The Bulletin - Law Society of South Australia

BULLETIN

THE LAW SOCIETY OF SA JOURNAL

This issue of The Law Society of South Australia: Bulletin is cited as (2020) 44 (10) LSB(SA). ISSN 1038-6777

CONTENTS

DISABILITY & THE LAW

6 The Disability Royal Commission: An instrument for law reform & public policy change – By Natalie Wade

8 South Australian stories shine light on disability issues – By Hiran Lecamwasam

12 Unpacking the Disability Discrimination redress models for South Australian & Victorian students with disability-related challenging behaviour – By Peta Spyrou

16 Why the criminal justice system puts people’s disability ‘in the bin’ and what we can do about it – By Hannah March

18 It is time for the legal profession to recognise and embrace disability –By Mark Douglas

Executive Members

President: J Stewart-Rattray

President-Elect: J Marsh Vice President: A Lazarevich Vice President: M Tilmouth Treasurer: F Bell Immediate Past President: R Sandford

Council Member: M Mackie Council Member: E Shaw

Metropolitan Council Members

T Dibden M Tilmouth

A Lazarevich M Mackie E Shaw J Marsh C Charles R Piccolo M Jones G Biddle

Country Members

S Minney (Northern and Western Region)

P Ryan (Central Region)

J Kyrimis (Southern Region)

Metropolitan Council Members

D Colovic E Fah

N Harb L MacNichol

L Polson M Young

Junior Members

A Douvartzidis

A Kenny

Ex Officio Members

The Hon K Maher, Prof V Waye, Prof T Leiman Prof McNamara

24 Protection for people with disability – By Jeremy Moore

FEATURES & NEWS

28 Risk Watch: Solicitors’ duties when making wills – By Grant Feary

30 Tax Files: The Section 100A saga continues – By John Tucker 32 Bookshelf

34 Wellbeing & Resilience: An interview with Jessica Teoh, SA Branch President of the Asian Australian Lawyers Association

– By Edwin Fah

REGULAR COLUMNS

20 Law in the community: Providing help to bushfire victims – By Holly McCoy 23 Six new silks appointed 26 Settlement offers: Are you being reasonable? – By Edward Morcombe 4 From the Editor 5 President’s Message 10 Young Lawyers: Ethics and Wellbeing Seminar – By Meghan Fitzpatrick

KEY LAW SOCIETY CONTACTS

Acting Chief Executive Rosemary Pridmore rosemary.pridmore@lawsocietysa.asn.au

Chief Operations Officer Dale Weetman dale.weetman@lawsocietysa.asn.au

Member Services Manager Michelle King michelle.king@lawsocietysa.asn.au

Director (Ethics and Practice) Rosalind Burke rosalind.burke@lawsocietysa.asn.au

Director (Law Claims) Kiley Rogers krogers@lawguard.com.au

Manager (LAF) Annie MacRae annie.macrae@lawsocietysa.asn.au

Programme Manager (CPD) Vacant

Project Manager (GDLP) Vacant

THE BULLETIN

Editor

Michael Esposito bulletin@lawsocietysa.asn.au Editorial Committee

A Bradshaw D Sheldon

36 Gazing in the Gazette

– Compiled by Master Elizabeth Olsson

37 Family Law Case Notes

– By Chris Nichol & Keleigh Robinson

S Errington A Douvartzidis C Borello B Armstrong

D Misell M Ford P Wilkinson

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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Seizing the moment to advance disability rights

MICHAEL ESPOSITO, EDITOR

Law Society records suggest that this is

the first time The Bulletin has run an issue dedicated to disability and the law.

Not that the Society has necessarily shied away from this issue.

The Bulletin has covered disability related legal issues in editions that have carried themes such as “ageing”, “vulnerable people” or “human rights”.

But having an edition that explicitly focuses on disability feels like a significant moment, and an overdue one.

As Natalie Wade points out in her article, the Disability Royal Commission is likely to significantly advance the disability rights movement in Australia, not least because the sheer scale of the investigation and voluminous public accounts of violence, neglect, abuse and exploitation of people with disability has forced its way into the nation’s public consciousness to a degree that numerous previous inquiries have failed to do.

Disability discrimination can come in different forms, and it is not always explicit.

Mark Douglas, a profoundly blind barrister, knows what it feels like to be dismissed, under-estimated, overlooked.

In his article, he argues for consistent policies for disability access to courts, as well as formal policies and other mechanisms to support lawyers with a lived experience of disability.

For lawyers, and aspiring lawyers, with disability to be placed on an even footing with everyone else, to be given the same opportunities, more must be done to create an environment where disability is not viewed as an impediment.

As Mark writes: “Within the profession it denies access to the intellectual capabilities of some very bright people excluded because of a false inference about

what they can and cannot do. It erodes diversity of experience. It deprives the community of a profession that reflects its own composition.”

This edition also features important articles from authors who have dedicated years to their respective causes.

Peta Spyrou’s PhD examines the resolution mechanisms relating to challenging behaviour among secondary school students with disability. The different resolution pathways available are based on anti-discrimination laws, which in this context can help students with disability have the same access to education as their peers. Peta’s comprehensive research is likely to help students with disability and those in their support network navigate the resolution and redress process via the equal opportunity commission and other means.

Hannah March, South Australian Advocacy & Campaign Coordinator for the Justice Reform Initiative, demonstrates the discrepancies between the cost of incarcerating people, and the investment in community-based services for people with cognitive and psychosocial disability, and argues that greater investment in community services that are therapeutic and rehabilitative will reduce recidivism and enhance community safety.

The discrimination, abuse, neglect and ignorance of disability is still far too prevalent, but watershed events such as the Disability Royal Commission can profoundly change the way we think about and treat disability.

I hope we as a community can seize this momentum and do what we can to ensure that the spaces we inhabit be as inclusive, safe and enriching as possible. B

LOCKED

JUSTIN STEWART-RATTRAY, PRESIDENT

This is my penultimate President’s Message, and it’s hard to believe we have reached that time of the year when shops are already heavily stocked with Christmas decorations!

This holiday season is certainly shaping up to be far wetter than average, and the flood-risk facing the Riverland was on my mind when last week I travelled to Tanunda and Berri for a regional visit. With the flooding predicted to peak in December, Legal Services Commission and the Society are on stand-by to implement an Emergency Preparedness and Disaster Plan, which can connect disaster victims with free legal advice, if need be, but here’s hoping that the worst effects can be avoided.

It was so insightful to speak to country practitioners to hear about the issues they deal with and the challenges they face. One common concern was the lack of remote access to courts for country practitioners. Several practitioners expressed their frustrations with inadequate remote access technology, and instances where, for example, they had to travel all the way to Adelaide for only a 3-minute hearing.

While opinions differ on the circumstances when remote hearings are appropriate, it is clear that it has the

potential to save time, money and angst. It is now evident that there needs to be some sort of agreed protocol for the use of remote technology in the court.

On 1 November, Civil Litigation Committee Chair Alex Lazarevich and I attended a meeting of the Joint Rules Advisory Committee to discuss a set of draft electronic protocols for online hearings that the Society has proposed.

Essentially, the draft protocols acknowledge that while it may be preferable that trials and other hearings are conducted in person, there should be enough flexibility in the court procedures to consider remote hearings in particular circumstances. These considerations include public health emergencies, the personal circumstances of participants in court proceedings, their location, the likely costs and delay in personally having to attend and the availability of suitable technology.

The draft protocols also include a practical guide for participants to ensure remote hearings run smoothly and court etiquette is observed.

I note that the Hon President Justice Dolphin provided a report this week on an MS Teams Conciliation Pilot Project that was conducted by the SA Employment

Tribunal from April to September 2022.

The conclusion was that “AV technology is suitable and appropriate to assist with the business of SAET. However, there will be no one-size-fitsall approach, with SAET being flexible in the way it conducts its business and adapting its procedures to best fit the circumstances of any particular case. In that regard, AV technology will continue to be used by SAET where appropriate and necessary.”

Another potential benefit of remote technology is its potential to facilitate access to justice for people with a disability. For example, remote technology can be used in appropriate settings to help vulnerable witnesses, particularly those with special communication needs or who have trauma-related mental health conditions, provide evidence. Of course, remote technology can also be used to overcome some of the barriers that people with physical disabilities face.

In saying that, there are occasions it is most appropriate that participants are physically present in a courtroom, which is why it is really important that our court facilities are up to modern day accessibility standards. This is something the Society has long advocated for, and I reiterate the Society’s calls for funding to upgrade our courtrooms so they can truly be accessible to all. B

We should harness the potential of remote technology while acknowledging the gravitas of the courtroom.

The Disability Royal Commission: An instrument for law reform and public policy change

NATALIE WADE, FOUNDER AND PRINCIPAL LAWYER DIRECTOR, EQUALITY LAWYERS

In April 2019, the then Prime Minister Scott Morrison announced the Royal Commission into the Violence, Abuse, Neglect and Exploitation of People with Disabilities (Disability Royal Commission). The Disability Royal Commission was long lobbied for by the disability community for well over a decade prior to the announcement. The decade long push for a Royal Commission into the violence, abuse, neglect and exploitation of people with disabilities in Australia reflected the under-reported, not-investigated and covered-up treatment of people with disabilities throughout Australia. Australia has a long history of public policy and laws which fail to act when people with disabilities face incidents of violence, abuse, neglect and exploitation in all settings. These systemic and structural barriers are reflected in the failure to properly fund the social and economic participation of people with disabilities, the long history of institutionalised care settings and the absence of people with disabilities from our workplaces and schools. These systemic and structural barriers create ideal circumstances for violence, abuse, neglect and exploitation to occur.

Historically, the disability rights movement in Australia is punctuated by key inquiries that have led to significant and lasting changes to the realisation of the rights of people with disabilities in this country. In 2009, the Shut Out: The Experience of People with Disabilities and their Families in Australia National Disability Consultation Report prepared by the National People with Disabilities and Carer Council resulted in what we now know as the Australian Disability Strategy (the National Disability Strategy before that). The Australian Disability Strategy sets out practical changes to realise the vision for “an inclusive Australian society that

ensures people with disability can fulfill their potential, as equal members of the community”1. In 2011, the Disability Care and Support Inquiry Report prepared by the Productivity Commission produced the framework for what we now know as the National Disability Insurance Scheme. In 2015, the Senate Community Affairs References Committee released their report, Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability, the first recommendation of the Report was to establish, what we now know as, the Disability Royal Commission.

It is difficult to think of an advancement in the rights of people

with disabilities which has not had a voluminous report precede it. While the announcement of an expensive and lengthy inquiry is not always met with unbridled gratitude by the taxpayer, in the context of disability rights, conducting such inquiries has been essential to the advancement of our human rights. Unlike other human rights movements throughout Australia, the disability rights movement is shorter than most people’s lifetimes, having commenced in earnest in the early-1980s. The movement began in a time where people with disabilities were largely removed from their family homes and lived in large, institutionalised settings. Rights such as to access education, work and healthcare on an equal basis with others were pipedreams and for decades to come, beyond progression.

As such, there has been a lot to learn and investigate. The role of inquiries has been critical to uncovering the depth and impact of human rights violations against people with disabilities, often as a result of public policy and legal frameworks developed without recognition that people with disabilities are rights-holders. The inquiries have also been fundamental to giving a platform to hear from people with disabilities and their families about their experiences, giving an appropriate sense of urgency and mandate to realise disability rights for generations to come.

The Disability Royal Commission has heard significant stories from individuals with disabilities which have, for many, been the first public accounts of the harrowing history of lived experience of disability in this country. Having the Disability Royal Commission be the forum to receive these stories has been important to ensure the voice of people with disabilities is central to the body of evidence that will inform the recommendations. This approach places the recommendations in a strong position to be accepted by the government and community. However, the task of the Disability Royal Commission is not to attend to individual matters but is to create systemic reform.

Reflecting the Terms of Reference, the Disability Royal Commission describes three areas of investigation:

• Preventing and better protecting people with disability from experiencing violence, abuse, neglect and exploitation,

• Achieving best practice in reporting, investigating and responding to violence, abuse, neglect and exploitation of people with disability, and

• Promoting a more inclusive society that supports people with disability to be independent and live free from violence, abuse, neglect and exploitation.2

In his Opening Remarks which are repeated in the Interim Report released in October 2020, the Chair of the Disability Royal Commission, The Hon Ronald Sackville AO KC stated “… our ultimate aim is nothing if not ambitious. We seek to transform community attitudes and bring about changes to policies and practices that have exposed people with disability to violence, abuse, neglect and

exploitation and that denied them ‘full and effective participation and inclusion in society’”3

Unsurprisingly, with that ambition made clear at the outset, the Disability Royal Commission is predicted to change the course of the disability rights movement in Australia. For the first time, systems gaps which allow violence, abuse, neglect and exploitation of people with disabilities to take place will come to our collective consciousness. With the final report due in September 2023, it is a ripe time to reflect on how the Disability Royal Commission will set the policy and reform agenda for generations to come. There are many ways that the Disability Royal Commission will, over time, advance the rights of people with disabilities but some are less obvious than others:

• the comprehensive and public account of experiences of violence, abuse, neglect and exploitation of people with disabilities allow those telling their stories to be heard, which for some is a first. This can be an important step to progressing beyond the past and ensuring those affected are a part of the change to come.

• the report provides public education for people to know their right to be free from violence, abuse, neglect and exploitation. By hearing stories of those who have lived experience but also clear messages from the Royal Commissioners that this is not acceptable and that laws and systems need to change to prevent it is importantly powerful to educating those who face similar situations.

• it is hoped that a community conversation will start at the release of the report, bringing new voices and thinkers into the conversation. It is fundamental that everyone in the community understands what violence, abuse, neglect and exploitation against people with disabilities is, so we can all work together to prevent it.

• for existing campaigners, the scale and depth of evidence coming out of the Disability Royal Commission can be used to bolster their position. For issues identified that are not currently subject to campaigns for law reform and public policy change, the evidence base can offer a solid foundation to build those campaigns.

• naturally, recommendations will be accepted (or not) by government and this will inform the government’s agenda on disability rights insofar as addressing violence, abuse, neglect and exploitation. It is hoped this will lead to sweeping law reform and public change across the country.

• in accepting the recommendations, governments will need to develop implementation strategies which ensure deliberate thinking and spending on needed disability rights reform. This coordinated and deliberate effort is a welcomed change of pace to the, at times, more piecemeal approach to reform that is not informed by such a significant report.

• financial investment by Governments is more likely to follow the recommendations being implemented. Reform can rarely be achieved without financial investment. Having this available increases the likelihood of the reform lasting and becoming ingrained within the community.

While the Disability Royal Commission is not the first inquiry to change the course of the disability rights movement in Australia, the ways in which it will are highly anticipated. Whether by providing evidence to existing campaigns for change, demanding governments to develop a coordinated and clear agenda to reform and invest in that reform or by ensuring people with lived experience are heard and are at the centre of the conversation, the pathway to reform is not linear. But achieving true progress to advance the rights of people with disabilities in Australia and to ensure future generations live a life free from violence, abuse, neglect and exploitation is worth ensuring we engage all avenues toward law reform and public policy change from the perspective of government and community. B

Endnotes

1 Australian Government, ‘At a glance – Australia’s Disability Strategy’ (Web Page) < https://www. disabilitygateway.gov.au/ads/glance>

2 https://disability.royalcommission.gov.au/aboutroyal-commission

3 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Interim Report, October 2020) vol 1., xii.

South Australian stories shine light on disability issues

HIRAN LECAMWASAM, YOUR STORY DISABILITY LEGAL SUPPORT LAWYER, LEGAL SERVICES COMMISSION

Since April 2019, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, or as it is more commonly referred, the Disability Royal Commission, has been investigating how people with disability have been mistreated within our society and how the systemic frameworks currently in place have largely failed to support those people in times of need.

The Disability Royal Commission has been many years in the making and was established following widespread reports of the mistreatment of people with disability across many facets of our society. From historical instances of segregation and exclusion to more recent forms of discrimination and abuse, there can be no question that people with disability have been unfairly treated. Unfortunately, they continue to be the victims of neglectful, exploitative, and abusive acts.

To fully understand the extent and nature of the mistreatment, the Disability Royal Commission has sought to hear the experiences of people with disability and their supporters across all contexts and settings. Despite the interruptions of the COVID-19 pandemic, the Disability Royal Commission has carried on with its inquiry and at the time of writing had conducted 28 public hearings and 1,411 private sessions, received 5,665 submissions, published 14 issues papers and held numerous round table discussions. The terms of reference which govern this inquiry have led to a broad scope of experiences being examined and has included looking into instances of mistreatment within the contexts of education, employment, family relationships, accommodation, healthcare, prisons and various other public and private settings.

For the past 18 months I have been employed as a Legal Officer for Your Story Disability Legal Support (Your Story), at the Legal Services Commission. Your Story is a joint initiative of National Legal Aid

and National Aboriginal and Torres Strait Islander Legal Services and is delivered locally in South Australia by the Aboriginal Legal Rights Movement and the Legal Services Commission.

The Your Story service was established to provide free, independent legal advice and support to people with disability, their family members, friends, carers, advocates and supporters to safely share their experiences with the Disability Royal Commission. Whilst getting legal advice is not compulsory, many people have concerns about what they wish to share. The concerns vary in nature but have typically involved fears about safety, privacy or confidentiality, whether sharing their story would impact an individual’s access to services or employment, the implications of naming a person or an organisation responsible for mistreatment, their ability to participate having previously signed a non-disclosure agreement, or the impact sharing their experiences may have in any ongoing legal proceedings. Often clients feel reassured having these concerns addressed prior to sharing their story with the Disability Royal Commission and part of my role has been to provide them with a level of comfort and confidence going forward with the process.

In addition to advice about the Disability Royal Commission, Your Story lawyers also provide free general advice about a broad range of legal matters, which may be ancillary to someone’s engagement with the Disability Royal Commission. The legal services are delivered in a disability aware and trauma informed manner and we also often make referrals to other community supports, including free disability advocacy and counselling services when required. Since its inception in September 2019, Your Story has received 7,172 calls, provided 10,044 legal services, and delivered 801 legal education activities around Australia.

Your Story has been committed to

providing face-to-face meeting opportunities across Australia. In South Australia our travels have seen us visit Whyalla, Port Augusta, Port Pirie, Ceduna, Koonibba, Yalata, Mount Gambier, Naracoorte, Coober Pedy and the Anangu Pitjantjatjara Yankunytjatjara Lands. This local presence has provided those with important stories to tell the confidence to speak.

The struggles that people with disability living in rural and remote communities face have been well documented, however, having the opportunity to speak with local residents and hear firsthand the many challenges which these people have had to endure has provided me with a new and confronting perspective of the actual realities many people experience in these areas. From travelling long distances on less-than-ideal roads, to a scarcity of essential support services in rural communities, there can be no question that people living in regional and remote areas face additional barriers to accessing the required assistance.

Whilst many stories shared with the Disability Royal Commission reveal experiences of significant pain and trauma, what has truly amazed me is the steadfast

determination and courage of people to openly share what they have endured. For many, sharing their experiences is not about trying to achieve a personal outcome, but rather out of a sense of altruistic obligation to better inform the Disability Royal Commission as to what the systemic issues are in order to help and protect other people in the community from going through similar experiences in the future.

After more than three and half years, the Disability Royal Commission is now approaching the finish line with 31 December 2022 being the closing date

set for people to share their experiences. The Royal Commission will then have the enormous task of putting together recommendations to the Australian Government on what must change to prevent and better protect people with disabilities from violence, abuse, neglect and exploitation, and promote a more inclusive society that supports people with disability to be independent and live free from all forms of mistreatment.

While it is impossible to fully predict what those recommendations will be or the extent to which they will be implemented

when the final report is delivered in September 2023, what is clear is that more work needs to be done across the board. It is my hope that the voices of those who have shared their experiences will be heard and that the necessary changes will be made to create a safer and more inclusive society for everyone, based on those fundamental principles of equality and respect.

*If you would like to refer a client for advice or get more information about Your Story Disability Legal Support, please contact 1800 77 1800 or visit www.yourstorydisabilitylegal.org.au B

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INVESTIGATIVE TRANSCRIPTION

GENERAL DICTATION

Young lawyers work through ethical conundrums

The Young Lawyers’ Committee Ethics and Wellbeing Seminar for 2022 was held on Thursday, 13 October 2022 at Mellor Olsson Lawyers.

We were fortunate to have a fresh discussion panel including Anthony Keane, the newly appointed Legal Profession Conduct Commissioner, Ros Burke, Director Ethics & Practice Law Society of South Australia and Samuel Joyce, Barrister at Frank Moran Chambers.

We were also grateful to have Law Society President, Justin Stewart-Rattray, MC the event.

The seminar was available to attend both in person at Mellor Olsson Lawyers or by way of live webinar and we were pleased to see so many new attendees both in person and online.

Attendees were provided with scenarios on topics relevant to Australian Solicitor Conduct Rules, ethical dilemmas and managing our mental health. Multiple choice answers were available by way of an interactive polling system and attendees identified the most appropriate answer. Our panel members then discussed the scenario and the best approach for dealing with the different situations young lawyers might find themselves in, particularly in the early stages of their career.

Attendees then had an opportunity to network before the event wrapped up.

A special thank you to our panel members for taking the time out of their busy schedules to offer their perspective and advice to young members of the profession.

The Young Lawyers’ Committee would

also like to thank Justin for hosting the seminar, all the attendees who supported the event, Mellor Olsson Lawyers for hosting, major sponsor of the Young

Lawyers’ Seminar Series legalsuper, as well as the Young Lawyers’ Committee major sponsor Burgess Paluch Legal Recruitment.

MEGHAN FITZPATRICK, JONES HARLEY TOOLE

A vibrant ELC to Year 12 College for girls in the heart of Adelaide’s CBD

Unpacking the Disability Discrimination redress models for South Australian & Victorian students with disabilityrelated challenging behaviour

ELPITHA (PETA) SPYROU, PHD CANDIDATE, SESSIONAL ACADEMIC STAFF MEMBER AT ADELAIDE LAW SCHOOL, UNIVERSITY OF ADELAIDE

Education leads to better life outcomes both for individuals, as well as society generally. Although there are clear educational benefits, most Australian jurisdictions ascribe legal value to it through compulsory schemes. Despite this, students with a disability have additional protections under state, territory and federal equal opportunity or anti-discrimination frameworks. My PhD investigates the operation of the laws and resolution processes applicable to South Australian and Victorian primary and secondary students with disability-related challenging behaviour. Accordingly, I have reviewed four Acts:

1. the Equal Opportunity Act 1984 (SA) (SA Act);

2. the Equal Opportunity Act 2010 (Vic) (Victorian Act);

3. the Disability Discrimination Act 1992 (Cth) (DDA) and;

4. the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

Arguably these laws operate similarly because they protect aggrieved persons who have a protected attribute, i.e. disability, from unlawful discrimination in relation to specific areas of public life, such as education. However, a closer examination of the statutes shows differences in how they work. Other distinguishing features have come to light through interviews I have conducted.

This article compares how these complaints are handled at the equality bodies.1 This may help parties choose whether to make a complaint at either the state or federal level.

LEGAL PROTECTIONS

There are four elements to unlawful disability discrimination:

1. A disability

2. An applicable duty bearer

3. The treatment is prohibited and no exemption applies (alleged discrimination)

4. The alleged discrimination is either ‘direct’ or indirect discrimination

While these elements are common across the frameworks, there are variations in definitions and scope.

Disability

The statutory definitions of disability appear to be broad but not all expressly apply to ‘behaviour’. Complaints made to the SA OCEO about students with disability-related challenging behaviour must apply the High Court case of Purvis v NSW (Purvis).2

Purvis was a direct disability discrimination complaint brought under the DDA and on behalf of Daniel Hoggan, a young person who sustained a brain injury when he was an infant.3 The symptoms of Daniel’s injury meant that he became violent when stressed or anxious. While this is a controversial case because of how the majority characterised direct discrimination, (see below), Gummow, Hayne, Heydon, McHugh and Kirby JJ agreed that the DDA definition of disability includes ‘behaviour that is as a result of disability’.4

Following this 2003 HC decision, the Victorian and federal parliaments amended their Acts to include an explanation that disability includes behaviour that is a manifestation or symptom of a person’s disability. No such clarifying provision exists in the SA Act.

Most complaints within my study are about primary school-aged students with autism spectrum disorder (ASD). Many also have additional disabilities or learning needs.

Duty bearer

All Acts apply to government and non-government schools alike, as well as individual teachers, school principals or overarching governance bodies, such as education departments. This is because they satisfy the definitions of ‘educational authority’ or ‘educational institution’.5

The DDA also binds ‘an organisation whose purpose is to develop or accredit curricula or training courses used by other education providers’ which are not otherwise captured within the DDA definitions of educational authorities or educational institutions.6

For simplicity purposes this article uses the word ‘school’ to reflect the dutybearer.

Alleged discrimination

Only certain conduct is unlawful discrimination. For this to be established, the treatment must be prohibited, an exemption cannot apply, and it must also be characterised as direct or indirect discrimination.

The prohibitions are designed to protect both aspiring and continuing students. For students seeking enrolment, schools cannot make discriminatory ‘admission decisions’ or provide enrolment on discriminatory terms.7 A unique feature of the Victorian Act is its additional application to how the admission decision is made,8 however, this may offer little protection given such deliberation processes are confidential.

The prohibitions also prevent schools from discriminating against existing students by limiting or denying the student access to a benefit; expelling; or otherwise subjecting them to another detriment.9

The SA Act also expressly applies to the ‘terms or conditions’10 regarding

the student’s ongoing enrolment but it is possible that this is captured by the ‘another detriment’ element within the Victorian Act and DDA.

A commonly complained about treatment from matters within my study is the school refusing to allow the student to attend excursions, including camps. This may constitute a ‘denial of access to a benefit’.

A fundamental difference between the frameworks is the Victorian Act’s inclusion of a standalone positive obligation.11 This means that Victorian schools must take active steps to make ‘reasonable adjustments’ to accommodate the needs of the student with disability, with reasonableness being defined by ‘all relevant facts and circumstances’. This standalone nature is more powerful than the reference to ‘reasonable adjustments’ within the DDA. There are, however, differing opinions regarding the interpretation of what amounts to a reasonable adjustment.

While the DDA requires duty-bearers to make ‘reasonable adjustments’, this requirement is contained within the direct and indirect discrimination provisions. This has caused courts to interpret these sub-provisions narrowly. The SA Act also provides that unlawful discrimination includes the failure to provide ‘special assistance or equipment’ which is a reasonable requirement of the person’s disability.12

The stand-alone nature of the positive Victorian obligation might mean it is easier for parents to mount a disability discrimination complaint given schools are required to take active steps to accommodate the student. In practical terms, this has meant that students have

been allowed to attend the school camp if attending with a support worker or SSO. In other successfully conciliated matters, a reasonable adjustment was a student with challenging-behaviour being prevented from attending the overnight portion of the camp but participated in the day-time activities.

Another difference between the Acts is the existence of the Disability Standards for Education 2005 (Cth) – subordinate legislation under the DDA. The standards provide guidance about the operation of the prohibitions against discrimination in education under the DDA. They also impose a positive obligation on dutybearers to ‘reasonably accommodate the needs of a student with a disability’.13 While this duty exists, the standards also operate as a complete defence for schools. A respondent school can seek to rely on the compliance measures set out by the standards as a defence to a discrimination claim.14 This dual purpose has caused academics to argue that the educational standards are both a shield and a sword in relation to an unlawful discrimination claim.15

Other exceptions

The SA Act and DDA allow schools to discriminate against students with a disability if it would otherwise subject the school to a hardship which is unjustifiable.16 This is considered with reference to all relevant circumstances, including the nature of the detriment, effect of the disability and any financial considerations.17

The Victorian Act also allows the school to set standards of behaviour which are created by considering the views of the whole school community. Section 86 of the Victorian Act allows duty-bearers to

discriminate against the student if the treatment of the person is ‘reasonably necessary to protect the health and safety of any person … or property’.18

In practical terms, these ‘safety’ exceptions may make it difficult to argue that a student who has ASD and who is violent during periods of stress, should be able to attend the school camp.

Direct or indirect

In addition to the above, a complainant must also establish whether the treatment is either direct or indirect discrimination.

The SA Act and the DDA both define direct discrimination as the duty-bearer treating the student ‘less favourably’ as a result of the person’s disability.19 These Acts apply the controversial ‘comparator test’ as established in the Purvis decision. Accordingly, a decision-maker needs to consider how the school would treat the person without the disability, but who behaves in the same way. If the dutybearer would treat the students identically, there is no direct discrimination.

In an attempt to address the significant limitations associated with this comparator test, the Victorian parliament removed the comparator test for direct discrimination. Instead, Victorian complainants need to prove that the student has been treated ‘unfavourably’ because of their disability.20

Indirect discrimination occurs when a policy or condition appears to apply to all persons neutrally but instead negatively affects people with the disability.21 It must also be unreasonable in nature.22 The SA Act and the DDA require the complainant to prove these elements, whereas the Victorian Act reverses the onus of proof, shifting the burden to the respondent to prove that the condition or policy was reasonable.23

REDRESS MODELS

Irrespective of the severity of the student’s disability or the treatment inflicted on them, all frameworks contain mechanisms to help complainants seek redress for breaches of the Acts. Each Act does so through an individualised model, meaning the person aggrieved, or their supporter, must bring a complaint themselves. While the student is technically the complainant, or aggrieved person, students in my research are generally represented by their parent, or other gardian, given they are under legal age.

Parents seeking redress under the SA Act or federal ones24 must first lodge a complaint in writing to the Office of the Commission for Equal Opportunity or the Australian Human Rights Commission respectively. The use of these bodies may be deemed a ‘compulsory’ step because it is a precondition to tribunal or court access. The Victorian Act operates differently– Victorian complainants choose whether to initiate a written complaint with the Commission or with the tribunal directly. Figure 1 below illustrates these redress models.

As the diagram shows, the SA Commissioner must refer matters to the South Australian Civil and Administrative Tribunal (SACAT) before tribunal access is granted. Interestingly, the SA Commissioner ‘must make all reasonable endeavours to resolve the matter by conciliation’.25

Although there is no federal tribunal, complaints under the DDA may progress from the AHRC to the Federal Court of Australia.26 This occurs in limited situations, including where the President of the AHRC terminated the complaint.27 Depending on the termination reasons, the court may need to grant leave before an application is made.28 Applications also need to be filed with the court within 60 days of the AHRC’s termination.29

Regardless of the compulsion to use equality bodies, they respond to complaints similarly— To lodge a complaint, the person aggrieved, or their representative, generally completes an online form. The forms ask for:

• The complainant’s details or details of the person whom the complaint relates;

• The respondent’s details;

• The particulars of the complaint; and

• Statistical information about the aggrieved person, including their age, ethnicity and whether they speak English.30

DISCRIMINATION COMPLAINT

SOUTH AUSTRALIA COMMONWEALTH

EQUALITY COMMISSION (OCEO)

EQUALITY COMMISSION (VEOHRC) TRIBUNAL (VCAT) EQUALITY COMMISSION (AHRC)

TRIBUNAL (SACAT) COURT (FEDERAL COURT)

The SA Act requires complaints to be lodged within 12 months of the alleged discrimination,31 but the Commissioner has the discretion to extend this timeframe upon application.32 The Victorian Act allows a complaint to be terminated if it was made more than 12 months after the alleged discrimination occurred.33 The AHRC Act has a similar termination power but it may refuse if the complaint was lodged more than six months after the alleged breach occurred.34 Therefore, prudent South Australian and Victorian complainants would submit complaints to their state bodies within 12 months of the treatment, whereas complaints under the DDA should be made within six months.

Once received, staff from the bodies ‘investigate’ or ‘inquire’ into the complaint. This is a procedural step to determine whether the body may receive and respond to the complaint.

A strict doctrinal interpretation of the statutes suggests that complaints are resolved through different resolution processes. This is because the SA and AHRC Acts both prescribe ‘conciliation’ as the resolution method.

PROVISION

•

Rather than prescribing a process, the Victorian Act lists five principles of dispute resolution, including the focus on early, fair, and voluntary resolution methods, which complement the nature of the dispute; and promote the objectives of the Act.35

While this statutory interpretation is possible, my interviews reveal a different situation – all bodies resolve disability discrimination in education matters through conciliation but they do not define this process, ensuring a flexible application to individual matters. I also learnt that the AHRC has adopted a voluntary approach to its conciliation process. In doing so, the AHRC will not force the parties into a conciliation if one, including the respondent school, does not wish to participate. This is the approach taken at the Victorian Commission, but only the Victorian Act legally prescribes this voluntary dispute resolution process.

SUMMARY

•

•

• Discriminatory

• Admission decisions

• Discriminatory terms of enrolment

VICTORIA

Prohibited treatment for existing students

Exemptions

Direct discrimination

• Limiting or denying access to benefit

• Expelling

• Terms or conditions for ongoing enrolment

• Other detriment

• Unjustifiable hardship

Comparator test – less favourable treatment

Indirect discrimination

• Appears neutral but negative affect on person with disability; and

• Unreasonable

• Limiting or denying access to benefit

• Expelling

• Other detriment

• Behaviour standards

• Protection of health and safety

• Limiting or denying access to benefit

• Expelling

• Other detriment

• Unjustifiable hardship

• Compliance with standard set-in disability standards

Unfavourable treatment Comparator test – less favourable treatment

• Appears neutral but negative effect on person with disability; and

• Unreasonable –reverse onus of proof

• Appears neutral but negative affect on person with disability; and

• Unreasonable

Complaint body OCEO VHREOC or VCAT AHRC

Written complaint Y Y Y Time limit 12 months 12 months 6 months

Conciliation Y Y Y Voluntary dispute resolution process N Y Y

Endnotes

1 The applicable bodies are the South Australian Office of the Commission for Equal Opportunity; the Victorian Equal Opportunity and Human Rights Commission; and the Australian Human Rights Commission.

2 (2003) 217 CLR 92.

3 Ibid.

4 Ibid.

5 Equal Opportunity Act 1984 (SA) s 5; Equal Opportunity Act 2010 (Vic) s 4; DDA s 4.

6 DDA s 4.

7 Equal Opportunity Act 1984 (SA) s 74(1)(a) and (b); Equal Opportunity Act 2010 (Vic) s 38(1)(b) and (c); DDA s 22(1)(a) and (b).

8 Equal Opportunity Act 2010 (Vic) s 38(1)(a).

9 Equal Opportunity Act 1984 (SA) s 74(2); Equal Opportunity Act 2010 (Vic) s 38(2); DDA s 22(2).

10 Equal Opportunity Act 1984 (SA) s 74(2).

11 Equal Opportunity Act 2010 (Vic) s 15.

12 Equal Opportunity Act 1984 (SA) s 66(d) (i) and (ii).

13 CRPD/C/AUS/1 citing the standards which are available online at: <http:// www.ag.gov.au/www/agd/agd.nsf/Page/ Humanrightsandanti-discrimination_ DisabilityStandardsforEducation>.

14 DDA ss 32 and 34.

15 Elizabeth Dickson, ‘Disability Standards For Education 2005 (Cth): Sword or Shield for Australian Students with Disability?’ (2014) 19(1) International Journal of Law and Education 5.

16 Equal Opportunity Act 1984 (SA) s 84; DDA s 11.

17 Ibid.

18 Equal Opportunity Act 2010 (Vic) s 86(1)(a) and (b).

19 Equal Opportunity Act 1984 (SA) ss 6(3) and 74; DDA s 5.

20 Equal Opportunity Act 2010 (Vic) s 8.

21 Equal Opportunity Act 1984 (SA) s 66(b); Equal Opportunity Act 2010 (Vic) s 9; DDA s 6.

22 Ibid.

23 Equal Opportunity Act 2010 (Vic) s 9(2).

24 See Australian Human Rights Commission Act 1986 (Cth) and Disability Discrimination Act 1992 (Cth).

25 Equal Opportunity Act 1984 (SA) s 95(1).

26 Australian Human Rights Commission Act 1986 (Cth) Pt IIB Div 2.

27 Ibid s 46 PO(1).

28 Ibid s 46 PO(3A).

29 Ibid.

30 Equal Opportunity Commission of South Australia, ‘Complaints Form’ (PDF, date unknown) <https://eoc.sa.gov.au/sites/default/ files/inline-files/2019.11.06%20Complaint%20 Form%20GPO%20Exchange%20editsdocx_0. pdf>. Equal Opportunity Commission, ‘Making a Complaint’, (Web Page, 2020) <https:// eoc.sa.gov.au/what-discrimination/makingcomplaint>; Victorian Equal Opportunity and Human Rights Commission, ‘Make a Complaint’ (Web Page) <https://makeacomplaint. humanrights.vic.gov.au/>; Australian Human Rights Commission, ‘Make a Complaint’, (Web Page) < https://humanrights.gov.au/ complaints/make-complaint>.

31 Equal Opportunity Act 1984 (SA) s 93(2).

32 Equal Opportunity Act 1984 (SA) s 93(2a).

33 Equal Opportunity Act 2010 (Vic) s 116(a); Australian Human Rights Commission Act 1986 (Cth) s 32(3)(c)(i).

34 Australian Human Rights Commission Act 1986 (Cth) s 46PH(1)(b)(ii).

35 Equal Opportunity Act 2010 (Vic) s 112.

Jailing is Failing: Why the criminal justice system puts peoples disability ‘in the bin’ and what we can do about it

HANNAH MARCH, SOUTH AUSTRALIAN ADVOCACY & CAMPAIGN COORDINATOR, JUSTICE REFORM INITIATIVE

As a middle-class white woman, whose only previous experience of the criminal justice system was that my dad was a Police Officer, I learnt a lot about the system in the early years of my career as a solicitor in the criminal jurisdiction of the Magistrates Court. One lesson that stuck with me was the language we all used. I still remember clearly– just over 10 years ago - when my first client went from bail to custody: in the front door, out the back door. A kind Sheriff’s Officer said to me as I sat, shocked, at the bar table after the Court had adjourned: “don’t worry, you’ll get used to people being binned”.

South Australia’s prison population has risen by 49.5% over the last 10 years, from 2,077 to 3,105 people1 and more than half of that population have been to prison before2. The total South Australian population has only increased by around 8.5% in the same time. We will spend more than $361 million running correctional services every year on the current trajectory.

The language we use when the Court is adjourned is casual but frightfully insightful. Our civil society’s blunt response to people with often complex and compounding disadvantages in life is to ‘bin them’ at increasing levels and expect that response to make the community safer3.

So who are some of the people we are imprisoning - “a punishment of last resort”4 and required for protecting the safety of the community5- at a rate so much higher than that of the general population growth? Who are some of the more than 3,000 people we are putting ‘in the bin’ and does this actually make our community safer?

How the Criminal Justice System deals with defendants with cognitive and psychosocial disability.

One group of people imprisoned at a disproportionately high rate are defendants with cognitive disability6 and psychosocial disability.7 This group of defendants are three to nine times more likely to be in prison than the general population.8 Available information also suggests that Aboriginal and Torres Strait Islander people with disability are about 14 times more likely to be imprisoned than the general population.9

We also know that people with cognitive and/or psychosocial disability are significantly overrepresented amongst the group who are charged with or accused of criminal offences.10 As expert Disability Rights Lawyer Natalie Wade points out, for some people with disability, their behaviour or approach to certain situations can be misinterpreted as crimes and some people with disability may find it difficult to tell what behaviour is appropriate or when certain behaviour is required. This leads to the overrepresentation of people with disability coming in to contact with Police and to specific barriers to justice due to their disability when charged with criminal offences.11

Although we know from research that we are imprisoning people with cognitive and psychological disability at a higher rate than the general population, we do not know precisely how many people with these disabilities are in South Australia’s prisons today, either on remand, serving a sentence, or detained after a finding of ‘not guilty’ by reason of mental incompetence. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

(Royal Commission) issued notices to each State and Territory to produce to the Commission information about the data kept in relation to prisoners and detainees in custody that have a disability. Counsel Assisting informed the Commissioners that “The information provided …raises questions about the sufficiency of the data collected by correctional services agencies around Australia with regard to prisoners and detainees with disabilities. It appears that generally there is insufficient high-quality data collected about the nature of the disabilities and impairments experienced by prisoners and detainees and the disability supports needs of the prison detention centre population.”12

Evidence of the impact of this treatment

on people with cognitive and psychosocial

disabilities

Consigning people with cognitive and psychosocial disabilities to a life in and out of our prisons sets them up to fall foul of preventative detention laws13. These laws exist in all States and Territories to protect citizens from recidivist offenders: the gross irony of course being that recidivist offenders have spent time in prisons which have neither rehabilitated them nor helped them access supports for their disabilityrelated needs so they have a better chance of breaking the cycle of offending. This is not an argument divorced from the primary purpose of the Sentencing Act: to protect the safety of the community. Why does the community accept that people – usually by complete bad luck –become victims of often violent recidivist offenders when the State has had multiple and very expensive opportunities to rehabilitate but instead chooses to detain indefinitely rather than invest in supports to prevent future offending?

The Chair of the Royal Commission,

the Hon Ronald Sackville AO KC put it thus in his opening to Public Hearing number 27: “It is neither my function nor my purpose to question a decision of the High Court. But perhaps we might wonder whether in 2022, 31 years after the report of the Royal Commission into Aboriginal Deaths in Custody, preventive detention is the most appropriate means of rehabilitating prisoners with disability and allowing them to return to their communities safely and without presenting a danger to those communities.”14

What is needed to support people with cognitive and psychosocial disabilities so they do not become trapped in a cycle of incarceration?

A critical step to reduce the number of people in prisons is to acknowledge at all stages of the criminal justice system that behaviours of some people with disabilities can be misinterpreted as crimes. For example, a person with Tourette syndrome may shout involuntarily and aggressively.15 If this happens in public and the person is approached by Police who do not listen to an explanation, the situation can quickly escalate (assault Police, resist arrest, etcetera) and the person ends up in a Police cell.

People with either or both of these disabilities also have limited access to appropriate mental health or other critical support while they are in prison. Most will be released back into the community in a relatively short period of time from remand or having served their sentence, but still lacking strong enough supports to prevent reoffending. We should be diverting more people away from detention and into community based support where possible and providing better therapeutic responses for those who

cannot be diverted. Of course, noting the existing gap between demand for mental health services in this State and service providers’ capacity to provide them16

There is also no validated screen or diagnosis for Aboriginal and Torres Strait Islander people for cognitive impairment. The ‘Guddi Way Screen17’ has been developed to address this lack of culturally appropriate screening and has many uses, including when people are being processed in to correctional services facilities so there is at least a chance of receiving supports while in custody and when released.18

Conclusion

We don’t know precisely how many people with cognitive and psychosocial disability are in prison in South Australia today. But we do know that it costs South Australians $80,289 per prisoner per year to imprison them. There is a clear mismatch between expenditure on prisons and the relatively low investment in communitybased services. Jailing is failing all of us and we are long overdue to make a concerted effort to find ways to reduce recidivist offending that keeps our community safe, instead of binning human beings.

About the author:

The Justice Reform Initiative is an alliance of people who share long-standing professional experience, lived experience and/or expert knowledge of the justice system, who are further supported by a movement of Australians of goodwill from across the country who all believe jailing is failing, and that there is an urgent need to reduce the number of people in Australian prisons. B

Endnotes

1 Australian Bureau of Statistics (ABS), Prisoners in Australia 2021, Table 15.

2 ABS, Prisoners in Australia 2021, Table 15.

3 Sentencing Act (2017) section 3 The primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general.

4 Criminal Law and Penal Methods Reform Committee (SA) (1973), Sentencing and Corrections’ Parliamentary Paper, No. 91.

5 Sentencing Act (2017) s10(2).

6 Cognitive disability: Arises from the interaction between a person with cognitive impairment and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.

7 Psychosocial disability: a disability arising from a perceived or actual impairment(s) relating to mental health condition.

8 McCausland R, Baldry E, Johnson S & Cohen A. (2013). People with Mental Health Disorders and Cognitive Impairment in the Criminal Justice System: Cost-benefit Analysis of Early Support and Diversion, PwC & UNSW.

9 Australian Civil Society CRPD Shadow Report Working Group, ‘Disability Rights Now 2019’, Submission to the UN CRPD Committee in response to the List of issues prior to the submission of the combined second and third periodic reports of Australia, 26 July 2019, 24.

10 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Issues Paper: Criminal Justice System, January 2020.

11 Natalie Wade, Disability Rights in Real Life. Griffin Press - August 2021. Pages 110 to 119.

12 Opening Address Counsel Assisting - Public hearing 27, Perth | Page 22.

13 Garlett v The State of Western Australia [2022] HCA 30.

14 Chair Opening - Public hearing 27, Perth | Page 27.

15 Wade, N, op cit, page 116.

16 In Report 6 of 2022, The Auditor General found that reporting on mental health services does not provide information to highlight the gap between services required and services available and recommends that government obtain information on any gaps between the demand for mental health services and service providers’ capacity to provide them, and report these gaps to mental health oversight groups.

17 The word ‘Guddi’ is from a Far North Queensland language of the Kuku Yalanji people, which means “come home, come heal, and come rest.”

18 https://synapse.org.au/creating-real-change/ourresearch-work/research-projects/guddi-way/

It is time for the legal profession to recognise and embrace disability

MARK DOUGLAS, BARRISTER, MURRAY CHAMBERS

My right eye is functionally blind. I have about ten percent vision in my left eye. It has more or less been that way since I was a kid.

When I was three or four my parents were invited to educate me in an institution for the blind. They declined. I was to sink or swim in the sighted world instead.

I have been practising law for 25 years. I am a barrister who has appeared in the High Court, in Courts of Appeal, and in superior and lower State and Federal Courts all over the country conducting trials and appeals involving a wide variety of legal matters. I have questioned many witnesses none of whom I could identify in a line up. I have addressed countless judges without ever reading a single facial expression. I have by any lights had a prosperous and fortunate career.

I highlight these matters of autobiography, because I am also a member of a largely hidden or, at least, overlooked minority in the national profession and in South Australia. There are no South Australian barristers and few solicitors in the profession with a lived experience of disability from an early age.

This year marked the first occasion when the Australian Bar Association ever held a public discussion focused on the question of disability in the profession. That occurred in April. It was also the first year when the Law Society of South Australia dedicated a forum to persons with a disability and access to the law. That took place in June. I participated in both of those fora. My fellow panelists on each occasion said the same thing. None of us could believe that the issue was receiving attention from the profession. It never had before in our careers. We felt surprised. We felt grateful. We felt seen.

There is a value in that.

Census data and data collected by the Australian Bureau of Statistics confirms the very real prevalence of issues of disability in the Australian community who are served by the justice system.

Approximately 18% of all Australians have a disability; that’s approximately 4.4

million people (or one in four members of the community).

Of those persons with a disability one in three have a level of impairment that is recognized as profound (that is, one in three disabled people live with profound impairment; approximately 1.4 million Australians).

We know that incidents of disability increase with age and apply roughly equally between men and women. About 10% of males aged 0 to 14 and 6% of females are disabled. In mid-life 13% of men and women live with disability and by age 65 and over, 50% of the population be they men or women live with a disability.

Disability may be inherited at birth or caused by accident or injury or aging. Of those persons identifying with a disability in Australia three in four live with a form of physical disability and one in four cope with cognitive impairment. Thirty percent of the physically impaired cope with a form of mobility condition with the next largest category involving hearing impairment comprising approximately 9% of disabled Australians.

It is overwhelmingly likely that in a practitioner’s career disability will fundamentally touch the day-to-day experience of many clients and colleagues.

Yet it is not an issue with which the profession has historically engaged directly or at all.

There are no consistent policies in SA or nationally regarding disability access to the courts. Disability access is not the specific subject of any of the Uniform Civil Rules. Two of our State Supreme courtrooms (courts 1 and 2) are acknowledged by the courts to be simply unsuitable and inaccessible to persons with mobility issues. Technology which might offer accessibility solutions enhancing the experience of the visually and hearing impaired (like portable screens and real time transcript) is slow in coming to South Australian courtrooms.

Similarly, within the profession itself there is no formal provision for lawyers with a lived experience of disability. The barriers to entry to legal practice

facing those with a disability must be acknowledged as particularly high.

If, despite this, persons with disability enter law school or the junior profession there are no formal mentor networks which provide a foundation of support or means of passing on practical experience of how to work in law with a disability.

Disclosed disability can operate as a barrier to a new lawyer being hired. Equitable work allocation and briefing practices do not extend or are not consciously extended to the topic of disability. As a result, there are few persons who identify with a lived experience of disability working in the senior profession or appointed to the judiciary. There are no senior counsel in South Australia with a lived experience of disability. This thwarts the increasingly accepted community expectation that the senior profession and judiciary will reflect the demographic diversity of the community which it serves.

There are, perhaps, obvious historical reasons for this.

The law is a competitive enterprise. There is a stigma attached to admitting an impairment. It is very bad marketing.

Mark Douglas (middle) with SA Attorney General The Hon Kyam Maher (right) and Law Society President Justin Stewart-Rattray

I certainly did not advertise the challenges that I was facing to clients or to colleagues early in my career. “Let me argue your case blindfolded,” does not inspire confidence in colleagues or clients.

Disability, unlike gender, also requires a more subtle and nuanced response. While the suggestion that there are limitations on a person’s performance as a professional based on sex is preposterous; the same cannot always be said of disability. By definition, disability denotes a degree of impairment or incapacity. No one wants me as their Uber driver or their surgeon and that is completely reasonable.

Disability is a broad church containing a spectrum of conditions and each person within a particular category of condition is touched by impairment in their own way. The requirement to treat this fairly is demanding. It requires us to focus on what they say about their capacities and not their incapacities.

This requires effort. It is easier to default to the assumption that because a person suffers a level of impairment in one area that means that they are impaired in all areas. I can attest to the tendency to conflate physical and intellectual impairment, for example. This is also

an approach that can be motivated by misplaced but good intentions directed to relieving a person living with impairment from tasks which are beyond their capacities.

There are also facets of the treatment of disabled people which are less well intentioned. Disability discrimination is as real and necessarily deserving of prosecution as is discrimination on the basis of gender. While it has not been a traditional focus of training in the profession by-stander intervention is equally important in this area.

The obvious problem with the historical approaches to disability—namely, to disqualify the disabled from opportunity or to institutionalise the disabled or to neglect the issue of disability altogether— is the waste that this causes.

Within the profession it denies access to the intellectual capabilities of some very bright people excluded because of a false inference about what they can and cannot do. It erodes diversity of experience. It deprives the community of a profession that reflects its own composition.

As to the clients that the profession serves, not contending with these issues deliberately and consciously means that

the justice system is simply less accessible and fair than it can be to a vast swathe of the Australian community.

In both cases, bringing these issues into the sunlight and working to improve the way in which the law acknowledges and negotiates issues of disability offers, I would argue, nothing but benefit. The numbers tell us that while few are born disabled about half of us age into some spectrum of disability. A more direct approach to these issues makes our workplaces and our justice system function better for all of us. Removing the stigma around these discussions and then actually having these discussions is the first step.

That is not always easy. This year is the first time when I have spoken or written publicly about my impairment. It is a confronting thing to do. But it is time.

Each of the fora in which I participated earlier in the year were correctly acknowledged as the first iteration of a conversation that is just starting both here in South Australia and nationally. I sincerely believe that it is an important one. I invite all practitioners to participate. It can have only benefit for all of us and the interests of justice that it is our privilege to mutually serve. B

Welcome to our new regular column focusing on the importance of Law in the Community, where we showcase the extraordinary pro bono work conducted by community organisations, private legal practices and the Law Society.

Community legal work is essential to ensure the availability of access to justice for all members of the community, including those that are vulnerable and financially disadvantaged. It is also extremely rewarding work.

In this edition we are showcasing the Bushfire Community Legal Program, and the invaluable work they do. We thank Holly McCoy, Legal Officer for sharing this excellent insight.

We are also introducing a calendar of

community legal events that may be of interest to you as a professional, or may be an event that would be of interest to your clients.

We invite contributions from members of the profession. For articles, the focus needs to be on how members of the community and your team were able to benefit from your event. For calendar events, please provide a description of the event, date/time, location, provider details and how to book/obtain more information.

The deadline for submissions is the second Wednesday of each month, for inclusion in the following month’s Bulletin.

Please send all articles, event details and questions to Michelle Ford, CEO & Managing Lawyer, WestSide Community Lawyers –michelle.ford@westsidelawyers.net

PROVIDING HELP TO BUSHFIRE VICTIMS

Here at the Bushfire Community Legal Program1 (BCLP), we are honoured to have the opportunity to prepare the inaugural “Law in the Community” article for the Bulletin, to showcase the diversity, relevance, and adaptability of the community legal sector (granted, we may be a little biased!).

BCLP History:

The BCLP commenced in August 2020, in response to the 2019/2020 Black Summer bushfires. The initial 18-month pilot was funded by the Commonwealth Government and supported by the State AttorneyGeneral’s Department. Initially, the pilot was a joint venture between Community Legal

Centres South Australia (CLCSA) and Legal Services Commission SA (LSCSA).

The purpose of the pilot was to provide a dedicated, boots on the ground solicitor from each service to assist some of the communities impacted by Black Summer; providing free legal advice, information, referrals, and education to assist with recovery and relief efforts. CLCSA was responsible for Kangaroo Island (KI). The writer had the honour of attending KI near-fortnightly to work with and for their community. LSCSA was responsible for the Adelaide Hills, and both services jointly supported Yorketown (and surrounding communities).

BCLP Now:

Prior to the joint pilot project ceasing in December 2022, an evaluation of the same was undertaken by the Climate and Sustainability Policy Research Group (CASPR) (a copy of the report can be read here: www.thecaspr.org/reports). Applying the learnings from the pilot project, the evaluation, and the Royal Commission into National Disaster Arrangements, we recommended the pilot project be expanded, both jurisdictionally and in focus. It was (and IS) clear there was a space, and need, for the provision of free legal services to assist all high-risk, or previously impacted, bushfire communities

HOLLY MCCOY, LEGAL & PROJECT OFFICER BUSHFIRE COMMUNITY LEGAL PROGRAM, COMMUNITY JUSTICE SERVICES SA

across the state with their preparedness activities and mitigation/capacity building.

In January 2023 funding was provided to Community Justice Services Pty Ltd (CJSSA) to deliver the expanded program. Noting the number of townships we identified as priority for service delivery (around 180!), the kilometres between them all, and resourcing limitations (if anyone has mastered the art of successfully being in two places at once, please get in touch), the focus of the expanded BCLP is on education. BCLP targets large groups of community members and delivers workshops and presentations on legal issues they may encounter if faced with a bushfire, focusing on the practical steps/ mitigating factors they can implement now to reduce the disaster impact and improve their overall resilience.

Legal Service to Disaster Service – the Transition

I did not come into BCLP with a background in emergency management. My legal career commenced in a generalist private practice and then, having followed my strong desire to assist vulnerable community members, a role in a specialist family and domestic violence community legal centre.

Whilst I had to inform myself on emergency management stakeholders, principles, and national and state disaster frameworks, the transition into disaster service delivery was relatively straightforward. I attribute this to the transferable skills I have developed working in the community legal sector. Community lawyers are trained in, and pride themselves on, being trauma informed. We regularly

LAW IN THE COMMUNITY

undertake outreaches to regional communities, to ensure access to justice. We understand the importance of stakeholder and community engagement –making sure our services reflect community need and that we develop strong referral networks, to ensure holistic service delivery. Lastly, and of most importance, community is at the core of everything we do.

Emergency Management and the Legal Sector:

Initially, I had some reservations about the role I had taken on – I, like many in the emergency management/disaster sector, struggled (at first) to see a strong correlation between disasters and the law. However, it became apparent that those in the wake of, or impacted by a bushfire (but applicable to any natural disaster, really) are likely to encounter the law at every stage of the ‘disaster life cycle’.

The image above provides an overview of the different types of legal issues communities may face at each of these different stages. Of course, this is merely a summary and there are a multitude of other potential legal impacts/interactions. However, the writer hopes this visual helps you to appreciate the importance of the legal sector in emergency and disaster management2 and that we all – community sector and private profession – have an important role to play.

Closing Remarks

Before putting you all out of your misery (those of you who have read this far, at least) and bringing this article to an end, the writer wishes to acknowledge and share gratitude for the generosity shown

An example of how the law interacts with the disaster cycle.

by the legal profession – the community legal sector, university clinics, and the private profession – to assist the BCLP and the communities we work with and for. Your input has been invaluable and greatly appreciated.

The BCLP, in fact, the community legal sector as a whole, relies on strong connections with the legal profession for pro and low bono referral pathways for clients, the co-delivery of community legal education materials, and/or the delivery of continued professional development workshops to ensure we can upskill our sector to best respond to everchanging community needs.

Lastly, it would be remiss of the writer not to mention and share our immense respect, gratitude, and admiration for the members of all the communities we have worked with and for these past two- and a-bit years. Programs like these can’t succeed without the generosity afforded to us by communities and stakeholders, so thank you all.

Should you wish to learn more about the BCLP and/or how you can assist, please do not hesitate to get in touch. Feel free to also head over to, like, and share our Facebook page3 too! B

Endnotes

1 www.communityjusticesa.org.au/bushfirecommunity-legal-program

2 The writer notes the Royal Commission into Natural Disaster Arrangements made similar findings. See, specifically, paragraphs [21.26], [21.46 – 21.47], [22.14], [22.100] and [22.104] and recommendation 22.5.

3 www.facebook.com/ bushfirecommunitylegalprogram

(L to R): Sharon Keith - Program Manager at Disaster Legal Help Victoria, Holly McCoy – Legal Of cer at Bush re Community Legal Program (Community Justice Services SA), Bronwyn Lay – Climate Justice and Disaster Response Lead at Federation of Community Legal Centres Vic, and Ippei Okazaki, Sector Development Of cer at Community Legal Centres SA at the Australian Disaster Resilience Conference, August 2022 (Adelaide).

CALENDAR OF EVENTS

DATE DETAILS PROVIDER HOW TO BOOK

8 & 9 November 2022

Free Legal Advice Clinic

Free legal advice for members of the community in family law, criminal law, and civil law.

Location: Flinders Arcade, 72 Ellen Street, Port Pirie

8 November 2022 Walking in their Shoes Tour

Assisting practitioners and students in the sector to understand the pathways families take when accessing the Court. These tours include a walkthrough of the Court’s services and Q&A.

Location: Federal Circuit and Family Court of Australia (Adelaide Registry)

WestSide Community Lawyers

Call 08 8340 9009 –bookings are essential.

Family Law Pathways and Federal Circuit and Family Court of Australia

Bookings are essential due to limited places. Call 0407 317 376

17 November 2022

Community Justice Centre’s 40th Anniversary Celebration

Location: Ten22, Edwardstown SA RSVP by 31 October 2022.

1 December 2022

Aboriginal and Torres Strait Islander Family Law Roadshow with Judge Kelly and Alec Wanganeen

For members the Aboriginal Community and the professionals who work alongside them to spread knowledge about options for kinship care through the Aboriginal and Torres Strait Islander List at the Federal Circuit and Family Court of Australia

Location: Brahma Lodge

13 December 2022

Walking in their Shoes Tour

Assisting practitioners and students in the sector to understand the pathways families take when accessing the Court. These tours include a walkthrough of the Court’s services and Q&A.

Location: Federal Circuit and Family Court of Australia (Adelaide Registry)

Southern Community Justice Centre

Follow this link to book https://www.eventbrite. com.au/e/communityjustice-centres-40thanniversary-celebrationtickets-418408550237

Family Law Pathways and Federal Circuit and Family Court of Australia

Call 0407 317 376 Bookings are essential

Family Law Pathways and Federal Circuit and Family Court of Australia

Bookings are essential due to limited places. Call Family Law Pathways on 0407 317 376

The Law Society congratulates the six practitioners who were appointed Senior Counsel on 8 September, 2022.

The new Senior Counsel are Carey Goodall SC, Nicholas Floreani SC, Carmen Matteo SC, Jane Abbey SC, Chad Jacobi SC, Ms Gillian Walker SC.

CAREY GOODALL SC

Mr Goodall SC holds an Honours degree in Law from the University of Adelaide and was admitted to practice in February 1984. He joined the Independent Bar in 1996. Mr Goodall SC practices in the areas of commercial construction, engineering, arbitration, mediation, insurance, commercial contracts and civil claims, including personal injury litigation. He has appeared in the Supreme Court and District Court and acted as junior counsel in superior Courts, including the High Court.

NICHOLAS FLOREANI SC

Mr Floreani SC holds a Bachelor of Laws from the Queensland University of Technology and a Bachelor of Commerce from the University of Adelaide and was admitted to practice in March 1997. He joined the Independent Bar in 2003. He practices in commercial litigation, with expertise in building and construction litigation and alternative dispute resolution.

Mr Floreani SC has appeared in the Supreme Court and Court of Appeal of the Northern Territory, the High Court and the District Court of South Australia.

CARMEN MATTEO SC

Ms Matteo SC holds a Bachelor of Laws and a Bachelor of Arts from Flinders University and was admitted to practice in May 1999. She is a criminal law practitioner and Senior Prosecutor in the Office of the Director of Public Prosecutions (SA). Ms Matteo SC conducts trials in the Supreme and District Courts, being predominantly prosecutions for homicides, serious sexual offences and offences of violence. She appears in the Court of Appeal on criminal appeals against sentence and conviction.

JANE ABBEY SC

Ms Abbey SC holds an Honours degree in Law (First Class) from Flinders University and was admitted to practice in February 2001. She joined the Independent Bar in 2012. Ms Abbey SC predominantly practices in criminal law, appearing as counsel in jury trials and trials by judge alone, as a Prosecutor with the Office of the DPP (SA) and as a member of the Independent Bar. Ms Abbey has appeared in the Supreme Court, the Court of Criminal Appeal and in the Magistrates Court.

CHAD JACOBI SC

Mr Jacobi SC holds Honours degrees in Law and Economics and was admitted to practice in February 2001. He joined the Independent Bar in 2016. Mr Jacobi SC practices principally in public law including administrative, constitutional, employment and professional discipline, and criminal law, particularly regulatory prosecutions. He appears in all courts and tribunals and in Royal Commissions and confidential inquiries.

GILLIAN WALKER SC

Ms Walker SC holds an Honours degree in Law and a Bachelor of Arts from Macquarie University and a Masters of Law from the University of Melbourne. She was admitted to practice in May 2003 in NSW and in October 2007 in South Australia. Ms Walker SC joined the Independent Bar in 2010. She has a broad civil practice encompassing commercial disputes, employment and industrial matters, insolvency matters, construction disputes, regulatory proceedings, professional disciplinary matters and appeals. Ms Walker SC appears in the Supreme Court and District Courts of South Australia, the SAET and SACAT. B

PROTECTION FOR PEOPLE WITH DISABILITY

JEREMY MOORE, MOORE LEGAL

The Guardianship and Administration Act 1993 (SA) (the Act) provides a mechanism for safeguards to be put in place for South Australians who have a mental incapacity and need protection.

Under the Act, SACAT can make Guardianship and Administration Orders for people with mental incapacity. Before 30 March, 2015, this role was undertaken by the Guardianship Board.

If SACAT is satisfied that the protected person has a mental incapacity, it can make a Guardianship Order and appoint the most suitable person(s) to be the Guardian(s).

If SACAT is satisfied the protected person needs an Administrator(s) to manage the protected person’s business and legal matters, it will make an Administration Order and appoint the most suitable person(s) to be the Administrator(s).

The Public Trustee is the default person SACAT can appoint as the Administrator if there is no other suitable person.

Notwithstanding that a protected person has a mental incapacity and is a subject to a Guardianship and/or an Administration Order each decision needs to be considered having regard to the Section 5 principles. It is the responsibility of the decision maker to know the protected person, gather the facts, understand their background, the way they have lived their lives and their wishes.

If the decision is not significant then it follows others should not interfere with the protected person’s wishes. I advocate for a “light touch approach” and never interfere with a person’s decision unless there is a good reason to do so.

SECTION 5 PRINCIPLES OF THE ACT

Where a guardian appointed under this Act, an administrator, the Public Advocate, the Tribunal or any court or other person, body or authority makes any decision or order in relation to a person or a person’s estate pursuant to this Act or pursuant to powers conferred by or under this Acta. consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and b. the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and c. consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and d. the decision or order made must be the one that is the least restrictive of the person’s rights and personal autonomy as is consistent with his or her proper care and protection The paramount principle is interpreted as requiring the decision maker to stand in the shoes of the protected person, to identify the core beliefs and values of that person, and to use these to decide what that person would have done but for their incapacity. The purpose of this principle is to ensure that, as much as possible, decisions made on behalf of a protected person are consistent with the beliefs

and values they have held in the past.

This enables the protected person to keep living their life in a manner consistent with the way that they have lived. It allows the person to live the life they would have lived, but for the incapacity.

THE ROLE OF THE GUARDIANS, ADMINISTRATORS, PUBLIC ADVOCATE AND PUBLIC TRUSTEE

These people do not own a protected person’s life nor take control of it. They are charged with the responsibility of making sure that the protected person can live the life they would have lived but for incapacity. This notion is supported by the section 5 principles. These people cannot assume that they, and not the protected person, know best and do not make paternalistic value judgements about what is in the best interests of the protected person. Based on the evidence, these people ensure that they make the decision that the protected person would have made in the same or similar situation but for their incapacity. The basis for their decision is what the protected person would have valued and wanted to do.

WESTERN V MALE (2011) SASC 75

M was a 91-year-old widow. She had three children: a son and two daughters, one of whom had died. M made a Will in 2007 appointing her son and surviving daughter joint Executors. Apart from her jewellery and personal items, the residuary estate was to be split three ways: one for the son, one for the surviving daughter and the other for the deceased daughter’s children.

There was a conflict between the son and surviving daughter in August 2009, stemming from M’s house needing to be sold to cover nursing home fees of $350,000.

The son wanted to borrow $200,000 from M to pay his debts from the proposed sale proceeds of the house. The surviving daughter wanted someone independent to manage their mother’s affairs.

The house sold for $638,000 in September 2009.

M executed Enduring Powers of Attorney, Guardianship documents and a Will arranged by the son primarily for his benefit.

The son monopolized the attention of M, influenced documents that M signed, made appointments and attended those appointments with her and excluded M’s family and friends from visiting her at the nursing home.

Nyland J was satisfied that the son; • reinforced M’s belief she should never have moved to the nursing home; and planted the belief- the Guardianship Board’s proceedings and the Court proceedings were adversarial and the surviving daughter’s attempt to take over M’s life.

Nyland J was satisfied, and in M’s interests, ordered that she continue living in the nursing home and have the support of an independent person, such as the Public Advocate, who would be able to negotiate with family members on M’s behalf.

Nyland J was satisfied that because of a combination of her age and her physical and mental infirmity that M;

• was unable wholly or partially to manage her affairs; and

• had been subject to or was liable to be subject to undue influence of her estate.

Nyland J ordered that Public Trustee be appointed manager to take possession of and control and manage the whole of the estate of M with the powers and duties given and imposed by the Aged and Infirm Persons Property Act 1940.

BC V THE PUBLIC ADVOCATE & OTHERS (2018) SASC 193

The plaintiff, BC, a 95 year-old man, resided in the Grande View, a nursing home, up to about 5 October, 2018.

SACAT made an order on the 27 September, 2018, under the Act that the plaintiff be a protected person under the guardianship of the Public Advocate limited to accommodation and lifestyle only.

The Public Advocate placed the plaintiff in the dementia unit of the Barossa Village Aged Care Facility (the Facility) on or about 5 of October, 2018.

The unit in which the plaintiff resided had a locked door which could only be opened by entering a code on a keypad or swiping a card over the electronic device. The plaintiff did not have access.

The Public Advocate did not obtain from SACAT authorisation, under section 32(1)(b) of the Act, to have the plaintiff detained in the Facility.

The plaintiff, with the support of his son, complained that the plaintiff was unlawfully detained.

Stanley J was satisfied that the plaintiff

was being unlawfully detained and entitled to a remedy.

Stanley J Held

1. Section 29 of the Act does not confer power on the Guardian to decide where the protected person is to reside.

2. Section 32 of the Act is an exhausted code conferring power to decide, not only where and with whom a protected person resides, but the conditions of that residence, including the nature and degree of any restraint or detention required for the protection of the protected person or others.

3. The power to lawfully detain protected persons is found exhaustively in section 32(1)(b).

4. The plaintiff has been detained by reason of the acts of the Public Advocate and the staff at the Facility.

5. The plaintiff has not been detained pursuant to the exercise of the power conferred by section 32(1)(b) of the Act.

6. The plaintiff has been unlawfully detained and is entitled to the remedy provided by the writ of Habeus Corpus.

7. It is appropriate to make an order pursuant to rule 198 of the Supreme Court Civil Rules 2006 (SA) that the plaintiff’s detention be terminated. These cases ended up in court because of the righteous indignation of a daughter and son who separately stood up to protect their parents’ interests. B

Settlement offers: Are you being reasonable?

EDWARD MORCOMBE, ASSOCIATE, FINLAYSONS LAWYERS

In 1415 CE, Henry V of England was busily preparing to invade France, a campaign that would result in the infamous English victory at the battle of Agincourt.

On the eve of the English armada’s departure, Henry V made a final settlement offer, ‘call[ing] to witness in conscience the Supreme Judge…that, in our zeal for peace, we have tried every way possible to obtain peace’. The French did not accept his offer, however Henry V continued to make further offers of compromise as the campaign progressed.

Henry V was pragmatic, methodical, attentive to detail and a skilled tactician. One of the primary motivations behind his last minute, seemingly futile offers of settlement was simple. It was important that the public, both at home in England and abroad, should think that his war was reasonable and justified so that their support for it would be maintained.

The underlying rationale and utility of settlement offers in legal proceedings bear a striking resemblance to those made as a precursor to warfare. For modern litigants, it is the Court or Tribunal, charged with the discretion to award legal costs upon the conclusion of proceedings, to whom it is advantageous to present oneself as reasonable, as having resorted to a contested trial as a last resort and only because of the other side’s unreasonableness in refusing to settle.

Most litigants will have at least some passing familiarity with the principles of Calderbank v Calderbank [1976] Fam 93, whereby if a party to litigation makes a settlement offer that is rejected, and the offeror then obtains a more favourable judgement than the terms of the settlement

offer would have provided, the Court may award the offeror their costs on an indemnity basis. The civil procedure rules in place in various jurisdictions also provide for similar treatment (see, for example, Rule 25.14 of the Federal Court Rules 2011).

The Federal Court of Australia’s recent costs determination in Palmer v McGowan (No 6) [2022] FCA 927 (Palmer v McGowan (No 6)) provides a useful reminder of how the Court will apply these principles, particularly in cases where there are multiple claims and where there is not a clear cut, purely economic basis on which to assess whether or not a settlement offer has been bettered at trial.

Palmer v McGowan (No 6) relates to the cost argument which followed the substantive determination of the defamation proceedings between Clive Palmer and the Western Australian premier, Mark McGowan. Mr Palmer commenced proceedings against Mr McGowan in respect of statements made by Mr McGowan regarding, broadly, Mr Palmer’s attitudes to Western Australia’s public health measures implemented in response to Covid-19, Covid-19 treatments and the ongoing mining rights dispute between Mr Palmer and Western Australia. Mr McGowan, in response, filed a cross-claim against Mr Palmer in respect of statements made by Mr Palmer regarding, broadly, Mr McGowan’s role in the institution of Western Australia’s public health measures in response to Covid-19 and granting of mining rights in Western Australia.

Both Mr Palmer’s claim and Mr McGowan’s cross-claim succeeded at trial, however each was awarded damages that were in ‘glaring disproportion’ to the

costs expended on the litigation, being $5,000 awarded to Mr Palmer and $20,000 awarded to Mr McGowan. The issue of how an award for costs, if any, was to be dealt with accordingly took on increased significance.

In Palmer v McGowan (No 6), the Court heard that Mr McGowan made an offer of compromise to Mr Palmer for both parties to discontinue their claims against each other and bear their own costs incurred to date (Offer). The Offer, if accepted, would have saved the costs of intensive preparation for, and conduct of, the trial.

On a purely economic basis, Mr McGowan had achieved a more favourable judgement than the Offer would have provided, as he was awarded net damages of $15,000 (being $20,000, less $5,000 awarded to Mr Palmer). Mr Palmer, on the other hand, had secured a less favourable economic outcome than the Offer.

The Court noted, however, that an assessment of what state of affairs is more or less favourable is ‘a matter of substance’, and not necessarily confined to a purely economic analysis. In this case, while Mr Palmer had secured a less economically favourable outcome than the Offer provided, in proceeding to trial and succeeding in his claim Mr Palmer had secured the non-economic benefit of the Court’s recognition that he had been defamed.

Ultimately the Court ordered Mr Palmer to pay Mr McGowan’s costs of the cross-claim (limited to those costs incurred from the second business day after the Offer was made) on a party / party basis. The Court therefore did not simply adopt a global view that Mr McGowan should

be indemnified for his costs because Mr McGowan had obtained a more favourable outcome than the Offer. The Court noted that regardless of the favourability of the Offer as compared to the judgement, the Court would not award Mr McGowan any costs in respect of his defence of Mr Palmer’s claim, given Mr Palmer’s success in that claim.

However, despite Mr Palmer’s success in his defamation claim, the Court decided to deviate from the general position of awarding costs in favour of a successful party by making no order as to Mr Palmer’s costs. This decision was clearly informed by the Offer, in conjunction with the Court’s assessment of the reasonableness of the conduct of the parties generally.

The Court’s comments on how the overall conduct of both parties informed its costs determination provide guidance to all litigants is wishing to minimise their potential costs exposure. It is important to note, however, that the Court placed greater emphasis on the parties’ broader conduct, as opposed to the parties’ conduct specifically in connection with the Offer, because the context of the parties’ non-economic motivations for maintaining the defamation proceedings rendered a purely economic comparison between the Offer and the judgement impossible.

The Court formed the view that Mr Palmer’s conduct had been more unreasonable than Mr McGowan’s, which in turn affected Mr Palmer’s ability to recover his costs, as:

• the proceedings as a whole were wasteful, in the sense that they were unnecessary, disproportionate

and diverted resources of the Commonwealth and the Court from more pressing and important matters;

• while Mr McGowan had filed a cross-claim that added to the scope of the proceedings, the cross-claim was defensive. The Court was satisfied that the subject matter of the crossclaim would not have been agitated if Mr Palmer had not first sued Mr McGowan. Mr Palmer therefore bore greater responsibility for the institution of the proceedings as a whole;

• the Offer constituted a ‘sensible’ outcome, and would have saved extensive costs by averting the need for a trial;

• while ‘[b]oth men went too far in their political jousting, and both men litigated’, Mr Palmer’s refusal to engage with the Offer whatsoever indicated that ‘only one was willing to draw back and avoid a long and costly hearing’; and

• Mr Palmer could have made a counteroffer, such as an offer for the entry of a judgment in favour of Mr Palmer but without the payment of any damages, however he did not do so. While Mr Palmer’s conduct in rejecting the Offer was not necessarily unreasonable, given the Offer would not have secured Mr Palmer’s desired vindication, Mr Palmer’s overall conduct was nevertheless unreasonable.

The following key takeaways, of relevance to all parties to litigation and the legal industry, can be drawn from Palmer v McGowan (No 6):

• it is rarely too late to contemplate making a settlement offer, and to

benefit from an earlier settlement or a favourable costs determination;

• a purely economic analysis is not always the sole determinant of whether a judgement has been obtained that is more or less favourable than a prior offer;

• aside from the content and timing of settlement offers, where appropriate the Court can look at the broader roles and conduct of parties to litigation to assess their reasonableness and factor this into its costs determination. Parties should therefore consider the reasonableness of their conduct in proceedings holistically;

• failing to engage with settlement offers made by the other side can be an adverse factor in determining costs entitlements, as it does not indicate reasonableness on the part of the aloof party;

• the unlikelihood of the other side accepting proposed terms of settlement is not an excuse for the unreasonableness of failing to make an offer; and

• running unmeritorious arguments at trial can be an adverse factor in determining costs entitlements.

Taking the above into account, even if Mr Palmer, like Henry V in 1415, was committed to charging onwards to secure his rights, and even if Mr McGowan was unlikely to accept an offer for the entry of a judgment in favour of Mr Palmer without the payment of any damages, it is nonetheless likely that Mr Palmer would have secured some costs protection simply by making a show of reasonableness in putting such an offer forward. B

Solicitors’ duties when making wills: Lessons from Moloney v Hayward

GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS

In late July this year the Supreme Court handed down an important judgment which should be carefully considered by all practitioners who deal in any way with Wills & Estates matters. The case is Moloney v Hayward [2022] SASC 79 (McMillan AJ). It deals with a number of key issues for Wills and Estates practitioners, being: • testamentary capacity; • knowledge and approval of the contents of wills; • undue influence; • conflict of interest; and • rectification.

This article will only deal with solicitors’ duties and testamentary capacity. The particular question of when to seek medical evidence as to testamentary capacity and Moloney v Hayward is dealt with in an excellent article by Kym Jackson in the September 2022 edition of The Last Testament.

THE FACTS

The testator (EP) died on 7 April, 2018 aged 95 years. He had, over a number of years, made a series of wills, the last of which was executed on 15 February, 2018—some weeks before his death. He had given instructions as to this will in 2017.

The applicant (EJ) was EP’s only son. EJ sought to have the 2018 will admitted to Probate. The 2018 will provided for EJ to acquire a part of the Moloney family

farm (known as “Brewers”) for $2 million, which was approximately half the market value as at the date of EP’s death.

The respondents, who were the four surviving daughters of EP, disputed that EP had capacity to make the 2018 will and also alleged that EJ had exercised undue influence over EP when EP made the 2018 will. The daughters contended that an earlier will, made in 2012, should be admitted to Probate, subject to an issue of rectification. EJ agreed that if the 2012 will was to be admitted to Probate it should be rectified as proposed.

The daughters’ case was that their father always intended that “Brewers”, or its market value would be inherited by them. EP held other farming land and that land, being the bulk of the farm, would be inherited by “the male line” (i.e. EJ and his son) while preserving some inheritance for “the female line” (i.e. through the daughters being provided with “Brewers” or its full value).

EJ said that EP’s intentions with respect to “Brewers” changed over time and that the 2018 will was his father’s final settled view.

McMillan AJ found that EP did not have testamentary capacity when he gave instructions for his last will in 2017, nor when he signed it in early 2018. The judgment contains a useful summary of the applicable principles when considering testamentary capacity (see paras [271]-

[277]) and sets out in detail considerations applicable to the duties of solicitors (see paras [278]-[282]).

Critical factors were as follows:

• the duty upon a solicitor for taking instructions is always a heavy one;

• where the solicitor is drafting a will and there is any possibility that the testator’s capacity might later be questioned, the solicitor should ask questions, the answers to which will establish whether or not each of the requirements for capacity laid down in Banks v Goodfellow is satisfied;

• it follows that the solicitor taking instructions for a will must have the Banks v Goodfellow tests (see para [271]) in the front of her or his mind;

• a solicitor taking instructions for a will has a duty to ensure that the person giving instructions has testamentary capacity and is giving the instructions freely and voluntarily and that the effect of the will is understood;

• in carrying out that duty, solicitors must take reasonable steps to satisfy themselves that a testator has testamentary capacity at the relevant time;

• where a testator is elderly, it is generally considered prudent that a medical opinion be obtained as to the testator’s medical condition and whether any such conditions may affect the testamentary capacity of a testator.

Further, it was said that a solicitor’s duties when taking instructions for a client vary depending on the circumstances. The Court endorsed the summary of the matters for solicitors to consider when retained to prepare wills for elderly clients in particular set out by Kunc J in Ryan v Dalton [2017] NSWSC 1007 which are as follows:

1. The client should always be interviewed alone. If an interpreter is required, ideally the interpreter should not be a family member or proposed beneficiary.

2. A solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases.

3. In all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note.

4. In case of anyone a. over 70; b. being cared for by someone; c. who resides in a nursing home or similar facility; or d. about whom for any other reason the solicitor might have concern about capacity, the solicitor should ask the client and their carer or a care manager in the home

or facility whether there is any reason to be concerned about capacity including as a result of any diagnosis, behaviour, medication or the like. Again, full file notes should be kept recording the information which the solicitor obtained, and from whom, in answer to such inquiries.

5. Where there is any doubt about a client’s capacity, then the process set out in sub-paragraph (3) above should be repeated when presenting the draft will to the client for execution.

The practice of simply reading the provisions to a client and seeking his or her assent should be avoided.

It was emphasised that in the many cases that come before the Court, the evidence of the solicitor will be critical. For that reason, it is essential that solicitors make full and contemporaneous file notes of their attendances on the client and any other persons and that those file notes be retained indefinitely.

The weight to be given to a solicitor’s evidence will depend on his or her experience, training, and understanding of the test of testamentary capacity; his or her ability to make an assessment of capacity taken with the quality of the assessment made, as appears from any contemporaneous notes and records; his or her knowledge of and familiarity with the will-maker, including the age and state of health of the will-maker; his or her independence; the will-maker’s

presentation to the solicitor; and whether there are any “red flags” suggesting a possible challenge to capacity. It will also depend on the level of enquiry and discussion on the part of the lawyer and with the deceased (see paras [282]-[283]).

Her Honour was critical of the lawyer who drew EP’s will in a number of respects, however in respect of testamentary capacity it was found that, due to the lawyer’s close family connections with both the testator and the beneficiaries, it should have been evident to him that the 2018 will would likely be controversial and that he should not have been acting. Her Honour said

“Had he removed himself as the deceased’s solicitor, it would have been likely that an independent solicitor would have been retained and that solicitor would have obtained a medical opinion from a medical practitioner regarding the testamentary capacity of the deceased at the relevant time.” [para 291]

Further, it was found that “[gi]ven the deceased’s age, his long-standing health and medical issues, it was important for [the solicitor] to follow the type of process for obtaining instructions for elderly clients set out in Ryan v Dalton.” [para 298]

If it ever be thought that it was “easy” to take instructions for a will, this case makes it clear that that is not the case and that fine judgements (e.g. as to capacity) often need to be made and that vigilance needs to be exercised at all times.

The Section 100A saga continues

JOHN TUCKER, DW FOX TUCKER LAWYERS

Much has been written about Section 100A of the Income Tax Assessment Act 19361 (ITAA) of late.

This is a section enacted in 1979, essentially as a counter to what were known at the time as “trust stripping” schemes, something, in the context of trust profits, akin to the better known “dividend stripping” schemes in relation to company profits.

Dividend stripping had been the subject of numerous attacks by the Commissioner and from legislative provisions, culminating in Section 177E of the ITAA. Both sets of provisions, sections 100A and 177E, turn on the attribution to participants of what can be summarised as a tax avoidance purpose in their dealings, though just what purpose and the criteria for determining it differs between them.

In the main across various provisions in the Assessment Acts, the identification of a tax avoidance purpose is to be determined applying objective criteria, but for s100A has been held to also engage subjective purpose. Much however remains in the eye of the beholder.

Historic statements such as that tax avoidance, meaning using or attempting to use lawful means to reduce tax obligations, is lawful,2 may offer hope of some legal endorsement for tax planners, but they face a raft of anti-avoidance provisions in the Assessment Acts, little appreciation of their efforts from the Commissioner, and a difficult to discharge onus of proof before the judiciary, particularly if required to negate any existence of a tax avoidance purpose in anyone.

The enactment of s100A successfully eliminated trust stripping schemes in the form they were known at the time3 but the provisions read more widely than to just these schemes. Litigants have sought to have the provisions read down in their application to wider circumstances, but their attempts have failed.4

Until recently, its object successfully achieved, s100A shrank in prominence for practitioners and the Commissioner

alike. Attention turned to other issues concerning core provisions relating to the taxation of trusts, such as those concerning the proportional sharing of distributable income and a flow through of the character of components of income derived from different sources.

Now though, s100A has emerged as potentially something of far more universal application than has generally been understood since its elimination of trust stripping schemes.

Much comment has been made concerning the draft Taxation Ruling TR 2022/D1 published this year by the Commissioner, to be finalised subject to further consultation.

This draft was preceded by the decision of Logan J in Guardian AIT Pty Ltd,5 now on appeal, in which he refused to apply s100A, finding that the ‘reimbursement agreement’ required for an application of the section needed to exist before the present entitlement, to which the section was to be applied, was determined, which it did not. Also, he held on the facts that the agreement in question was one entered into in the course of ordinary family or commercial dealing.

Then on 19 September, 2022, the Judgment of Thawley J was delivered in the case of B Blood Enterprises Pty Ltd v Commissioner of Taxation.6

The case concerned a scheme calculated to apply provisions of Assessment Acts under which a corporate beneficiary of a trust estate, deemed presently entitled to the net income of the trust estate, including a franked dividend, is able to offset most of the tax liability on the entitlement by the franking credit, while the dividend, as capital under the trust deed, could be accumulated and added to corpus free of tax.

The BBlood scheme involved a share buyback, largely deemed a dividend for tax purposes, able to be fully franked, but capital for trust accounting purposes under the trust deed for the recipient trust fund. The desired outcome wasn’t seen to flow naturally under the terms of the relevant

trust deed and they were amended.7 A new company was incorporated to be made presently entitled to all the trust’s net income. The historic pattern of distributions from the trust to receive the buyback consideration was changed to meet the requirements of the scheme.

The corporate beneficiary claimed franking credits attached to the dividend to which it was deemed presently entitled, to offset the tax liability on it.8 The trustee of the trust in receipt of the buyback proceeds claimed not to be assessable on the dividend deemed from them as it had made the corporate beneficiary presently entitled to all of the net income of the trust estate.

The Commissioner applied s100A to deem the corporate beneficiary not to have been presently entitled to the net income of the trust, the entitlement having arisen under a ‘reimbursement agreement’ and assessed the trustee.9

The elements of s100A relevant to the Commissioner’s position were whether there was a ‘reimbursement agreement’, not entered into in the ‘ordinary course of family or commercial dealing’, by ‘any party’ to it for a purpose, or ‘purposes that included’, that a person who, if the scheme had not been entered into, would not have been liable to pay income tax or been liable to pay less income tax in respect of the year of income if the agreement had not been entered into.10

The Court held that the various parties, including for this purpose their accounting and legal advisors, had entered into an overarching ‘agreement’ [as identified by the Commissioner] meeting the definition of ‘agreement’ in s100A(13).

The agreement, taken as a whole, was held not entered into in the course of ordinary family or commercial dealing. Nor was the agreement to implement each of the steps entered into in such a course. Their ‘complexity was not shown to be necessary to achieving a specific outcome sought to be achieved by a dealing aptly described as an ordinary family or commercial dealing’.

The criteria mentioned in relation to this conclusion included that the agreement was not explicable as entered into for family succession purposes, not entered into as part of an ordinary commercial dealing, not consistent with the historical behaviour of the parties, having a component not suggesting the agreement to implement it or its steps as ordinary, there not having been established a ‘sensible commercial or family rationale’ for what might otherwise be said to be an ordinary commercial transaction,11 and it not referable to simplifying a corporate structure.

These criteria contrast with the approach of Logan J in Guardian AIT, where steps that might have been viewed by some as complex and historically unusual were readily accepted as within the description of an ordinary family or commercial dealing.

As a practical matter, for advisors applying this decision, there will be difficult judgement calls to be made as to what agreements, as defined, can aptly be described as ‘entered into in the course of an ordinary family or commercial dealing’.

Another aspect of s100A receiving judicial consideration in BBlood was the exclusion from it12 of agreements not entered into with a tax avoidance purpose.13 The Court noted the reference to be to the actual purpose, including the subjective purpose, of any singular natural person entering into the agreement, including that of advisors, irrespective of whether predominant or co-existing with other purposes.

Identification of the specific amount of tax the subject of the purpose was determined not necessary, just that more tax would otherwise have been payable, not precisely what would have occurred if the agreement had not been entered into.

This is also a challenging finding. Prudence would suggest to any party to a prospective transaction potentially triggering taxation consequences that they seek expert advice. Where alternative means to effect the transaction may exist

and different taxation consequences flow from them, advisors will need to be alert to the status of plans that are complex and their mindset about them if there is a potential exposure to s100A.

The Court relied heavily against BBlood on its onus to disprove any tax avoidance purpose, holding this onus not able to be discharged simply by it being able to point to some other transaction which realistically could have been entered into which would not have immediately caused a person to be liable to more tax.

The Court also reiterated that the definition of ‘reimbursement agreement’14 is not controlled by the word reimbursement. All agreements are captured, they are not to be read down to those referable to the specific, trust stripping, types of mischief identified in the 1978 Explanatory Memorandum to the Bill introducing s100A. The payment in s 100A(7) need not be, in substance, a reimbursement for a beneficiary being made presently entitled to the income of a trust. Here the agreement, as found, was for the trustee to retain as corpus of the trust estate the capital component of the buyback payment.

In the several writings about s100A, following the Commissioner’s enlivened attention to it, professional advisors have expressed concern, often frustration, about the wide ambit of the section and their uncertainty about its potential application to dealings, unrelated to trust stripping schemes as prevalent when s100A was introduced, and which they would regard as made in the course of an ordinary family or commercial dealing. Determining in such cases whether or not and at what point advice may be seen as crystallising a tax avoidance agreement is unfortunately uncertain.

In summary the judgment in BBlood applied s100A literally to where a party to an agreement, essentially the advisors, were held to have entered into the agreement for a purpose that included a tax avoidance purpose, and from what were seen as complex steps, an agreement not entered

into in the course of ordinary family or commercial dealing.

To add to these concerns the Court added that, aside from its application of s100A, it considered the buyback was, and was in the nature of, a ‘dividend stripping operation’ to which s 207-150(1) of ITAA 1997 applied so as to deny any tax offset for the franking credits. A literal interpretation of the relevant provisions was applied free of any implications to restrict the width of their language. Here again the language of the relevant legislation is wide ranging in its scope… Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B

Endnotes

1 ITAA1936.

2 As per Gleeson CJ in RV Meares (1997) 37 ATR 321, speaking in contrast to tax evasion.

3 Then something being touted by scheme promotes promising tax free receipts in exchange for the distribution to them of assessable profits.

4 See Commissioner of Taxation v Prestige Motors Pty Ltd [1994] HCA 39, (Prestige Motors), Idelcroft Pty Ltd v FCT [2005] FCAFC 141 and Raftland Pty Ltd v FCT [2008] HCA 21.

5 Guardian AIT Pty Ltd v Commissioner of Taxation [2021] FCA 1619.

6 [2022] FCA 1112 (BBlood).

7 Though it transpired unnecessarily.

8 While this example of a mismatch between entitlement to trust income and to trust funds was planned to favour the taxpayer, others can have the opposite effect, for example where a default beneficiary is deemed presently entitled to the income of a trust estate though not having received payment of any part of the trust income.

9 Under s99A of ITAA1936, at the maximum marginal rate of tax.

10 Reference should be made to the provisions, particularly the definitions in s100A(13), in connection with this summary.

11 Referencing the buy-back procedure.

12 In s100A(8).

13 In terms of the Section, not entered into for the purpose or for the purposes that included the purpose of securing that a person who, if the agreement had not been entered into, would have been liable to pay income tax in respect of a year of income would not be liable to pay income tax in respect of that year of income or would be liable to pay less income tax in respect of that year of income than that person would have been liable to pay if the agreement had not been entered into.

14 In s100A(7).

The criteria mentioned in relation to this conclusion included that the agreement was not explicable as entered into for family succession purposes, not entered into as part of an ordinary commercial dealing, not consistent with the historical behaviour of the parties, having a component not suggesting the agreement to implement it or its steps as ordinary, there not having been established a ‘sensible commercial or family rationale’ for what might otherwise be said to be an ordinary commercial transaction,11 and it not referable to simplifying a corporate structure.

These criteria contrast with the approach of Logan J in Guardian AIT, where steps that might have been viewed by some as complex and historically unusual were readily accepted as within the description of an ordinary family or commercial dealing.

As a practical matter, for advisors applying this decision, there will be difficult judgement calls to be made as to what agreements, as defined, can aptly be described as ‘entered into in the course of an ordinary family or commercial dealing’.

Another aspect of s100A receiving judicial consideration in BBlood was the exclusion from it12 of agreements not entered into with a tax avoidance purpose.13 The Court noted the reference to be to the actual purpose, including the subjective purpose, of any singular natural person entering into the agreement, including that of advisors, irrespective of whether predominant or co-existing with other purposes.

Identification of the specific amount of tax the subject of the purpose was determined not necessary, just that more tax would otherwise have been payable, not precisely what would have occurred if the agreement had not been entered into.

This is also a challenging finding. Prudence would suggest to any party to a prospective transaction potentially triggering taxation consequences that they seek expert advice. Where alternative means to effect the transaction may exist

and different taxation consequences flow from them, advisors will need to be alert to the status of plans that are complex and their mindset about them if there is a potential exposure to s100A.

The Court relied heavily against BBlood on its onus to disprove any tax avoidance purpose, holding this onus not able to be discharged simply by it being able to point to some other transaction which realistically could have been entered into which would not have immediately caused a person to be liable to more tax.

The Court also reiterated that the definition of ‘reimbursement agreement’14 is not controlled by the word reimbursement. All agreements are captured, they are not to be read down to those referable to the specific, trust stripping, types of mischief identified in the 1978 Explanatory Memorandum to the Bill introducing s100A. The payment in s 100A(7) need not be, in substance, a reimbursement for a beneficiary being made presently entitled to the income of a trust. Here the agreement, as found, was for the trustee to retain as corpus of the trust estate the capital component of the buyback payment.

In the several writings about s100A, following the Commissioner’s enlivened attention to it, professional advisors have expressed concern, often frustration, about the wide ambit of the section and their uncertainty about its potential application to dealings, unrelated to trust stripping schemes as prevalent when s100A was introduced, and which they would regard as made in the course of an ordinary family or commercial dealing. Determining in such cases whether or not and at what point advice may be seen as crystallising a tax avoidance agreement is unfortunately uncertain.

In summary the judgment in BBlood applied s100A literally to where a party to an agreement, essentially the advisors, were held to have entered into the agreement for a purpose that included a tax avoidance purpose, and from what were seen as complex steps, an agreement not entered

into in the course of ordinary family or commercial dealing.

To add to these concerns the Court added that, aside from its application of s100A, it considered the buyback was, and was in the nature of, a ‘dividend stripping operation’ to which s 207-150(1) of ITAA 1997 applied so as to deny any tax offset for the franking credits. A literal interpretation of the relevant provisions was applied free of any implications to restrict the width of their language. Here again the language of the relevant legislation is wide ranging in its scope… Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B

Endnotes

1 ITAA1936.

2 As per Gleeson CJ in RV Meares (1997) 37 ATR 321, speaking in contrast to tax evasion.

3 Then something being touted by scheme promotes promising tax free receipts in exchange for the distribution to them of assessable profits.

4 See Commissioner of Taxation v Prestige Motors Pty Ltd [1994] HCA 39, (Prestige Motors), Idelcroft Pty Ltd v FCT [2005] FCAFC 141 and Raftland Pty Ltd v FCT [2008] HCA 21.

5 Guardian AIT Pty Ltd v Commissioner of Taxation [2021] FCA 1619.

6 [2022] FCA 1112 (BBlood).

7 Though it transpired unnecessarily.

8 While this example of a mismatch between entitlement to trust income and to trust funds was planned to favour the taxpayer, others can have the opposite effect, for example where a default beneficiary is deemed presently entitled to the income of a trust estate though not having received payment of any part of the trust income.

9 Under s99A of ITAA1936, at the maximum marginal rate of tax.

10 Reference should be made to the provisions, particularly the definitions in s100A(13), in connection with this summary.

11 Referencing the buy-back procedure.

12 In s100A(8).

13 In terms of the Section, not entered into for the purpose or for the purposes that included the purpose of securing that a person who, if the agreement had not been entered into, would have been liable to pay income tax in respect of a year of income would not be liable to pay income tax in respect of that year of income or would be liable to pay less income tax in respect of that year of income than that person would have been liable to pay if the agreement had not been entered into.

14 In s100A(7).

The criteria mentioned in relation to this conclusion included that the agreement was not explicable as entered into for family succession purposes, not entered into as part of an ordinary commercial dealing, not consistent with the historical behaviour of the parties, having a component not suggesting the agreement to implement it or its steps as ordinary, there not having been established a ‘sensible commercial or family rationale’ for what might otherwise be said to be an ordinary commercial transaction,11 and it not referable to simplifying a corporate structure.

These criteria contrast with the approach of Logan J in Guardian AIT, where steps that might have been viewed by some as complex and historically unusual were readily accepted as within the description of an ordinary family or commercial dealing.

As a practical matter, for advisors applying this decision, there will be difficult judgement calls to be made as to what agreements, as defined, can aptly be described as ‘entered into in the course of an ordinary family or commercial dealing’.

Another aspect of s100A receiving judicial consideration in BBlood was the exclusion from it12 of agreements not entered into with a tax avoidance purpose.13 The Court noted the reference to be to the actual purpose, including the subjective purpose, of any singular natural person entering into the agreement, including that of advisors, irrespective of whether predominant or co-existing with other purposes.

Identification of the specific amount of tax the subject of the purpose was determined not necessary, just that more tax would otherwise have been payable, not precisely what would have occurred if the agreement had not been entered into.

This is also a challenging finding. Prudence would suggest to any party to a prospective transaction potentially triggering taxation consequences that they seek expert advice. Where alternative means to effect the transaction may exist

and different taxation consequences flow from them, advisors will need to be alert to the status of plans that are complex and their mindset about them if there is a potential exposure to s100A.

The Court relied heavily against BBlood on its onus to disprove any tax avoidance purpose, holding this onus not able to be discharged simply by it being able to point to some other transaction which realistically could have been entered into which would not have immediately caused a person to be liable to more tax.

The Court also reiterated that the definition of ‘reimbursement agreement’14 is not controlled by the word reimbursement. All agreements are captured, they are not to be read down to those referable to the specific, trust stripping, types of mischief identified in the 1978 Explanatory Memorandum to the Bill introducing s100A. The payment in s 100A(7) need not be, in substance, a reimbursement for a beneficiary being made presently entitled to the income of a trust. Here the agreement, as found, was for the trustee to retain as corpus of the trust estate the capital component of the buyback payment.

In the several writings about s100A, following the Commissioner’s enlivened attention to it, professional advisors have expressed concern, often frustration, about the wide ambit of the section and their uncertainty about its potential application to dealings, unrelated to trust stripping schemes as prevalent when s100A was introduced, and which they would regard as made in the course of an ordinary family or commercial dealing. Determining in such cases whether or not and at what point advice may be seen as crystallising a tax avoidance agreement is unfortunately uncertain.

In summary the judgment in BBlood applied s100A literally to where a party to an agreement, essentially the advisors, were held to have entered into the agreement for a purpose that included a tax avoidance purpose, and from what were seen as complex steps, an agreement not entered

into in the course of ordinary family or commercial dealing.

To add to these concerns the Court added that, aside from its application of s100A, it considered the buyback was, and was in the nature of, a ‘dividend stripping operation’ to which s 207-150(1) of ITAA 1997 applied so as to deny any tax offset for the franking credits. A literal interpretation of the relevant provisions was applied free of any implications to restrict the width of their language. Here again the language of the relevant legislation is wide ranging in its scope… Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B

Endnotes

1 ITAA1936.

2 As per Gleeson CJ in RV Meares (1997) 37 ATR 321, speaking in contrast to tax evasion.

3 Then something being touted by scheme promotes promising tax free receipts in exchange for the distribution to them of assessable profits.

4 See Commissioner of Taxation v Prestige Motors Pty Ltd [1994] HCA 39, (Prestige Motors), Idelcroft Pty Ltd v FCT [2005] FCAFC 141 and Raftland Pty Ltd v FCT [2008] HCA 21.

5 Guardian AIT Pty Ltd v Commissioner of Taxation [2021] FCA 1619.

6 [2022] FCA 1112 (BBlood).

7 Though it transpired unnecessarily.

8 While this example of a mismatch between entitlement to trust income and to trust funds was planned to favour the taxpayer, others can have the opposite effect, for example where a default beneficiary is deemed presently entitled to the income of a trust estate though not having received payment of any part of the trust income.

9 Under s99A of ITAA1936, at the maximum marginal rate of tax.

10 Reference should be made to the provisions, particularly the definitions in s100A(13), in connection with this summary.

11 Referencing the buy-back procedure.

12 In s100A(8).

13 In terms of the Section, not entered into for the purpose or for the purposes that included the purpose of securing that a person who, if the agreement had not been entered into, would have been liable to pay income tax in respect of a year of income would not be liable to pay income tax in respect of that year of income or would be liable to pay less income tax in respect of that year of income than that person would have been liable to pay if the agreement had not been entered into.

14 In s100A(7).

PRACTISING FAMILY LAW

Abstract from LexisNexis

The successful practice of family law requires mastery of a complex combination of skills and knowledge. This book closes the gap between theory and practice, providing clear guidance on how to conduct family law matters. Practical, step-by-step coverage is provided on the full range of essential skills and procedures

LEGAL PRACTICE AND ETHICS

Abstract from LexisNexis

Each chapter of this useful book commences with a clear discussion of key principles and issues, including a summary of relevant cases and legislation for effective revision. Comparative tables of legislative provisions for each state and territory are included. Examples of written questions with fact scenarios follow, each with

required in the day-to-day practice of family law in Australia. The fifth edition has been extensively updated with recent developments to case law and legislation, including the abolition of the Family Court of Australia and the Family Law Division of the Federal Circuit Court and the establishment of the new Federal Circuit and Family Court of Australia.

a suggested answer plan, sample answer and comments on how the answer might be viewed by an examiner. The commentary and the questions and answers in the fourth edition have been fully revised to include current issues affecting lawyers. Recent case law is discussed and state and territory rules and legislation have been updated to capture the latest important developments.

INFORMATION PRIVACY GOVERNANCE AND REGULATION IN AUSTRALIA: AN E-COMMERCE PERSPECTIVE

Abstract from LexisNexis

Information Privacy Governance and Regulation in Australia: An E-Commerce Perspective is a high level scholarly work covering information governance in the e-commerce and international environment in Australia. Written by a respected academic in this field, this book provides an

introduction to e-commerce and internet law, with a focus on intellectual property aspects. This is followed by comprehensive commentary on international privacy laws, the domestic and international frameworks for information governance, challenges in regulation and law reform in this area both in Australia and globally.

SOCIAL SECURITY AND FAMILY ASSISTANCE LAW

Abstract from Federation Press

This fourth edition comprehensively annotates the social security law and family assistance law of Australia, as amended to 1 February 2022. It is the 13th volume in a book series which has annotated the Social Security Act and associated legislation since 1984.

Features of this new edition include:

Comprehensive annotations, on a sectionby-section basis, covering decisions of the AAT, the Federal Court and the High Court to 1 February 2022;

Identification of legislative instruments which are important to application of the legislation;

Discussion of areas of social security law which are the subject of ongoing review activity or attract strong public interest, including eligibility for disability support pension, income and assets testing, compensation recovery, member of a couple and dependent children provisions, compliance with participation obligations, the legal basis of administrative arrangements, and “robodebts”.

An

interview with Jessica Teoh, SA Branch President of the Asian Australian Lawyers Association

EDWIN FAH, JOHNSON WINTER & SLATTERY

Wellbeing & Resilience Committee member Edwin Fah sits down with Jessica Teoh, the inaugural President of the SA Branch of the Asian Australian Lawyers Association, to talk about the purpose of ALLA and why culturally focused support groups are still needed.

Edwin Fah: You’re a Director of a major corporate and commercial law firm in this city, you’re Asian, and female. That’s quite rare. How did you get here?

Jessica Teoh: My career to date has been rather conventional. As a final year law student I was lucky enough to obtain a clerkship at Johnson Winter & Slattery. After that, I stayed on as a graduate, then became an Associate. After a few years, an opportunity arose to join Laity Morrow, and I’ve been here for the past eight years, the last three as a Director.

EF: When you joined Laity Morrow you didn’t just change firms though, you also changed practice areas.

JT: Yes, I did. My career to that point was spent in litigation and in employment work, and I wanted a change. The adversarial nature of litigation can wear you down, and I wasn’t sure it was for me. I wanted to work more collaboratively, so took the opportunity, when I changed firms, to essentially re-invent myself as a transactional lawyer.

EF: That’s a fairly drastic change. Do you have any regrets?

JT: It definitely wasn’t easy at first! But no, I’m glad I did it. The work I do is fulfilling, and I wouldn’t have had the opportunity to work with the fantastic clients I work with every day if I hadn’t taken that chance all those years ago.

EF: You’re the inaugural SA Branch

President of AALA. Tell us about AALA and why you decided to get involved.

JT: AALA’s objective is to promote cultural diversity in the law. Our membership covers university students through to principals of law firms, so it is, at its base, a support network. When I was a law student, and then a junior lawyer, there weren’t groups like AALA, and I wish there were. Two years ago I was approached by some AALA National Executive members to see if there was interest in setting up an SA Branch of AALA. I had been made Director at Laity Morrow the year before, and I felt I was in a position to give back to my community, and if not now, then when? The AALA Executive members had also contacted my friend Brian Vuong (who is a Director at Kain Lawyers) who was keen to be involved too, and we then started cold calling our contacts. Innumerable coffees later, we had a handful of people who were keen to be involved, and those people formed the first SA Branch Committee of AALA. Two years later, they remain the core of the SA Branch Committee.

EF: There are two main things AALA in SA is known for, and that is your mentoring programme, and that you put on great social events.

JT: We realised very early on that you cannot promote cultural diversity in the law if you have no constituents, and it is no secret that we as a profession have

a problem with retention of lawyers, especially junior lawyers (whether they be Asian Australian lawyers or not). One of the things that causes people to leave the profession is a lack of support and, at the more junior levels, a lack of mentoring and guidance. So we decided to focus on our mentoring programme, and to try to make it unique.

EF: How is AALA’s mentoring programme unique?

JT: Well, firstly, it provides an opportunity for Asian Australian lawyers to be mentored by other Asian Australian lawyers. The feedback we have consistently received from the programme’s participants is that being able to speak with someone that looks like you, that might have a similar background to you, has likely gone through similar challenges to you, provides a level of comfort that they wouldn’t otherwise get. That comfort allows mentees to open up more, to step outside the “protection mode” they are

Jessica Teoh

usually in, and to be more forthright about their concerns. The second thing is that we encourage people to be both mentors and mentees at the same time. No matter what experience level you have, you have something you can teach to those less experienced than you. For example, first year graduates have a lot of knowledge they can pass on to university students about how to navigate clerkship applications, interviews etc.

EF: And the social events?

JT: Everyone loves a good party, and I think in the two years that the SA Branch of AALA has been in existence, we have put on some pretty good events. Our launch party in early 2021 was a real watershed moment for me. I had never seen so many Asian Australian lawyers together in the same place before, and it showed me that there is a community out there that needs, but importantly, wants, a galvanising group like AALA. In

addition, especially in the corporate and commercial environment, networking is a necessary skill we all must develop. The fact is that, save for AALA events, in every professional networking event that I go to, I am a minority, and that can be daunting, which I especially felt when I was a junior lawyer. AALA networking events remove that issue, and provide a very safe environment where people can develop and practice their networking skills and be more themselves. And when you’re not trying so hard, and can be yourself, networking becomes easier.

EF: So, what’s next?

JT: There is still a long way to go. There is still a lot of casual or “ignorant” racism in the community. I have experienced it myself and heard about others’ experiences in my role as SA Branch President, and so long as it is still out there, there will be a need for groups such as AALA.

EF: That sounds like the topic of our next interview. How about you personally?

JT: We’re going to need a lot more articles to cover those issues! For me, I want to continue embracing the leadership role I find myself in. In my experience, most Asian Australians, lawyers, me included, don’t enjoy the spotlight, but people in my position need to be visible, we need to embrace being leaders and role models for our communities and to set an example for the next generation of Asian Australian lawyers so maybe in the future AALA will not be as necessary as it is now.

EF: Thanks for your time Jess, this has certainly been an enlightening and, frankly, inspiring conversation with you. I wish you and AALA all the best, and look forward to the next AALA event.

JT: I look forward to seeing you at our next event!

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3 AUG 2022 – 2 OCT 2022

ACTS PROCLAIMED

Return to Work (Scheme Sustainability) Amendment Act 2022 (No 4 of 2022)

Commencement remaining provisions: 11 August 2022

Gazetted: 11 August 2022, Gazette No. 55 of 2022

Voluntary Assisted Dying Act 2021 (No 29 of 2021)

Commencement ss4-106; 110(1)-(6); 111; 113-129; Sch1: 31 January 2023

Commencement s 130: 29 September 2022

Commencement remaining provisions 1 September 2022

Gazetted: 11 August 2022, Gazette No. 55 of 2022

Amended and gazette: 29 September, Gazette No. 69 of 2022

Statutes Amendment (Transport Portfolio) Act 2021 (No 17 of 2021)

Commencement except Parts 2-5; ss20-22; 30-32; Parts 7-8: 1 September 2022 Gazetted: 18 August 2022, Gazette No. 56 of 2022

Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Act 2021 (No 11 of 2021)

Commencement: 29 August 2022 Gazetted: 25 August 2022, Gazette No. 57 of 2022

Criminal Law Consolidation (Driving at Extreme Speed) Amendment Act 2021 (No 28 of 2021)

Commencement ss 7 and 8: 29 August 2022 immediately after Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Act 2021 comes into operation. Gazetted: 25 August 2022, Gazette No. 57 of 2022

REGULATIONS

REGULATION

Return

Motor

Motor

Residential

REVIEW

Suicide Prevention Act 2021 (No 51 of 2021) Commencement ss 19, 23 and 26: 1 February 2023 Commencement remaining provisions: 5 September 2022 Gazetted: 1 September 2022, Gazette No. 60 of 2022

South Australian Motor Sport (Miscellaneous) Amendment Act 2022 (No 5 of 2022) Commencement: 8 September 2022 Gazetted: 8 September 2022, Gazette No. 62 of 2022

Statutes Amendment (Child Sex Offences) Act 2022 (No 9 of 2022) Commencement: 1 October 2022 Gazetted: 23 September 2022, Gazette No. 68 of 2022

Statutes Amendment and Repeal (Budget Measures) Act 2021 (No 5 of 2021) Commencement Parts 5, 9-11, 13, 15: 10 October 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

ACTS ASSENTED TO

Plebiscite (South East Council Amalgamation) Bill 2022, No. 10 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

Local Government (Defaulting Council) Amendment Bill 2022, No. 11 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

Controlled Substances (Pure Amounts) Amendment Bill 2022, No. 12 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

APPOINTMENTS

Youth Court of South Australia

Magistrate (Principal Judiciary from 27 September 2022 to 31 December 2022 Magistrate Todd Matthew Grant From 27 September 2022 – 27 September 2024 Magistrate Kathryn Hodder Gazetted: 18 August 2022, Gazette No. 56 of 2022

Magistrates Court Judicial Registrar

on a full-time basis for a term of seven years commencing on 16 September 2022 until 15 September 2029

Thomas William Burke a Gazetted: 16 September 2022, Gazette No. 66 of 2022

Supreme Court of South Australia

Auxiliary Judge for a term commencing on 4 October 2022 until 30 June 2023

Brian Ross Martin AO KC Auxiliary Master for a term commencing on 4 October 2022 until 30 June 2023

Jack Costello Gazetted: 16 September 2022, Gazette No. 66 of 2022

RULES

Uniform Civil (No 7) Amending Rules Gazetted: 25 August 2022, Gazette No. 57 of 2022

Joint Criminal Rules 2022

Gazetted: 26 August 2022, Gazette No. 58 of 2022

Uniform Special Statutory Rules 2022 Gazetted: 26 August 2022, Gazette No. 59 of 2022

Lifetime Support Scheme Rules 2022

Gazetted: 16 September 2022, Gazette No. 66 of 2022

Fair Trading (Health and Fitness Industry Code) Regulations 2022 66 of 2022 18 August 2022, Gazette No. 56 of 2022

Criminal Law Consolidation (General) (Prescribed Occupations and Employment) Amendment Regulations 2022 67 of 2022 25 August 2022, Gazette No. 57 of 2022

Criminal Law Consolidation (General) (Serious Vehicle Offences) Amendment Regulations 2022 68 of 2022 25 August 2022, Gazette No. 57 of 2022

Criminal Law (Forensic Procedures) Regulations 2022 69 of 2022 25 August 2022, Gazette No. 57 of 2022

A MONTHLY

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

Bail (Forms) Amendment Regulations 2022

Adelaide Festival Centre Trust Regulations 2022

Education and Early Childhood Services (Registration and Standards) (Amendment of Education and Care Services National Law Text) Regulations 2022

Fisheries Management (Sardine Fishery) (Quota) Amendment Regulations 2022

Fisheries Management (Abalone Fisheries) (Quota) Amendment Regulations 2022

Fisheries Management (Prawn Fisheries) (Fishing Nights Entitlements) Amendment Regulations 2022

Suicide Prevention Regulations 2022

Child Safety (Prohibited Persons) Amendment Regulations 2022

70 of 2022 25 August 2022, Gazette No. 57 of 2022

71 of 2022 25 August 2022, Gazette No. 57 of 2022

72 of 2022 25 August 2022, Gazette No. 57 of 2022

73 of 2022 1 September 2022, Gazette No. 60 of 2022

74 of 2022 1 September 2022, Gazette No. 60 of 2022

75 of 2022 1 September 2022, Gazette No. 60 of 2022

76 of 2022 1 September 2022, Gazette No. 60 of 2022

77 of 2022 1 September 2022, Gazette No. 60 of 2022

Youth Justice Administration Amendment Regulations 2022 78 of 2022 1 September 2022, Gazette No. 60 of 2022

Fisheries Management (General) (Restrictions on Fishing in Germein Bay) Amendment Regulations 2022 79 of 2022 8 September 2022, Gazette No. 62 of 2022

Fisheries Management (Demerit Points) (Restrictions on Fishing in Germein Bay) Amendment Regulations 2022 80 of 2022 8 September 2022, Gazette No. 62 of 2022

South Australian Motor Sport (Board Names) Amendment Regulations 2022 81 of 2022 8 September 2022, Gazette No. 62 of 2022

Local Government (Elections) (Assisted Voting) Amendment Regulations 2022 82 of 2022 29 September 2022, Gazette No. 69 of 2022

Planning, Development and Infrastructure (General) (Temporary Accommodation) Amendment Regulations 2022 83 of 2022 29 September 2022, Gazette No. 69 of 2022

Motor Vehicles (Electric Vehicle Registration) Amendment Regulations 2022 84 of 2022 29 September 2022, Gazette No. 69 of 2022

Stamp Duties (Electric Vehicles) Amendment Regulations 2022 85 of 2022 29 September 2022, Gazette No. 69 of 2022

Return to Work (Prescribed Limits on Costs) Amendment Regulations 2022 86 of 2022 29 September 2022, Gazette No. 69 of 2022

Voluntary Assisted Dying Regulations 2022 87 of 2022 29 September 2022, Gazette No. 69 of 2022

Police Complaints and Discipline (Code of Conduct) Amendment Regulations 2022 88 of 2022 29 September 2022, Gazette No. 69 of 2022

FAMILY LAW CASE NOTES

Family Law Case Notes

CHRIS NICHOL & KELEIGH ROBINSON

PROPERTY – FULL COURT SETS ASIDE PROPERTY ORDER IN SHORT, CHILDLESS DE FACTO RELATIONSHIP

In Grunseth & Wighton [2022]

FedCFamC1A 132 (26 August, 2022) the Full Court (Alstergren CJ, Aldridge & Brasch JJ) allowed a de facto wife’s appeal in a case involving a childless de facto relationship that lasted for “just under three years”.

The parties purchased a property (the B town property), the de facto wife contributing 70% of the purchase price and the husband 30%. The parties registered the B town property 70:30 in favour of the wife ([5]).

The de facto husband paid $160,000 to the de facto wife. The parties agreed that the intention of the payment was such that the B town property would be registered 50:50 between them.

As first instance, the Court ordered a division of 52.5% to the de facto husband and 47.5% to the de facto wife. The Full Court said (from [37]):

“ … [W]e cannot reconcile the ultimate determination … with the … fact that the [de facto wife] … contributed over 52.5 per cent of the … assets and with assets to which the [de facto husband] … made no contribution to at all. … ( … )

[74] … [T]here is much to be said for the proposition that the parties should … receive the property owned by them … particularly so when the ownership of the B Town property was … structured … to reflect the parties’ contributions ... ( … )

[76] … The … payment of $160,000 … was paid by the [de facto husband] … to gain an increased share of the B Town property … [A]n allowance must be made in [his] … favour for at least that sum. ( … )

[88] … [T]he order will provide for the sale of the … property and the division of the proceeds 70 per cent to the [de facto wife] … and 30 per cent to the [de facto husband] … [and] for the payment of $160,000 by the [de facto wife] … to the [de facto husband] … ”

PROPERTY – COURT ERRED BY MAKING ENFORCEMENT ORDERS THAT SUBSTANTIVELY VARIED THE PARTIES’ RIGHTS PURSUANT TO A REGISTERED ARBITRAL AWARD

In Lasso & Malaka [2022]

FedCFamC1A 130 (23 August, 2022) the Full Court (Austin, Tree & Williams JJ) allowed a husband’s appeal from orders of Wilson J in respect of an arbitral award that was registered pursuant to s 13H of the Act.

The award provided for the husband to transfer his interest in the home to the wife; and within 90 days the wife refinance a mortgage on an investment property. If the wife was unable to refinance within 90 days, the husband had opportunity to pay the wife $325,000 and retain the property.

The wife obtained finance approval and provided notice to her lawyer, but not the husband. On the expiration of the 90 day period, the husband paid $325,000 to the wife and said the property vested in him.

The wife filed an application for enforcement.

At first instance, the Court found that the “award should be given effect but in accordance with new dates” ([23]), ordering the wife to return the $325,000 to the husband; and that the husband transfer the property.

The Full Court said (from [30]): “Counsel for the [wife] submitted, subject to … exceptions, once perfected … an order finalising a proceeding is beyond recall (Gamser v Nominal Defendant [1977] HCA 7 … There is no reason why the same conclusion should not apply to an arbitral award …

[31] Exceptions to the principle … include matters where the orders sought to be varied are consequential or machinery orders … ( … )

[40] … The [first instance] … orders … substantially varied the terms of the decree … ( … )

[42] It was incumbent on the … judge to raise with the parties the orders he proposed to make … The failure … to do so is a denial of procedural fairness. ( … )

[60] Not only did the … judge fail to identify the source of power he … exercised to make the … orders, the orders could not have been made pursuant to s 13K or s 105 of the Act, nor … the general power … ”

CHILDREN – COVID-19 – RISKS OF 9 YEAR OLD BEING VACCINATED OR REMAINING UNVACCINATED FAVORED NEITHER PARTY’S CASE – ANTICIPATED SOCIAL AND INDIRECT BENEFITS OF VACCINATION

In McGowan & Brennan [2022] FedCFamC2F 1082 (17 August, 2022), Judge Eldershaw determined that a 9 year old child (X) should be vaccinated against COVID-19, where the father sought orders permitting vaccination and the mother sought restraints against vaccination.

The mother relied on adversarial expert Dr B, whose evidence included a conclusion that “there is a statistically or virtually nil risk of serious COVID-19 in general affecting children aged 5 to 11 years … ” ([60]).

The father sought to rely on recommendations of the Australian Technical Advisory Group on Immunisation (ATAGI).

The Court said (from [56]): “ … [T]he existence of the health advice is common knowledge. … [T]he purpose upon which the father relies on the advice pertains to the accuracy or correctness of its substance. The substance of the advice is that of an opinion. ( … ) [59] That said;

a. There is no dispute that the advice of ATAGI and government health advisors is admissible in the proceedings;

b. Pursuant to s 183 of the Evidence Act, I can infer that the documents that have been prepared by … persons who are appropriately qualified … c. … [I]t is not necessarily essential, that the information from ATAGI be before the Court through an expert witness; and

d. This matter concerns an evaluation of risk to a child, for which as much information as possible would assist me in making a decision. … ( … )

[92] Dr B cites no benefit to X in obtaining the vaccine …

[93] ATAGI cites benefits of the vaccine which include the corollary of avoiding the risk of the disease and other wider social and/or indirect benefits.

[98] …[T]he risks to X from receiving … and … of not receiving the vaccine, favour neither party’s case, a point of contrast can be identified by reference to the anticipated social and/or indirect benefit to X in being vaccinated. … It is in his best interests that he … avail himself of it. ( … )”

EVIDENCE – TRIAL JUDGE’S ENFORCEMENT OF DIRECTION FOR SINGLE, CONSOLIDATED AFFIDAVIT MATERIAL PROCEDURALLY UNFAIR WHERE SUBSEQUENT DIRECTION PERMITTED RELIANCE ON MULTIPLE AFFIDAVITS

In Krupin [2022] FedCFamC1A 136 (1 September, 2022) Tree J (sitting in the

appellate jurisdiction of the Federal Circuit and Family Court of Australia) allowed an appeal from a decision of Judge Young in a property case.

After the trial dates were vacated trial directions were made on 6 November, 2020 that included an order that the parties file consolidated affidavits of evidence in chief and that no party was permitted to rely on more than one consolidated affidavit ([27]).

Those directions scheduled a trial that was also vacated. Trial directions were made on 7 September, 2021 which permitted the parties to rely on all affidavits previously filed in the proceedings.

When the trial commenced, the primary judge insisted on compliance with the 2020 directions, notwithstanding that the husband’s case outline sought to rely on 11 affidavits; and the wife’s outline sought to rely on 13 ([33]).

Tree J said (from [35]):

“ … [T]he trial proceeded with each party only being permitted to rely on one affidavit of evidence-in-chief, together with [an] … ‘updating’ affidavit … ( … )

[37] Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West [1985] HCA 81 … ). ( … )

[39] … [T]he … 2021 orders specifically permitted the parties to rely upon more than just one consolidated affidavit. …

[40] … [B]etween 7 September and 24 November 2021, all parties believed, and prepared their cases on the … basis, that they could rely upon all past affidavits, yet [at trial] … that was turned on its head, and … a significant restriction on the material they could rely upon was imposed upon them. That was procedurally unfair. … ( … )

[45] … Whilst the … judge understandably recoiled in a degree of horror at the sheer volume of material which that order permitted to be relied upon, … that is no answer to the unfairness which the peremptory withdrawal of the right to rely on that material gave rise to.” B

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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.

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PRACTISING FAMILY LAW

Abstract from LexisNexis

The successful practice of family law requires mastery of a complex combination of skills and knowledge. This book closes the gap between theory and practice, providing clear guidance on how to conduct family law matters. Practical, step-by-step coverage is provided on the full range of essential skills and procedures

LEGAL PRACTICE AND ETHICS

Abstract from LexisNexis

Each chapter of this useful book commences with a clear discussion of key principles and issues, including a summary of relevant cases and legislation for effective revision. Comparative tables of legislative provisions for each state and territory are included. Examples of written questions with fact scenarios follow, each with

required in the day-to-day practice of family law in Australia. The fifth edition has been extensively updated with recent developments to case law and legislation, including the abolition of the Family Court of Australia and the Family Law Division of the Federal Circuit Court and the establishment of the new Federal Circuit and Family Court of Australia.

a suggested answer plan, sample answer and comments on how the answer might be viewed by an examiner. The commentary and the questions and answers in the fourth edition have been fully revised to include current issues affecting lawyers. Recent case law is discussed and state and territory rules and legislation have been updated to capture the latest important developments.

INFORMATION PRIVACY GOVERNANCE AND REGULATION IN AUSTRALIA: AN E-COMMERCE PERSPECTIVE

Abstract from LexisNexis

Information Privacy Governance and Regulation in Australia: An E-Commerce Perspective is a high level scholarly work covering information governance in the e-commerce and international environment in Australia. Written by a respected academic in this field, this book provides an

introduction to e-commerce and internet law, with a focus on intellectual property aspects. This is followed by comprehensive commentary on international privacy laws, the domestic and international frameworks for information governance, challenges in regulation and law reform in this area both in Australia and globally.

SOCIAL SECURITY AND FAMILY ASSISTANCE LAW

Abstract from Federation Press

This fourth edition comprehensively annotates the social security law and family assistance law of Australia, as amended to 1 February 2022. It is the 13th volume in a book series which has annotated the Social Security Act and associated legislation since 1984.

Features of this new edition include:

Comprehensive annotations, on a sectionby-section basis, covering decisions of the AAT, the Federal Court and the High Court to 1 February 2022;

Identification of legislative instruments which are important to application of the legislation;

Discussion of areas of social security law which are the subject of ongoing review activity or attract strong public interest, including eligibility for disability support pension, income and assets testing, compensation recovery, member of a couple and dependent children provisions, compliance with participation obligations, the legal basis of administrative arrangements, and “robodebts”.

An

interview with Jessica Teoh, SA Branch President of the Asian Australian Lawyers Association

EDWIN FAH, JOHNSON WINTER & SLATTERY

Wellbeing & Resilience Committee member Edwin Fah sits down with Jessica Teoh, the inaugural President of the SA Branch of the Asian Australian Lawyers Association, to talk about the purpose of ALLA and why culturally focused support groups are still needed.

Edwin Fah: You’re a Director of a major corporate and commercial law firm in this city, you’re Asian, and female. That’s quite rare. How did you get here?

Jessica Teoh: My career to date has been rather conventional. As a final year law student I was lucky enough to obtain a clerkship at Johnson Winter & Slattery. After that, I stayed on as a graduate, then became an Associate. After a few years, an opportunity arose to join Laity Morrow, and I’ve been here for the past eight years, the last three as a Director.

EF: When you joined Laity Morrow you didn’t just change firms though, you also changed practice areas.

JT: Yes, I did. My career to that point was spent in litigation and in employment work, and I wanted a change. The adversarial nature of litigation can wear you down, and I wasn’t sure it was for me. I wanted to work more collaboratively, so took the opportunity, when I changed firms, to essentially re-invent myself as a transactional lawyer.

EF: That’s a fairly drastic change. Do you have any regrets?

JT: It definitely wasn’t easy at first! But no, I’m glad I did it. The work I do is fulfilling, and I wouldn’t have had the opportunity to work with the fantastic clients I work with every day if I hadn’t taken that chance all those years ago.

EF: You’re the inaugural SA Branch

President of AALA. Tell us about AALA and why you decided to get involved.

JT: AALA’s objective is to promote cultural diversity in the law. Our membership covers university students through to principals of law firms, so it is, at its base, a support network. When I was a law student, and then a junior lawyer, there weren’t groups like AALA, and I wish there were. Two years ago I was approached by some AALA National Executive members to see if there was interest in setting up an SA Branch of AALA. I had been made Director at Laity Morrow the year before, and I felt I was in a position to give back to my community, and if not now, then when? The AALA Executive members had also contacted my friend Brian Vuong (who is a Director at Kain Lawyers) who was keen to be involved too, and we then started cold calling our contacts. Innumerable coffees later, we had a handful of people who were keen to be involved, and those people formed the first SA Branch Committee of AALA. Two years later, they remain the core of the SA Branch Committee.

EF: There are two main things AALA in SA is known for, and that is your mentoring programme, and that you put on great social events.

JT: We realised very early on that you cannot promote cultural diversity in the law if you have no constituents, and it is no secret that we as a profession have

a problem with retention of lawyers, especially junior lawyers (whether they be Asian Australian lawyers or not). One of the things that causes people to leave the profession is a lack of support and, at the more junior levels, a lack of mentoring and guidance. So we decided to focus on our mentoring programme, and to try to make it unique.

EF: How is AALA’s mentoring programme unique?

JT: Well, firstly, it provides an opportunity for Asian Australian lawyers to be mentored by other Asian Australian lawyers. The feedback we have consistently received from the programme’s participants is that being able to speak with someone that looks like you, that might have a similar background to you, has likely gone through similar challenges to you, provides a level of comfort that they wouldn’t otherwise get. That comfort allows mentees to open up more, to step outside the “protection mode” they are

Jessica Teoh

usually in, and to be more forthright about their concerns. The second thing is that we encourage people to be both mentors and mentees at the same time. No matter what experience level you have, you have something you can teach to those less experienced than you. For example, first year graduates have a lot of knowledge they can pass on to university students about how to navigate clerkship applications, interviews etc.

EF: And the social events?

JT: Everyone loves a good party, and I think in the two years that the SA Branch of AALA has been in existence, we have put on some pretty good events. Our launch party in early 2021 was a real watershed moment for me. I had never seen so many Asian Australian lawyers together in the same place before, and it showed me that there is a community out there that needs, but importantly, wants, a galvanising group like AALA. In

addition, especially in the corporate and commercial environment, networking is a necessary skill we all must develop. The fact is that, save for AALA events, in every professional networking event that I go to, I am a minority, and that can be daunting, which I especially felt when I was a junior lawyer. AALA networking events remove that issue, and provide a very safe environment where people can develop and practice their networking skills and be more themselves. And when you’re not trying so hard, and can be yourself, networking becomes easier.

EF: So, what’s next?

JT: There is still a long way to go. There is still a lot of casual or “ignorant” racism in the community. I have experienced it myself and heard about others’ experiences in my role as SA Branch President, and so long as it is still out there, there will be a need for groups such as AALA.

EF: That sounds like the topic of our next interview. How about you personally?

JT: We’re going to need a lot more articles to cover those issues! For me, I want to continue embracing the leadership role I find myself in. In my experience, most Asian Australians, lawyers, me included, don’t enjoy the spotlight, but people in my position need to be visible, we need to embrace being leaders and role models for our communities and to set an example for the next generation of Asian Australian lawyers so maybe in the future AALA will not be as necessary as it is now.

EF: Thanks for your time Jess, this has certainly been an enlightening and, frankly, inspiring conversation with you. I wish you and AALA all the best, and look forward to the next AALA event.

JT: I look forward to seeing you at our next event!

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ACTS PROCLAIMED

Return to Work (Scheme Sustainability) Amendment Act 2022 (No 4 of 2022)

Commencement remaining provisions: 11 August 2022

Gazetted: 11 August 2022, Gazette No. 55 of 2022

Voluntary Assisted Dying Act 2021 (No 29 of 2021)

Commencement ss4-106; 110(1)-(6); 111; 113-129; Sch1: 31 January 2023

Commencement s 130: 29 September 2022

Commencement remaining provisions 1 September 2022

Gazetted: 11 August 2022, Gazette No. 55 of 2022

Amended and gazette: 29 September, Gazette No. 69 of 2022

Statutes Amendment (Transport Portfolio) Act 2021 (No 17 of 2021)

Commencement except Parts 2-5; ss20-22; 30-32; Parts 7-8: 1 September 2022 Gazetted: 18 August 2022, Gazette No. 56 of 2022

Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Act 2021 (No 11 of 2021)

Commencement: 29 August 2022 Gazetted: 25 August 2022, Gazette No. 57 of 2022

Criminal Law Consolidation (Driving at Extreme Speed) Amendment Act 2021 (No 28 of 2021)

Commencement ss 7 and 8: 29 August 2022 immediately after Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Act 2021 comes into operation. Gazetted: 25 August 2022, Gazette No. 57 of 2022

REGULATIONS

REGULATION

Return

Motor

Motor

Residential

REVIEW

Suicide Prevention Act 2021 (No 51 of 2021) Commencement ss 19, 23 and 26: 1 February 2023 Commencement remaining provisions: 5 September 2022 Gazetted: 1 September 2022, Gazette No. 60 of 2022

South Australian Motor Sport (Miscellaneous) Amendment Act 2022 (No 5 of 2022) Commencement: 8 September 2022 Gazetted: 8 September 2022, Gazette No. 62 of 2022

Statutes Amendment (Child Sex Offences) Act 2022 (No 9 of 2022) Commencement: 1 October 2022 Gazetted: 23 September 2022, Gazette No. 68 of 2022

Statutes Amendment and Repeal (Budget Measures) Act 2021 (No 5 of 2021) Commencement Parts 5, 9-11, 13, 15: 10 October 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

ACTS ASSENTED TO

Plebiscite (South East Council Amalgamation) Bill 2022, No. 10 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

Local Government (Defaulting Council) Amendment Bill 2022, No. 11 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

Controlled Substances (Pure Amounts) Amendment Bill 2022, No. 12 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

APPOINTMENTS

Youth Court of South Australia

Magistrate (Principal Judiciary from 27 September 2022 to 31 December 2022 Magistrate Todd Matthew Grant From 27 September 2022 – 27 September 2024 Magistrate Kathryn Hodder Gazetted: 18 August 2022, Gazette No. 56 of 2022

Magistrates Court Judicial Registrar

on a full-time basis for a term of seven years commencing on 16 September 2022 until 15 September 2029

Thomas William Burke a Gazetted: 16 September 2022, Gazette No. 66 of 2022

Supreme Court of South Australia

Auxiliary Judge for a term commencing on 4 October 2022 until 30 June 2023

Brian Ross Martin AO KC Auxiliary Master for a term commencing on 4 October 2022 until 30 June 2023

Jack Costello Gazetted: 16 September 2022, Gazette No. 66 of 2022

RULES

Uniform Civil (No 7) Amending Rules Gazetted: 25 August 2022, Gazette No. 57 of 2022

Joint Criminal Rules 2022

Gazetted: 26 August 2022, Gazette No. 58 of 2022

Uniform Special Statutory Rules 2022 Gazetted: 26 August 2022, Gazette No. 59 of 2022

Lifetime Support Scheme Rules 2022

Gazetted: 16 September 2022, Gazette No. 66 of 2022

Fair Trading (Health and Fitness Industry Code) Regulations 2022 66 of 2022 18 August 2022, Gazette No. 56 of 2022

Criminal Law Consolidation (General) (Prescribed Occupations and Employment) Amendment Regulations 2022 67 of 2022 25 August 2022, Gazette No. 57 of 2022

Criminal Law Consolidation (General) (Serious Vehicle Offences) Amendment Regulations 2022 68 of 2022 25 August 2022, Gazette No. 57 of 2022

Criminal Law (Forensic Procedures) Regulations 2022 69 of 2022 25 August 2022, Gazette No. 57 of 2022

A MONTHLY

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

Bail (Forms) Amendment Regulations 2022

Adelaide Festival Centre Trust Regulations 2022

Education and Early Childhood Services (Registration and Standards) (Amendment of Education and Care Services National Law Text) Regulations 2022

Fisheries Management (Sardine Fishery) (Quota) Amendment Regulations 2022

Fisheries Management (Abalone Fisheries) (Quota) Amendment Regulations 2022

Fisheries Management (Prawn Fisheries) (Fishing Nights Entitlements) Amendment Regulations 2022

Suicide Prevention Regulations 2022

Child Safety (Prohibited Persons) Amendment Regulations 2022

70 of 2022 25 August 2022, Gazette No. 57 of 2022

71 of 2022 25 August 2022, Gazette No. 57 of 2022

72 of 2022 25 August 2022, Gazette No. 57 of 2022

73 of 2022 1 September 2022, Gazette No. 60 of 2022

74 of 2022 1 September 2022, Gazette No. 60 of 2022

75 of 2022 1 September 2022, Gazette No. 60 of 2022

76 of 2022 1 September 2022, Gazette No. 60 of 2022

77 of 2022 1 September 2022, Gazette No. 60 of 2022

Youth Justice Administration Amendment Regulations 2022 78 of 2022 1 September 2022, Gazette No. 60 of 2022

Fisheries Management (General) (Restrictions on Fishing in Germein Bay) Amendment Regulations 2022 79 of 2022 8 September 2022, Gazette No. 62 of 2022

Fisheries Management (Demerit Points) (Restrictions on Fishing in Germein Bay) Amendment Regulations 2022 80 of 2022 8 September 2022, Gazette No. 62 of 2022

South Australian Motor Sport (Board Names) Amendment Regulations 2022 81 of 2022 8 September 2022, Gazette No. 62 of 2022

Local Government (Elections) (Assisted Voting) Amendment Regulations 2022 82 of 2022 29 September 2022, Gazette No. 69 of 2022

Planning, Development and Infrastructure (General) (Temporary Accommodation) Amendment Regulations 2022 83 of 2022 29 September 2022, Gazette No. 69 of 2022

Motor Vehicles (Electric Vehicle Registration) Amendment Regulations 2022 84 of 2022 29 September 2022, Gazette No. 69 of 2022

Stamp Duties (Electric Vehicles) Amendment Regulations 2022 85 of 2022 29 September 2022, Gazette No. 69 of 2022

Return to Work (Prescribed Limits on Costs) Amendment Regulations 2022 86 of 2022 29 September 2022, Gazette No. 69 of 2022

Voluntary Assisted Dying Regulations 2022 87 of 2022 29 September 2022, Gazette No. 69 of 2022

Police Complaints and Discipline (Code of Conduct) Amendment Regulations 2022 88 of 2022 29 September 2022, Gazette No. 69 of 2022

FAMILY LAW CASE NOTES

Family Law Case Notes

CHRIS NICHOL & KELEIGH ROBINSON

PROPERTY – FULL COURT SETS ASIDE PROPERTY ORDER IN SHORT, CHILDLESS DE FACTO RELATIONSHIP

In Grunseth & Wighton [2022]

FedCFamC1A 132 (26 August, 2022) the Full Court (Alstergren CJ, Aldridge & Brasch JJ) allowed a de facto wife’s appeal in a case involving a childless de facto relationship that lasted for “just under three years”.

The parties purchased a property (the B town property), the de facto wife contributing 70% of the purchase price and the husband 30%. The parties registered the B town property 70:30 in favour of the wife ([5]).

The de facto husband paid $160,000 to the de facto wife. The parties agreed that the intention of the payment was such that the B town property would be registered 50:50 between them.

As first instance, the Court ordered a division of 52.5% to the de facto husband and 47.5% to the de facto wife. The Full Court said (from [37]):

“ … [W]e cannot reconcile the ultimate determination … with the … fact that the [de facto wife] … contributed over 52.5 per cent of the … assets and with assets to which the [de facto husband] … made no contribution to at all. … ( … )

[74] … [T]here is much to be said for the proposition that the parties should … receive the property owned by them … particularly so when the ownership of the B Town property was … structured … to reflect the parties’ contributions ... ( … )

[76] … The … payment of $160,000 … was paid by the [de facto husband] … to gain an increased share of the B Town property … [A]n allowance must be made in [his] … favour for at least that sum. ( … )

[88] … [T]he order will provide for the sale of the … property and the division of the proceeds 70 per cent to the [de facto wife] … and 30 per cent to the [de facto husband] … [and] for the payment of $160,000 by the [de facto wife] … to the [de facto husband] … ”

PROPERTY – COURT ERRED BY MAKING ENFORCEMENT ORDERS THAT SUBSTANTIVELY VARIED THE PARTIES’ RIGHTS PURSUANT TO A REGISTERED ARBITRAL AWARD

In Lasso & Malaka [2022]

FedCFamC1A 130 (23 August, 2022) the Full Court (Austin, Tree & Williams JJ) allowed a husband’s appeal from orders of Wilson J in respect of an arbitral award that was registered pursuant to s 13H of the Act.

The award provided for the husband to transfer his interest in the home to the wife; and within 90 days the wife refinance a mortgage on an investment property. If the wife was unable to refinance within 90 days, the husband had opportunity to pay the wife $325,000 and retain the property.

The wife obtained finance approval and provided notice to her lawyer, but not the husband. On the expiration of the 90 day period, the husband paid $325,000 to the wife and said the property vested in him.

The wife filed an application for enforcement.

At first instance, the Court found that the “award should be given effect but in accordance with new dates” ([23]), ordering the wife to return the $325,000 to the husband; and that the husband transfer the property.

The Full Court said (from [30]): “Counsel for the [wife] submitted, subject to … exceptions, once perfected … an order finalising a proceeding is beyond recall (Gamser v Nominal Defendant [1977] HCA 7 … There is no reason why the same conclusion should not apply to an arbitral award …

[31] Exceptions to the principle … include matters where the orders sought to be varied are consequential or machinery orders … ( … )

[40] … The [first instance] … orders … substantially varied the terms of the decree … ( … )

[42] It was incumbent on the … judge to raise with the parties the orders he proposed to make … The failure … to do so is a denial of procedural fairness. ( … )

[60] Not only did the … judge fail to identify the source of power he … exercised to make the … orders, the orders could not have been made pursuant to s 13K or s 105 of the Act, nor … the general power … ”

CHILDREN – COVID-19 – RISKS OF 9 YEAR OLD BEING VACCINATED OR REMAINING UNVACCINATED FAVORED NEITHER PARTY’S CASE – ANTICIPATED SOCIAL AND INDIRECT BENEFITS OF VACCINATION

In McGowan & Brennan [2022] FedCFamC2F 1082 (17 August, 2022), Judge Eldershaw determined that a 9 year old child (X) should be vaccinated against COVID-19, where the father sought orders permitting vaccination and the mother sought restraints against vaccination.

The mother relied on adversarial expert Dr B, whose evidence included a conclusion that “there is a statistically or virtually nil risk of serious COVID-19 in general affecting children aged 5 to 11 years … ” ([60]).

The father sought to rely on recommendations of the Australian Technical Advisory Group on Immunisation (ATAGI).

The Court said (from [56]): “ … [T]he existence of the health advice is common knowledge. … [T]he purpose upon which the father relies on the advice pertains to the accuracy or correctness of its substance. The substance of the advice is that of an opinion. ( … ) [59] That said;

a. There is no dispute that the advice of ATAGI and government health advisors is admissible in the proceedings;

b. Pursuant to s 183 of the Evidence Act, I can infer that the documents that have been prepared by … persons who are appropriately qualified … c. … [I]t is not necessarily essential, that the information from ATAGI be before the Court through an expert witness; and

d. This matter concerns an evaluation of risk to a child, for which as much information as possible would assist me in making a decision. … ( … )

[92] Dr B cites no benefit to X in obtaining the vaccine …

[93] ATAGI cites benefits of the vaccine which include the corollary of avoiding the risk of the disease and other wider social and/or indirect benefits.

[98] …[T]he risks to X from receiving … and … of not receiving the vaccine, favour neither party’s case, a point of contrast can be identified by reference to the anticipated social and/or indirect benefit to X in being vaccinated. … It is in his best interests that he … avail himself of it. ( … )”

EVIDENCE – TRIAL JUDGE’S ENFORCEMENT OF DIRECTION FOR SINGLE, CONSOLIDATED AFFIDAVIT MATERIAL PROCEDURALLY UNFAIR WHERE SUBSEQUENT DIRECTION PERMITTED RELIANCE ON MULTIPLE AFFIDAVITS

In Krupin [2022] FedCFamC1A 136 (1 September, 2022) Tree J (sitting in the

appellate jurisdiction of the Federal Circuit and Family Court of Australia) allowed an appeal from a decision of Judge Young in a property case.

After the trial dates were vacated trial directions were made on 6 November, 2020 that included an order that the parties file consolidated affidavits of evidence in chief and that no party was permitted to rely on more than one consolidated affidavit ([27]).

Those directions scheduled a trial that was also vacated. Trial directions were made on 7 September, 2021 which permitted the parties to rely on all affidavits previously filed in the proceedings.

When the trial commenced, the primary judge insisted on compliance with the 2020 directions, notwithstanding that the husband’s case outline sought to rely on 11 affidavits; and the wife’s outline sought to rely on 13 ([33]).

Tree J said (from [35]):

“ … [T]he trial proceeded with each party only being permitted to rely on one affidavit of evidence-in-chief, together with [an] … ‘updating’ affidavit … ( … )

[37] Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West [1985] HCA 81 … ). ( … )

[39] … [T]he … 2021 orders specifically permitted the parties to rely upon more than just one consolidated affidavit. …

[40] … [B]etween 7 September and 24 November 2021, all parties believed, and prepared their cases on the … basis, that they could rely upon all past affidavits, yet [at trial] … that was turned on its head, and … a significant restriction on the material they could rely upon was imposed upon them. That was procedurally unfair. … ( … )

[45] … Whilst the … judge understandably recoiled in a degree of horror at the sheer volume of material which that order permitted to be relied upon, … that is no answer to the unfairness which the peremptory withdrawal of the right to rely on that material gave rise to.” B

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The criteria mentioned in relation to this conclusion included that the agreement was not explicable as entered into for family succession purposes, not entered into as part of an ordinary commercial dealing, not consistent with the historical behaviour of the parties, having a component not suggesting the agreement to implement it or its steps as ordinary, there not having been established a ‘sensible commercial or family rationale’ for what might otherwise be said to be an ordinary commercial transaction,11 and it not referable to simplifying a corporate structure.

These criteria contrast with the approach of Logan J in Guardian AIT, where steps that might have been viewed by some as complex and historically unusual were readily accepted as within the description of an ordinary family or commercial dealing.

As a practical matter, for advisors applying this decision, there will be difficult judgement calls to be made as to what agreements, as defined, can aptly be described as ‘entered into in the course of an ordinary family or commercial dealing’.

Another aspect of s100A receiving judicial consideration in BBlood was the exclusion from it12 of agreements not entered into with a tax avoidance purpose.13 The Court noted the reference to be to the actual purpose, including the subjective purpose, of any singular natural person entering into the agreement, including that of advisors, irrespective of whether predominant or co-existing with other purposes.

Identification of the specific amount of tax the subject of the purpose was determined not necessary, just that more tax would otherwise have been payable, not precisely what would have occurred if the agreement had not been entered into.

This is also a challenging finding. Prudence would suggest to any party to a prospective transaction potentially triggering taxation consequences that they seek expert advice. Where alternative means to effect the transaction may exist

and different taxation consequences flow from them, advisors will need to be alert to the status of plans that are complex and their mindset about them if there is a potential exposure to s100A.

The Court relied heavily against BBlood on its onus to disprove any tax avoidance purpose, holding this onus not able to be discharged simply by it being able to point to some other transaction which realistically could have been entered into which would not have immediately caused a person to be liable to more tax.

The Court also reiterated that the definition of ‘reimbursement agreement’14 is not controlled by the word reimbursement. All agreements are captured, they are not to be read down to those referable to the specific, trust stripping, types of mischief identified in the 1978 Explanatory Memorandum to the Bill introducing s100A. The payment in s 100A(7) need not be, in substance, a reimbursement for a beneficiary being made presently entitled to the income of a trust. Here the agreement, as found, was for the trustee to retain as corpus of the trust estate the capital component of the buyback payment.

In the several writings about s100A, following the Commissioner’s enlivened attention to it, professional advisors have expressed concern, often frustration, about the wide ambit of the section and their uncertainty about its potential application to dealings, unrelated to trust stripping schemes as prevalent when s100A was introduced, and which they would regard as made in the course of an ordinary family or commercial dealing. Determining in such cases whether or not and at what point advice may be seen as crystallising a tax avoidance agreement is unfortunately uncertain.

In summary the judgment in BBlood applied s100A literally to where a party to an agreement, essentially the advisors, were held to have entered into the agreement for a purpose that included a tax avoidance purpose, and from what were seen as complex steps, an agreement not entered

into in the course of ordinary family or commercial dealing.

To add to these concerns the Court added that, aside from its application of s100A, it considered the buyback was, and was in the nature of, a ‘dividend stripping operation’ to which s 207-150(1) of ITAA 1997 applied so as to deny any tax offset for the franking credits. A literal interpretation of the relevant provisions was applied free of any implications to restrict the width of their language. Here again the language of the relevant legislation is wide ranging in its scope… Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B

Endnotes

1 ITAA1936.

2 As per Gleeson CJ in RV Meares (1997) 37 ATR 321, speaking in contrast to tax evasion.

3 Then something being touted by scheme promotes promising tax free receipts in exchange for the distribution to them of assessable profits.

4 See Commissioner of Taxation v Prestige Motors Pty Ltd [1994] HCA 39, (Prestige Motors), Idelcroft Pty Ltd v FCT [2005] FCAFC 141 and Raftland Pty Ltd v FCT [2008] HCA 21.

5 Guardian AIT Pty Ltd v Commissioner of Taxation [2021] FCA 1619.

6 [2022] FCA 1112 (BBlood).

7 Though it transpired unnecessarily.

8 While this example of a mismatch between entitlement to trust income and to trust funds was planned to favour the taxpayer, others can have the opposite effect, for example where a default beneficiary is deemed presently entitled to the income of a trust estate though not having received payment of any part of the trust income.

9 Under s99A of ITAA1936, at the maximum marginal rate of tax.

10 Reference should be made to the provisions, particularly the definitions in s100A(13), in connection with this summary.

11 Referencing the buy-back procedure.

12 In s100A(8).

13 In terms of the Section, not entered into for the purpose or for the purposes that included the purpose of securing that a person who, if the agreement had not been entered into, would have been liable to pay income tax in respect of a year of income would not be liable to pay income tax in respect of that year of income or would be liable to pay less income tax in respect of that year of income than that person would have been liable to pay if the agreement had not been entered into.

14 In s100A(7).

PRACTISING FAMILY LAW

Abstract from LexisNexis

The successful practice of family law requires mastery of a complex combination of skills and knowledge. This book closes the gap between theory and practice, providing clear guidance on how to conduct family law matters. Practical, step-by-step coverage is provided on the full range of essential skills and procedures

LEGAL PRACTICE AND ETHICS

Abstract from LexisNexis

Each chapter of this useful book commences with a clear discussion of key principles and issues, including a summary of relevant cases and legislation for effective revision. Comparative tables of legislative provisions for each state and territory are included. Examples of written questions with fact scenarios follow, each with

required in the day-to-day practice of family law in Australia. The fifth edition has been extensively updated with recent developments to case law and legislation, including the abolition of the Family Court of Australia and the Family Law Division of the Federal Circuit Court and the establishment of the new Federal Circuit and Family Court of Australia.

a suggested answer plan, sample answer and comments on how the answer might be viewed by an examiner. The commentary and the questions and answers in the fourth edition have been fully revised to include current issues affecting lawyers. Recent case law is discussed and state and territory rules and legislation have been updated to capture the latest important developments.

INFORMATION PRIVACY GOVERNANCE AND REGULATION IN AUSTRALIA: AN E-COMMERCE PERSPECTIVE

Abstract from LexisNexis

Information Privacy Governance and Regulation in Australia: An E-Commerce Perspective is a high level scholarly work covering information governance in the e-commerce and international environment in Australia. Written by a respected academic in this field, this book provides an

introduction to e-commerce and internet law, with a focus on intellectual property aspects. This is followed by comprehensive commentary on international privacy laws, the domestic and international frameworks for information governance, challenges in regulation and law reform in this area both in Australia and globally.

SOCIAL SECURITY AND FAMILY ASSISTANCE LAW

Abstract from Federation Press

This fourth edition comprehensively annotates the social security law and family assistance law of Australia, as amended to 1 February 2022. It is the 13th volume in a book series which has annotated the Social Security Act and associated legislation since 1984.

Features of this new edition include:

Comprehensive annotations, on a sectionby-section basis, covering decisions of the AAT, the Federal Court and the High Court to 1 February 2022;

Identification of legislative instruments which are important to application of the legislation;

Discussion of areas of social security law which are the subject of ongoing review activity or attract strong public interest, including eligibility for disability support pension, income and assets testing, compensation recovery, member of a couple and dependent children provisions, compliance with participation obligations, the legal basis of administrative arrangements, and “robodebts”.

An

interview with Jessica Teoh, SA Branch President of the Asian Australian Lawyers Association

EDWIN FAH, JOHNSON WINTER & SLATTERY

Wellbeing & Resilience Committee member Edwin Fah sits down with Jessica Teoh, the inaugural President of the SA Branch of the Asian Australian Lawyers Association, to talk about the purpose of ALLA and why culturally focused support groups are still needed.

Edwin Fah: You’re a Director of a major corporate and commercial law firm in this city, you’re Asian, and female. That’s quite rare. How did you get here?

Jessica Teoh: My career to date has been rather conventional. As a final year law student I was lucky enough to obtain a clerkship at Johnson Winter & Slattery. After that, I stayed on as a graduate, then became an Associate. After a few years, an opportunity arose to join Laity Morrow, and I’ve been here for the past eight years, the last three as a Director.

EF: When you joined Laity Morrow you didn’t just change firms though, you also changed practice areas.

JT: Yes, I did. My career to that point was spent in litigation and in employment work, and I wanted a change. The adversarial nature of litigation can wear you down, and I wasn’t sure it was for me. I wanted to work more collaboratively, so took the opportunity, when I changed firms, to essentially re-invent myself as a transactional lawyer.

EF: That’s a fairly drastic change. Do you have any regrets?

JT: It definitely wasn’t easy at first! But no, I’m glad I did it. The work I do is fulfilling, and I wouldn’t have had the opportunity to work with the fantastic clients I work with every day if I hadn’t taken that chance all those years ago.

EF: You’re the inaugural SA Branch

President of AALA. Tell us about AALA and why you decided to get involved.

JT: AALA’s objective is to promote cultural diversity in the law. Our membership covers university students through to principals of law firms, so it is, at its base, a support network. When I was a law student, and then a junior lawyer, there weren’t groups like AALA, and I wish there were. Two years ago I was approached by some AALA National Executive members to see if there was interest in setting up an SA Branch of AALA. I had been made Director at Laity Morrow the year before, and I felt I was in a position to give back to my community, and if not now, then when? The AALA Executive members had also contacted my friend Brian Vuong (who is a Director at Kain Lawyers) who was keen to be involved too, and we then started cold calling our contacts. Innumerable coffees later, we had a handful of people who were keen to be involved, and those people formed the first SA Branch Committee of AALA. Two years later, they remain the core of the SA Branch Committee.

EF: There are two main things AALA in SA is known for, and that is your mentoring programme, and that you put on great social events.

JT: We realised very early on that you cannot promote cultural diversity in the law if you have no constituents, and it is no secret that we as a profession have

a problem with retention of lawyers, especially junior lawyers (whether they be Asian Australian lawyers or not). One of the things that causes people to leave the profession is a lack of support and, at the more junior levels, a lack of mentoring and guidance. So we decided to focus on our mentoring programme, and to try to make it unique.

EF: How is AALA’s mentoring programme unique?

JT: Well, firstly, it provides an opportunity for Asian Australian lawyers to be mentored by other Asian Australian lawyers. The feedback we have consistently received from the programme’s participants is that being able to speak with someone that looks like you, that might have a similar background to you, has likely gone through similar challenges to you, provides a level of comfort that they wouldn’t otherwise get. That comfort allows mentees to open up more, to step outside the “protection mode” they are

Jessica Teoh

usually in, and to be more forthright about their concerns. The second thing is that we encourage people to be both mentors and mentees at the same time. No matter what experience level you have, you have something you can teach to those less experienced than you. For example, first year graduates have a lot of knowledge they can pass on to university students about how to navigate clerkship applications, interviews etc.

EF: And the social events?

JT: Everyone loves a good party, and I think in the two years that the SA Branch of AALA has been in existence, we have put on some pretty good events. Our launch party in early 2021 was a real watershed moment for me. I had never seen so many Asian Australian lawyers together in the same place before, and it showed me that there is a community out there that needs, but importantly, wants, a galvanising group like AALA. In

addition, especially in the corporate and commercial environment, networking is a necessary skill we all must develop. The fact is that, save for AALA events, in every professional networking event that I go to, I am a minority, and that can be daunting, which I especially felt when I was a junior lawyer. AALA networking events remove that issue, and provide a very safe environment where people can develop and practice their networking skills and be more themselves. And when you’re not trying so hard, and can be yourself, networking becomes easier.

EF: So, what’s next?

JT: There is still a long way to go. There is still a lot of casual or “ignorant” racism in the community. I have experienced it myself and heard about others’ experiences in my role as SA Branch President, and so long as it is still out there, there will be a need for groups such as AALA.

EF: That sounds like the topic of our next interview. How about you personally?

JT: We’re going to need a lot more articles to cover those issues! For me, I want to continue embracing the leadership role I find myself in. In my experience, most Asian Australians, lawyers, me included, don’t enjoy the spotlight, but people in my position need to be visible, we need to embrace being leaders and role models for our communities and to set an example for the next generation of Asian Australian lawyers so maybe in the future AALA will not be as necessary as it is now.

EF: Thanks for your time Jess, this has certainly been an enlightening and, frankly, inspiring conversation with you. I wish you and AALA all the best, and look forward to the next AALA event.

JT: I look forward to seeing you at our next event!

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ACTS PROCLAIMED

Return to Work (Scheme Sustainability) Amendment Act 2022 (No 4 of 2022)

Commencement remaining provisions: 11 August 2022

Gazetted: 11 August 2022, Gazette No. 55 of 2022

Voluntary Assisted Dying Act 2021 (No 29 of 2021)

Commencement ss4-106; 110(1)-(6); 111; 113-129; Sch1: 31 January 2023

Commencement s 130: 29 September 2022

Commencement remaining provisions 1 September 2022

Gazetted: 11 August 2022, Gazette No. 55 of 2022

Amended and gazette: 29 September, Gazette No. 69 of 2022

Statutes Amendment (Transport Portfolio) Act 2021 (No 17 of 2021)

Commencement except Parts 2-5; ss20-22; 30-32; Parts 7-8: 1 September 2022 Gazetted: 18 August 2022, Gazette No. 56 of 2022

Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Act 2021 (No 11 of 2021)

Commencement: 29 August 2022 Gazetted: 25 August 2022, Gazette No. 57 of 2022

Criminal Law Consolidation (Driving at Extreme Speed) Amendment Act 2021 (No 28 of 2021)

Commencement ss 7 and 8: 29 August 2022 immediately after Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Act 2021 comes into operation. Gazetted: 25 August 2022, Gazette No. 57 of 2022

REGULATIONS

REGULATION

Return

Motor

Motor

Residential

REVIEW

Suicide Prevention Act 2021 (No 51 of 2021) Commencement ss 19, 23 and 26: 1 February 2023 Commencement remaining provisions: 5 September 2022 Gazetted: 1 September 2022, Gazette No. 60 of 2022

South Australian Motor Sport (Miscellaneous) Amendment Act 2022 (No 5 of 2022) Commencement: 8 September 2022 Gazetted: 8 September 2022, Gazette No. 62 of 2022

Statutes Amendment (Child Sex Offences) Act 2022 (No 9 of 2022) Commencement: 1 October 2022 Gazetted: 23 September 2022, Gazette No. 68 of 2022

Statutes Amendment and Repeal (Budget Measures) Act 2021 (No 5 of 2021) Commencement Parts 5, 9-11, 13, 15: 10 October 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

ACTS ASSENTED TO

Plebiscite (South East Council Amalgamation) Bill 2022, No. 10 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

Local Government (Defaulting Council) Amendment Bill 2022, No. 11 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

Controlled Substances (Pure Amounts) Amendment Bill 2022, No. 12 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

APPOINTMENTS

Youth Court of South Australia

Magistrate (Principal Judiciary from 27 September 2022 to 31 December 2022 Magistrate Todd Matthew Grant From 27 September 2022 – 27 September 2024 Magistrate Kathryn Hodder Gazetted: 18 August 2022, Gazette No. 56 of 2022

Magistrates Court Judicial Registrar

on a full-time basis for a term of seven years commencing on 16 September 2022 until 15 September 2029

Thomas William Burke a Gazetted: 16 September 2022, Gazette No. 66 of 2022

Supreme Court of South Australia

Auxiliary Judge for a term commencing on 4 October 2022 until 30 June 2023

Brian Ross Martin AO KC Auxiliary Master for a term commencing on 4 October 2022 until 30 June 2023

Jack Costello Gazetted: 16 September 2022, Gazette No. 66 of 2022

RULES

Uniform Civil (No 7) Amending Rules Gazetted: 25 August 2022, Gazette No. 57 of 2022

Joint Criminal Rules 2022

Gazetted: 26 August 2022, Gazette No. 58 of 2022

Uniform Special Statutory Rules 2022 Gazetted: 26 August 2022, Gazette No. 59 of 2022

Lifetime Support Scheme Rules 2022

Gazetted: 16 September 2022, Gazette No. 66 of 2022

Fair Trading (Health and Fitness Industry Code) Regulations 2022 66 of 2022 18 August 2022, Gazette No. 56 of 2022

Criminal Law Consolidation (General) (Prescribed Occupations and Employment) Amendment Regulations 2022 67 of 2022 25 August 2022, Gazette No. 57 of 2022

Criminal Law Consolidation (General) (Serious Vehicle Offences) Amendment Regulations 2022 68 of 2022 25 August 2022, Gazette No. 57 of 2022

Criminal Law (Forensic Procedures) Regulations 2022 69 of 2022 25 August 2022, Gazette No. 57 of 2022

A MONTHLY

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

Bail (Forms) Amendment Regulations 2022

Adelaide Festival Centre Trust Regulations 2022

Education and Early Childhood Services (Registration and Standards) (Amendment of Education and Care Services National Law Text) Regulations 2022

Fisheries Management (Sardine Fishery) (Quota) Amendment Regulations 2022

Fisheries Management (Abalone Fisheries) (Quota) Amendment Regulations 2022

Fisheries Management (Prawn Fisheries) (Fishing Nights Entitlements) Amendment Regulations 2022

Suicide Prevention Regulations 2022

Child Safety (Prohibited Persons) Amendment Regulations 2022

70 of 2022 25 August 2022, Gazette No. 57 of 2022

71 of 2022 25 August 2022, Gazette No. 57 of 2022

72 of 2022 25 August 2022, Gazette No. 57 of 2022

73 of 2022 1 September 2022, Gazette No. 60 of 2022

74 of 2022 1 September 2022, Gazette No. 60 of 2022

75 of 2022 1 September 2022, Gazette No. 60 of 2022

76 of 2022 1 September 2022, Gazette No. 60 of 2022

77 of 2022 1 September 2022, Gazette No. 60 of 2022

Youth Justice Administration Amendment Regulations 2022 78 of 2022 1 September 2022, Gazette No. 60 of 2022

Fisheries Management (General) (Restrictions on Fishing in Germein Bay) Amendment Regulations 2022 79 of 2022 8 September 2022, Gazette No. 62 of 2022

Fisheries Management (Demerit Points) (Restrictions on Fishing in Germein Bay) Amendment Regulations 2022 80 of 2022 8 September 2022, Gazette No. 62 of 2022

South Australian Motor Sport (Board Names) Amendment Regulations 2022 81 of 2022 8 September 2022, Gazette No. 62 of 2022

Local Government (Elections) (Assisted Voting) Amendment Regulations 2022 82 of 2022 29 September 2022, Gazette No. 69 of 2022

Planning, Development and Infrastructure (General) (Temporary Accommodation) Amendment Regulations 2022 83 of 2022 29 September 2022, Gazette No. 69 of 2022

Motor Vehicles (Electric Vehicle Registration) Amendment Regulations 2022 84 of 2022 29 September 2022, Gazette No. 69 of 2022

Stamp Duties (Electric Vehicles) Amendment Regulations 2022 85 of 2022 29 September 2022, Gazette No. 69 of 2022

Return to Work (Prescribed Limits on Costs) Amendment Regulations 2022 86 of 2022 29 September 2022, Gazette No. 69 of 2022

Voluntary Assisted Dying Regulations 2022 87 of 2022 29 September 2022, Gazette No. 69 of 2022

Police Complaints and Discipline (Code of Conduct) Amendment Regulations 2022 88 of 2022 29 September 2022, Gazette No. 69 of 2022

FAMILY LAW CASE NOTES

Family Law Case Notes

CHRIS NICHOL & KELEIGH ROBINSON

PROPERTY – FULL COURT SETS ASIDE PROPERTY ORDER IN SHORT, CHILDLESS DE FACTO RELATIONSHIP

In Grunseth & Wighton [2022]

FedCFamC1A 132 (26 August, 2022) the Full Court (Alstergren CJ, Aldridge & Brasch JJ) allowed a de facto wife’s appeal in a case involving a childless de facto relationship that lasted for “just under three years”.

The parties purchased a property (the B town property), the de facto wife contributing 70% of the purchase price and the husband 30%. The parties registered the B town property 70:30 in favour of the wife ([5]).

The de facto husband paid $160,000 to the de facto wife. The parties agreed that the intention of the payment was such that the B town property would be registered 50:50 between them.

As first instance, the Court ordered a division of 52.5% to the de facto husband and 47.5% to the de facto wife. The Full Court said (from [37]):

“ … [W]e cannot reconcile the ultimate determination … with the … fact that the [de facto wife] … contributed over 52.5 per cent of the … assets and with assets to which the [de facto husband] … made no contribution to at all. … ( … )

[74] … [T]here is much to be said for the proposition that the parties should … receive the property owned by them … particularly so when the ownership of the B Town property was … structured … to reflect the parties’ contributions ... ( … )

[76] … The … payment of $160,000 … was paid by the [de facto husband] … to gain an increased share of the B Town property … [A]n allowance must be made in [his] … favour for at least that sum. ( … )

[88] … [T]he order will provide for the sale of the … property and the division of the proceeds 70 per cent to the [de facto wife] … and 30 per cent to the [de facto husband] … [and] for the payment of $160,000 by the [de facto wife] … to the [de facto husband] … ”

PROPERTY – COURT ERRED BY MAKING ENFORCEMENT ORDERS THAT SUBSTANTIVELY VARIED THE PARTIES’ RIGHTS PURSUANT TO A REGISTERED ARBITRAL AWARD

In Lasso & Malaka [2022]

FedCFamC1A 130 (23 August, 2022) the Full Court (Austin, Tree & Williams JJ) allowed a husband’s appeal from orders of Wilson J in respect of an arbitral award that was registered pursuant to s 13H of the Act.

The award provided for the husband to transfer his interest in the home to the wife; and within 90 days the wife refinance a mortgage on an investment property. If the wife was unable to refinance within 90 days, the husband had opportunity to pay the wife $325,000 and retain the property.

The wife obtained finance approval and provided notice to her lawyer, but not the husband. On the expiration of the 90 day period, the husband paid $325,000 to the wife and said the property vested in him.

The wife filed an application for enforcement.

At first instance, the Court found that the “award should be given effect but in accordance with new dates” ([23]), ordering the wife to return the $325,000 to the husband; and that the husband transfer the property.

The Full Court said (from [30]): “Counsel for the [wife] submitted, subject to … exceptions, once perfected … an order finalising a proceeding is beyond recall (Gamser v Nominal Defendant [1977] HCA 7 … There is no reason why the same conclusion should not apply to an arbitral award …

[31] Exceptions to the principle … include matters where the orders sought to be varied are consequential or machinery orders … ( … )

[40] … The [first instance] … orders … substantially varied the terms of the decree … ( … )

[42] It was incumbent on the … judge to raise with the parties the orders he proposed to make … The failure … to do so is a denial of procedural fairness. ( … )

[60] Not only did the … judge fail to identify the source of power he … exercised to make the … orders, the orders could not have been made pursuant to s 13K or s 105 of the Act, nor … the general power … ”

CHILDREN – COVID-19 – RISKS OF 9 YEAR OLD BEING VACCINATED OR REMAINING UNVACCINATED FAVORED NEITHER PARTY’S CASE – ANTICIPATED SOCIAL AND INDIRECT BENEFITS OF VACCINATION

In McGowan & Brennan [2022] FedCFamC2F 1082 (17 August, 2022), Judge Eldershaw determined that a 9 year old child (X) should be vaccinated against COVID-19, where the father sought orders permitting vaccination and the mother sought restraints against vaccination.

The mother relied on adversarial expert Dr B, whose evidence included a conclusion that “there is a statistically or virtually nil risk of serious COVID-19 in general affecting children aged 5 to 11 years … ” ([60]).

The father sought to rely on recommendations of the Australian Technical Advisory Group on Immunisation (ATAGI).

The Court said (from [56]): “ … [T]he existence of the health advice is common knowledge. … [T]he purpose upon which the father relies on the advice pertains to the accuracy or correctness of its substance. The substance of the advice is that of an opinion. ( … ) [59] That said;

a. There is no dispute that the advice of ATAGI and government health advisors is admissible in the proceedings;

b. Pursuant to s 183 of the Evidence Act, I can infer that the documents that have been prepared by … persons who are appropriately qualified … c. … [I]t is not necessarily essential, that the information from ATAGI be before the Court through an expert witness; and

d. This matter concerns an evaluation of risk to a child, for which as much information as possible would assist me in making a decision. … ( … )

[92] Dr B cites no benefit to X in obtaining the vaccine …

[93] ATAGI cites benefits of the vaccine which include the corollary of avoiding the risk of the disease and other wider social and/or indirect benefits.

[98] …[T]he risks to X from receiving … and … of not receiving the vaccine, favour neither party’s case, a point of contrast can be identified by reference to the anticipated social and/or indirect benefit to X in being vaccinated. … It is in his best interests that he … avail himself of it. ( … )”

EVIDENCE – TRIAL JUDGE’S ENFORCEMENT OF DIRECTION FOR SINGLE, CONSOLIDATED AFFIDAVIT MATERIAL PROCEDURALLY UNFAIR WHERE SUBSEQUENT DIRECTION PERMITTED RELIANCE ON MULTIPLE AFFIDAVITS

In Krupin [2022] FedCFamC1A 136 (1 September, 2022) Tree J (sitting in the

appellate jurisdiction of the Federal Circuit and Family Court of Australia) allowed an appeal from a decision of Judge Young in a property case.

After the trial dates were vacated trial directions were made on 6 November, 2020 that included an order that the parties file consolidated affidavits of evidence in chief and that no party was permitted to rely on more than one consolidated affidavit ([27]).

Those directions scheduled a trial that was also vacated. Trial directions were made on 7 September, 2021 which permitted the parties to rely on all affidavits previously filed in the proceedings.

When the trial commenced, the primary judge insisted on compliance with the 2020 directions, notwithstanding that the husband’s case outline sought to rely on 11 affidavits; and the wife’s outline sought to rely on 13 ([33]).

Tree J said (from [35]):

“ … [T]he trial proceeded with each party only being permitted to rely on one affidavit of evidence-in-chief, together with [an] … ‘updating’ affidavit … ( … )

[37] Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West [1985] HCA 81 … ). ( … )

[39] … [T]he … 2021 orders specifically permitted the parties to rely upon more than just one consolidated affidavit. …

[40] … [B]etween 7 September and 24 November 2021, all parties believed, and prepared their cases on the … basis, that they could rely upon all past affidavits, yet [at trial] … that was turned on its head, and … a significant restriction on the material they could rely upon was imposed upon them. That was procedurally unfair. … ( … )

[45] … Whilst the … judge understandably recoiled in a degree of horror at the sheer volume of material which that order permitted to be relied upon, … that is no answer to the unfairness which the peremptory withdrawal of the right to rely on that material gave rise to.” B

Family Law - Melbourne

Marita Bajinskis

Marita is an Accredited Family Law Specialist and can assist with all family law matters including:

• matrimonial and de facto

• property settlements

• superannuation

• children’s issues

3/224 Queen Street

Melbourne VIC 3000

T: 03 8672 5222

Marita.Bajinskis@ blackwoodfamilylawyers.com.au www.blackwoodfamilylawyers.com.au

LawCare

The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems.

If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you. Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse.

The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year.

All information divulged to the LawCare counsellor is totally confidential.

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

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

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

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

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

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

Consulting Engineers

Australian Technolog y Pty Ltd for expert opinion on:

• Vehicle failure and accidents

• Vehicle design

• Industrial accidents

• Slips and falls

formerly of Howe Martin & Associates is a Principal at Blackwood Family Lawyers in Melbourne

PRACTISING FAMILY LAW

Abstract from LexisNexis

The successful practice of family law requires mastery of a complex combination of skills and knowledge. This book closes the gap between theory and practice, providing clear guidance on how to conduct family law matters. Practical, step-by-step coverage is provided on the full range of essential skills and procedures

LEGAL PRACTICE AND ETHICS

Abstract from LexisNexis

Each chapter of this useful book commences with a clear discussion of key principles and issues, including a summary of relevant cases and legislation for effective revision. Comparative tables of legislative provisions for each state and territory are included. Examples of written questions with fact scenarios follow, each with

required in the day-to-day practice of family law in Australia. The fifth edition has been extensively updated with recent developments to case law and legislation, including the abolition of the Family Court of Australia and the Family Law Division of the Federal Circuit Court and the establishment of the new Federal Circuit and Family Court of Australia.

a suggested answer plan, sample answer and comments on how the answer might be viewed by an examiner. The commentary and the questions and answers in the fourth edition have been fully revised to include current issues affecting lawyers. Recent case law is discussed and state and territory rules and legislation have been updated to capture the latest important developments.

INFORMATION PRIVACY GOVERNANCE AND REGULATION IN AUSTRALIA: AN E-COMMERCE PERSPECTIVE

Abstract from LexisNexis

Information Privacy Governance and Regulation in Australia: An E-Commerce Perspective is a high level scholarly work covering information governance in the e-commerce and international environment in Australia. Written by a respected academic in this field, this book provides an

introduction to e-commerce and internet law, with a focus on intellectual property aspects. This is followed by comprehensive commentary on international privacy laws, the domestic and international frameworks for information governance, challenges in regulation and law reform in this area both in Australia and globally.

SOCIAL SECURITY AND FAMILY ASSISTANCE LAW

Abstract from Federation Press

This fourth edition comprehensively annotates the social security law and family assistance law of Australia, as amended to 1 February 2022. It is the 13th volume in a book series which has annotated the Social Security Act and associated legislation since 1984.

Features of this new edition include:

Comprehensive annotations, on a sectionby-section basis, covering decisions of the AAT, the Federal Court and the High Court to 1 February 2022;

Identification of legislative instruments which are important to application of the legislation;

Discussion of areas of social security law which are the subject of ongoing review activity or attract strong public interest, including eligibility for disability support pension, income and assets testing, compensation recovery, member of a couple and dependent children provisions, compliance with participation obligations, the legal basis of administrative arrangements, and “robodebts”.

An

interview with Jessica Teoh, SA Branch President of the Asian Australian Lawyers Association

EDWIN FAH, JOHNSON WINTER & SLATTERY

Wellbeing & Resilience Committee member Edwin Fah sits down with Jessica Teoh, the inaugural President of the SA Branch of the Asian Australian Lawyers Association, to talk about the purpose of ALLA and why culturally focused support groups are still needed.

Edwin Fah: You’re a Director of a major corporate and commercial law firm in this city, you’re Asian, and female. That’s quite rare. How did you get here?

Jessica Teoh: My career to date has been rather conventional. As a final year law student I was lucky enough to obtain a clerkship at Johnson Winter & Slattery. After that, I stayed on as a graduate, then became an Associate. After a few years, an opportunity arose to join Laity Morrow, and I’ve been here for the past eight years, the last three as a Director.

EF: When you joined Laity Morrow you didn’t just change firms though, you also changed practice areas.

JT: Yes, I did. My career to that point was spent in litigation and in employment work, and I wanted a change. The adversarial nature of litigation can wear you down, and I wasn’t sure it was for me. I wanted to work more collaboratively, so took the opportunity, when I changed firms, to essentially re-invent myself as a transactional lawyer.

EF: That’s a fairly drastic change. Do you have any regrets?

JT: It definitely wasn’t easy at first! But no, I’m glad I did it. The work I do is fulfilling, and I wouldn’t have had the opportunity to work with the fantastic clients I work with every day if I hadn’t taken that chance all those years ago.

EF: You’re the inaugural SA Branch

President of AALA. Tell us about AALA and why you decided to get involved.

JT: AALA’s objective is to promote cultural diversity in the law. Our membership covers university students through to principals of law firms, so it is, at its base, a support network. When I was a law student, and then a junior lawyer, there weren’t groups like AALA, and I wish there were. Two years ago I was approached by some AALA National Executive members to see if there was interest in setting up an SA Branch of AALA. I had been made Director at Laity Morrow the year before, and I felt I was in a position to give back to my community, and if not now, then when? The AALA Executive members had also contacted my friend Brian Vuong (who is a Director at Kain Lawyers) who was keen to be involved too, and we then started cold calling our contacts. Innumerable coffees later, we had a handful of people who were keen to be involved, and those people formed the first SA Branch Committee of AALA. Two years later, they remain the core of the SA Branch Committee.

EF: There are two main things AALA in SA is known for, and that is your mentoring programme, and that you put on great social events.

JT: We realised very early on that you cannot promote cultural diversity in the law if you have no constituents, and it is no secret that we as a profession have

a problem with retention of lawyers, especially junior lawyers (whether they be Asian Australian lawyers or not). One of the things that causes people to leave the profession is a lack of support and, at the more junior levels, a lack of mentoring and guidance. So we decided to focus on our mentoring programme, and to try to make it unique.

EF: How is AALA’s mentoring programme unique?

JT: Well, firstly, it provides an opportunity for Asian Australian lawyers to be mentored by other Asian Australian lawyers. The feedback we have consistently received from the programme’s participants is that being able to speak with someone that looks like you, that might have a similar background to you, has likely gone through similar challenges to you, provides a level of comfort that they wouldn’t otherwise get. That comfort allows mentees to open up more, to step outside the “protection mode” they are

Jessica Teoh

usually in, and to be more forthright about their concerns. The second thing is that we encourage people to be both mentors and mentees at the same time. No matter what experience level you have, you have something you can teach to those less experienced than you. For example, first year graduates have a lot of knowledge they can pass on to university students about how to navigate clerkship applications, interviews etc.

EF: And the social events?

JT: Everyone loves a good party, and I think in the two years that the SA Branch of AALA has been in existence, we have put on some pretty good events. Our launch party in early 2021 was a real watershed moment for me. I had never seen so many Asian Australian lawyers together in the same place before, and it showed me that there is a community out there that needs, but importantly, wants, a galvanising group like AALA. In

addition, especially in the corporate and commercial environment, networking is a necessary skill we all must develop. The fact is that, save for AALA events, in every professional networking event that I go to, I am a minority, and that can be daunting, which I especially felt when I was a junior lawyer. AALA networking events remove that issue, and provide a very safe environment where people can develop and practice their networking skills and be more themselves. And when you’re not trying so hard, and can be yourself, networking becomes easier.

EF: So, what’s next?

JT: There is still a long way to go. There is still a lot of casual or “ignorant” racism in the community. I have experienced it myself and heard about others’ experiences in my role as SA Branch President, and so long as it is still out there, there will be a need for groups such as AALA.

EF: That sounds like the topic of our next interview. How about you personally?

JT: We’re going to need a lot more articles to cover those issues! For me, I want to continue embracing the leadership role I find myself in. In my experience, most Asian Australians, lawyers, me included, don’t enjoy the spotlight, but people in my position need to be visible, we need to embrace being leaders and role models for our communities and to set an example for the next generation of Asian Australian lawyers so maybe in the future AALA will not be as necessary as it is now.

EF: Thanks for your time Jess, this has certainly been an enlightening and, frankly, inspiring conversation with you. I wish you and AALA all the best, and look forward to the next AALA event.

JT: I look forward to seeing you at our next event!

Legal Web Design

Leads and conversion specialists

Full service agency, ranging from web and graphic design to strategy and online advertising.

3 AUG 2022 – 2 OCT 2022

ACTS PROCLAIMED

Return to Work (Scheme Sustainability) Amendment Act 2022 (No 4 of 2022)

Commencement remaining provisions: 11 August 2022

Gazetted: 11 August 2022, Gazette No. 55 of 2022

Voluntary Assisted Dying Act 2021 (No 29 of 2021)

Commencement ss4-106; 110(1)-(6); 111; 113-129; Sch1: 31 January 2023

Commencement s 130: 29 September 2022

Commencement remaining provisions 1 September 2022

Gazetted: 11 August 2022, Gazette No. 55 of 2022

Amended and gazette: 29 September, Gazette No. 69 of 2022

Statutes Amendment (Transport Portfolio) Act 2021 (No 17 of 2021)

Commencement except Parts 2-5; ss20-22; 30-32; Parts 7-8: 1 September 2022 Gazetted: 18 August 2022, Gazette No. 56 of 2022

Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Act 2021 (No 11 of 2021)

Commencement: 29 August 2022 Gazetted: 25 August 2022, Gazette No. 57 of 2022

Criminal Law Consolidation (Driving at Extreme Speed) Amendment Act 2021 (No 28 of 2021)

Commencement ss 7 and 8: 29 August 2022 immediately after Criminal Law Consolidation (Causing Death by Use of Motor Vehicle) Amendment Act 2021 comes into operation. Gazetted: 25 August 2022, Gazette No. 57 of 2022

REGULATIONS

REGULATION

Return

Motor

Motor

Residential

REVIEW

Suicide Prevention Act 2021 (No 51 of 2021) Commencement ss 19, 23 and 26: 1 February 2023 Commencement remaining provisions: 5 September 2022 Gazetted: 1 September 2022, Gazette No. 60 of 2022

South Australian Motor Sport (Miscellaneous) Amendment Act 2022 (No 5 of 2022) Commencement: 8 September 2022 Gazetted: 8 September 2022, Gazette No. 62 of 2022

Statutes Amendment (Child Sex Offences) Act 2022 (No 9 of 2022) Commencement: 1 October 2022 Gazetted: 23 September 2022, Gazette No. 68 of 2022

Statutes Amendment and Repeal (Budget Measures) Act 2021 (No 5 of 2021) Commencement Parts 5, 9-11, 13, 15: 10 October 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

ACTS ASSENTED TO

Plebiscite (South East Council Amalgamation) Bill 2022, No. 10 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

Local Government (Defaulting Council) Amendment Bill 2022, No. 11 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

Controlled Substances (Pure Amounts) Amendment Bill 2022, No. 12 of 2022 Gazetted: 29 September 2022, Gazette No. 69 of 2022

APPOINTMENTS

Youth Court of South Australia

Magistrate (Principal Judiciary from 27 September 2022 to 31 December 2022 Magistrate Todd Matthew Grant From 27 September 2022 – 27 September 2024 Magistrate Kathryn Hodder Gazetted: 18 August 2022, Gazette No. 56 of 2022

Magistrates Court Judicial Registrar

on a full-time basis for a term of seven years commencing on 16 September 2022 until 15 September 2029

Thomas William Burke a Gazetted: 16 September 2022, Gazette No. 66 of 2022

Supreme Court of South Australia

Auxiliary Judge for a term commencing on 4 October 2022 until 30 June 2023

Brian Ross Martin AO KC Auxiliary Master for a term commencing on 4 October 2022 until 30 June 2023

Jack Costello Gazetted: 16 September 2022, Gazette No. 66 of 2022

RULES

Uniform Civil (No 7) Amending Rules Gazetted: 25 August 2022, Gazette No. 57 of 2022

Joint Criminal Rules 2022

Gazetted: 26 August 2022, Gazette No. 58 of 2022

Uniform Special Statutory Rules 2022 Gazetted: 26 August 2022, Gazette No. 59 of 2022

Lifetime Support Scheme Rules 2022

Gazetted: 16 September 2022, Gazette No. 66 of 2022

Fair Trading (Health and Fitness Industry Code) Regulations 2022 66 of 2022 18 August 2022, Gazette No. 56 of 2022

Criminal Law Consolidation (General) (Prescribed Occupations and Employment) Amendment Regulations 2022 67 of 2022 25 August 2022, Gazette No. 57 of 2022

Criminal Law Consolidation (General) (Serious Vehicle Offences) Amendment Regulations 2022 68 of 2022 25 August 2022, Gazette No. 57 of 2022

Criminal Law (Forensic Procedures) Regulations 2022 69 of 2022 25 August 2022, Gazette No. 57 of 2022

A MONTHLY

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

Bail (Forms) Amendment Regulations 2022

Adelaide Festival Centre Trust Regulations 2022

Education and Early Childhood Services (Registration and Standards) (Amendment of Education and Care Services National Law Text) Regulations 2022

Fisheries Management (Sardine Fishery) (Quota) Amendment Regulations 2022

Fisheries Management (Abalone Fisheries) (Quota) Amendment Regulations 2022

Fisheries Management (Prawn Fisheries) (Fishing Nights Entitlements) Amendment Regulations 2022

Suicide Prevention Regulations 2022

Child Safety (Prohibited Persons) Amendment Regulations 2022

70 of 2022 25 August 2022, Gazette No. 57 of 2022

71 of 2022 25 August 2022, Gazette No. 57 of 2022

72 of 2022 25 August 2022, Gazette No. 57 of 2022

73 of 2022 1 September 2022, Gazette No. 60 of 2022

74 of 2022 1 September 2022, Gazette No. 60 of 2022

75 of 2022 1 September 2022, Gazette No. 60 of 2022

76 of 2022 1 September 2022, Gazette No. 60 of 2022

77 of 2022 1 September 2022, Gazette No. 60 of 2022

Youth Justice Administration Amendment Regulations 2022 78 of 2022 1 September 2022, Gazette No. 60 of 2022

Fisheries Management (General) (Restrictions on Fishing in Germein Bay) Amendment Regulations 2022 79 of 2022 8 September 2022, Gazette No. 62 of 2022

Fisheries Management (Demerit Points) (Restrictions on Fishing in Germein Bay) Amendment Regulations 2022 80 of 2022 8 September 2022, Gazette No. 62 of 2022

South Australian Motor Sport (Board Names) Amendment Regulations 2022 81 of 2022 8 September 2022, Gazette No. 62 of 2022

Local Government (Elections) (Assisted Voting) Amendment Regulations 2022 82 of 2022 29 September 2022, Gazette No. 69 of 2022

Planning, Development and Infrastructure (General) (Temporary Accommodation) Amendment Regulations 2022 83 of 2022 29 September 2022, Gazette No. 69 of 2022

Motor Vehicles (Electric Vehicle Registration) Amendment Regulations 2022 84 of 2022 29 September 2022, Gazette No. 69 of 2022

Stamp Duties (Electric Vehicles) Amendment Regulations 2022 85 of 2022 29 September 2022, Gazette No. 69 of 2022

Return to Work (Prescribed Limits on Costs) Amendment Regulations 2022 86 of 2022 29 September 2022, Gazette No. 69 of 2022

Voluntary Assisted Dying Regulations 2022 87 of 2022 29 September 2022, Gazette No. 69 of 2022

Police Complaints and Discipline (Code of Conduct) Amendment Regulations 2022 88 of 2022 29 September 2022, Gazette No. 69 of 2022

FAMILY LAW CASE NOTES

Family Law Case Notes

CHRIS NICHOL & KELEIGH ROBINSON

PROPERTY – FULL COURT SETS ASIDE PROPERTY ORDER IN SHORT, CHILDLESS DE FACTO RELATIONSHIP

In Grunseth & Wighton [2022]

FedCFamC1A 132 (26 August, 2022) the Full Court (Alstergren CJ, Aldridge & Brasch JJ) allowed a de facto wife’s appeal in a case involving a childless de facto relationship that lasted for “just under three years”.

The parties purchased a property (the B town property), the de facto wife contributing 70% of the purchase price and the husband 30%. The parties registered the B town property 70:30 in favour of the wife ([5]).

The de facto husband paid $160,000 to the de facto wife. The parties agreed that the intention of the payment was such that the B town property would be registered 50:50 between them.

As first instance, the Court ordered a division of 52.5% to the de facto husband and 47.5% to the de facto wife. The Full Court said (from [37]):

“ … [W]e cannot reconcile the ultimate determination … with the … fact that the [de facto wife] … contributed over 52.5 per cent of the … assets and with assets to which the [de facto husband] … made no contribution to at all. … ( … )

[74] … [T]here is much to be said for the proposition that the parties should … receive the property owned by them … particularly so when the ownership of the B Town property was … structured … to reflect the parties’ contributions ... ( … )

[76] … The … payment of $160,000 … was paid by the [de facto husband] … to gain an increased share of the B Town property … [A]n allowance must be made in [his] … favour for at least that sum. ( … )

[88] … [T]he order will provide for the sale of the … property and the division of the proceeds 70 per cent to the [de facto wife] … and 30 per cent to the [de facto husband] … [and] for the payment of $160,000 by the [de facto wife] … to the [de facto husband] … ”

PROPERTY – COURT ERRED BY MAKING ENFORCEMENT ORDERS THAT SUBSTANTIVELY VARIED THE PARTIES’ RIGHTS PURSUANT TO A REGISTERED ARBITRAL AWARD

In Lasso & Malaka [2022]

FedCFamC1A 130 (23 August, 2022) the Full Court (Austin, Tree & Williams JJ) allowed a husband’s appeal from orders of Wilson J in respect of an arbitral award that was registered pursuant to s 13H of the Act.

The award provided for the husband to transfer his interest in the home to the wife; and within 90 days the wife refinance a mortgage on an investment property. If the wife was unable to refinance within 90 days, the husband had opportunity to pay the wife $325,000 and retain the property.

The wife obtained finance approval and provided notice to her lawyer, but not the husband. On the expiration of the 90 day period, the husband paid $325,000 to the wife and said the property vested in him.

The wife filed an application for enforcement.

At first instance, the Court found that the “award should be given effect but in accordance with new dates” ([23]), ordering the wife to return the $325,000 to the husband; and that the husband transfer the property.

The Full Court said (from [30]): “Counsel for the [wife] submitted, subject to … exceptions, once perfected … an order finalising a proceeding is beyond recall (Gamser v Nominal Defendant [1977] HCA 7 … There is no reason why the same conclusion should not apply to an arbitral award …

[31] Exceptions to the principle … include matters where the orders sought to be varied are consequential or machinery orders … ( … )

[40] … The [first instance] … orders … substantially varied the terms of the decree … ( … )

[42] It was incumbent on the … judge to raise with the parties the orders he proposed to make … The failure … to do so is a denial of procedural fairness. ( … )

[60] Not only did the … judge fail to identify the source of power he … exercised to make the … orders, the orders could not have been made pursuant to s 13K or s 105 of the Act, nor … the general power … ”

CHILDREN – COVID-19 – RISKS OF 9 YEAR OLD BEING VACCINATED OR REMAINING UNVACCINATED FAVORED NEITHER PARTY’S CASE – ANTICIPATED SOCIAL AND INDIRECT BENEFITS OF VACCINATION

In McGowan & Brennan [2022] FedCFamC2F 1082 (17 August, 2022), Judge Eldershaw determined that a 9 year old child (X) should be vaccinated against COVID-19, where the father sought orders permitting vaccination and the mother sought restraints against vaccination.

The mother relied on adversarial expert Dr B, whose evidence included a conclusion that “there is a statistically or virtually nil risk of serious COVID-19 in general affecting children aged 5 to 11 years … ” ([60]).

The father sought to rely on recommendations of the Australian Technical Advisory Group on Immunisation (ATAGI).

The Court said (from [56]): “ … [T]he existence of the health advice is common knowledge. … [T]he purpose upon which the father relies on the advice pertains to the accuracy or correctness of its substance. The substance of the advice is that of an opinion. ( … ) [59] That said;

a. There is no dispute that the advice of ATAGI and government health advisors is admissible in the proceedings;

b. Pursuant to s 183 of the Evidence Act, I can infer that the documents that have been prepared by … persons who are appropriately qualified … c. … [I]t is not necessarily essential, that the information from ATAGI be before the Court through an expert witness; and

d. This matter concerns an evaluation of risk to a child, for which as much information as possible would assist me in making a decision. … ( … )

[92] Dr B cites no benefit to X in obtaining the vaccine …

[93] ATAGI cites benefits of the vaccine which include the corollary of avoiding the risk of the disease and other wider social and/or indirect benefits.

[98] …[T]he risks to X from receiving … and … of not receiving the vaccine, favour neither party’s case, a point of contrast can be identified by reference to the anticipated social and/or indirect benefit to X in being vaccinated. … It is in his best interests that he … avail himself of it. ( … )”

EVIDENCE – TRIAL JUDGE’S ENFORCEMENT OF DIRECTION FOR SINGLE, CONSOLIDATED AFFIDAVIT MATERIAL PROCEDURALLY UNFAIR WHERE SUBSEQUENT DIRECTION PERMITTED RELIANCE ON MULTIPLE AFFIDAVITS

In Krupin [2022] FedCFamC1A 136 (1 September, 2022) Tree J (sitting in the

appellate jurisdiction of the Federal Circuit and Family Court of Australia) allowed an appeal from a decision of Judge Young in a property case.

After the trial dates were vacated trial directions were made on 6 November, 2020 that included an order that the parties file consolidated affidavits of evidence in chief and that no party was permitted to rely on more than one consolidated affidavit ([27]).

Those directions scheduled a trial that was also vacated. Trial directions were made on 7 September, 2021 which permitted the parties to rely on all affidavits previously filed in the proceedings.

When the trial commenced, the primary judge insisted on compliance with the 2020 directions, notwithstanding that the husband’s case outline sought to rely on 11 affidavits; and the wife’s outline sought to rely on 13 ([33]).

Tree J said (from [35]):

“ … [T]he trial proceeded with each party only being permitted to rely on one affidavit of evidence-in-chief, together with [an] … ‘updating’ affidavit … ( … )

[37] Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West [1985] HCA 81 … ). ( … )

[39] … [T]he … 2021 orders specifically permitted the parties to rely upon more than just one consolidated affidavit. …

[40] … [B]etween 7 September and 24 November 2021, all parties believed, and prepared their cases on the … basis, that they could rely upon all past affidavits, yet [at trial] … that was turned on its head, and … a significant restriction on the material they could rely upon was imposed upon them. That was procedurally unfair. … ( … )

[45] … Whilst the … judge understandably recoiled in a degree of horror at the sheer volume of material which that order permitted to be relied upon, … that is no answer to the unfairness which the peremptory withdrawal of the right to rely on that material gave rise to.” B

Family Law - Melbourne

Marita Bajinskis

Marita is an Accredited Family Law Specialist and can assist with all family law matters including:

• matrimonial and de facto

• property settlements

• superannuation

• children’s issues

3/224 Queen Street

Melbourne VIC 3000

T: 03 8672 5222

Marita.Bajinskis@ blackwoodfamilylawyers.com.au www.blackwoodfamilylawyers.com.au

LawCare

The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems.

If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you. Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse.

The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year.

All information divulged to the LawCare counsellor is totally confidential.

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

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

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

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

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

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

Consulting Engineers

Australian Technolog y Pty Ltd for expert opinion on:

• Vehicle failure and accidents

• Vehicle design

• Industrial accidents

• Slips and falls

formerly of Howe Martin & Associates is a Principal at Blackwood Family Lawyers in Melbourne