispute Resolution; • Inheritance Claims; • Insolvency; • Industrial and Employment Law; • Administrative Law; • Banking and Finance Law; • Workers Compensation.

MARITIME INSURANCE

The establishment of Lloyds of London and the fascinating history of marine insurance IAN MAITLAND, PARTNER, WALLMANS LAWYERS

M

ost vessels have both Hull and Machinery Insurance (H&M) and Protection and Indemnity Insurance (P&I).

HULL AND MACHINERY INSURANCE This Insurance is self-explanatory and covers events where there is damage to the Hull including sinking and also damage to the ship’s machinery. This type of Insurance is readily available in the Lloyds market and from corporate Insurers, including Insurers based in Australia.

PROTECTION & INDEMNITY INSURANCE Pursuant to an Act of the British Parliament of 1719 Lloyds of London had a virtual monopoly on Hull Insurance. As a result, shipowners joined forces and started to insure themselves on a mutual basis. In 1824 the 1719 Act was repealed, thereby breaking the monopoly and resulting in the decline of the Mutual Hull Clubs.

Seemingly the Mutual Hull Clubs needed to find something to underwrite.

At this time the Lloyds and other Hull Underwriters only insured three quarters of the owner’s liability, thus the shipowner was left with one quarter of the liability (rather a high deductible). Thus, the Mutual Hull Clubs took up this gap, i.e. one quarter of the collision liability plus liability for death and personal injury. This cover was called “Protection Insurance”.

Later the Hull Insurers accepted all

of the liability which left the Mutual Hull Clubs looking for an area of insurance.

This led to the emergence of Protection and Indemnity Clubs (P&I Clubs).

Insurance offered by P&I Clubs includes cover for third party risks for which an owner may be or potentially liable. It includes such risks as pollution, cargo loss or damage, personal injury or death, allusion (a ship colliding with a wharf or other structure), salvage, wreck removal.

The majority of P&I clubs are located in the UK but there are clubs in Sweden, Norway, USA, Japan, China. In the main the clubs appoint Managers to administer but the Directors are executives from ship owner members.

Each club has their own rules which set out the terms of Insurance. Each club appoints correspondents throughout the world to represent them in the event of an incident.

Traditionally the P&I Insurance was renewed on 28 February as that was regarded as the date when the ice melted in the Baltic. Many Clubs retain that date but now it is more historical than reality.

WHY INSURANCE? It is self-evident that if you own a vessel, whether it be purely a motor boat or a yacht, it is advisable to have the vessel insured. As with a motor vehicle it is important to ensure that the insurance

covers not only your own vessel but any liability that might arise should you damage another vessel or other property.

There are all sorts of risks that vessel owners face including sinking, damage to equipment, collisions with other vessels and collisions with objects such as beacons and other property owned by third parties (incidentally the ancient correct term for this is “allision”).

INSURERS Marine insurance is specialised insurance and therefore it is imperative that any policy of insurance taken out is with a company that specialises in this type of insurance and therefore has the expertise to deal with claims if and when received.

CASE STUDY The vessel in question was a motor boat which was moored at a private berth and it sank.

The policy of insurance set out a list of insured events. In addition there were numerous exclusions. Relevant to this claim was the fact that the policy covered “loss or damage caused by or arising from accidental loss or damage to the applicant’s boat”.

There was no dispute that the vessel sank and that accidental loss or damage had occurred. It was also not disputed that the ingress of water resulted from the loose portside rudder gland nut.

November 2019 THE BULLETIN

23

MARITIME INSURANCE

Claim Denied The insurer declined the claim on various bases including that: “The proximate cause of the loss was due to the worn portside rudder gland.”

They relied upon the policy wording as follows: “We will not cover you for loss, damage or liability for depreciation, wear and tear, rust, corrosion, osmosis, electrolysis or damage which has occurred over a period of time.”

The insurer purported to rely upon an expert report in which the expert said: “The gland is compromised and leaking due to wear of the gland. The wear would have occurred over a period of time, and would not be a sudden occurrence.”

These were statements made without any evidence to support those assertions.

The insured obtained an expert report and that expert indicated that there was no sign of wear and tear or gradual deterioration and instead indicated: “The gland nut which houses the packing material where the leak had occurred was loose …. This was a recent (prior to the vessel sinking) occurrence

as the face of the nut which bears on the lower locking nut, and the lower locking nut itself do not show any build-up of scale at their junction which would be present if the leak had been persistent over time. The packing material itself was in a reasonable condition, and still had a useful service life.”

The view of the Financial Ombudsman was that this report was thorough and persuasive whereas the previous report was superficial and lacking in support.

The insurer also attempted to argue that the insured was aware of a long-term water leak and used this in support of the fact that it was within his knowledge and that he should have done something about it. However, again there was no evidence that the insured had this knowledge.

The incident involved a substantial ingress which caused the vessel to sink and the bilge pump could not cope with it. The Financial Ombudsman concluded that there was no evidence to support the fact that the nut had been loose for a period of time and therefore dismissed that argument.

The insurer relied upon an exclusion relating to break-down and defects but did not specify any details of how this exclusion applied. They referred to a High Court decision which to be quite frank was totally irrelevant to the case in question.

The Financial Ombudsman did not accept this argument and went on to say that a loose nut on the rudder gland is not a break-down which is what the exclusion requires. Similarly they found that a loose nut could not be classified as an “inherent defect or a defective or faulty part”.

Finally, the insurer tried to suggest that some work which had been undertaken by a workman had caused the loose nut.

However the evidence was that the work undertaken by the workman was not in the vicinity of the loose nut.

The Financial Ombudsman therefore dismissed every argument put forward by the insurer and found in favour of the insured. Just because the insurer lost does not mean that they were not experienced in the field. However, in this case the insurer did not understand its own policy both as to what was covered and what could be excluded.

LLOYDS OF LONDON One cannot deal with the issue of marine insurance without reference to Lloyds of London. In this respect I am mainly referring to Hull and Machinery Insurance Much of what I am going to say about Lloyds of London is taken from reference to the website of Lloyds of London and therefore I give full recognition to that website. However, as the website sets out a lengthy history I propose to try and summarise the key and interesting aspects.

COMMENCEMENT In February, 1688, Edward Lloyds Coffee House in Tower Street, London was referred to for the very first time in the London Gazette. The first insurance claim was not in fact a marine insurance claim but from a very early stage Lloyds Coffee House specialised in shipping.

As an aside, there were apparently more

24 THE BULLETIN November 2019

than 80 coffee houses within the city of London and each of those coffee houses had a specialist interest. Lloyds’ specific interest was shipping insurance.

DEVELOPMENT OF SHIPPING INSURANCE By the 1730s Lloyds had moved to 16 Lombard Street, London and this particular area was emerging as the location for marine underwriting by individuals. In the 1750’s it is said that actual underwriting was recorded.

However, there are apparently no records of how the shipping market was organised at this time. It was clearly very ad hoc.

In 1768, underwriters moved to “speculative” lines. Apparently in the early 1760s Lloyds Coffee House enjoyed high profits due to the Seven Years’ War. However, as that war came to an end marine premiums declined with the result that underwriters

The famous Lutine Bell in the Lloyds of London building. Photo: © User:Colin / Wikimedia Commons

MARITIME INSURANCE

underwrote such risks as highway robbery, death by gin drinking and in fact Lloyds Coffee House became notorious as a gambling den.

NEW LLOYDS As a result of this decline in the reputation of Lloyds a breakaway group, in 1769 established a new Lloyds Coffee House at 5 Popes Head Alley, London (I do love the London street names). This was the beginning of an era of professionalism and a complete disassociation from the anarchy of the Lombard Street gamblers.

WARS During a period of the 1770s to early 1800s, two wars dominated – the American Revolution and the Napoleonic Wars. This was a period where large profits could be made but also because of the wars this was countered by huge losses. It was during this period that Lloyds began to dominate the shipping insurance on a global scale.

LUTINE In 1799 there was a very interesting incident involving the vessel “Lutine”.

(Incidentally, the famous bell at Lloyds

is called the “Lutine Bell”). Apparently in 1799 the economy in Hamburg was on the brink of collapse, and the HMS Lutine was ordered to deliver a vast sum of gold and silver, collected by the city of London merchants, to the German port. It was Lloyds Underwriters who insured the Lutine’s highly valuable cargo.

On 9 October, the vessel encountered a “heavy gale” and ran aground on the Dutch coast. The captain and crew all went down with the vessel and the cargo was lost. Clearly this resulted in a significant claim against Lloyds.

In 1858 the “Lutine Bell” was salvaged from the wreck and was hung from the rostrum of Lloyds Underwriting room. The bell was struck when news of an overdue ship arrived – once for its loss, and twice for its safe return.

SYNDICATES In the 1860’s and 70’s there were numerous small syndicates in Lloyds.

However, at the same time larger corporate insurers were arriving on the scene. Because of their size they were able to underwrite larger lines of insurance.

THE 1900S The early 1900’s saw Lloyds moving from individual syndicates to a more

corporate structure. The Lloyds Act came into law in 1911.

CENTRAL FUND As a result of some dubious underwriting, a central fund was created which was effectively reinsurance. In other words if a particular syndicate couldn’t meet a claim, then the central fund which had been established would make relevant payments.

INTERNATIONAL EXPANSION In the 1960s foreign members were able to join Lloyds, particularly from America and France.

LLOYDS’ BUILDING TODAY In 1986 the new Lloyds’ Building at 1 Lime Street, designed by Richard Rogers (the same architect who design the Pompidou Centre in Paris), was officially opened by Her Majesty the Queen. The grade 1 listed building, with its pipes, lifts and pods presented on the outside, took Lloyds and London into a new and futuristic world – though inside there are still resolutely traditional elements. A head-turning building that shows what Lloyds was as well as what it has become. B

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EVENTS

Mock trial gives personal injury lawyers a taste of the court room

W

hat do you do when lawyers are missing out on court experience because nothing goes to trial? You make one up.

That was barrister Michael Kernot’s idea after observing that no motor injury matters had went to trial since changes to the CTP scheme came into effect in 2013.

Concerned about the impact that the amendments to the Civil Liability Act have had on personal injury law, he came up with the idea of a mock trial, and approached Legal Funding Australia to sponsor it.

Legal Funding Director Vince Salzano said that his firm jumped at the chance to host the mock trial as most personal injury lawyers had little to no court room experience.

“Virtually no one goes to trial in the personal injury space,” he said. “It’s a great learning experience, especially for younger lawyers.”

“Because no precedent has been set, the (CTP) legislation is really still untested,” Mr Salzano explained.

“This uncertainty leads to greater delays. The longer a case goes on, it leads to more cost and more frustration.”

The mock trial, held at the Playford Hotel on 10 September, involved a dispute over compensation to be awarded to “Peter Smith”, a 23-year-old plumber who suffered multiple injuries after he was hit by a negligent motorist while riding his bicycle.

It was presided over by The Hon. Duncan McMeekin, a recently retired Justice of the Queensland Supreme Court. More than 100 practitioners attended the event.

One of the main purposes of the trial was to explore how the Injury Scale Value may be applied to physical and psychological injuries suffered by a plaintiff.

Mr Salzano said Legal Funding

26 THE BULLETIN November 2019

Australia, which funds disbursement fees, had seen an increase in demand for its services since the CTP reforms came in.

“Because the cases are being delayed, it means firms who traditionally funded their clients’ disbursements are now wearing the cost in excess of two years.

That’s a long time to pay someone else’s expenses before being reimbursed with no compensation.”

“There are not many industries out there will pay someone else’s expense and wait years to get their money back and not

have any reimbursement on top of the principal.”

Mr Salzano said that he has heard from several firms that were not willing to fund their clients’ disbursements because of the undue financial pressures it would cause.

“Medical reports, for example, can run into the tens of thousands of dollars, and not all clients can fund these costs out of their own resources. For a law firm to invest tens of thousands (in disbursements) and give up fees until they settle, it can cause serious cash flow issues.” B

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IN HONOUR

Vale Professor Ivan Shearer, AM RFD: An Australian icon and a citizen of the world HOSSEIN ESMAEILI, ASSOCIATE PROFESSOR OF LAW, FLINDERS UNIVERSITY

P

rofessor Ivan Shearer, international law scholar, academic, international arbitrator and international judge, passed away on Tuesday, 9 July in Adelaide after a long battle with illness. The Adelaide-born renowned Australian international law academic was 80 years old. Ivan Shearer left a significant mark both in Australia and beyond Australian borders, due to his work in academia, his scholarly writings and national and international legal professional activities.

Shearer’s legal career in international law started from Adelaide but extended to the rest of Australia and far beyond into the rest of the world including to South East Asia and Asia Pacific, the Middle East, Europe, the United States and Africa.

Ivan Shearer was born on 9 December, 1938, the only son of Bruce and Iris Shearer and the only brother to his two sisters. He attended St Peter’s College in Adelaide and enjoyed, in his words, “most subjects that were not maths and not science”. He had discovered his love and talent for languages and won prizes for debating. His career in law started almost accidentally, after conversations with a school mate whose father was a QC fanned the spark of his passion for justice into a flame. This, combined with his talent for Latin, prompted him to look towards a career in law.

Ivan went to the University of Adelaide in 1956. At Adelaide Law School he was taught Roman Law by Law Lecturer Leo Blair, the father of former British Prime Minister Tony Blair. He was also taught

by DP O’Connell, a noted international law scholar, who taught at the University of Adelaide in 1950’s and 60’s. Professor O’Connell, in later life, taught international law at the University of Cambridge.

Upon graduating from Adelaide Law School, Shearer worked as a judge’s associate and then a lawyer until he started his prolific and exceptionally influential academic career. At the University of Adelaide, he worked firstly as a research assistant to Professor O’Connell and then as a lecturer. Ironically, his career in International Law began somewhat accidentally also, as he worked for O’Connell on a project in that field. In

28 THE BULLETIN November 2019

1975 he moved to the newly established Law School at the University of New South Wales, where he served as the Dean of Law during 1984-7 and again in 1988-90. He moved to the University of Sydney in 1992 where he held the prestigious position of Challis Professor of International Law at the University of Sydney until his retirement in 2004.

This means in New South Wales Shearer contributed to two of the world’s most eminent law schools, yet represents only a partial contribution of Ivan Shearer to Australian universities’ law schools.

Shearer combined his academic career with significant international and domestic professional activities. He served in the RAAF Reserve (reaching rank of Squadron Leader) and the RANR, retiring at the rank of Captain after 40 years of reserve service.

He was a legal advisor to the Kingdom of Lesotho in the early 1970’s on treaty succession, other international matters and on the law of the sea. He also advised the governments of Nauru in 1979 and Kiribati in 1981 on international law issues. He was also the Judge ad hoc in a number of international disputes between Australia and other countries, including in the Southern Bluefin Tuna Cases brought by Australia and New Zealand against Japan in 1999.

In 1991 he acted as an international advisor to the Department of Foreign Affairs and Trade. Shearer was nominated by then Minister Foreign Affairs, Alexander Downer, to the United Nations Human Rights Committee and served two terms on that Committee from 2000-2008. James Crawford, a Judge of the International Court of Justice, regarded him as an exemplary colleague and contributor in that role. He also noted the multifaceted nature of Shearer’s overall influence on the law, which was “national and international, domestic and foreign, naval and civil, forensic and academic”.

After retirement, Shearer returned to his hometown of Adelaide and continued working in all three South Australian Law Schools. He took up an appointment as an Adjunct Professor of Law at the newly established Law School at the University of South Australia. He enjoyed a fruitful

partnership with this dynamic School, recognised by the University’s decision to name their impressive moot court after him. He was also made an Emeritus Professor of Law at Adelaide, and had a close relationship with Flinders University Law School, teaching in the Masters of International Law and International Relations course. He remained a caring father figure of legal education in South Australia. This ongoing involvement, particularly in international legal matters, saw him establish a South Australian Chapter of the International Law Association in 2010.

Shearer converted to Catholicism at the age of 20 and as a liberal Catholic, interested in Christian values, he remained a man of faith to the end of his life. His faith was a source of great strength throughout his life, informing both a rich personal and a highly valuable professional life. He was a great man of principle and character.

On a personal note, Shearer was my supervisor, mentor and personal and family friend for 28 years. As an overseas student coming to Australia in 1991, Shearer, then my PhD supervisor, helped me to find my way into a new world. He mentored me and taught me so much, both professionally and in life. Ivan Shearer was a citizen of the world and a legendary international law figure that Australia offered to the world.

He was kind, open to friendship, decent and always ready to help others. He has left the international legal community a far reaching and lasting legacy.

Professor Shearer is survived by his two sisters Jan and Sara. He will be deeply missed by his family, friends, colleagues and students. B

CASE

Taking instructions for a will – notes on Howe v Fischer DAVID BARNFIELD

T

he Retainer - the contract between you and your client - is the key. What does the client want you to do?

The decision in Fischer v Howe, summarised in the October 2013 Bulletin, was overturned on appeal. Mrs Fischer had instructed her solicitor to prepare a new will. She was 94 and unwell and had trouble getting around and so he visited her at home to take instructions. He said he would prepare a draft will and come and see her in the week after Easter. She wanted others including her son who wasn’t due back until after Easter to be present. She died the day after Easter.

No new will had been made and as a disappointed beneficiary under the terms of the proposed new will, her son sued the solicitor in negligence, claiming the solicitor should have taken immediate steps to ensure an informal will was executed. The Court found for the plaintiff and awarded substantial damages and costs.

On 26 August 2014 in Howe v Fischer,1 the NSW Court of Appeal overturned the decision and found that contrary to the findings of the judge at first instance, Mrs Fischer did not have “a settled dispositive intention as to the whole of her estate” and she was still deciding who to appoint as her executor. Further, the solicitor had advised her of the possibility of the will being challenged by her daughter should she again be omitted from the gifts and Mrs Fischer may well have needed time to think about this.

The solicitor was asked by the client to return after Easter with a “draft will” when Mrs Fischer wanted others present, including her son (the respondent) who was due back after Easter.

The finding of the primary judge that there was “a not insignificant risk” that Mrs Fischer would lose testamentary capacity in the 2 weeks between taking instructions and seeing her again was not supported on the facts. There was “no evidence that Mrs Fischer’s medical condition was such as to indicate impending death or loss of mental capacity”.

Further, the reason for the delay was not the solicitor’s request but the client’s wish to have her son (and others) present next time. The timing was expressly agreed to by the client and was not as a result of the solicitor’s own commitments or just for his convenience, contrary to the findings.

The primary judge concluded that the retainer was to give effect to the client’s testamentary intentions and not merely to prepare a formal will and arrange for its later execution. On appeal, the Court disagreed and so it was not incumbent on the solicitor to procure the execution of an informal will.

It would have been different if the solicitor “entertained as a matter of reasonable foresight that Mrs Fischer might be expected to die or lose testamentary capacity in the relevant period of about two weeks.” Although the client was 94 and in poor health, her own doctor was “absolutely shocked” to learn of her death on 6 April, the Tuesday after Easter, and in fact had seen her that very morning. The Court found the situation was not akin to a client a who was dying in hospital or about

to make an overseas trip. The solicitor couldn’t be expected to reasonably foresee what happened in the circumstances.

Clearly this appeal turned on the facts and the appellant may have been lucky.

Conclusion In 2019, when dealing with a testator such as Mrs Fischer, it would be wise to recommend to the client that an informal will be signed and dated on the day, just in case, even if no executor is named and even if a child has been omitted from the gifts.

If the client happens to die without executing a formal will, a family member can apply for letters of administration of the informal will and any claim arising for greater provision can be dealt with on its merits; whereas if the new (and substantial) distribution of assets requested by the client fails totally, then chances are it’s going to be an expensive exercise should a disappointed beneficiary seek redress. B Endnotes 1 Howe v Fischer [2014] NSWCA 286

November 2019 THE BULLETIN

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EVENTS

Eynesbury Senior College claims back to back victories in Mock Trial Grand Final LAUREN ROBERTS, MEMBER, MOCK TRIAL COMMITTEE

O

n Tuesday 17 September, 2019 the full bench of the Mock Trial Court, comprised of his Honour Justice Stanley and assisting Judges Bec Sandford (Vice President of the Law Society) and Claire Victory (Mock Trial Committee Member), presided over the matter of R v Tick.

The accused, Ms Louise Tick (Emma Hislop of Eynesbury College), faced charges of unlawful stalking of her former partner Eric Tarstuck (Lachlan Jenkins of St Peter’s College), in contravention of s19AA of the Criminal Law Consolidation Act 1995 (SA).

Former competition winners Saint Peter’s College appeared for the prosecution and the defending champions Eynesbury College for the defendant.

Counsel for the prosecution (Ollie Klienig, St Peters) opened the case for the prosecution alleging that Ms Tick had become jealous of Mr Tarstuck’s relationship with his employer, an MP from a major political party. It was further alleged that as a result of her jealousy, the relationship between Ms Tick and Mr Tarstuck ceased and Mr Tarstuck asked Ms Tick to move out of the house they shared at Walkerville. Subsequently Ms Tick was said to have stalked Mr Tarstuck by commencing work at Meals on Wheels where Mr Tarstuck was working on a special project, attending at their former shared residence house and the office of the MP for whom Mr Tarstuck worked, and calling Mr Tarstuck on his home and mobile telephone several times a day.

Counsel for the defence (Aileen Bourne, Eynesbury College) opened the defence case stating that the incidents said to constitute stalking did not satisfy the criteria and that Ms Tick did not have the necessary mens rea required by the Act. It was contended that there were good reasons for Ms Tick’s attending at the various places referred to by the prosecution and for contacting Mr Tarstuck.

Notable highlights from the evidence of the witnesses included: • Objections were frequent and

30 THE BULLETIN November 2019

•

•

• •

generally hotly contested by both sides. They were conceded when appropriate and otherwise adjudicated fairly by Justice Stanley; Charles Smyth MP (Shant Becker, St Peter’s College), second witness for the prosecution spoke liberally of his many and varied achievements as an MP and of his wonderful personal qualities in the face of numerous objections by the defence counsel on the grounds of relevance; An outburst from Mr Smyth about the poor character and lazy work ethic of Ms Tick and allegations that, as he had studied undergraduate psychology, he was qualified to give expert evidence that she was a danger to society; Ms Tick’s costume of a flannel shirt and ugg boots; Ms Tick’s characterization of Mr Tarstuck as a “top person who went all weird” and who Mr Smyth was “keen on”, her evidence that she only wanted

to collected her stuff, comprised of her “good ugg boots, hairbrush and good lip balm”, and her evidence that she didn’t try to “force” the door when she went to the house, but she only gave it a good shove as it gets stuck during the colder months which in this case included March; • Seemingly the only sensible witness, Betty Smith (Abbey Douglas, Eynesbury College), library volunteer and neighbour who had a soft spot for Ms Tick, appeared complete with grey hair and beige stockings. Ms Smith, despite being hard of hearing, clearly heard the conversation between Ms Tick and Mr Tarstuck when Ms Tick attended at Mr Tarstuck’s house to collect her things and was able to give evidence that Ms Tick was entirely reasonable on that occasion.

Second counsel for the prosecution (Blake Lawrenson, St Peter’s College) closed the prosecution case by contending

EVENTS

that the elements of the offence had been satisfied. Citing relevant case law, it was submitted that Mr Tarstuck’s ongoing stress and anxiety was enough to satisfy the “fear” requirements of the offence and that the context of the broken relationship was an important factor. He also picked up an inconsistency between the evidence of Ms Smith given in Court and that of her statement.

The second counsel for the defence (Dante McDonald, Eynesbury College) submitted that reasonable doubt existed.

He delivered a concise, but complete outline of the evidence that could cast doubt on the prosecution case. He distinguished the case law cited by the prosecution from the present case and concluded that the elements of the case could not be satisfied by the evidence before the Court.

Ultimately Justice Stanley and the assistant Judges found in favour of the defendant and awarded the highest score to Eynesbury College. Justice Stanley noted that it was for the prosecution to

prove their case beyond a reasonable doubt. He noted further that the defendant had offered reasons for the various attendances and communications and that such legitimate reasons could not be excluded based on the evidence before the Court.

The winners of the prizes were as follows: • Best witness: Shant Becker, St Peter’s College • Best barrister: Dante McDonald, Eynesbury College • Internships: Dante McDonald, Eynesbury College and Blake Lawrenson, St Peter’s College Both teams performed admirably and it was clear that they had all put in a lot of work.

The Mock Trial Committee would like to thank his Honour Justice Stanley for taking the time to preside over the grand final Mock Trial, for mentoring the winners for their internships, and for his ongoing support of the Competition.

We are grateful to our sponsors and

supporters, the Law Foundation of SA Incorporated and the Law Society of South Australia. Thank you to Amelia Garreffa and Kate Walkley for their support of the Mock Trial Committee, Bec Sanford and to all practitioners who have volunteered their time to coach teams or judge this year.

We thank the teams and the teachers for their hard work in this year’s competition. The standard of the Competition gets better each year and we are proud to continue to grow the Competition.

The Mock Trial Competition provides students with an introduction to the law, legal processes and the South Australian legal system generally. The Competition is a valuable tool for the students to develop their communication and analytical skills, thereby increasing their confidence and experience. It is also an opportunity for them to make connections with members of the profession, including members of the Judiciary, and their peers from other schools. B

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Relocation after relationship breakdown: An introductory guide MELISSA BOYLE, BARRISTER, HUGH BURTON CHAMBERS

T

here can be no doubt that the breakdown of a de facto or matrimonial relationship places significant strain on the parties and children involved.

There are also many financial, social, and legal consequences that can follow the breakdown of these relationships, particularly where parties end up engaging in litigation to resolve their disputes.

One such consequence suffered by a party to a relationship breakdown is the impact on their ability to freely relocate post-relationship. This usually only becomes an issue where the party proposing to relocate also proposes to relocate the child or children of the relationship.

Relocation is, generally, where a party intends to move a child such a distance from their previous residence that it will affect the ability of the child to spend time with the other party. Sometimes it can relate to shorter relocations which might affect, for example, a child’s schooling. It can include relocations overseas, interstate, or instrastate.

So is it possible to relocate a child’s primary place of residence? What about if there are already court orders or proceedings? What if there aren’t?

The Family Law Act 1975 (Cth) (the Act) is the Act empowering the Federal Circuit and Family Courts of Australia to make orders regarding arrangements for the care and welfare of children.

There is no specific section of the Act addressing relocation.

Instead, the courts make decisions using the same sections of the Act they use for making all other orders affecting children – primarily: • That the best interests of the child are the court’s paramount concern (s60CA); • the primary and secondary considerations of the court when determining what is in a child’s best interests (s60CC); • the presumption of equal shared parental responsibility (s61DA); and • that where there is an order for

32 THE BULLETIN November 2019

equal shared parental responsibility, the Court must consider equal, or significant and substantial time, with both parents (s65DAA).

WHERE THE PARTIES ARE CURRENTLY LITIGATING Where the parties are currently litigating in relation to children’s issues then, whether or not the matter has come before the court, and whether or not there are existing interim orders binding the parties, the party who wishes to relocate should allow the court to determine the issue prior to relocating (if the parties are unable to agree).

If the party relocates the child where there are interim orders in place, and where this frustrates any or all of the existing orders for the child to spend time with the other party (or otherwise breaches the orders, for example, in relation to where a child attends school, or an injunction not to relocate) that party is breaching a court order. Contraventions of court orders carry potentially serious consequences ranging from altering existing orders, through to (albeit, rarely imposed) fines, Good Behaviour Bonds, or imprisonment.

It can also affect how your client is viewed by the court in the remaining proceedings.

If a party relocates after the proceedings have been initiated, but before interim orders are put in place, the court is likely to see this as a deliberate attempt to frustrate the other party’s application and the court’s power to determine that application. Whilst the party cannot be punished for contravening the orders, it is more likely that their application to relocate will be unsuccessful, and, again, may tarnish that party in the eyes of the court.

In these circumstances, the only appropriate approach is that the party seek orders that they be permitted to relocate. That application will need to be filed with an affidavit setting out, in sufficient detail, where the party proposes to relocate to, and why. Ideally, it will also address the potential benefits to the

child of the relocation (such as education, parent’s employment, and/or contact with extended family), and whether, and if so, how, that party then proposes for the child to maintain a meaningful relationship with the other parent.

COURT ORDERS BUT NO CURRENT PROCEEDINGS Where there are existing orders regarding the care and welfare of children, but no current proceedings, the court expects that the parties will, pursuant to section 60I of the Act, attempt to mediate before issuing any further proceedings (subject to some exceptions).

If mediation is unable to resolve the dispute, then the party will need to issue a fresh application seeking alterations to the previous orders.

The risk of issuing a fresh application is that, subject to the provisions of Rice v Asplund (1979) FLC 90-725, the other party may seek a wholesale change to the existing orders.

NO COURT ORDERS Where there are no court orders, there are a few potential approaches if your client is the primary caregiver for the child.

One approach is for a party to simply relocate. Doing so will not breach a court order. However, it is also entirely possible that after going to the expense and inconvenience of relocating, a court will order that the child be returned.

The court and the other party will likely have little sympathy for the expense and inconvenience caused to a party who unilaterally relocated without regard for the child’s relationship with the other parent. Such an approach is also detrimental to the parties’ ability to coparent effectively in the future.

Another approach is for parties to try to reach agreement about relocation. This is of course required by section 60I of the Act, prior to issuing proceedings (subject to certain exceptions).

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If the parties are able to agree, then the agreement should be recorded, ideally, in consent orders, but at the least, in writing, signed and witnessed.

If the parties are unable to agree on relocation and the party intending to relocate is resolute to do so, then there are effectively two options.

The first is for the party to relocate and wait to respond to an application (if any) issued by other side. The relocating party is not breaching any court orders.

However, the absence of a court order is also not a licence permitting relocation.

The other side may effectively acquiesce by not actively pursuing the matter at all. If they delay too long in pursuing the matter, the relocating party and the child will most likely be well settled in their new location before the matter comes before the Court, (which may assist the relocating party).

On the other hand, if the other party issues proceedings, the court may order the relocating party to return the child, which if the party also returns, will be disruptive, probably come at significant expense, and will potentially cost the relocating party opportunities such as

employment. Further, and importantly, it may taint the relocating party in the eyes of the judicial officer who may consider that that party who relocated did not prioritise the child’s best interests.

The other alternative is for the party intending to relocate to “get in front of it”, by issuing proceedings seeking, amongst other things, permission to relocate.

Although rare for the court to allow a relocation on an interim basis, if the court does so, then it is unlikely (albeit not impossible) that a party will be ordered to move back on a subsequent interim or final basis.

If the court does not allow the party to relocate on an interim basis, then it is possible this will change at a later date and/or on a final basis. The party however will be looked at in a positive light by the court by not relocating unilaterally, and for allowing the Court to determine the issue.

This may assist their application in due course. It should be noted that whilst the court has a general policy of prioritising relocation trials, this does not mean that a resolution of the issue will be swift.

Whilst issuing an application will come at a cost, it is likely to be substantially cheaper (and certainly less inconvenient) than the cost a party will incur if they relocate unilaterally and are then ordered to return.

Finally, however, it should be noted that issuing an application will subject the parties to the court’s jurisdiction. Thus, the court will then determine (by agreement or after a hearing) all issues including who the child should live with, who the child should spend time with (and how much time), and, if in dispute, parental responsibility.

The key take-away is that there is usually no clear answer as to how to approach a relocation matter. The available options and the consequential advice vary significantly depending on the circumstances. Your client should be aware of the potential options available to them and the advantages and disadvantages of each option. You should always have your client’s written and signed instructions that they’ve received this advice, and which option they instruct you to pursue. B

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TRAVEL

Bon Voyage: The International Human Rights of Travel and Tourism RAFFAELE PICCOLO, HUMAN RIGHTS COMMITTEE

T

his article will consider how travel and tourism interacts with international human rights law, and in particular some of the rights provided for in the International Covenant on Civil and Political Rights (ICCPR),1 and the International Covenant on Economic, Social and Cultural Rights (ICESCR).2 These treaties do not exhaustively define the extent of international human rights as relevant to travel and tourism,3 however they are amongst the most notable, and generally applicable international human rights law instruments.

RIGHT TO FREEDOM OF MOVEMENT The right to freedom of movement is central to the notion that a person has a right to travel.

Article 12 of the ICCPR provides that everyone (lawfully present) in the territory of a country has the right to liberty of movement. The right to freedom of movement may only be restricted to the extent necessary to protect national security, public order, public health or morals or the rights and freedoms of others.

Permissible restrictions on this right might therefore include restricted access to military zones on national security grounds, or limitations on the freedom to settle in areas inhabited by indigenous or minority communities.4 For example locally, consistent with these permissible restrictions, a person, other than an Anangu, must obtain permission to enter, and reside, on the lands of the Anangu Pitjantjatjara Yankunytjatjara.

This restriction might also be justified as necessary to protect the right (of the Anangu) to cultural life (Article 17 of the ICCPR), as discussed further below. In contrast, these exceptions do not provide a basis to require female travellers to obtain the consent or escort of a (male)

34 THE BULLETIN November 2019

relative to travel, either as a matter of law or practice.5 Further, every person is free to leave any country, including his or her own country, and free to decide the country to which he or she travels.6 The freedom to leave is not to be made dependent upon, or limited by, the purpose of travel, or the length of the intended period of absence.7 Thus a person is free to leave for the purpose of travelling abroad. A corollary of the right to leave is the right to a passport to enable such travel.8 Finally, a person must not be arbitrarily deprived of the right to enter or return to his or her home country.

This includes cancelling the citizenship of a person. Any interference with this right must be reasonable in the particular circumstances.9

RIGHT TO WORK AND PROHIBITION AGAINST SLAVERY Article 6 of the ICESCR provides that everybody has the right to work, and to engage in work which he or she freely chooses. Such work must be “decent work”, meaning the work must provide appropriate conditions for safety and remuneration.10 Implicit in the right of every person to freely choose his or her work is a prohibition against being forced to work.11 This prohibition is reflected in many international instruments, including the ICCPR. Article 8 of the ICCPR prohibits slavery and servitude, and provides that nobody must be required to perform forced or compulsory labour. More recently, the discussion of slavery has tended to focus on “modern slavery” and the risk of slavery in the “supply chains” of companies.12 The tourism industry is not, however, immune from such violations.

“Orphanage tourism” is one example of slavery in tourism. Orphanages are built for the purpose of capitalising on the demand from tourists for opportunities to volunteer to assist in the “care” of orphaned children.13 Children are consequently removed from their families, and “often deliberately kept in poor conditions to elicit sympathy from wellmeaning visitors”.14 This has contributed to the situation whereby some eight million children around the world are placed in orphanages, but approximately 80% of these children are not orphans, as they have parents or family that could provide for their care.15 In another case, Abul Kamal Azad, a Bangladeshi national was deceived into travelling to Scotland with the promise of employment as a chef in a busy restaurant.

However, none of this eventuated.

Instead, his passport was taken, and Azad was forced to work in a hotel catering for tourists, out of fear of being reported as an illegal worker.16 This example serves to demonstrate that slavery in tourism is not limited to a particular region, or economic strata, of the world. It can be found in the tourism industries of developed and developing countries alike.17

RIGHT TO JUST AND FAVOURABLE CONDITIONS OF WORK Article 7 of the ICESCR provides that everybody has the right to the enjoyment of just and favourable conditions of work.

These conditions include fair wages and equal remuneration for work of equal value. Work must be performed in safe and healthy conditions, and everyone must have an equal opportunity to be promoted in his or her employment to an appropriate higher level, subject to no considerations other than those of seniority and competence.

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Finally, everybody must be provided with reasonable limitations on working hours, and periodic holidays with remuneration, including payment for public holidays.

There are notorious examples of poor working conditions in tourism; long working hours, unpaid overtime, overreliance of employees on tips, stressful workloads, insecure employment contracts, poor training, and a lack of promotion opportunities for local staff.18 Again these poor conditions are not confined to a particular part of the world.19 Nor are these concerns limited to one segment of the tourism industry.20 In the case of the growing market for cruise ship tourism, there are reports of employees working in excess of 100 hours per week for up to 15 continuous weeks, or seven days a week without a rostered day off for periods of up to 10 months. The remuneration for this work is commonly not commensurate with the long hours, and staff are left dependent on tips from tourists to minimise any shortfall in wages.

Employees are deprived of any sense of autonomy, with the employer in control of “what you eat, when you eat, when you can go use the toilet, how cold it is in your cabin, everything.”21

RIGHT TO CULTURAL LIFE Article 15 of the ICESCR provides that everybody has the right to take part in cultural life. The right to take part in cultural life provides that everybody has the right to seek and to develop cultural knowledge and expressions, including the right to know of, and learn about, his or her own culture, and the culture of others.22 As such, everybody has the right to access cultural goods. This includes access to naturally occurring constructs, such as rivers, lakes, seas, forests, mountains, and

reserves, and the fauna and flora found there. It also includes access to intangible goods, such as customs, beliefs, languages, traditions, history and knowledge.23 However, the right to cultural life is not without limitation. The right might be limited to the extent necessary to protect the rights of others. For example, without concern for these limitations, tour companies have reportedly used images of the Mursi people of Ethiopia wearing their iconic lip plates, without consent, to further their own business interests.24 Although done under the guise of the right to cultural life, the separate and combined actions of, entering villages, capturing images of the Mursi people, and distributing such images, without consent, interferes with the right to privacy (Article 17 of the ICCPR). The right to privacy provides that nobody must be subjected to arbitrary or unlawful interference with his or her privacy, family, or home. Such interference is impermissible without consent and consultation.

Equally, the right to cultural life can intersect with and justify limitations being placed upon other rights. For example, the right to cultural life for indigenous people includes the right to use, access, own, control, and develop communal lands, territories and resources.25 As noted above in respect of the Anangu, the right (of the Anangu) to cultural life may justifiably limit and interfere with the right to freedom of movement of non-Anangu to access the lands of the Anangu Pitjantjatjara Yankunytjatjara (Article 12 of the ICCPR).

RIGHT TO ADEQUATE FOOD, WATER, CLOTHING AND HOUSING Article 11 of the ICESCR provides that everybody has the right to an adequate standard of living, including adequate

food, clothing and housing. This includes the right to water.26 The right to adequate food provides that everybody must have available to him or her food that is safe to consume and of sufficient quantity and quality to satisfy his or her dietary needs.27 The right to water similarly entitles everyone to safe, sufficient, accessible, and affordable water for personal and domestic use.28 However, tourism can interfere with this right. For example, in the resort area of Kiwengwa, Zanzibar, the rise in tourism and consequent increased demand for water caused local wells to become “salty”. As a result, local residents that can afford to do so, have been forced to purchase water from vendors who transport the water from elsewhere.29 The situation is similar elsewhere in Zanzibar, Goa (India), Gambia, Bali (Indonesia), and Kerala (India).30 The right to housing is greater than “merely having a roof over one’s head”, and includes the right to live somewhere in security, peace and dignity.31 Thus, everybody should possess a level of security of tenure which protects against forced eviction.32 Accordingly, forced eviction is only justifiable in the most exceptional circumstances,33 and even then, only as a last resort.34 The right to adequate housing also requires that housing is situated in a location which provides access to employment opportunities, health services, schools, and other social facilities.35 The conflict that can arise between tourism and the rights to adequate housing and water is demonstrated in the following example. In 2008 the Government of Cambodia entered into a 99-year lease for an area in Koh Kong Province. This area included 12 villages (1,163 families).

The lease was with a private company for the construction of a commercial November 2019 THE BULLETIN

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and tourism development zone. The planned construction included a highend tropical resort, a large golf course, landscaped luxury villas, a casino, a large water entertainment centre, a cultural entertainment zone, and an island park, along with a deep-sea port, and an airport.

The villages had occupied the location for generations, and derived their living mainly from fishing, cashew nut production and rice paddy farming. The villages were not consulted about the project, but rather informed that they were obliged to leave as their homes had been constructed on state lands. They were advised that they would be relocated, and promised land and financial compensation. However, the financial compensation received was much smaller than promised. Those that refused to relocate had their houses demolished.

The families were relocated to an area that lacked adequate health care facilities, and access to water, and had poor quality roads (making access to schools and other facilities difficult) and housing. The area also lacked adequate opportunities for employment, and had poor quality farmland. As a result, many families left in search of new employment opportunities, and some turned to illegal logging as a means of generating an income.36 This example also serves to demonstrate how forced evictions, in the service of tourism, can conflict with the right to privacy (Article 17 of the ICCPR).37 Forced evictions conflict with the right to privacy insofar as such action constitutes an arbitrary interference with the privacy, family life, and home, of the persons living in the subjected house. “Arbitrariness” in this sense does not simply refer to any notion of illegality, but rather the lack of reasonableness of the action in the particular circumstances.38 In this case, the lack of reasonableness is underscored by the lack of consultation with the villages concerned, and the resort to forced eviction, other than as a last resort.

CONCLUSION International human rights law provides for, and protects, the right to travel, and to learn of the cultures of others. Equally, international human rights law protects the rights of those engaged in the provision of the services associated with travel and tourism, and the rights of those who might otherwise be affected by the tourism industry in some form. Thus, travel entails

36 THE BULLETIN November 2019

more than simply consideration as to the choice of destination, sites, and attractions.

Travel involves encounters with other people. As such, the rights of all who might be affected by travel and tourism, in whatever form, should be considered in any plan to travel. B Endnotes 1 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).

2 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

3 Global Code of Ethics for Tourism, adopted in 1999 by the General Assembly of the United Nations World Tourism Organization; UNWTO Convention on Tourism Ethics, Approved by A/RES/707(XXII) during the 22nd General Assembly United Nations World Tourism Organization which took place in Chengdu, China in September 2017.

4 Human Rights Committee, General comment No. 27: Freedom of Movement (article 12), 67th sess, UN Doc CCPR/C/21/Rev.1/Add.9 (18 October 1999) [16] (‘Human Rights Committee, Freedom of Movement’) 5 Ibid [6], [18].

6 ICCPR, art 12(2).

7 Human Rights Committee, Freedom of Movement (n 4) [8].

8 Ibid [9].

9 Ibid [19]-[21].

10 Committee on Economic, Social and Cultural Rights, The Right to Work: General Comment No. 18, 35th sess, UN Doc E/C.12/GC/18 (24 November 2005) [7].

11 Ibid [6].

12 See, eg, Modern Slavery Act 2018 (Cth).

13 Joseph M Cheer, Kent Goldsworthy, Leigh Mathews and Shivani Kanodia, ‘Modern slavery and tourism: when holidays and human exploitation collide’, The Conversation (Web Page, 19 July 2017) <https://theconversation.com/modernslavery-and-tourism-when-holidays-and-humanexploitation-collide-78541>.

14 ‘Travel, tourism and modern slavery’, Save the Children (Web Page, 20 March 2019) <https://www. savethechildren.org.au/Our-Stories/travel-tourismand-modern-slavery>.

15 Ibid.

16 Annie Kelly and Mei-Ling McNamara, ‘A slave in Scotland: “I fell into a trap – and I couldn’t get out”’, The Guardian (Web Page, 28 May 2016) <https://www.theguardian.com/globaldevelopment/2016/may/28/slavery-humantrafficking-hotel-workers-bangladesh-scotland>.

17 See also Pete Pattisson, ‘Migrants claim recruiters lured them into forced labour at top Qatar hotel’, The Guardian (Web Page, 29 October 2018) <https://www.theguardian.com/globaldevelopment/2018/oct/29/agents-duped-usinto-forced-labour-at-top-qatar-hotel-say-migrantworkers-marsa-malaz-kempinski>.

18 ‘The impacts of all-inclusive hotels on working conditions and labour rights in Barbados, Kenya & Tenerife’ (Research Report, Tourism Concern, 2004); Chris Beddoe, ‘Labour standards, social responsibility and tourism’ (Report, Tourism Concern, 2004).

19 Severin Carrell, ‘Skye tourism workers complain of low pay and poor conditions’, The Guardian (Web Page, 22 July 2018) <https://www.theguardian. com/uk-news/2018/jul/22/scotland-skyetourism-workers-complain-of-low-pay-and-poorconditions>.

20 Helen Jennings and Kai Ulrik, ‘Cruise tourism – what’s below the surface’ (Research Briefing, Tourism Concern, 2016); Emily McPherson, ‘Aussie cruise ship worker reveals dark side to glamorous industry’, 9News (Web page, 23 August 2018) <https://www.9news.com.au/national/ aussie-cruise-ship-worker-reveals-dark-side-toglamorous-industry/0e9d2190-fe3d-48bc-90934800ffd1bed6>.

21 John Hutchinson, ‘100-hour working weeks, sex below deck... and what they REALLY think of passengers: Confessions of a cruise ship worker’, Daily Mail Australia (Web Page, 26 February 2015) <https://www.dailymail.co.uk/travel/travel_news/ article-2969989/100-hour-working-weeks-sex-deckREALLY-think-passengers-Confessions-cruiseship-worker.html>.

22 Committee on Economic, Social and Cultural Rights, General comment No. 21: Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), 43rd sess, UN Doc E/C.12/GC/21 (21 December 2009) [15] (‘Committee on Economic, Social and Cultural Rights, Right of everyone to take part in cultural life’).

23 Ibid [16].

24 Stroma Cole and Jenny Eriksson, ‘Tourism and Human Rights’ in Stroma Cole and N. Morgan (eds.), Tourism and Inequality: Problems and Prospects (CABI, 2010) 107, 115-6.

25 Committee on Economic, Social and Cultural Rights, Right of everyone to take part in cultural life (n 22) [36].

26 Committee on Economic, Social and Cultural Rights, General Comment No. 15 (2002): The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 29th sess, UN Doc E/C.12/2002/11 (20 January 2003) [3] (‘Committee on Economic, Social and Cultural Rights, The right to water’).

27 Committee on Economic, Social and Cultural Rights, General Comment No. 12: The right to adequate food (art. 11), 20th sess, UN Doc E/C.12/1999/5 (12 May 1999) [8].

28 Committee on Economic, Social and Cultural Rights, The right to water (n 26) [2] 29 Rachel Noble, Paul Smith, and Polly Pattullo, ‘Water Equity in Tourism: A Human Right, A Global Responsibility’ (Report, Tourism Concern, 2012) 10.

30 Ibid 10-19.

31 Committee on Economic, Social and Cultural Rights, General Comment No. 4: The right to adequate housing (art. 11 (1) of the Covenant), 6th sess, UN Doc E/1992/23 (13 December 1991) [7] (‘Committee on Economic, Social and Cultural Rights, The right to adequate housing’).

32 Ibid [8].

33 Ibid [18].

34 Committee on Economic, Social and Cultural Rights, General comment No. 7: The right to adequate housing (art. 11 (1) of the Covenant): Forced evictions, 16th sess, UN Doc E/1998/22, annex IV (20 May 1997) [13] (‘Committee on Economic, Social and Cultural Rights, The right to adequate housing: Forced evictions’).

35 Committee on Economic, Social and Cultural Rights, The right to adequate housing (n 31) [8].

36 Andreas Neef, ‘Tourism, Land Grabs and Displacement - A Study with Particular Focus on the Global South’ (Report, Tourism Watch, 2019) 27-29.

37 Committee on Economic, Social and Cultural Rights, The right to adequate housing: Forced evictions (n 34) [8]; Committee on Economic, Social and Cultural Rights, The right to adequate housing (n 31) [9].

38 Human Rights Committee, General Comment No. 16: Article 17 (The right to respect of privacy, family, home and correspondence, and protection of honour and reputation), 32nd sess, UN Doc HRI/GEN/1/Rev.9 (Vol. I) p.191 (8 April 1988) [4].

YOUNG LAWYERS

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Young Lawyers: Making the ‘Ethics Point’ fun since 2012

O

n 10 October young lawyers gathered at the Law Society for the Young Lawyers’ Committee Ethics and Wellbeing Seminar.

The annual seminar draws a strong, eager crowd each year due to its interactive nature, the controversial and humorous ethical scenarios, and the star-studded panellists who give their time to share their experiences and impart wisdom.

This year’s panel, consisting of Greg May, the Legal Profession Conduct Commissioner, Rosalind Burke, the Director of Ethics and Practice at the Law Society, and Professor and Psychiatrist Michael Baigent, Flinders University, guided the audience through a number of scenarios designed to test knowledge of ethical and wellbeing issues.

The use of interactive technology sets this seminar apart. Each ethical scenario is displayed on the screen and audience members have the opportunity to use their phone, iPad or laptop to vote (anonymously) using an online poll system for what they consider to be the most

Scenario 1 QUESTION

Scenario 2 ANSWERS

You work on a matter with a client (Player X) who is a high profile Adelaide Crows player.

During the course of the matter you find out some interesting information about the de-listing of another player which will occur at the end of the current AFL season. That information is disclosed confidentially in 'small talk' at a client meeting, but doesn't relate to the legal issue that your firm is engaged to assist Player X with.

What can you tell your friends?

The legal matter finalises and you find yourself watching the footy with some friends the following weekend.

4. You can tell them everything you heard from Player X and about Player X's legal issue because the retainer has now ended.

appropriate answer. A bar graph on the front screen displays the answers received in “real-time”. Complex ethical issues are unashamedly pitched and faced head on. Once all responses are submitted, the panellists discuss the results, allowing audience members to better understand the legal and ethical reasoning behind their “correct” or “incorrect” responses.

1.

Nothing. The confidentiality of the solicitor-client relationship means you can't repeat a word Player X told you;

2.

That you heard about the de-listing, but not where you heard it;

3.

That you heard about the de-listing from Player X who used to be your client - but you can't disclose the legal issue they had;

See above, an example scenario from the seminar. How would you respond?

A sincere thank you to our esteemed panel for their time and their sensible advice. Thank you to also to Paul Burgess and Burgess Paluch Legal Recruitment, major sponsor of the Young Lawyers’ Committee, for your ongoing support.

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FROM THE CONDUCT COMMISSIONER

The investigation process: How long is a piece of string?

GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER

O

nce I receive a complaint about a practitioner, it can take a long time until the investigation of that complaint is completed and I have made a determination about it. That process is rarely as quick as anyone would like.

I thought it might be useful if I tell the profession generally about our investigation process, so that there is a greater understanding as to why it sometimes seems a long time from start to finish (and in fact is).

There are two categories of complaints in this context. First, the really easy ones.

Second, all the others!

I put into the first category at least some of the complaints that I close under section 77C of the Legal Practitioners Act (The Act). It will sometimes be obvious on the face of the complaint that there is no reason for me to investigate it – for example, because: • either the former Legal Practitioners Conduct Board or I have previously considered the same complaint; • the conduct complained of has been, or is being, investigated by another body; • the conduct complained of could not amount to misconduct under the relevant definitions in the Act; • a sizeable bill that is the subject of an overcharging complaint is already the subject of recovery proceedings in the Magistrates Court.

Often I will close such a complaint without a decision having been made to investigate it – in which case the first the practitioner complained of might know about the complaint could be when he or she receives a copy of my Determination to close the complaint (which has to be given under section 77M of the Act).

Now, on to the second category!

38 THE BULLETIN November 2019

If I receive a complaint that complies with the requirements of section 77B(3a) of the Act, then I must investigate it (section 77B(2)(b)). That obligation to investigate is subject only to section 77B(3b) (vexatious litigants), section 77B(3c) (conduct is more than three years ago) and section 77C. It may be that a complainant is not sufficiently clear as to what he or she is complaining about, or further information is required from the complainant before it can fairly be published to the practitioner.

My investigating solicitor may spend some time seeking clarity or getting that further information.

Once we know that the complaint is within jurisdiction, it is sufficiently clear what the complaint is about, and no further information is required from the complainant before the complaint can fairly be published to the practitioner, then we will make a formal decision to investigate the complaint. Once that decision is made, then the complaint will be published to the practitioner, in a way that complies with section 77D(1)(b) of the Act. That needs to be done “as soon as practicable” after the decision to investigate.

The practitioner then has the opportunity to respond to the complaint.

In responding, it is important to remember that all we have heard at that stage is the complainant’s version of events, and that you know your file better than we do! You are obliged to respond fully and frankly, and the more fulsome the practitioner’s response is in this early stage of the investigation the better.

We normally ask for that response to be given to us within 21 days. Often the practitioner requests an extension of that time, and we will almost always accept that. Far too often, a practitioner does not

respond at all, for whatever reason, and we end up having to chase a response. It is not unusual for an initial response to only be received months after the complaint is first published. In some cases it may be necessary to issue a formal notice to produce / provide information under clause 4 of Schedule 4 of the Act to get the practitioner to respond.

Our investigations are as transparent as possible, and we adhere to principles of natural justice and procedural fairness.

That means that the initial response from the practitioner will usually be provided to the complainant, and the complainant’s response to it sought. Again, it may be some months before we get that response, and we may have to chase the complainant for it. Particularly for “third party complaints”, it may be necessary to deal with privilege and confidentiality issues before a practitioner’s response can appropriately be given to the complainant.

This process will then usually be repeated, perhaps many times. The complainant will often disagree with what the practitioner has said in his or her initial response, and that then has to go back to the practitioner for further comment. And so on until my investigating solicitor is confident that we have heard both sides of the story as fully as possible.

The investigation of a complaint may of course involve more than just correspondence backwards and forwards with the practitioner and the complainant.

It may involve calling for the practitioner’s file so that we can inspect it. It may involve talking to other witnesses or other practitioners. We might need to get documents from a court, or financial statements from a bank. Sometimes, particularly for the more complex matters, we might need to get an opinion from

FROM THE CONDUCT COMMISSIONER

external counsel. For an overcharging complaint we may need to get a costs assessment undertaken by an external costs assessor. All of that takes time.

It may also be appropriate in some circumstances to suspend an investigation, sometimes for many months. We might do that while related court proceedings continue. Or we might have reported the practitioner’s conduct to (for example) the Crown Solicitor, and we need to wait and see what action is taken as a result.

So, it can easily be a year (or more) down the track from when the complaint is made before we get to that stage.

Before an investigation is completed, and if a finding of misconduct is possible, then we will make sure that we are satisfied that the practitioner is fully aware of all of the issues of concern, and has a last chance to make submissions about them.

Once an investigation is complete,

my investigating solicitor will then report to me on the outcome. I then need to decide how to proceed. If the decision is to close the complaint or to find no misconduct, then that part of the process doesn’t normally take too long. However, if the likely outcome is a finding of misconduct, then we need to go through a further lengthy process to ensure that both the practitioner and the complainant have been fully heard (if they want to be) in relation to both the finding that there has been misconduct, and then what I consider to be the appropriate disciplinary action. Just to comply with the requirements of the Act in that regard can take months.

Ultimately, section 77M requires that I have to provide detailed reasons for my decision, whatever it is. And drafting a formal Determination takes time too.

It is rarely the case that all of that takes

less than six months. It is not uncommon for it to take more than a year, and sometimes it can take a number of years from start to finish.

There are also occasions when the workloads of my investigating solicitors mean that some steps in this process don’t happen as quickly as would ideally be the case. The number of complaints my office receives has increased over the years, and there is constant pressure on my resources. We sometimes have little choice but to prioritise the more serious matters – particularly those where we consider that the practitioner presents a risk to the public – over those that we can see early on aren’t ultimately going to result in a misconduct finding. And, of course, we always have to give priority to the disciplinary proceedings that are already before either the Supreme Court or the Legal Practitioners Disciplinary Tribunal. B

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TAX FILES

Legal practice structures: A call to arms STEPHEN HEATH, PARTNER, WALLMANS LAWYERS

O

ver the past decade, the trend in the structuring of legal firms has favoured the use of corporate models in preference to the traditional partnership model. However, whilst some of the larger accounting firms in particular, have adopted more modern and innovative structures, the legal profession has generally been slower to adapt. In the same vein, many accounting firms have expanded service lines from beyond core accounting and tax services (even that involving legal advice) into consulting, financial advisory, economics, information technology, financial planning, finance broking and legal services, amongst other things. Meanwhile, law firms remain constrained to strictly provide legal services.

Additionally, there is a vexed question faced by law firms as to whether there is any goodwill embedded within the firm structure. Some practices may recognise goodwill in the form of “equity” interests on entry and exit. However, in most cases, goodwill is not recognised and “equity” value is only attributable to material amounts of work in progress.

The conundrum may be explained by the Shakespearean line of one being “hoist with his own petard” as those who are exceptionally skilled have nothing to sell but their personal time and by definition miss the opportunity to ever realise a tax advantaged capital sum on exit.

TAX Personal Services Income Tax law recognises the skills of the highly capable lawyer in what is now codified by the “Personal Services Income” rules (PSI). The PSI regime is particularly daunting for sole practitioners and barristers, for whom, even service trust arrangements are generally beyond reach.

The PSI concept is underpinned by the idea that the income generated by the highly skilled individual lawyer/barrister is not capable of being alienated to others for tax purposes. Therein “lies the rub” to use another Shakespearean aphorism because the PSI rule is code for a 47% top tax rate on income.

40 THE BULLETIN November 2019

PSI is income which is primarily reward for the personal efforts or skills of a natural person taxpayer. If an individual or an entity (known as a personal services entity – PSE) falls within the PSI regime then the likely tax outcome is that such income is attributed to the natural person taxpayer.

If one’s firm can be said to be a personal services business (PSB) then the PSI regime will not apply. There are four tests which apply to determine whether a PSB exists: • The results test: if at least 75% of an individual’s or PSE’s PSI during the income year is for producing a result (i.e. outcome based, not based on hours worked); and the individual or PSE is required to supply the plant and equipment to perform the work; and is liable for the cost of rectifying any defective work; then the results test is satisfied.

• If the results test is satisfied, a PSB exists and the PSI rules will not apply.

If the results test is not satisfied, the individual or PSE must determine if 80% or more of their PSI comes from one source. This can generally be satisfied by most law firms/barristers since sources of work are rarely limited to the one client for an extended period.

• Unrelated clients test: This test is satisfied if the individual or PSE provides services to two or more nonassociated entities; and the services are a direct result of advertising or otherwise offering the services to the public at large or a section of the public.

• Employment test: This test is satisfied in an income year if the individual or PSE engages one or more entities to perform work that is worth at least 20% of the principal work performed by the individual or PSI entity in the year.

• Business premises test: This test is satisfied if the individual or PSI entity maintains and uses business premises during the entire income year.

Anti-Avoidance Rules Even if one can establish the existence of a PSB, the income tax general antiavoidance rules must be considered.

One should be particularly mindful upon starting or taking up an equity position in a law firm as the anti-avoidance risk is materially diminished if the desired structure is in place from the start.

The ATO’s exact view on the potential application of anti-avoidance provisions on professional practices is currently unclear. In 2013, the ATO released TA 2013/3 “Purported alienation of income through discretionary trust partners” which was aimed at restructures of accounting, legal and other professional partnerships and the assignment of partnership interests to related discretionary trusts.

Subsequently, the ATO released “Assessing the risk: allocation of profits within professional firms” (Guidelines) on 8 October, 2014.

The Guidelines were withdrawn on 14 December, 2017 and as yet, have not been replaced. The Guidelines representative of the ATO practice in assessing audit risk with respect to the potential application of the general tax anti-avoidance provisions.

The Guidelines did not apply to allocation of profits from a professional firm carried on through a partnership, trust or company where the income of the firm was not PSI. In that regard, the ATO acknowledged that: “Themes emerging from case law indicate that the profit or income of a professional firm may comprise different components, reflecting a mixture of income from the personal exertion of the firm’s practicing partners and income generated by the business structure – for example, from the activities of employees of the firm”.

In my opinion, the Guidelines, although withdrawn, remain relevant in generally determining the application of the general anti-avoidance tax risk for any law firm structure. The Guidelines provided three safe harbors as follows: The professional practitioner returns an amount for tax purposes that is at

TAX FILES

least the level paid to the highest band of solicitor (often described as senior associates) providing like services to the firm; At least 50% of the partner’s total “remuneration” is derived for tax purposes by the individual.

The average tax rate on all income is at least 30%.

Whilst the safe harbors have no legal authority or standing, they are the closest semblance of clarity in the ATO’s view of professional practice structuring and the capacity in which a “principal professional” may alienate their practice income.

LEGAL PRACTITIONERS ACT (SA) A further complicating factor relevant in the structuring of law firms in South Australia is the application of the Legal Practitioners Act 1981 (LPA). Schedule 1 of the LPA allows for a corporation to be an incorporated legal practice, and practice in partnership with other incorporated legal practices and/or legal practitioners. Schedule 1 also provides that an incorporated legal practice may not provide non-legal services. The LPA

is silent on the permissibility of such corporations or individuals acting as trustee of a trust.

Section 23(3)(b) LPH provides: “If a legal practitioner enters into an agreement or an arrangement with an unqualified person under which the unqualified person is entitled to share in the profits arising from the practice of the law (otherwise than as permitted by this Act, or as may be authorised by the Society), the practitioner is guilty of an offence.”

To fall foul of subsection 23(3)(b) requires both an agreement or arrangement between a legal practitioner and an unqualified person with respect to sharing law firm profits. In my opinion, where a partner in a law firm is a practitioner acting as trustee of a discretionary trust there should be no breach of section 23(3) (b). In such a scenario, no arrangement or agreement can be said to have been struck between a legal practitioner (the partner) and an unqualified person (potential beneficiaries of the trust) which entitles the beneficiaries to any income from the practice of the law. The beneficiaries only have a right to be considered for a

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distribution of trust income. Rather, the practitioner – in the capacity as trustee – has absolute discretion to determine who becomes presently entitled to such income, which, in the hands of the beneficiary is trust income not “profits arising from the practice of the law”.

CONCLUSION Ernest Hemingway once wrote a book called “A Farewell to Arms”. For the purposes of this piece, “a call to arms” might be more fitting. The legal profession is subject to much challenge in the modern world and would be better served by clearer more equitable tax laws. Likewise, at some point, the best interests of the legal profession are likely to be served by more flexible business models enabling genuine competition with the likes of the accounting fraternity.

This article represents the view of the author, and does not necessarily reflect the view of the Law Council of Australia or Law Society of Australia.

Tax Files is contributed on behalf of the South Australian based members of the Taxation Committee of the Business Law Section of the Law Council of Australia. B

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RISK WATCH

New Family Law Risk Management Package GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS The Society has recently launched a suite of documents to assist practitioners engaging in Family Law work.

F

amily Law is an important area of practice for many practitioners and it is also a focus for Law Claims. In the 2016-2017 policy year claims received by Law Claims relating to Family Law matters constituted 15.45% of the total claims for that year, however the cost of those claims is currently 37.14% of the total costs of claims for that year. Claims against Family Law practitioners often concern financial agreements and part of this increase in the cost of claims may be explained by the increase in the value of the assets in dispute, however this fact underlines the importance of keeping claims down.

Good systems and procedures should do a lot to reduce a firm’s vulnerability to claims. To this end we have recently entered into an agreement with Lexon (the Queensland legal professional indemnity insurer) to adapt and use some excellent material produced by Lexon in the family law area. This package is a follow-up to the Wills & Estate package launched earlier this year.

As with the Wills & Estate package, the material has been adapted to South Australian Law and practice and the package was launched at the Family Law Risk Management session held on 24 September, 2019.

The package comprises a number of draft letters and comprehensive checklists dealing with Financial Agreements, PreRelationship, During Relationship and Post Relationship as well as various checklists for Consent Orders, Mediation, Superannuation Agreements and Verification of Identity.

The draft letters are a

42 THE BULLETIN November 2019

• Request for information to be sent to Client prior to initial consultation; • Letter to Client following initial interview; • Letter of Advice to Client prior to execution of Financial Agreement; • Letter to Client following execution of agreement at conclusion of matter; • and deal with the requirements of sections 90, 90UB, 90C, 90UC, 90D and 90UD of the Family Law Act 1975.

These documents are now available through the Society’s website to all practitioners insured under the SA Legal Practitioners Professional Indemnity Scheme. The package can be found on the Society’s website at https://www.lawsocietysa.asn.au/ RiskManagementPackage.

Whilst these documents are and are not intended to be a universal panacea to all the problems that arise in family law matters (and they come with the usual disclaimers) they are, hopefully, a very useful starting point for practitioners involved in dealing with family law Financial Agreements.

We are hopeful that these documents will assist practitioners carrying out their work in this complex area of law and assist in minimising errors resulting in claims.

Risk Management staff would welcome feedback from and dialogue with practitioners as to any comments practitioners may have as to their experience with using the package.

Please contact Grant Feary, Deputy Director (Law Claims) gfeary@lawclaims. com.au or Gianna Di Stefano (PII Risk Manager) Gianna.DiStefano@lawsocietysa. asn.au with any comments or suggestions.

Beware of overlapping time limits: High Court affirms old rule on limitation of actions In the recent case of Brisbane City Council v Amos [2019] HCA 27 (4 September, 2019) the High Court held that, where limitation

periods overlap, a longer limitation period did not extend or exclude the operation of a shorter time period contained in the same Statute. The Brisbane City Council (BCC) took proceedings against Mr Amos in respect of unpaid and overdue rates pursuant to the Queensland Local Government Act, relating to periods going back to 1999. Unpaid and overdue rates are a charge on the land. The limitation period for debts created by statute and secured by charge was 12 years but the limitation period for actions to recover a sum recoverable by virtue of any enactment (e.g. the Local Government Act) was six years.

In Barnes v Glenton [1899] 1QB 885 the Court of Appeal of England and Wales held that where there were overlapping limitation periods for a personal claim to recover a sum secured by a mortgage or other charge, a longer limitation period applicable to debts created by statute and secured by a charge did not extend or enlarge the shorter limitation period.

The High Court held that when Parliament re-enacts provisions with a wellunderstood meaning, such as those in the 1974 Queensland Limitation of Action Act (and the Court held that the rule in Barnes v Glenton was well understood) it will generally be assumed that Parliament intended the words to have that meaning.

In the Brisbane City Council case, therefore, the shorter time period (six years) for actions to recover a sum recoverable under an enactment, and not the longer time period (12 years) for debts created by statute and secured by a charge, was the applicable period. Much of the BCC’s action against Mr Amos was therefore timebarred.

The lesson, as always, is to be extra careful when considering time-limitation issues.

GAZING IN THE GAZETTE

3 SEPT 2019 – 2 OCT 2019 ACTS PROCLAIMED Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Act 2019 (No 17 of 2019) Commencement: 3 October 2019 Gazetted: 3 October 2019, Gazette No. 48 of 2019

ACTS ASSENTED TO Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2019, No. 21 of 2019 Gazetted: 19 September 2019, Gazette No. 46 of 2019 Appropriation Act 2019, No. 22 of 2019 Gazetted: 19 September 2019, Gazette No. 46 of 2019 Associations Incorporation (Miscellaneous) Amendment Act 2019, No. 23 of 2019 Gazetted: 3 October 2019, Gazette No. 48 of 2019 Statutes Amendment (Budget Measures) Act 2019, No. 24 of 2019 (amends Mining Act 1971 and Road Traffic Act 1961) Gazetted: 3 October 2019, Gazette No. 48 of 2019 Statutes Amendment and Repeal (Simplify) Act 2019, No. 25 of 2019 Gazetted: 3 October 2019, Gazette No. 48 of 2019

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

Criminal Law Consolidation (Child-Like Sex Dolls Prohibition) Amendment Act 2019, No. 26 of 2019 (amends Criminal Law Consolidation Act 1935 and Summary Offences Act 1953) Gazetted: 3 October 2019, Gazette No. 48 of 2019

APPOINTMENTS Judge of the Supreme Court of South Australia on an auxiliary basis, for a period commencing on 5 September 2019 and expiring on 30 June 2020 Graham Walter Dart Katrina Jane Bochner Gazetted: 5 September 2019, Gazette No. 44 of 2019 Master of the Supreme Court of South Australia on an auxiliary basis, for a period commencing on 5 September 2019 and expiring on 30 June 2020, Briony Kennewell Gazetted: 5 September 2019, Gazette No. 44 of 2019 South Australian Civil and Administrative Tribunal Sessional Ordinary Members for a term of three years commencing on 1 October 2019 and expiring on 30 September 2022 Lee-Anne Clark Peter John Duffy Julie Dianne Forgan

Dianne Elizabeth Gursansky Lesley Hastwell Janece Maree Petrie Gazetted: 26 September 2019, Gazette No. 47 of 2019

RULES Magistrates Court Rules 1992 Amendment 79 Gazetted: 19 September 2019, Gazette No. 46 of 2019 Magistrates Court (Civil) Rules 2013 Amendment 25 Gazetted: 19 September 2019, Gazette No. 46 of 2019 Legal Practitioners Education and Admission Council Rules Amendment Rule Gazetted: 19 September 2019, Gazette No. 46 of 2019 Rules of the Legal Practitioners Education and Admission Council for the Qualifications for Admission Enrolment and Post-Admission Education of Notaries Public 2019 Gazetted: 19 September 2019, Gazette No. 46 of 2019 Magistrates Court (Civil) Rules 2013 Amendment 26 Gazetted: 26 September 2019, Gazette No. 47 of 2019

REGULATIONS PROMULGATED (3 SEPTEMBER 2019 – 2 OCTOBER 2019) REGULATION NAME

REGULATION NO.

DATE GAZETTED

Electricity Act 1996 Fees Regulation Act 1927 Adoption Act 1988 Electricity Act 1996 Gas Act 1997 Bail Act 1985 Correctional Services Act 1982 Criminal Law (High Risk Offenders) Act 2015 Police Act 1998 Young Offenders Act 1993 Gene Technology Act 2001 Criminal Law Consolidation Act 1935 Road Traffic Act 1961

206 of 207 of 208 of 209 of 210 of 211 of 212 of 213 of 214 of 215 of 216 of 217 of 218 of

12 September 2019, Gazette No. 45 of 2019 12 September 2019, Gazette No. 45 of 2019 19 September 2019, Gazette No. 46 of 2019 26 September 2019, Gazette No. 47 of 2019 26 September 2019, Gazette No. 47 of 2019 26 September 2019, Gazette No. 47 of 2019 26 September 2019, Gazette No. 47 of 2019 26 September 2019, Gazette No. 47 of 2019 26 September 2019, Gazette No. 47 of 2019 26 September 2019, Gazette No. 47 of 2019 3 October 2019, Gazette No. 48 of 2019 3 October 2019, Gazette No. 48 of 2019 3 October 2019, Gazette No. 48 of 2019

2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019

November 2019 THE BULLETIN

43

BOOKSHELF

VICTOR WINDEYER’S LEGACY: LEGAL AND MILITARY PAPERS

Edited by Bruce Debelle The Federation Press 2019 HB $120.00

Abstract from Federation Sir Victor Windeyer achieved distinction as a lawyer, a legal historian and soldier. In World War II he commanded the 2/48th Battalion at Tobruk. After promotion to Brigade, he commanded the 20th Brigade at El Alamein and thereafter in campaigns in New Guinea and North Borneo. In 1950 he was promoted to Major-General. He was a Justice of the High Court of Australia from 1959 to 1972.

This collection of his speeches and papers illustrates his talents in each of those three aspects of his distinguished life.

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GOOD CONDUCT GUIDE: PROFESSIONAL STANDARDS FOR AUSTRALIAN BARRISTERS

R Annesley 2nd ed The Federation Press 2019 PB $89.95

Abstract from Federation Press The second edition of the Good Conduct Guide has been fully updated to incorporate the significant changes in the regulation of practice as a barrister following commencement of the Legal Profession Uniform Law which came into effect on 1 July 2015. The scope of the guide has also been expanded to cover material integral to the good practice of all Australian barristers.

… this is a guide for barristers by barristers.

It is designed to supplement a barrister’s working knowledge of the Barristers’ Conduct Rules and the ethical principles of good practice so that any ethical issues that arise in the course of practice can be resolved swiftly.

Contact Federation Press: 02 9552 2200 info@federationpress.com.au www.federationpress.com.au

AUSTRALIAN UNIFORM EVIDENCE LAW: PRINCIPLES AND CONTEXT

Bellew & Arthur & Boas & Chifflet LexisNexis Butterworths 2019 PB $132.00

Abstract from LexisNexis Australian Insolvency Law provides an accessible and concise explanation and analysis of the important aspects of both personal and corporate insolvency law and practice.

The fully revised fourth edition takes the reader through the technical and procedural aspects of each regime, to provide a clear understanding of fundamental concepts, technical detail and practical issues. International

aspects of insolvency law and, in particular, the cross-border insolvency regime, are also included. Key cases, legislation and further reading are clearly set out, and problems are provided to enable readers to test their knowledge of applicable concepts.

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ETHICAL LEGAL PRACTICE AND PROFESSIONAL CONDUCT

F Esparraga LexisNexis Butterworths 2019 PB $105.00

44 THE BULLETIN November 2019

Abstract from LexisNexis Ethical Legal Practice and Professional Conduct is designed to develop an understanding of the core principles and issues specific to ethical legal practice in the modern world, to equip readers with a mindset to conduct their professional behaviour in an ethical way.

Written expressly for students in all Australian jurisdictions, the book presents concepts succinctly and accessibly, allowing

readers to grasp the essence, both theoretical and practical, of developing an ethical professional mindset. In addition to explanatory commentary, it includes plentiful additional resources to provide clarity and guidance.

Contact LexisNexis: 1800 772 772 customersupport@lexisnexis.com.au store.lexisnexis.com.au/store/au

FAMILY LAW

Family Law Case Notes ROB GLADE-WRIGHT, THE FAMILY LAW BOOK PROPERTY – JOINT DECISION TO OBTAIN DISABILITY INSURANCE – CONTRIBUTIONS BASED ADJUSTMENT MADE FOR WIFE WHO PAID THE PREMIUMS

I

n Falcken & Weule [2019] FamCAFC 140 (16 August 2019) the wife suffered a stroke during a 21-year marriage, receiving $235,152 from her income protection insurer. Having found a net asset pool of $1.8 million, a judge of the Family Court of Western Australia assessed contributions at 53:47 favouring the wife, with no further adjustment under s 75(2).

In dismissing the husband’s appeal, the Full Court (Strickland, Aldridge & O’Brien JJ) said ([14]-[15]): “The evidence relied on by the husband demonstrates that at some stage during the marriage the parties agreed that they should each obtain income protection insurance … Thereafter, the wife paid the premiums, seemingly from her income. Nonetheless, it was a joint decision to use family funds to obtain income protection.

We accept that this can be a relevant consideration but we do not accept the husband’s contention that it follows … that there has been an equal contribution to the receipt and use of the benefits of the policy.”

The Court referred (at [16]-[21]) to the authorities and said (from [22]): “The upshot of these authorities is that a joint decision to take out insurance is a contribution by both parties. It is worth recording that in none of these

cases was that contribution regarded as being anywhere close to equal.

[23] The primary judge recognised the disability insurance payment was received by the wife for being totally and permanently disabled. It was compensation for her not being in a position to receive income for what would otherwise have been the rest of her working life.

[24] It was, however, not used by the wife to support her over those years, but was entirely spent on supporting the family prior to separation.

[25] Consistent with the above authorities, the primary judge found that this was a significant contribution by the wife.

[26] Although his Honour did not expressly refer to the joint decision to take out insurance, that does not mean that it was not taken into account. … ”

PROPERTY – HUSBAND GRANTED SOLE OCCUPANCY OF HIS PRE-MARITAL PROPERTY – WIFE ALSO ORDERED TO REMOVE HER CAVEAT In Tailor [2019] FamCA 383 (2 July 2019) an 83 year old wife and her 90 year old husband lived together in a house which he had owned for 30 years before their marriage. The husband had other assets and the wife owned an apartment. Conflict led to the wife obtaining an intervention order. The husband filed an application for sole occupation of the house which the wife opposed, arguing that the parties could continue living together. The wife lodged a caveat, alleging that she had stayed in

the marriage due to an agreement that she would receive the house in the husband’s will and that the husband had broken his promise by revoking that will.

The husband (who had undertaken through his lawyer not to deal with the property without notice) also sought an order for the removal of the wife’s caveat, opposed by the wife who argued an equitable interest. The husband deposed ([23]) that “the presence of the wife … [was] causing him acute strain and distress in circumstances where he is extremely elderly and unwell, and that her presence cause[d] difficulty to his carers ( … )”.

McEvoy J granted sole occupancy, accepting the husband’s submission [41] that a court must consider what is ‘proper’ for the purpose of s 114(1) and the Full Court’s rationale in Davis [1982] FamCA 73 where it was said: “All that is necessary … is that the Court should regard the situation between the parties as being such that it would not be reasonable to expect them to remain in the home together.”

Concluding ([50]) that “in all the circumstances it would not be reasonable … to expect the parties to continue to reside in the … property together’, the Court also ordered the wife to remove her caveat, saying ([61]-[73]) that the wife had failed to satisfy the court that “there [was] a serious question to be tried … to justify … the preservation of the status quo”; that it [was] … arguable that the caveator ha[d] a caveatable interest” and, if so, that “the balance of convenience favour[ed] the retention of the caveat”. B November 2019 THE BULLETIN

45

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Family Law - Melbourne LITIGATION ASSISTANCE FUND The Litigation Assistance Fund (LAF) is a non-profit charitable trust for which the Law Society acts as trustee. Since 1992 it has provided funding assistance to approximately 1,500 civil claimants.

LAF receives applications for funding assistance from solicitors on behalf of civil claimants seeking compensation/ damages who are unable to meet the fees and/or disbursements of prosecuting their claim. The applications are subjected to a means test and a merits test. Two different forms of funding exist – Disbursements Only Funding (DOF) and Full Funding.

LAF funds itself by receiving a relatively small portion of the monetary proceeds (usually damages) achieved by the claimants whom it assists. Claimants who received DOF funding repay the amount received, plus an uplift of 100% on that amount. Claimants who received Full Funding repay the amount received, plus 15% of their damages. This ensures LAF’s ability to continue to provide assistance to claimants.

LAF recommends considering whether applying to LAF is the best course in the circumstances of the claim. There may be better methods of obtaining funding/ representation. For example, all Funding Agreements with LAF give LAF certain rights including that funding can be withdrawn and/or varied.

For further information, please visit the Law Society’s website or contact Annie MacRae on 8229 0263.

46 THE BULLETIN November 2019

CONSULTING ACTUARIES

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To contact Dr Jill 08 8110 5279 8am-8pm, 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher

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