The Bulletin - Law Society of South Australia - October 2020

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 42 – ISSUE 9 – OCTOBER 2020

LOCAL GOVERNMENT IN THIS ISSUE

Major local government reforms

State power over councils

Cat curfews & dangerous dogs

Instalment Plans

Instalment Plans New Instalment Plan

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (9) LSB(SA). ISSN 1038-6777

CONTENTS LOCAL GOVERNMENT

FEATURES & NEWS

6

Reforming Local Government in SA

By Natasha Jones

8

How the State exercises power over Local Government

By Dale Mazzachi & Norman Waterhouse

10

The process of making by-laws

By David Robertson

12

Cats, curfews & local councils

By David Robertson & Diana Thomas

16

The enforcement of dog control orders by local councils

By Ronan O’Brien

28

The new planning system & the role of local government

By Alison Brookman & Felicity Niemann

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

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

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

16

REGULAR COLUMNS

Oral histories: The fascinating career of Brian Martin

By Lindy McNamara

18

Calderbank offers in SA: encouraging early settlement at all costs?

By Flynn Wells

22

Reviewing your annual super statement may lead to higher savings

By Andrew Proebstl

30

Commissioner Lander reflects on seven years of investigating corruption, misconduct & maladministration

By Michael Esposito

33

Ground-breaking project to manage high-risk family law matters

By Michael Esposito

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

16

From the Editor

By Lindy McNamara

5

President's Message

34

Tax Files: Principal Place of Residence exemptions of the Land Tax Act

By Paul Ingram

36

Risk Watch: Financial certificates: why take the risk? By Grant Feary

38

Family Law Case Notes

By Rob Glade-Wright

40

Wellbeing & Resilience: 20/20 Wellbeing in 2020 By Zoe Lewis

41

Bookshelf

42

Gazing in the Gazette

42

Members on the Move

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

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

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

PUBLISHER/ADVERTISER Boylen Ph: (08) 8233 9433 Email: admin@boylen.com.au Web: www.boylen.com.au Studio Manager: Madelaine Raschella Layout: Henry Rivera Advertising Email: sales@boylen.com.au

FROM THE EDITOR

IN THIS ISSUE Law just one of many tools to promote integrity MICHAEL ESPOSITO, EDITOR 6

A

fter three months of “crisis” themed editions dealing with COVID-19, bushfires and other emergency situations, this edition of the Bulletin reverts to a more conventional model and focuses on legislation relating to local government.

Although, if you consume local media on a regular basis, you could be forgiven for thinking that the local government was in constant crisis mode, with all the stories of council-infighting, financial mismanagement, corruption investigations, and the predictable “lawyers’ picnic” articles that are written when councils obtain legal advice and representation (it should be remembered that it’s not the lawyers who organise the picnics, but are merely invited to attend when their help is needed).

The topic of local government seems to inspire heated debates about their utility.

Some think they should be abolished altogether, some think that they overreach in the influence they try to wield and should stick to basic civil duties such as waste collection and roadside management, while others think that it’s the States whose arbitrary borders should be eradicated and instead greater responsibility given to local municipalities, in order to strengthen community ties.

In any case, it seems unlikely the current three-tiered system will change any time soon, so the best we can do is try to make these systems of government work together effectively.

Recently retired Independent Commissioner Against Corruption

Bruce Lander reflects on the role of local government in his recent “Looking Back” report.

Mr Lander reports that the Office of Public Integrity received more than 2,400 complaints and reports relating to local government since the office commenced in 2013.

He notes that while several reports contained very serious allegations, a large number involved councillors complaining about other councillors and were costly, lengthy and ultimately futile exercises.

Mr Lander expresses the view that proposed reforms to local government by way of the Statutes Amendments (Local Government Review) Bill 2020, which is examined by Natasha Jones in this edition, is an improvement of the current regulatory framework in place. However, he provides this warning: “Amendments to the existing scheme will have little real effect unless elected members of local governments remind themselves that they are elected to represent the interests of their electorate and to advance the statutory functions given to a local government body, rather than to use integrity systems in an effort to point score against each other, settle petty differences and undermine those who hold different views.”

It serves as a timely reminder that we need more than prescriptive tools of laws, rules and codes to build a culture of integrity, cohesion and respect in any organisation. B

COUNCIL REFORM The new plan to reform local government

16

DANGEROUS PETS The enforcement of dog control orders by local councils

26

PUBLIC INTEGRITY Bruce Lander reflects on seven years as Independent Commissioner Against Corruption

Senior counsel appointments to resume

C

hief Justice Chris Kourakis confirmed that Judges will resume the practice of appointing Senior Council, following the passage of the Legal Practitioners (Senior and Queens Counsel) Amendment Bill on 23 September.

The new legislation means barristers appointed Senior Counsel will be able

4 THE BULLETIN October 2020

to adopt the QC post-nominal upon application to the Attorney General to make a recommendation to the Governor that they be appointed as Queen’s Counsel.

A former version of the Bill provided discretion to the Attorney General as to whether to grant a request from a Senior Counsel to be appointed Queen’s Counsel,

however the Bill as enacted effectively grants an automatic approval of such a request.

Applications for Senior Counsel need to be submitted to the Chief Justice, via his Executive Assistant, by 30 October. B

PRESIDENT’S MESSAGE

Submissions a vital part of the Society’s work TIM WHITE, PRESIDENT

S

ubmissions form a vital function that the Society undertakes on behalf of its Members and the profession. The Society is called upon to make submissions on a variety of topics and issues. Predominantly they are made in relation to federal and state Bills and regulations.

This year has been particularly demanding in view of the numerous new amendments and new Bills introduced into parliament arising from COVID-19 aspects. To date the Society has made in excess of 80 submissions, a number that is usually not reached in a 12 month period.

I wanted to highlight three particular submissions made this year, that I thought would be of interest to many practitioners.

We have written to Return to Work (RTW) on several occasions in relation to the process of undertaking permanent impairment assessments. It is evident from a number of reported judgments of the South Australian Employment Tribunal (SAET) that there have been concerns with regards to RTW’s dealings with medical practitioners when providing permanent impairment assessment reports.

Issues with regards to medical practitioners feeling pressured to amend their reports have been specifically commented on in a number of SAET decisions including a full bench decision of Frkic1, and also the decision of Palios2 and Canales-Cordova.3 These are important decisions to consider and be aware of.

Concerns were also raised by the SAET that independent assessors, during the Section 22 process, were being unilaterally approached, and that the communications between RTW and the doctor were not being communicated to the worker or the worker’s legal representative.

RTW has responded to the Society’s concerns, advising that it does not challenge or coerce assessors to produce an opinion they do not agree with.

RTW have a statutory entitlement to seek clarification from an independent assessor if an error or area of uncertainty exists in their report. Part of the compliance review process permits RTW to seek clarification from an assessor, to ensure that the report is completed in

accordance with the relevant guidelines.

The Society is maintaining an ongoing dialogue with RTW on this topic so if you have any concerns with how the Section 22 process is occurring please do not hesitate to contact the Society.

Another aspect that detailed submissions were made in relation to was the Bill to amend Section 40 of the Sentencing Act. In relation to serious indictable offences, rather than a sentencing discount of up to 40% for a guilty plea not more than four weeks after the first court appearance, the Bill proposes to reduce it to a maximum of 25%. Further, for a guilty plea not more than four weeks after the court appearance but on or before the committal appearance, the maximum discount has been reduced to 15% (down from 30%). From the day after the committal appearance to before committal for trial, a discount previously of up to 20% is proposed to be reduced to 10%.

The Society submitted that significant reductions in the early discount were not necessary or beneficial for the criminal justice system. It was likely to encourage defendants to test the evidence and run matters to hearing, which of course puts additional strain on court resources, delays outcomes and requires victims to give evidence at a trial. The delay in waiting for a trial to be reached and the inevitably stressful process of giving evidence at a trial has its greatest impact on victims.

The Society requested that the court have discretion to increase the percentage reduction available by up to 5%, if it was satisfied that an additional reduction was appropriate by reason of rare and exceptional circumstances. This provision is now provided for in the draft Bill.

Clearly for those practitioners advising criminal clients the implications of the Bill are significant and one that is important to be aware of if you have the client’s matter is presently before the criminal courts. If the Bill commences in its current form there will certainly be less discounts available to those that enter guilty pleas after the commencement of the Bill.

A third and final area on which the

Society has again recently made written submissions relates to Advance Care Directives (ACD). This is a topic on which the Society has communicated to the Government on several occasions previously. The State Government’s response to the review of the Advance Care Directives Act was tabled in Parliament in late July. One the report’s recommendations was that it should consider how the use of digital signatures could be implemented when completing an ACD. The Society encouraged the Government to adopt that recommendation and also wrote again raising the issue of the order in which ACDs are signed. The Society requested that the person making the ACD should be the person that signs the document first. We did not support the current regime that the substitute decision maker must sign their acceptance of the appointment prior to the execution of the ACD by the donor. It was noted that the Government now seems open to considering amending the Act with regards to the order of signing.

Recommendation 2 of the report dealt with simplifying the ACD form and the DIY kit associated with it. We supported that recommendation, as the current form is long and unnecessarily complex.

We hope that an amending Bill will be introduced soon to provide more flexibility with the order in which an ACD is signed and also simplifying the form itself.

Submissions will continue to be a main aspect the Society’s work. Many Committees perform a large amount of work each year in providing input into the submissions that are made. I thank all Committee Members for the hours of effort and time they voluntarily provide to the large number of diverse Committees.

It is often unseen work that Committee Members devote but it’s a vitally important role that you each play. Thank you and please keep up the great work! B Endnotes 1 http://www8.austlii.edu.au/cgi-bin/sign.cgi/au/ cases/sa/SAET/2020/16 2 http://www8.austlii.edu.au/cgi-bin/sign.cgi/au/ cases/sa/SAET/2019/224 3 http://www8.austlii.edu.au/cgi-bin/sign.cgi/au/ cases/sa/SAET/2020/8

October 2020 THE BULLETIN

5

LOCAL GOVERNMENT

So it begins – Reforming Local Government in South Australia NATASHA JONES, LAWYER, KELLEDY JONES

V

ery rarely these days, does a day go by where The Advertiser fails to include a story about a council. Whether it is about investigation into the conduct of council employees, allegations about behaviours of elected members, a dog attack, recycling and landfill reduction programs, lobbying to retain trees or the revitalisation of local and regional areas that have been affected by drought or bushfires. Councils have been and will continue to be, in the media spotlight.

This is, in part, due to the fact that councils, as the level of government closest to their communities, operate within a prescriptive integrity framework that subjects them to significant oversight and scrutiny, both by their communities and by external oversight bodies. Much of the oversight is well intended - let’s face it, councils are public authorities and are trusted with the expenditure of significant public funds. This is at a time when the well debated and agitated topic of State Government not being subject to the same level of accountability mechanisms is also a regular media topic, but that is a discussion for another day!

Local government reform does not occur frequently. It is therefore, both topical and important that the current proposed reforms not be understated and, certainly not, underestimated. The last time the local government framework was subject to real significant legislative change was in 2000.

This was when the Local Government Act 1934 was revoked and the Local Government Act 1999 (the Act) was introduced. So, 20 years on, we are now facing significant local government reform, much of which is to be considered in the context of the paternalistic care of the State.

On 5 August, 2019, the former Local Government Minister, Stephan Knoll, released the Reforming Local Government in South Australia, Discussion Paper. This was developed following the Reforming Local

6 THE BULLETIN October 2020

Government Survey from earlier 2019.

Reform suggestions focussed on four key areas: • Stronger Council Member Capacity and Better Conduct • Lower Costs and Enhanced Financial Accountability • Efficient and Transparent Representation; and • Simpler regulation.

At this time, Minister Knoll stated that the foundation for proposed reform to local government was to achieve the support needed for councils, appropriate oversight and that each community enjoy certainty that their council makes good decisions, understands local needs and operates efficiently and sustainably.1 The consultation process led to the Statutes Amendment (Local Government Review) Bill 2020 (the Bill) being introduced to Parliament on 17 June, 2020. The Bill maintains the same four key reform areas.

STRONGER COUNCIL MEMBER CAPACITY & BETTER CONDUCT These reforms have their genesis in asserted high community expectations about behavioural standards and conduct of council members and community leadership. Amongst other things, it recognises integrity standards and issues of corporate and individual reputational damage from the behaviours of a few. The proposed framework focusses on council member behaviour and the measurement, judging and sanctioning thereof. This framework will sit alongside the balance of the public integrity framework, under the Ombudsman Act 1972 and the Independent Commissioner Against Corruption Act 2012.

It is considered that a new conduct management framework will establish a much clearer hierarchy of conduct that separates defined ‘behavioural matters’ from defined ‘integrity matters.’ This is to create clearer responsibilities and pathways

so council members and the public can understand which body is responsible for managing different aspects of council member conduct.

The current Code of Conduct for Council Members will be abolished, replaced with Behavioural Standards, established by the Minister. This will be supported by council behavioural support and behavioural management policies. Whilst the Minister will regularise council member conduct broadly, there will remain some discretion for councils to introduce individual behavioural support policies.

The most significant proposed change is the establishment of a new corporate entity, the Behaviour Standards Panel.

Its members will be appointed by the Governor, as nominated by the Minister and the Local Government Association.

Its primary function will be to assess and deal with complaints alleging misbehaviour, repeated misbehaviour or serious misbehaviour by council members. Each term is defined.

The Panel will have various coercive powers to conduct an inquiry into conduct where failure to comply carries a maximum penalty of $10,000. The Panel will have power to suspend a member from office for a period not exceeding three months, with or without their allowance and may direct the council to lodge a disciplinary complaint with the South Australian Civil and Administrative Tribunal.

This area of proposed reform also introduces improved conflict of interest provisions. These will simplify the current system by reducing the current three ‘categories’ of conflict of interest (material, actual and perceived) to two ‘material’ and ‘general’ conflict of interest.

LOWER COSTS AND ENHANCED FINANCIAL ACCOUNTABILITY South Australian councils annually manage a collective budget in excess of $2.2 billion and more than $24 billion of

LOCAL GOVERNMENT

infrastructure and other assets.2 To do so, they raise funds through council rates, fees and charges. This is the core of the public perception, aided by adverse media commentary, that councils lack adequate financial management.

Various amendments to the Act have occurred since 2000 to improve the financial management and accountability of councils, to improve accountability, financial governance, asset management, rating practices and auditing arrangements.

This included long term financial plans, mandatory audit committees, consistent and improved reporting format and annual financial statements and measures to strengthen the independence of external auditors. Further amendments have focussed on audit and reporting requirements and Auditor-General powers to examine the efficiency, economy and effectiveness of activities.

The Bill centres on three main reform proposals – rate monitoring, the role of audit committees and, finally, expanding the role of the Auditor-General consequential upon the 2019 South Australian Productivity Commission inquiry into local government costs and efficiency.

A rate monitoring system is proposed to be introduced with councils being required to receive, consider and publish independent advice on proposed changes to general rate revenue, as received each year from a designated authority (which the Bill does not identify but is thought likely to be ESCOSA). The annual business planning and budget processes will be subject to reporting requirements to the designated authority.

Concerns regarding council decision making and accountability have led to the proposed expansion of the audit committee to an audit and risk committee, to reform governance standards and decision making and to improve financial reporting and public accessibility.

Expanded powers of the AuditorGeneral are also proposed together with changes to the external auditor requirements to impose obligations that exceed those that currently apply under the Corporations Act.

EFFICIENT & TRANSPARENT REPRESENTATION Every four years periodic elections determine the membership of each council. At the moment, these coincide with State Government elections. In 2018, the State election was held in March and council elections were held in November.

To avoid voter ‘fatigue’ it is proposed to change the timing of the election cycle.

It is proposed that the periodic election scheduled in November 2026 be deferred until November 2027 (a five-year term) then reverting to the four-year terms.

It is agitated from time to time that councils are over-represented, causing additional cost to the community. A proposed change is that councils be compromised of no more than 12 members.

Whilst this will affect only a few councils, it is indicative of the Government’s position on driving down costs in maintaining a locally elected membership base.

SIMPLER REGULATION This reform area aims to improve and streamline legislative rules and processes, also associated with council decisionmaking. Councils have been subjected to overly prescriptive public consultation obligations which the proposed amendments will address to ‘modernise’ community engagement. This is, at least in part, recognising that current requirements commenced before smart phones, tablets and the widespread use of social media - at a time when postal services were considerably quicker and people read newspapers in broadsheet form!

Section 270 of the Act currently requires councils to have a process for community members to apply for internal review of council decisions.

Some proposed amendments include a six month time limit to apply for a review, subject to extension on a case-by-case basis. This will probably present further avenues of challenge against a council that makes a decision which is not favourable to the applicant.

A streamlined process for councils to revoke community land status is also proposed by way of a more tailored approach that caters for an administrative process as a limited option against the more significant revocation requiring Ministerial approval.

WHERE TO NEXT? There is no doubt that the Bill is (and is intended to be) a catalyst for proposed wide-scale reform to local government operations. Unfortunately, the word restrictions for this paper do not permit the many more examples of proposed change that could be given. It is, however, simply a Bill at this stage and what is ultimately enacted, if anything, might be substantially different from what is currently proposed. There is also a number of areas where the detail is not yet known or further change to subordinate legislation is required. There is, therefore, a substantial element of “wait and see”, as is becoming more common with modern approaches to the introduction of new or amending legislation. B

Endnotes 1 Reforming Local Government in South Australia, Discussion Paper, August 2019, page 2.

2 Reforming Local Government in South Australia, Discussion Paper, August 2019, page 33.

October 2020 THE BULLETIN

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LOCAL GOVERNMENT

HOW THE STATE EXERCISES POWER OVER LOCAL GOVERNMENT DALE MAZZACHI, PRINCIPAL, NORMAN WATERHOUSE LAWYERS AND CHRIS ALEXANDRIDES, SENIOR ASSOCIATE, NORMAN WATERHOUSE LAWYERS

I

n 2015, a South Australian motorist refused to pay a parking ticket issued by the City of Adelaide. She elected to be prosecuted. She then refused to recognise the Magistrate’s jurisdiction to hear the matter, or to even approach the bar table, on the basis that she was present in Court “as a woman and […reserved her] unalienable rights to this matter.”1 In 2020, another South Australian motorist provided an even more succinct argument. When asked for his plea in respect of a parking offence, he replied “I am a man.” This was treated as a plea of not guilty. The man then sat in the public gallery and remained mute during the trial.2 These individuals, like many other individuals who have sought to rely on the so-called “flesh and blood” defence and other pseudo-legal arguments (often involving the Australian Constitution, the Queen and/or the United Nations), were unsuccessful.

Local government councils, being (among other things) the entities who make and enforce laws and impose of taxes, are no strangers to pseudo-legal arguments such as these. Indeed, aggrieved persons often deny the very existence of local government.

Although the enabling legislation for local government in South Australia has, since 1929, provided that it is not necessary “to prove the existence” of any council in any legal proceedings, we assure readers that local government does indeed exist.

Anybody seeking authority for the existence of local government in South Australia need look no further than the judgment of His Honour Justice Nicholson in McDougall v City of Playford [2017] SASC 169.3

8 THE BULLETIN October 2020

His Honour succinctly outlined the City of Playford’s existence in that case as follows: The City of Playford is a local government council constituted pursuant to and in accordance with the provisions of the Local Government Act 1999 (SA). The power of the Parliament of the State of South Australia to have passed the Local Government Act rests with section 5 of the State Constitution, that is, The Constitution Act 1934 (SA). Section 5 adopts as the powers of the Parliament those formerly exercised by the Legislative Council constituted pursuant to section 7 of the Act of the Imperial Parliament, 13 and 14 Victoria, Chapter 59 entitled “An Act for the better government of Her Majesty’s Australian Colonies”. It has never been doubted that the power thus vested in the Parliament of the State of South Australia is one “to make laws for the peace, welfare and good government of [the State]”. This is a plenary power subject to limitations on its exercise derived from the Australian Constitution.

The establishment of local government councils in South Australia, including the City of Playford, is undoubtedly within the legislative competence of the Parliament of South Australia.

By now, readers will hopefully agree that local government has some form of valid legal existence in South Australia. However, what might be interesting to some is the fact this existence is owed purely to the Parliament of South Australia. Councils in other states similarly exist only because of the plenary powers of state parliaments.

Presently, the primary Act of Parliament under which local government councils are constituted in South Australia

is the Local Government Act 1999 (special constitutive Acts also apply to the City of Adelaide and Roxby Downs Council).

Electoral processes for councils are set out separately in the Local Government (Elections) Act 1999. These laws can be (and frequently are) amended simply by the ordinary procedures of Parliament.

In 1980, the Parliament of South Australia inserted section 64A into the Constitution Act 1934 (State Constitution).

That provision “guarantees” the continued existence of elected local government in South Australia. Local government had of course existed in South Australia before the insertion of section 64A into the State Constitution—the City of Adelaide Municipal Corporation was in fact the first municipal corporation in all of Australia (formed in 1840 but insolvent by 1843 with all its possessions sold off by public auction)—but the insertion of section 64A into the State Constitution was, as the Minister of Local Government at the time the Hon CM Hill MLC put it, “major acknowledgement of the maturity and the place of local government in our system of government”. The provision4 was enacted with bipartisan support.

Eagle-eyed readers will note all that section 64A of the State Constitution promises is some form of elected local government. What local government looks like is entirely up to the Parliament of South Australia. Further, despite the purported “guarantee”, Parliament is still expressly permitted to abolish local government upon the votes of an absolute majority of the members of each House of Parliament. No referendum is required.

In parliamentary debates, equally attentive member of Her Majesty’s then Labor opposition, Hon NK Foster MLC,

LOCAL GOVERNMENT

stated that the provision does “nothing”.

The Hon RC DeGaris MLC rebutted on the Liberal Government’s behalf with the observation that “although it does not do that much, it does do something”.

The minimal protection provided by section 64A of the State Constitution is in fact more protection than other states have afforded to local government. The only states apart from South Australia which provide any sort of restrictive procedure for the abolition of local government are Victoria and Queensland, with a referendum required in each of those states.

Recognition of local government in state constitutions was originally only intended as a largely symbolic first step in a process agreed at the 1976 Australian Constitutional Convention in Hobart. That process was meant to clarify the financial relationship between the Commonwealth, state, and local governments and to culminate in possible recognition of local government in the Australian Constitution.

However, recognition of local government in the Australian Constitution has never occurred. The most recent attempt was in 2013, when the Constitution Alteration (Local Government) 2013 Bill was passed by the Commonwealth Parliament but never put to a referendum due to an untimely leadership change in the governing Labor party.

The notion of local governing bodies being “elected” is one of the few aspects of local government actually entrenched in section 64A of the State Constitution.

However, this does not necessarily mean that all local governing bodies will be made up of elected representatives all the time.5 Parliament’s ability to confer powers upon the State government of the day to step in and manage the affairs of a

council—“bureaucratic, dictatorial or even despotic though [those powers] may be considered to be”6 - are not excluded by section 64A of the State Constitution.

The Minister responsible for the Local Government Act 1999 is effectively empowered (via recommendation to the Governor) to put any South Australian council in administration, and to subsequently dismiss the council resulting in new elections. The legal thresholds which apply for the exercise of these powers are not particularly high, relying largely on subjective opinions formed by the Minister. The Minister’s powers are, of course, not immune from judicial scrutiny—see for example the various deficiencies identified by the Full Court of the Supreme Court in respect of the then Minister’s investigation into the City of Burnside in 2009-2010.7 Some readers might be quite surprised by the extensive level of oversight which the State government can exercise over local government. For example, looking beyond the power to put a council in administration and to dismiss its members, the Minister also controls whether a council may sell certain land it owns8 (known as “community land”) or establish any subsidiary9 either alone or in conjunction with other councils. The Minister can also demand that a council provide any information relating to its affairs or operations10 as the Minister sees fit. Individual elected council members are also bound by a mandatory Code of Conduct11 published by the Minister, and the Minister may refer any alleged breach of that Code to the Ombudsman.

The Statutes Amendment (Local Government Review) Bill 2020 proposes to further extend the State Government’s

influence over local government. For example, if passed in the form as originally introduced into Parliament, that Bill would grant some person or body (to be designated by the Governor) the functions of advising councils about “the appropriateness” of any proposed increase in rates revenue, and reporting to the Minister if a council does not “respond appropriately” to the authority’s advice. Such a report can lead to a council being put in administration. In such a circumstance, Councils would therefore not even be able to exercise that most basic power of an elected representative government - the power of taxation - without State government oversight.

Thus, although local government councils are answerable to their electors, they are also answerable to the State government in an increasing number of ways. It is useful for lawyers and other members of the public to be aware that local government is therefore not as ‘separate’ from the State government as some might understand. Councils are subject to myriad oversight mechanisms administered by the State government, and the current trend appears to be that yet more such mechanisms will be added in the coming years.

Nevertheless, local government will continue to exist in some form or another unless and until an absolute majority of the members of South Australia’s House of Assembly and Legislative Council determine otherwise. Given the significant and fundamental contributions which local government councils and their subsidiaries make to the safety, welfare and development of our local communities, the authors contend it would be a brave12 Parliament indeed to pass such a measure. B October 2020 THE BULLETIN

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Endnotes 1 Justice Peek’s judgment in that individual’s unsuccessful appeal to the Supreme Court includes a number of general remarks under the heading ‘Antidotes to the bane’ which may assist any readers who encounter unrepresented litigants relying upon similar meaningless jargon: see Adelaide City Council v Lepse [2016] SASC 66.

2 Rossiter v Adelaide City Council [2020] SASC 61.

3 There were a number of purported legal ‘issues’ at play in that case, including allegations that Magistrates Sprod had committed treason; as Justice Nicholson put it, “the appellant’s contentions are so wide ranging and misconceived as to defy reasoned responses short of a short lecture series”.

4 Section 64A of the State Constitution provides as follows: 1. There shall continue to be a system of local government in this State under which elected local governing bodies are constituted with such powers as the

Parliament considers necessary for the better government of those areas of the State that are from time to time subject to that system of local government.

2. The manner in which local governing bodies are constituted, and the nature and extent of their powers, functions, duties and responsibilities shall be determined by or under Acts of the Parliament from time to time in force.

3. No Bill by virtue of which this State would cease to have a system of local government that conforms with subsection (1) of this section shall be presented to the Governor for assent unless the Bill has been passed by an absolute majority of the members of each House of Parliament.

5 Relevantly, the District Council of Coober Pedy is presently governed by an Administrator appointed by the Governor, and the Roxby Downs Council has always been governed by an

Administrator although legislation contemplates that it may hold elections one day.

6 See South Melbourne City Council v Hallam (1994) 83 LGERA 231, 243. Even in Victoria, where the constitutional protection for local government is stronger than in South Australia, there is no doubt about the state parliament’s power to exercise ultimate oversight its local counterparts.

7 Paterson v MacPherson (2011) 109 SASR 547.

8 Local Government Act 1999, ss 201 and 194.

9 Local Government Act 1999, ss 42-43.

10 Local Government Act 1999, s 271A. 11 Local Government Act 1999, s 63.

12 Noting the negative outcomes for State Governments of various persuasions in New South Wales (circa 2017), Western Australia (circa 2015) and Queensland (circa 2012) who have proposed or implemented substantial local government reform since the end of the last decade.

The process of making by-laws DAVID ROBERTSON

T

he recent rejection of the City of Marion’s cat by-law by the Legislative Review Committee of Parliament has raised the question of just how by-laws are enacted.

Local Government is granted power to make by-laws providing they are within the ambit of the Local Government Act and ‘for the good rule and government of the area’ (sections 246 - 252). But it is not just a case of passing a resolution at a Council meeting, there are several steps that have to be taken beforehand. A proposed by-law starts with a motion before Council for consideration. If passed, Council starts the process with a request to Council staff to investigate, consult ratepayers and report back. This may take six months or more.

Staff may well check with other Councils who have or may be moving towards a similar by-law. Council may then decide to proceed more formally. This would include legal advice as to whether the proposed by-law is within Council’s powers, does not conflict with other legislation and assistance with drafting. Councillors and staff are not expected to be draftsmen.

Council may then decide to proceed with the legislative requirements for enacting the by-law.

At least 21 days before resolving to make the by-law, Council must make

10 THE BULLETIN October 2020

copies of the proposed by-law available for public inspection, without charge and during ordinary office hours, at the principal office of the Council, and so far as is reasonably practicable on the internet.

By notice in a newspaper circulating in the area of the Council, it must inform the public of the availability of the proposed by-law and set out the terms of the by-law or describe in general terms the by-law’s nature and effect. When the Messenger Newspaper was in circulation (sometimes delivered) this was sufficient but now it is only available online. Many older people who have cats may not have a computer. Even those who purchase The Advertiser may not read the public notices. The Council newsletter could be a substitute but would it meet the requirements of the Act? Council must give reasonable consideration to a written or other acceptable submission made concerning the proposed by-law. This is especially relevant if the by-law is controversial, as in the case of cat control or curfew.

Before the resolution can be considered Council must obtain a certificate from a legal practitioner certifying that the Council has the power to make the by-law and is not in conflict with the Act. The practitioner is not

required to comment on the merits of the by-law but in the case of a by-law made under section 90 of the Dog and Cat Management Act 1995, Council is required to submit the by-law to the Dog and Cat Management Board for comment. The Board cannot change the by-law but the Council must consider any comments.

When the by-law finally comes before Council for a decision there are special requirements. At least two-thirds of the members of Council must be present and it must be passed by an absolute majority.

Then it will come in to force not less than four months after it has been published in the Gazette unless it is disallowed by the Legislative Review Committee of Parliament.

This what happened to Marion’s cat by-law – the Legislative Review Committee rejected the law because, according to Environment Minister David Speirs, it went beyond the scope of the Dog and Cat Management Act. So, what does Marion do now? Can it simply amend the by-law to comply with the Committee’s objections or must it start again from scratch? That could take a long time.

Minister Speirs has indicated that the State Government would work on developing an overarching by-law for local councils to adopt. B

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LOCAL GOVERNMENT

Cats, curfews and local councils DAVID ROBERTSON AND DIANA THOMAS, ANIMAL LAW COMMITTEE

T

he Dog and Cat Management Act1 allows for local councils to take responsibility for the control of cats in their areas which includes microchipping,2 desexing3 and registration of cat breeders.4 “Nuisance” cats may cause property damage and pollution as well as the harassment and killing of other pets and native fauna. Stray cats may also pose a risk via the transmission of toxoplasmosis, ringworm and fleas.

“The per capita kill rate of pet cats is 25% that of feral cats. However, pet cats live at much higher densities, so the predation rate of pets per square kilometre in residential areas is 28–52 times larger than predation rates by feral cats in natural environments, and 1.3–2.3 times greater than predation rates per km2 by feral cats living in urban areas.”5 Local councils may control nuisance cats via by-laws;6 they may also appoint cat management officers7 who have the authority to seize, detain8 or destroy9 unidentified cats in their council area.

Local councils must be mindful that by-laws are expected to be: “for the good rule and government of the area, and for the convenience, comfort and safety of its community.”10 When first considering the making of a by-law to control cats the council may have regard to the Dog and Cat Management Board guide to preparing a cat by-law11.

A council proposing to make a by-law under the Dog and Cat Management Act12 must give 42 days’ notice to the Dog and Cat Management Board and provide a report which:13 • outlines the objects of the proposed by-law; • sets out how it is proposed to implement or enforce the proposed by-law; and • explains the reasons for any difference in the proposed by-law from other by-laws about a similar subject matter applying or proposed to apply in other council areas.

Council must consider any recommendations of the Board relating to the by-law.

12 THE BULLETIN October 2020

At least 21 days before resolving to make the by-law, the council must make copies of the proposed by-law available for public inspection usually at council offices or via the internet14.

The council must also advertise the availability of the proposed new by-law for inspection via the local paper.15 This may be anachronistic as many local papers are now online only and physical papers are less attractive due to the fear of COVID-19 transmission.

Council must give reasonable consideration to a written or other acceptable submission made concerning the proposed by-law.16 This is especially relevant if the by-law is controversial, as in the case of cat control or curfew.

Before the resolution can be considered, the council must obtain a certificate from a legal practitioner certifying that the council has the power to make the by-law and the proposed by-law is not in conflict with the Local Government Act 1999.17 When the by-law comes before the council for a decision at least two-thirds of the members of the council must be present and it must be passed by an absolute majority.18 By-laws usually become operative four months after publication in the Government Gazette19 and expire on the first of January in the seventh year

after commencement.20 For this reason, regular reviews are usually written into the by-law with community comment and engagement sought 12 to 18 months prior to any expiration date.

However, despite the rigorous process described above, by-laws can be disallowed by the Legislative Review Committee of Parliament21. This is what happened to Marion’s proposed cat by-law.

MARION’S PROPOSED CAT CURFEW BY-LAW Marion Council endorsed the proposed draft Cats (Confinement) Variation By-law No. 7 201922 for community consultation on 29 January, 2019. Under the proposed by-law cats and their owners would be under the following restrictions: • Create an offence of “cat wandering at large”. This means cats cannot wander from their owner’s property during times determined by Council. Council gave in-principle support for this to be from 9pm to 7am daily • Residents requesting cages from Council to help catch wandering cats on their property • Proposed to give Council’s Community Safety Inspectors the powers to seize and detain cats. If owners cannot be identified, cats could be impounded at the RSPCA

LOCAL GOVERNMENT

• Fines of $187.50 could be issued to owners who don’t keep their cats indoors during the proposed times A report by the Legislative Review Committee did not support the by-law for a number of reasons including only allowing 72 hours for cats to be held before being destroyed, lack of certainty with regards to the curfew times and a lack of consultation in some aspects of the by-law.

At its July, 2020 meeting, Marion Council23 voted to wait for a response from Environment and Water Minister David Speirs, possibly involving a state wide model by-law.

CAMPBELLTOWN CAT CURFEW In June, 2020 Campbelltown Council endorsed a draft Cats By-Law for consultation which is currently with the Dog and Cat Management Board for comment. Once the Board’s comments have been received, a broader public consultation will commence, anticipated to be September, 202024.

The draft by-law would: • Introduce a cat curfew between 9pm and 7am daily until 1 January, 2024; • From 1 January, 2024 Council will move to full confinement of cats; • A requirement to register cats (no fee has been discussed or set at this stage); • Limit cats to two per household without further permission from Council; • Ensure cats are registered and can be identified if they leave their owner’s premises; cats not to cause a nuisance when roaming from their owner’s property.

Following consultation with the Board and the public, Council will reconsider the by-law. If Council then proceeds to adopt the by-law and it is approved by the State Government, it is anticipated the by-law will take effect during early-mid 2021.

MOUNT BARKER DISTRICT COUNCIL More than 70% of participants supported a cat curfew during public consultation for the new proposed cat bylaw by Mount Barker District Council:25 “Cat predation on our native fauna has been identified as a key threat to 35 species of birds, 36 species of mammals, 7 species of reptiles and 3 species of amphibians.

Mount Barker District Council takes its role of protecting the biodiversity of our region seriously and Council’s Cat By-law especially the curfew aims to minimise the impact that cats have on our environment”.

The draft cat by-law26 proposes the following: • Introduce a cat curfew between 8pm and 7am daily • Council aim to reunite cats found to be in breach of the curfew with their owners • Limit of two cats per residence without specific Council permission • Control nuisance cat behaviour.

Nuisance cat behaviour includes: о Unreasonably interferes with the peace, comfort or convenience of a person, including but not limited to a cat(s) displaying aggressive nature or creating unpleasant noise or odour; о Damages or otherwise has an adverse impact upon native flora or fauna; о Acts in a manner that is injurious to a person’s real or personal property; о Wanders onto land without the consent of the owner or occupier of the land or о Defecates or urinates on land without the consent of the owner or occupier of the land The Council is planning to trial a transition period to finalise details (including dispensation processes, fines and actions).

The UniSA Cat Tracker27 project analysed the roaming habits of 428 cats.

Roughly 40% of the cats that had been classified by their owners as being kept inside at night had in fact been out and about with night-time home-ranges of over one hectare. Given cats do not recognise council borders or by laws perhaps a state wide model by-law with regards to curfews and controls may be in order. B

Endnotes 1 Dog and Cat Management Act 1995 (SA) s 26, 26A. 2 Ibid s 42A. 3 Ibid s 42E. 4 Ibid s 68, 69.

5 We need to worry about Bella and Charlie: the impacts of pet cats on Australian wildlife Sarah LeggeA B G , John C. Z. WoinarskiC , Chris R. DickmanD , Brett P. MurphyC, Leigh-Ann WoolleyC F and Mike C. CalverE https://www.publish.csiro.au/WR/WR19174 6 Local Government Act 1999 (SA) s 246 – 253 inclusive; Dog and Cat Management Act 1995 (SA) s 90.

7 Dog and Cat Management Act 1995 (SA) s 8 8 Ibid s 64 9 Ibid s 63, 64A 10 Local Government Act 1999 (SA) s 246 (2).

11 http://goodcatsa.com/media/W1siZiIsIjIw MTUvMDMvMTcvM211ZHc5NmljYl9BX0d 1aWRlX3RvX1ByZXBhcmluZ19hX0NhdF9C eV9sYXcucGRmIl1d/A%20Guide%20to%20 Preparing%20a%20Cat%20By-law.pdf 12 Dog and Cat Management Act 1995 (SA) s 90 13 Ibid s 90 (5).

14 Local Government Act 1999 (SA) s 249 (1)(a) 15 Local Government Act 1999 (SA) s 249 (1)(b) 16 Local Government Act 1999 (SA) s 249 (2).

17 Local Government Act 1999 (SA) s 249 (4).

18 Local Government Act 1999 (SA) s 249 (3) 19 Local Government Act 1999 (SA) s 249 (5) 20 Ibid s 251 21 Parliamentary Committees Act 1991 (SA) s 12, Subordinate Legislation Act 1978 (SA) s 10A (2).

22 https://www.makingmarion.com.au/45517/ widgets/242021/documents/104493 23 Page 12, https://cdn.marion.sa.gov.au/ meetings/minutes/GC200728-Final-Minutes. pdf ?mtime=20200731153921&focal=none 24 https://www.campbelltown.sa.gov.au/council/ have-your-say/future-engagements/draft-catsby-law 25 https://www.mountbarker.sa.gov.au/ community/animals/cats 26 https://www.mountbarker.sa.gov.au/__data/ assets/pdf_file/0029/687413/Cats-By-law-2019. pdf 27 https://data.unisa.edu.au/dap/Project. aspx?ProjectID=33202

October 2020 THE BULLETIN

13

ORAL HISTORIES

Not one to just sit there: The fascinating career of Brian Martin LINDY MCNAMARA

R

eflecting on a legal career in which he was involved in many high profile cases, former Supreme Court Judge Brian Martin AO QC says the Snowtown murder trial was “undoubtedly the hardest” during his time on the Bench.

Mr Martin said the evidence presented in the nine-month jury trial was “distressing” and it was a “huge mental challenge” to understand the sheer volume of material provided.

“It was a case with extraordinary public profile,” he said during an oral history interview for the Law Society.

“It involved 12 murders in one trial.

The details of various aspects of it were both graphic and traumatic. Very distressing.

“There were logistical challenges surrounding the technical side of how this would all be presented, and how the court would handle well over a thousand exhibits and all the material that was there. There were logistical challenges with getting a jury, and how we would deal with a jury.

“In fact, coping - helping the jury cope with a trial of that magnitude, notoriety and graphic detail. All of those things come together into one large case, which was extraordinarily difficult, but you just had to go day by day.

“So, it took up 18 months of my life, and nine months of that was with the jury.”

Mr Martin said as intense as it all was, a shining light was how the process reinforced his belief in the jury system.

“They acquitted of one count. Their verdict of acquittal was, in my view, correct.

“So, it showed they weren’t overwhelmed by the totality of it, or they hadn’t taken such an adverse view they were going to convict of everything. They worked it through. They brought back the correct verdict.”

Mr Martin’s love of being involved in the courtroom process was evident early in his career. Admitted in 1970, his first job was with Wallman and Partners, however the desire to do more court work saw him leaving the firm in 1974 to join the Crown Law Office.

14 THE BULLETIN October 2020

“Lying in bed one Saturday morning - I never read the positions vacant - there was an advertisement for an Assistant Crown Prosecutor,” he recalled.

“I looked at the people in the firm (Wallmans), the extraordinary amount of work they pushed out and the toll it took on them, and I thought two things.

“One, I really didn’t want that sort of toll taken on me, because I’d built up a large number of files pretty quickly, and secondly, perhaps more importantly, the job of Assistant Crown Prosecutor, doing the court work, appealed to me.”

Rising through the ranks he was appointed Crown Prosecutor in 1982, admitting he was “extraordinarily lucky” to be involved with so many interesting cases.

“Some good cases came my way and some fantastic legal issues arose from time to time. In the later years, the prosecution of Emily Perry was a fascinating exercise.

“Somebody accused of poisoning their husband and other husbands or relatives, and the forensic exercise of putting all that together, coupled with the fact that the alleged victim, Ken Perry, did not believe she had tried to poison him and ended up as a witness for the defence.

“And he was not beyond being quite voluble, outside the court sitting times, about what was happening. That in itself made life interesting. The whole thing and the law surrounding what was then called similar fact evidence - it was a great exercise in itself, and, of course, we ended up in the High Court, and that was terrific.”

Another stand-out case was the prosecution of Bevan Spencer Von Einem as it uncovered the “whole scene around the issue of what was happening in parts of our community that we didn’t know about”.

After his appointment as a Queen’s Counsel in 1984, Mr Martin decided he had “had enough” and moved back to private practice, joining Murray Chambers.

“When I say ‘had enough’, what I mean is you reach a point where, not that you’ve done it all, but you’re doing things you’ve been doing for so long. I was

Brian Martin

looking for a change at that stage. I was ready for a change, and the opportunity to go to the Bar came,” he explained.

During this next phase of his career he and wife Leigh spent two years in Perth while he worked as Senior Counsel with the WA Inc. Royal Commission.

Back in Adelaide he was appointed Commonwealth Director of Public Prosecutions in 1997, dealing with cases around Australia, with a lot of travelling to Canberra and Sydney.

“I finished after two years, when I accepted the call to be a judge, and I regret that in many ways. I was doing cases around the country in different appellant courts. There were a lot of High Court cases, and just dealing with an office of 400 odd people around the country. The management exercise… that was a terrific time.”

Joining the Supreme Court in 1999, Mr Martin had to adjust his thinking about his role in the cases before him.

“The one thing I did have to concentrate on was that I was no longer running the case,” he said.

“I didn’t have to worry about whether that particular counsel was asking the right questions or not, or whether they were making the points they should. I was there to sit and let them run the cases. So that was a change.

ORAL HISTORIES

“But as time went by, as plenty will tell you, I was never one to just sit there.

If I thought they hadn’t asked questions the jury would want to know the answer to, then I’d ask the questions. That’s my approach.”

When it came to writing judgments he drew on the teachings of mentors and judges before him who “had it right”.

“My principal, John Mangan, taught me how to write letters and to think in detail. Eventually, I wrote letters like he did, and he still corrected them, so in that sense he was a mentor, but the others, by example and so on, were Len King, Andrew Wells, George Walters.

“In those days, we used to talk to the judge, not as much to Len King, because

he came in later, but in the early days, Andrew Wells and George Walters. I learnt from those sort of things. They were very good.

“But there were a whole lot of other judges who set examples - Roma Mitchell was a fantastic example of how you do things, get to the point. Don’t mess around.

Get to the point. Get on with it and do it.

“I heard her sum up in a rape case one day. I reckon it was about 12 minutes and she got everything right. That was it. Out you go, ladies and gentlemen. She had it right. She knew how to get to the point.

And so did some of the other judges.”

Five years after joining the Bench he received a call “out of the blue” asking him to be the Chief Justice of the

Northern Territory. This was to open the door to another phase of his career and he admits he debated the move north long and hard.

“I was flabbergasted. I was honoured, and I thought, ‘Hell, do I really want to go and live in the tropics? I like cool weather’.

“I didn’t think, ‘Oh, no. I could never do that’. I was quite positive, but there were issues that I had to deal with. In the end, we went and had a look, and the answer was yes.”

To read more about Mr Martin’s work as Chief Justice in the NT, his love for playing football and later role as SANFL Commissioner, go to www.lawsocietysa.asn.au B

October 2020 THE BULLETIN

15

LOCAL GOVERNMENT

THE ENFORCEMENT OF DOG CONTROL ORDERS BY LOCAL COUNCILS RONAN O’BRIEN, ANIMAL LAW COMMITTEE

W

orking from home during the COVID pandemic has allowed many of us to spend more quality time with our dogs. This has been a great experience for many, not least our dogs who have benefited from more walks, more pats and more treats! As we gradually return to our office environments, however, these same dogs may become more stressed and anxious due to the significant change in their daily routine. Any increase in dog barking will certainly be noticed by neighbours still working from home, and bored dog escapees will no doubt be quickly reported to the local council. Left unresolved, these situations can lead to unpleasant neighbourly disputes (perhaps only rivalled by arguments related to fencing!) leading to council involvement.

Dog Control Orders (Orders) are imposed by local councils under section 50 of the Dog and Cat Management Act 1995 (the Act) following investigations by their Animal Management Officers.1 Quite often, prior to implementing an Order, a council has been through a series of conversations, correspondence and warnings with the relevant dog’s owner. Usually it is only where an owner is unable or (more likely) unwilling to change their dog’s behaviour that a council will resort to imposing an Order.

TYPES OF ORDERS Depending on the severity of the dog’s behaviour, a council may impose the following Orders if the relevant criteria are met: Control (Barking Dog) Order • The dog is a nuisance; and • The dog has created noise which persistently occurs or continues to such a degree or extent that it unreasonably interferes with the peace, comfort or convenience of a person.

Control (Nuisance Dog) Order • the dog is a nuisance; and

16 THE BULLETIN October 2020

• has attacked, harassed or chased a person or an animal or bird, or is likely to do so, in circumstances that would constitute an offence against the Act. Control (Menacing Dog) Order • the dog is menacing; and • has attacked, harassed or chased a person or an animal or bird, or is likely to do so, in circumstances that would constitute an offence against the Act. Control (Dangerous Dog) Order • the dog is dangerous; and • has attacked, harassed or chased a person or an animal or bird, or is likely to do so, in circumstances that would constitute an offence against the Act. Destruction Order • the dog is unduly dangerous; and • has attacked, harassed or chased a person or an animal or bird, or is likely to do so, in circumstances that would constitute an offence against the Act. Given that a council must be satisfied of the above criteria prior to making an Order, you would expect the legislation would provide definitions of the words “nuisance”, “menacing”, “dangerous” and “unduly dangerous”. Unfortunately, the Act does not provide any guidance on the meaning of these important words. Instead, Judge Millsteed helpfully provided the following guiding principles in Clare & Gilbert Valleys Council v Crawford [2005] SADC 135: Nuisance Dogs A nuisance dog is one which is “disposed to unreasonably interfere with property or the comfort or convenience of people or animals.”2 This can include wandering at large, harassing other animals, chasing cars, or damaging property.

Menacing Dogs A menacing dog “presents some risk of harm to people or animals”3 although such risk is lesser than the risk associated with dangerous dogs or unduly dangerous dogs.

Dangerous Dogs A dangerous dog is one which presents a risk of harm, being something more than slight or trivial. However, a dog may not be considered dangerous if the risk of the dog causing harm is limited to certain circumstances (for example where the dog is provoked). Instead, a dog will be dangerous if “it presents an appreciable risk of injury to any person acting in a way in which a person may reasonably be expected to act in circumstances which may be reasonably expected to occur.”4 Unduly Dangerous Dogs A similar test to dangerous dogs applies in this case, however there must be “an appreciable risk of serious harm.”5 Again, Judge Millsteed took into account the circumstances in which a dog may be dangerous, recognising that: A dog may be so ferocious that it presents a risk of serious harm to anyone who has the misfortune to come across it and in any situation that may reasonably be expected to occur.

On the other hand a dog of ordinarily mild disposition might present a danger in such limited circumstances that it may be fair and reasonable to address the difficulties that the dog presents by measures other than destruction.

REQUIREMENTS OF ORDERS Each type of Order contains different requirements and restrictions placed upon the dog and its owner.

CHALLENGING ORDERS Prior to July, 2018, a dog owner wishing to challenge an Order would apply to the Administrative and Disciplinary Division of the District Court. This had the effect that appeals against Orders were rare (only two published decisions)6 and related to the most severe category of Orders (Destruction). Appeals against Orders are now heard by SACAT in an

LOCAL GOVERNMENT

TYPE OF ORDER

BARKING

NUISANCE

MENACING

DANGEROUS

Dog Training









On a lead when not at owner’s premises







Owner’s premises to be fenced







Muzzled when not at owner’s premises





Dog to wear a menacing dog collar



Dog to wear a dangerous dog collar



Dog to be desexed



Warning signs to be displayed at entrances to the premises



DESTRUCTION

Dog to be destroyed within a specified time frame (with at least one month before destruction)



Dog to be kept at a specified place prior to destruction



environment that is more accessible to unrepresented appellants, less legalistic, and cheaper ($78 to lodge an application).

Within two years of SACAT hearing appeals, this has already resulted in four published decisions, including one which related to a Control (Menacing Dog) Order.7 The biggest impact, however, since the appeal jurisdiction moved to SACAT has been in appeals against less onerous Orders being finalised at conciliation conferences.

The Act requires an Order imposed by a council to contain the mandatory conditions outlined above without any discretion as to whether certain requirements are necessary for that particular dog or owner. This has the unfortunate effect of preventing every dog with a Control (Nuisance Dog) Order from ever being off lead except when at the owner’s premises. Many dog owners object to this condition on the basis that their high energy dog requires exercise off lead from time to time. The owners may accept that their property needs to be better fenced, and that the dog should be on lead when walking down the street,

but many owners balk at the idea that they will not be permitted to let their dog get some off lead exercise at a fencedin dog park, or at an off-lead beach.

This is a predominant reason that many owners challenge the imposition of a Control (Nuisance Dog) Order or Control (Menacing Dog) Order.

Whilst an owner is challenging an Order (which can take many months) the dog and its owner remain under the terms of the Order imposed by the council.

This meets the needs of the council in ensuring that there is no increased risk to the community whilst tribunal proceedings are underway. Further, given that the more onerous requirements of the Order remain in effect during tribunal proceedings, a helpful strategy for appellant dog owners to pursue is for the dog and its owner to undertake dog training in the period between tribunal dates. If the appellant undertakes the training successfully then SACAT, and the council, can be more confident in relaxing or varying the conditions in the Order. Equally, if the appellant does not attend the training, or the dog is unsuccessful in being trained,

the tribunal has been provided with better information in determining whether to keep the Order in place.

Ultimately, having a dog and its owner undertake training can be a far better means of determining what specific conditions should be placed within an Order (rather than the obligatory conditions approach taken by the Act).

Whilst the jurisdiction change to SACAT may have resulted in more appeals against Orders, it may also result in better tailored conditions which not only ensure the safety of the community but also take into account the welfare of the dog. B Endnotes 1 Whilst section 50 of the Act also gives the Dog and Cat Management Board the power to issue Dog Control Orders, this is far less common in practice.

2 Clare & Gilbert Valleys Council v Crawford [2005] SADC 135 [51].

3 Ibid [65].

4 Ibid [70].

5 Ibid [77].

6 Hastwell v the City of Holdfast Bay [2014] SADC 132; and Clare & Gilbert Valleys Council v Crawford [2005] SADC 135.

7 Ivka v City of Charles Sturt [2019] SACAT 5.

October 2020 THE BULLETIN

17

FEATURE

CALDERBANK OFFERS IN SOUTH AUSTRALIA: ENCOURAGING EARLY SETTLEMENT AT ALL COSTS? FLYNN WELLS, LLB (HONS) CANDIDATE, UNIVERSITY OF ADELAIDE

T

he court exercises a broad discretion as to costs.1 It may award costs on three bases: a standard party–party basis; a solicitor–client basis; and an indemnity basis.2 The standard basis is only departed from in exceptional circumstances.3 Pursuant to r 194.6 of the Uniform Civil Rules 2020 (SA) (UCR),4 in exercising its discretion the court may have regard to ‘the non-acceptance by a party of an offer made by another party to resolve the proceeding’.5 As such, the court may consider the non-acceptance of informal offers of settlement,6 as distinguished from formal offers.7 Informal offers are commonly made by ‘Calderbank letter’,8 a letter of offer so named due to its origins in the case of Calderbank v Calderbank.9 On the face of r 194.6, the non-acceptance of a Calderbank offer would appear to be one discretionary factor. There has been a ‘great deal of judicial consideration’, however, of the question as to whether the costs consequences of the non-acceptance of formal offers should also attach to the non-acceptance of Calderbank offers.10 Indeed, there are authorities for the proposition that a party whose Calderbank offer was rejected unreasonably is presumptively entitled to an award of indemnity costs from the date of the offer.11 The high water mark of this line of authority coincided with the decision of Rolfe J of the Supreme Court of New South Wales in Multicon Engineering Pty Ltd v Federal Airports Corporation (‘Multicon’).12 Unlike courts in other Australian jurisdictions that have expressly departed from the presumptive approach,13 the Supreme Court of South Australia has left undecided the question as to whether to adopt the presumptive approach on two occasions.14 More recently, however, the Court appears to have expressed support for the presumptive approach.15 This paper considers whether the presumption applies in South Australia.

Such certainty is needed, as is highlighted

18 THE BULLETIN October 2020

by the following observation of Gino Dal Pont: ‘it is difficult to see how the same [costs] outcome will as of course ensue where a person is required to positively establish an entitlement to indemnity costs as compared to where his or her opponent must establish that indemnity costs should not be ordered’.16 It is argued that the weight of South Australian authority supports the view that the unreasonable non-acceptance of a Calderbank offer is but one discretionary factor.17 (This is referred to as the ‘discretionary approach’.)

As such, a party whose Calderbank offer was rejected unreasonably is not presumptively entitled to an award of indemnity costs. This position is consistent with other Australian jurisdictions,18 and is supported by policy considerations.

THE BOOM AND BUST OF THE PRESUMPTIVE APPROACH ACROSS AUSTRALIA During the 1990s, it was observed that Australian courts had developed a tendency to award indemnity costs in favour of a party whose Calderbank offer had been unreasonably rejected.19 Indemnity costs were ‘becoming more frequently available’ in this context.20 One judge went so far as to say that ‘[i]t is plain enough that … the only sanction to encourage serious consideration of … [a Calderbank] offer … is an award of costs on a more favourable than usual basis.

The most favourable basis is indemnity costs’.21 It was from this tendency that the presumptive approach appears to have emerged. As was later observed, ‘[s] o widely has this [judicial predisposition] been accepted that the proposition has [even] been advanced that a Calderbank offer gives rise to a presumption that the party rejecting the offer should pay the offeror’s costs on an indemnity basis’.22 In Multicon, a ‘significant’ decision for the law of costs,23 Rolfe J gave the first judicial endorsement of the presumptive approach:

In my opinion the proper approach to take to an offer … pursuant to a Calderbank letter, is that there should be a prima facie presumption in the event of the offer not being accepted and in the event of the recipient of the offer not receiving a result more favourable than the offer, that the party rejecting the offer should pay the costs of the other party on an indemnity basis from the date of the making of the offer.24 His Honour held that the respondent had not rebutted the presumption by establishing that its non-acceptance was reasonable,25 and awarded indemnity costs in favour of the applicant.26 Although there remained some uncertainty regarding the state of the law post-Multicon,27 which intensified following the Federal Court of Australia’s disapproval of the presumptive approach,28 the decision of Rolfe J was approved by Gillard J of the Supreme Court of Victoria in MT Associates Pty Ltd v Aqua-Max Pty Ltd (‘MT Associates’).29 In so holding, Gillard J hoped that ‘judges hereafter do not waste time in disagreeing [with the presumptive approach] on the ground that … [the presumption] fetters the [court’s] discretion’.30 Multicon was also approved in Queensland and Western Australia.31 Despite the best efforts of Gillard J in MT Associates, judges did indeed ‘waste time’ disagreeing with the presumptive approach thereafter. A shift to the discretionary approach is evident in several decisions,32 which has led one author to suggest that ‘the historical divergence of authorities on the issue’ has ended.33 The position in South Australia, however, is not so certain.

THE STORY IN SOUTH AUSTRALIA Support for the Prima Facie Presumption?

The Supreme Court of South Australia considered the new direction taken by the authorities, exemplified by Multicon, in Pirrotta v Citibank Ltd (‘Pirrotta’).34 Justice Debelle, with whom Millhouse

FEATURE

and Olsson JJ agreed, noted that ‘the effect of Calderbank letters [on costs] has not been examined in this Court’.35 The first instance judge had proceeded on the basis that the presumptive approach represented the correct approach, but held that the presumption had been rebutted by the respondent.36 On appeal, the appellants ‘submitted that the trial judge had acted upon a wrong principle’, and ‘that the principle was correctly expressed

by Rolfe J in Multicon’.37 This submission mischaracterised the approach of the trial judge, who had adopted Multicon, and Debelle J dismissed this ground of appeal.38 As such, the question as to the status of Multicon in South Australia was left open.39 In obiter, his Honour remarked that, until the issue was properly raised, the unreasonable rejection of a Calderbank offer should be regarded as one discretionary factor.40 The question next arose in Equuscorp Pty Ltd v Jimenez [No 2].41 Justice Besanko held that the issue ‘was not fully argued’ by the parties, however, and consequently left it unresolved.42 In the meantime, his Honour expressed support for ‘the approach adopted by the Full Court in Pirrotta’.43 Multicon received its first positive judicial treatment in South Australia in Davies v Chicago Boot Co Pty Ltd [No 2] (‘Davies [No 2]’).44 Justice Sulan referred to Multicon as the ‘starting position’, adding that ‘the making of an offer of compromise by a plaintiff who obtains a more favourable ultimate verdict will entitle the plaintiff to an order against the defendant for the plaintiff ’s costs on an indemnity basis’.45 At this point, it may well have appeared that the law in South Australia was beginning to diverge from the discretionary consensus in other Australian jurisdictions.46 BHP Billiton Ltd v Parker: Silence Is Golden Just weeks after Sulan J’s endorsement of Multicon, the Full Court handed down the leading decision on the effect of

Calderbank offers on costs in South Australia to date: BHP Billiton Ltd v Parker (‘Parker’).47 The majority, comprising Doyle CJ and White J, ruled that the question is not simply whether, having regard to a Calderbank letter, a court should order the defendant to pay costs on a basis other than as between party and party. The court will be exercising a broad discretion, and the making of an informal offer of settlement is merely one of a number of matters relevant to the exercise of that discretion.48 Their Honours made no mention of Multicon or Davies [No 2], a deafening silence in light of the fact that Parker has since been approved on numerous occasions.49 Perhaps the most consequential comments regarding the state of the law post-Parker came from Judge Lovell of the District Court of South Australia (as his Honour then was) in Cadoo v BHP Billiton Ltd:50 ‘[t]he onus is on the party making a “Calderbank” offer to satisfy the court that it should exercise the discretion in its favour … The rejection of a “Calderbank” offer does not necessarily or even presumptively lead to an award of indemnity costs’.51 His Honour’s dismissal of any such presumption is significant.

Notwithstanding that Multicon was recently applied in the District Court,52 the decision of the Full Court of the Supreme Court remains authoritative.

Thus, the rejection of a Calderbank offer is but one factor to be weighed by the court in the exercise of its broad and, importantly, unfettered discretion.53 This position is consistent with other Australian jurisdictions, and has received support from the Australian Law Reform Commission.54

CONCLUSION The authorities advocating the presumptive approach placed considerable reliance upon the need to encourage the early settlement of disputes.55 Justice

Gillard demonstrated this reasoning in MT Associates when his Honour stated that ‘[i]n this day and age litigation in this court is expensive … [Lawyers] should be encouraged to reduce costs’,56 then proceeding to endorse the presumptive approach.57 It is argued, however, that it is undesirable for this policy to be pursued at all costs.

Another important policy consideration in civil litigation is party certainty,58 which is undermined by the presumptive approach. Indeed, there is an important distinction between formal offers and Calderbank offers. A formal offer is filed and served,59 thus recognisable by the offeree as carrying certain costs consequences should it be rejected and the offeree’s position is not bettered at judgment.60 Calderbank offers, on the other hand, remain nebulous, despite efforts to distil their essential features.61 Chief Justice Doyle and White J expressly contemplated this ambiguity in Parker when their Honours warned against using the term ‘Calderbank letter … as a term of art, as if such a letter is always of a particular kind’.62 It has been suggested that a Calderbank offer will carry the header ‘without prejudice save as to costs’,63 but even the determinativeness of this feature is arguable. Indeed, in Old v McInnes,64 the New South Wales Court of Appeal considered the costs consequences of the unreasonable rejection of a letter lacking the necessary Calderbank header, but exchanged within a series of communications in the course of which a properly-headed Calderbank offer had also been exchanged.65 In dissent, Beazley JA (as her Excellency then was) held that the defective offer could be taken into account in awarding costs, as if it were a Calderbank offer.66 Her Honour articulated this form and substance approach extrajudicially,67 adding that ‘different judges may interpret the same document in different ways’.68 October 2020 THE BULLETIN

19

FEATURE

It is submitted, therefore, that it is undesirable to link the rejection of a Calderbank offer presumptively to an award of indemnity costs, lest party certainty be undermined.69 On this basis, the discretionary approach of the Full Court in Parker is preferred. Indeed, ‘[t]here is only one immutable rule in relation to costs, and that is that there are no immutable rules’.70 As such, a party whose Calderbank offer was rejected unreasonably is not presumptively entitled to an award of indemnity costs in South Australia. This is but one discretionary factor to be weighed by the court under r 194.6 of the UCR. B Endnotes 1 BHP Billiton Ltd v Parker (2012) 113 SASR 206, 265 [265] (Doyle CJ and White J) (‘Parker’). See Uniform Civil Rules 2020 (SA) r 194.1(1) (‘UCR’).

2 UCR (n 1) r 194.3(1).

3 See, eg, Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233 (Sheppard J), cited in Duke Group Ltd (in liq) v Pilmer [1998] SASC 6699 (Mullighan J). See also LexisNexis, Civil Procedure South Australia (online at 15 May 2020) [R 264.85].

4 The UCR entered into force on 18 May 2020: UCR (n 1) r 1.2; South Australia, Government Gazette, No 41, 18 May 2020, 1392.

5 UCR (n 1) r 194.6(2)(e) (emphasis added).

6 Parker (n 1) 265 [264]. See also Grbavac v Hart [1997] 1 VR 154, 165 (Hayne JA).

7 See UCR (n 1) ch 11 pt 2. Subject to its ‘overriding discretion’, the court will, as a matter of course, award costs on an indemnity basis against a party who rejected a formal offer and did not receive a more favourable result at judgment: ibid r 132.10.

8 Matthew Ellis, ‘The Cost of Compromising: Offers of Compromise and Calderbank Offers’ (2008) 17(4) Journal of Judicial Administration 253, 253.

9 [1976] Fam 93.

10 Ellis (n 8) 264.

11 See, eg, Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 138 ALR 425, 451 (‘Multicon’). A rejection will be ‘unreasonable’ where the offeree does not receive a more favourable result at judgment: ibid. See also Gino Dal Pont, Law of Costs (LexisNexis Butterworths, 4th ed, 2018) 428 [13.74].

12 (1997) 138 ALR 425.

13 MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd [No 2] (1996) 70 FCR 236, 240 (Lindgren J) (‘MGICA [No 2]’); Jones v Bradley [No 2] [2003] NSWCA 258, [9] (Meagher, Beazley and Santow JJA) (‘Jones [No 2]’); Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority [No 2] (2005)

20 THE BULLETIN October 2020

14

15

16

17 18 19 20

21

22

23

24 25 26 27 28 29 30 31

32

33

34 35 36 37 38 39 40 41 42

13 VR 435, 440–1 (Warren CJ, Maxwell P and Harper AJA) (‘Hazeldene’s Chicken Farm [No 2]’).

Pirrotta v Citibank Ltd (1998) 72 SASR 259, 266 (Debelle J, Millhouse J and Olsson J agreeing at 260) (‘Pirrotta’); Equuscorp Pty Ltd v Jimenez [No 2] [2002] SASC 266, [17]–[19] (Besanko J) (‘Jimenez [No 2]’).

Davies v Chicago Boot Co Pty Ltd [No 2] [2011] SASC 97, [26] (Sulan J) (‘Davies [No 2]’), cited in David Jones Ltd v BI (Contracting) Pty Ltd [2018] SADC 40, [17] (Judge Gilchrist) (‘David Jones’).

Dal Pont (n 11) 427–8 [13.73] (emphasis in original). Cf Interchase Corporation Ltd v ACN 010 087 573 Pty Ltd (2000) 45 ATR 445, 452 (White J); ACCC v Universal Music Australia Pty Ltd [No 2] (2002) 201 ALR 618, 631 [59] (Hill J).

Parker (n 1) 265 [265] (Doyle CJ and White J).

MGICA [No 2] (n 13) 240; Jones [No 2] (n 13) [9]; Hazeldene’s Chicken Farm [No 2] (n 13) 440–1.

Ellis (n 8) 266.

Huntsman Chemical Co Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242, 250 (Mahoney JA).

Quirk v Bawden (1992) 112 ACTR 1, 5 (Higgins J, Miles CJ and Gallop J agreeing at 2) (emphasis added).

Hazeldene’s Chicken Farm [No 2] (n 13) 440 (Warren CJ, Maxwell P and Harper AJA). See also Multicon (n 11) 441–51.

Pamela Jack, ‘Calderbank Offer: Indemnity Costs’ (1997) 53 Australian Construction Law Newsletter 51, 51.

Multicon (n 11) 451.

Ibid 453.

Ibid 454.

Ellis (n 8) 265.

MGICA [No 2] (n 13) 240 (Lindgren J).

[2000] VSC 163, [71] (‘MT Associates’).

Ibid.

Naomi Marble and Granite Pty Ltd v FAI General Insurance Co Ltd [No 2] (1999) 1 Qd R 518, 524–8 (Shepherdson J); Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd [2003] WASC 53, [73]–[74] (Roberts-Smith J).

Jones [No 2] (n 13) [9]; Hazeldene’s Chicken Farm [No 2] (n 13) 440–1. See also SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323, [37] (Giles JA).

Ellis (n 8) 265. See also Dal Pont (n 11) 427 [13.73]; Justice of Appeal Margaret Beazley, ‘Calderbank Offers’ [2009] (Summer) Bar News 65, 66.

(1998) 72 SASR 259.

Pirrotta (n 14) 262 (emphasis added).

Ibid 262.

Ibid.

Ibid.

Ibid 265.

Ibid 266.

[2002] SASC 266.

Jimenez [No 2] (n 14) [17]–[19].

43 44 45 46 47 48 49

50 51 52 53 54 55 56 57 58

59 60 61

62 63

64 65 66 67

68 69 70

Ibid [19].

[2011] SASC 97.

Davies [No 2] (n 15) [26] (emphasis added).

See above n 32 and accompanying text.

(2012) 113 SASR 206.

Parker (n 1) 265 [265] (Doyle CJ and White J, Gray J reserving costs at 298 [429]).

See, eg, McLean v DID Piling Pty Ltd [No 2] [2014] SASC 135, [22] (Nicholson J); Enartis Pacific Pty Ltd v Tscharke Pty Ltd [2015] SASC 42, [28] (Nicholson J); Cadoo v BHP Billiton Ltd [2014] SADC 42, [16] (Judge Lovell) (‘Cadoo’); De Poi Consulting Pty Ltd v Dutton [No 2] [2015] SADC 111, [22] (Judge Tilmouth).

[2014] SADC 42.

Cadoo (n 49) [11].

David Jones Ltd v BI (Contracting) Pty Ltd [2018] SADC 40, [17] (Judge Gilchrist), citing Davies (n 15) [26].

Parker (n 1) 265 [265]; Cadoo (n 49) [12].

Australian Law Reform Commission, ‘Costs Shifting: Who Pays for Litigation?’ (Report No 75, 20 October 1995) [11.32].

Multicon (n 11) 440; MT Assocites (n 29) [73].

MT Assocites (n 29) [73].

Ibid [71].

See, eg, Aon Risk Management Services Australia Ltd v Australian National University (2009) 239 CLR 175, 192 [30] (French CJ), cited in Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59, [46] (Bleby J, White J agreeing at [174]).

UCR (n 1) rr 132.4(1)–(2).

Ibid r 132.10.

See, eg, Mark J Rankin, ‘Calderbank Letters and Formal Settlement Offers: Is the Calderbank Offer a Dead Letter?’ (2010) 21(4) Australian Dispute Resolution Journal 242. See also Dal Pont (n 11) 425 [13.70].

Parker (n 1) 265 [264] (emphasis added).

See, eg, Ellis (n 8) 265. It is also common to state that the offer is made ‘pursuant to the principles in Calderbank v Calderbank’: Dal Pont (n 11) 425 [13.70].

[2011] NSWCA 410.

Ibid [12]–[20] (Beazley JA).

Ibid [20]–[21].

Justice of Appeal Margaret Beazley, ‘“Without Prejudice” Offers and Offers of Compromise’ (Speech, NSW Young Lawyers Civil Litigation Committee, 26 September 2012) [30]. See also Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd [No 2] [2017] NSWCA 340, [40] (Beazley P, Meagher and Payne JJA); Secretary, Department of Business and Innovation v Murdesk Investments Pty Ltd [No 2] [2012] VSC 586, [31] (Emerton J).

Beazley, ‘“Without Prejudice” Offers and Offers of Compromise’ (n 67) [31].

See Old v McInnes (n 64) [106]–[107] (Meagher JA, Giles JA agreeing at [42]).

Taylor v Pace Developments Ltd [1991] BCC 406, 408 (Lloyd LJ), cited in Solowij v Parish of St Michael [No 2] [2003] SASC 48, [15] (Williams J).

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LEGALSUPER

Reviewing your annual super statement may lead to higher savings ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER

Your Annual Super Statement helps review past performance and plan future actions to achieve your retirement goals.

A

t a time of heightened personal and economic uncertainty due to the COVID-19 pandemic, super fund members are encouraged to scrutinise their Annual Super Statement.

Super remains the bedrock of saving for retirement for most Australians and your Annual Super Statement contains a wealth of information.

No doubt your Annual Super Statement will be one of many statements or bills you receive, but it is worth the effort to take a closer look at your Statement. After all, super is now the second highest form of savings for Australia, exceeded only by housing.

If everything is in order, you’ll get increased peace of mind about your nest egg. Conversely, a quick check may reveal some opportunities to improve your position, and the sooner these are taken advantage of, the quicker your savings may increase or better meet your needs.

WHAT TO LOOK FOR The layouts of statements vary between super funds, but there is minimum information required by law to be included. Some information appears in summary form, with a detailed breakdown shown elsewhere in the Statement.

Here are some key actions to consider taking:

22 THE BULLETIN October 2020

COMPARE YOUR INVESTMENT BALANCE Compare your investment balance at the end of 2019/20 to your investment balance at the end of the preceding financial year. This will show you how much your investments have changed over the year.

Due to COVID-19 and impacts to the investment markets worldwide, investment returns were lower in 2019/20 and as a result any increase in 2019/20 of your super balance is more likely to be lower than that of previous years. By way of example, according to SuperRatings (an independent super research and rating advisory business) the median return for a ‘balanced’ investment option for the one year ended 30 June 2020 was -0.8%.1 Super exists to provide savings for retirement. One of the easiest ways to assess whether you’re on track to be comfortable in retirement, is to use your super fund’s tools and calculators. legalsuper’s Retirement Income Forecast calculator, is an excellent starting point as it helps you project your possible retirement income and explore options for improvements.2 To help determine whether your retirement income target will set you up for the lifestyle in retirement you envisage for yourself and your loved ones, it is helpful to compare your retirement income target to the Association of Superannuation Funds of Australia (ASFA) Retirement Standard. The Standard benchmarks the annual budget needed by Australians to fund either a “comfortable” or “modest” standard of living in the post-work years of those aged around 65 and those aged around 85.

The latest Standard, issued for the June 2020 quarter, states that in retirement, a single person aged around 65 will need $27,902 per annum to lead a “modest” lifestyle and $43,687 per annum to lead a “comfortable” lifestyle. Couples aged around 65 years will need $40,380 per annum and $61,909 per annum respectively. (These figures assume the retiree/s own their home outright and are relatively healthy).3

CHECK WHERE YOU’RE INVESTED Your Annual Super Statement must show your investment choice. It’s important to periodically assess the level of risk and return you’re comfortable with and ensure your investment choice is aligned. legalsuper offers 13 investment options, including the ability to selfmanage your super with our Direct Investment option. This SMSF-style alternative offers the flexibility of real time trading, for those who want to be more hands on with their investments.

As a result of the economic impact of the COVID-19 pandemic, super funds have, understandably, received an increase in inquiries from members about the impacts to their super, including whether they should change their current investment option(s). legalsuper’s members are to be assured that the fund’s highly experienced investment experts continue to actively monitor and respond to changing market conditions.

Also, history tells us that economic downturns are temporary, as markets have demonstrated the ability to recover losses after a crisis. For example, despite share

LEGALSUPER

markets falling more than 40 per cent during the Global Financial Crisis of 2008, most balanced funds recovered the majority of losses in the following 12 months.

That said, there may be an opportunity to change your investment option(s) to better suit your current and future needs and the best way to start this conversation is to call your super fund to discuss the options available.

Assess your insurance Your Annual Super Statement must set out what insurance you had at the end of the financial year, and how much it costs.

You should check that the type and level of cover remains adequate given your circumstances, objectives and needs.

Important items to check are whether you are paying for insurance cover you don’t need or whether you are inadequately insured.

Review your transactions Your Annual Super Statement lists the transactions applied to your account throughout the year. This will include any money received (employer and personal contributions, government contributions and rebates, plus any rollovers), investment earnings derived or losses incurred, and any money paid out (most commonly administration and investment fees, insurance premiums, any withdrawals and taxes).

If you’re employed, you should receive an income statement via myGov or a payment summary from your employer for each financial year. You can use this to reconcile contributions your employer or you paid during the year against the amounts reflected in your Annual Super

Statement, thereby checking if your employer has paid the right amount of super for you.

Check your fees against investment performance Most commonly, super fund fees comprise administration and investment management fees. These may differ depending on your account balance and investment option(s) chosen and the kind of service the fund offers. It is to be remembered that high fees don’t always mean high investment returns and vice versa. It’s best to assess the two together and check if yours are competitive with other super funds.

Other things to check Have you provided your TFN? If not, you will be charged extra tax.

Are your contact details up to date? If not, your fund may be unable to contact you.

Have you received more than one statement? More than one statement means more than one set of fees. Consider whether consolidating accounts will benefit you - but make sure you consider insurance coverage before consolidating super accounts.

Do you have a beneficiary? If you were to pass away, where would you want your super to be paid?

Reach out for help Super is one area in life where professional advice can really pay off. If you need help with understanding your Annual Super Statement, investment options, how to consolidate accounts, finding lost super, or ensuring you have the right insurance cover, reach out for help.

legalsuper offers members one-on-one meetings with our team of Client Service Managers. Our dedicated team, or your personal financial planner can help you optimise your super strategy to stay on track for a great life in retirement.

If you would like to meet with a member of our team of Client Service Managers for more in-depth support about your super, contact us and request a complimentary appointment. Call 1800 060 312 Monday to Friday between 8am to 8pm (AEST) or via email to mail@ legalsuper.com.au This information is of a general nature only and does not take into account your objectives, financial situation or needs. You should therefore consider the appropriateness of the information and obtain and read the relevant legalsuper Product Disclosure Statement before making any decision. Past performance is not a guide to future performance. Legal Super Pty Ltd ABN 37 004 455 789, AFSL 246315 is the Trustee of legalsuper ABN 60 346 078 879.

ANDREW PROEBSTL is Chief Executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on ph 03 9602 0101 or via aproebstl@legalsuper.com.au. B

Endnotes 1 https://www.superratings.com.au 2 https://www.legalsuper.com.au/formsresources/calculators 3 https://www.superannuation.asn.au/resources/ retirement-standard

October 2020 THE BULLETIN

23

OPINION

SA’s proposed scheme to monitor places of detention needs to be improved ASSOCIATE PROFESSOR LAURA GRENFELL, ADELAIDE LAW SCHOOL

T

hose who are out of sight should not be out of mind. In recent years South Australia has seen failures in its systems designed to safeguard those who are in vulnerable situations and out of public sight– think of our child protection system and our older persons’ mental health system.

The failures identified by the Chloe Valentine and Oakden inquests revealed instances of abuse and neglect which could be fairly described as cruel, inhuman or degrading treatment. SA cannot afford to be complacent by devising schemes which are ill-conceived and the subject of little, to no, consultation.

An external mechanism to proactively monitor our state’s closed facilities is warranted given that systems can often fail to adequately uphold agreed-upon standards (or lack adequate standards) for those who are in care or detention.

Every jurisdiction in Australia is currently in the process of establishing such a mechanism because, after abuses at the NT’s Don Dale Youth Detention Centre received international attention, the federal Coalition government ratified an international agreement, the Optional Protocol to the Convention against Torture (OPCAT), in late 2017. OPCAT is designed to complement our existing state mechanisms such as the Ombudsman SA

24 THE BULLETIN October 2020

which investigates, in a reactive manner, complaints made by those in detention.

For the new scheme to benefit our state, it needs to work alongside our existing oversight bodies, to be fully independent (and perceived as such), and have clear power to access all relevant information and places of detention.

In mid-May this year, the South Australia government introduced a half-baked scheme to meet the state’s OPCAT obligations. It was one of a raft of amendments in SA’s Correctional Services (Accountability and Other Measures) Amendment Bill 2020 which passed the House of Assembly on 22 July and is currently in the Upper House. (The amendments are largely the same as those introduced into the SA Parliament by the then Labor government in late 2017 before Australia ratified OPCAT.) It would not be surprising if you were unaware of this development: the introduction of this particular legislative response to OPCAT was not reported in the media. More critically, it was preceded by zero consultation with key stakeholders in the state despite the amendments being described in the second reading speech as “significant”.

This is in the face of the fact that for years these stakeholders have been tirelessly calling for a local OPCAT

mechanism - known as a national preventive mechanism (NPM) - and contributing to national consultations headed by the Australian Human Rights Commission as well as the Commonwealth Ombudsman (who has been designated as the coordinator of the NPMs being established in each jurisdiction). These NPMs will work with the international monitoring body, the UN Subcommittee on the Prevention of Torture (SPT) which will conduct supervisory visits to each Australian jurisdiction every 4-8 years.

The proposed new monitoring scheme of “official visitors” will replace the state’s so-called “independent inspectors scheme” which has languished for more than a decade due to its poor design. The state’s proposed new OPCAT-style scheme has some strengths: it sets out that the Governor will appoint a diverse group of remunerated visitors including at least one legal practitioner, one woman and one Aboriginal or Torres Strait Islander person (it excludes only those persons who become a member of an Australian parliament, become a bankrupt or who is convicted for an offence or serving a prison sentence). Previously the inspectors were volunteers, most of whom are justices of the peace. Since at least 2012 the government has been made aware, via an audit report of Ombudsman SA, that

OPINION

this scheme has been under-performing because the inspectors “are perceived to be identified with the department”.1 Under section 20D of the new scheme, the official visitors are to conduct visits and inspections of our correctional institutions (which covers adult prisons and “police prisons” but not prison transport vehicles etc). They are to “inquire into, investigate and provide advice to the Minister or the CE [Chief Executive of the Department of Correctional Services] on any matter relating to the management of the correctional institution, or the care, treatment of control of the prisoners”.

This can be on their own initiative or on a referral by the Minister or the CE. Furthermore, they can make recommendations for the purposes of “promoting the high quality care, treatment and control of prisoners” in these institutions. They can speak with prisoners and consider information and materials “in private”. Section 20A (1) states: “an official visitor must act independently, impartially and in the public interest” and further that neither the Minister nor the CE can “control how an official visitor is to exercise” their “functions and powers” or “give any direction with respect to the content” of any visitor report.

The main problem with the design of the proposed new scheme is that it does not sufficiently guarantee the independence of the official visitors. This independence is seriously compromised by the fact that under s 20B of the Bill, the CE of the Department of Correctional Services (DCS) determines the “remuneration, allowances and expenses” of the official visitors while under s 20C the Minister “must provide” the visitors with “the resources reasonably required”.

At this point it is worth remembering that the visitors’ role is to monitor how DCS does its job in terms of the treatment of those in detention. It is Public Law 101 to understand that an oversight body is not likely to be able to fulfil its functions if it is being resourced and remunerated by the same body it is tasked with monitoring.

Independence is the lynchpin of the OPCAT scheme. Under Article 18 of OPCAT, Australia has agreed to “guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel”.

This means that the state NPM needs to enjoy “complete financial and operational autonomy”.2 In light of this, Western Australia has given the OPCAT monitoring role to its Ombudsman and its Office of the Inspector of Custodial Services, the latter of which

is an independent statutory department receiving its budget direct from Treasury.

In WA, both oversight bodies report directly to Parliament unlike SA’s proposed mechanism.

In terms of staffing and autonomy, the SPT has recommended that the NPM needs its own secretariat and staff and the ability to bring in external consultants with skills sets covering areas such as mental health and wellbeing. It has explained that ‘the State should ensure the independence of the NPM by not appointing to it members who hold positions which could raise questions of conflicts of interest’.3 In other words, official visitors should not include those who presently serve the government or government agencies.

This clearly excludes from the NPM those who presently work in the criminal justice system (including DCS) or law enforcement or who are on short-term leave or secondment from these parts of government. In other words, the NPM requires full operational and financial autonomy with regard to its staff. Without this, it very difficult, if not impossible, for the mechanism to take a systematic and planned approach to preventing torture or treatment which is cruel, inhuman or degrading in our prisons.

A second problem is that the new proposed scheme pays insufficient October 2020 THE BULLETIN

25

OPINION

attention to the careful design of the OPCAT system as a proactive and preventive mechanism which conducts regular and comprehensive visits, both announced and unannounced. The SA proposed mechanism muddles this careful design by requiring that official visitors double up on existing functions.

For example, in addition to monitoring, they are to “receive and investigate any complaint of a prisoner in the correctional institution” and that they “act an as advocate for prisoners … to promote the proper resolution of issues”. Complaint handling role is a reactive role and is currently well covered by the Ombudsman SA. Advocacy is the territory of various non-governmental organisations such as OARS. The functions of monitoring, complaint handling and advocacy should not be mixed. The Ombudsman may conduct a brief inspection of a correctional institution to follow up a complaint of ill treatment. This contrasts with a lengthy, comprehensive and proactive OPCAT-style visit in order to make system-wide recommendations to Parliament as to how changes to policy or law could prevent or reduce the risk of cruel, inhuman and degrading treatment or torture. Unless amended, the new scheme will burden official visitors with too many functions, particularly already those covered by existing bodies, dilute their role and impede their ability to effectively monitor our correctional institutions.

A third problem is that the official visitors do not have adequate powers to fulfil their monitoring function.

The proposed SA scheme sets out the functions of the official visitors but it does not explicitly articulate their powers. Under OPCAT, it an expected that visitors/monitors have the power to access all relevant data bases as well as all places of detention on an unannounced

26 THE BULLETIN October 2020

and immediate basis if they wish. This means they should be able to arrive at a correctional institution and, without delay, commence an inspection which includes all parts of the institution as well as its databases. Section 20E, entitled “provision of information to official visitor”, is clumsily drafted in providing that the official visitor must “by notice in writing” require the provision of information from a government or non-government organisation. This indicates an impractical approach which would give correctional institutions time to tidy up their territory before an inspection of documents or an institution takes place. This undermines one of the key aims of the OPCAT mechanism which is to increase transparency and reduce the cover-up culture which can thrive in our places of detention because they are out of public sight.

The Bill needs to be amended. It needs to ensure that both the remuneration and resources of the official visitors come from a budget directly allocated to them

by Treasury or Parliament. It needs to ensure that official visitors are perceived as independent by ensuring they are ring-fenced away from DCS. It needs to separate the function of monitoring from other extraneous functions such as complaint handling and prisoner advocacy.

It needs to clearly set out the powers of the official visitors so that these powers are not uncertain and impractical for effectively carrying out their functions.

Furthermore, the proposed scheme needs to ensure the visibility of the state’s NPM as a key player in the prevention of illtreatment and torture in our prisons. This visibility and transparency is important if the NPM is to enjoy both credibility and legitimacy.

Overall there is likely to be savings to government if it can get the design

right from the start. We can see this by looking north: the many inadequacies in the Northern Territory’s youth justice detention system has led to much harm, expensive inquiries and avoidable costly litigation. In June the High Court found in Brindaris v NT4 that four youth detainees in the Don Dale Youth Detention Centre had been subjected to the use of tear gas and were entitled to damages on the basis that it constituted battery. The case, one of a series, indicates that the relevant NT authorities had unlawfully used weapons on youth detainees. The Court held that corporal punishment is not a permitted “use of force” under the NT youth justice legislation.

Such systemic problems in places of detention could be proactively identified via external monitoring by independent and qualified experts conducting regular visits with full powers of access. Leaving these systemic problems to be resourced by a Minister and their department which has other, sometimes competing, priorities can lead to personal harm, expensive litigation and potentially hefty damages.

This year South Australia became the last Australian jurisdiction to end the use of spithoods in youth detention - it was slow to act even after a finding by the NT Supreme Court that placing a spithood on a youth detainee is an act of battery.

Similarly, South Australia’s Department of Correctional Services has been slow to adopt soft shackles for prisoners in hospital, even for women in childbirth.

South Australia needs to devise smarter methods of dealing with problematic behaviour, by finding methods that do not constitute cruel, inhuman and degrading treatment – or lead to expensive litigation and payouts. Resourcing this external monitoring and ensuring it is independent and rigorous will pay off.

It is a disservice to South Australians

OPINION

that the government chose not to undertake any consultation with key stakeholders on this important mechanism.

The government has made insufficient effort to ensure that the mechanism is financially autonomous, that it will be perceived by all as independent, that it has adequate powers and clear, unimpeded monitoring functions. The Minister’s second reading speech for these “significant amendments� is all too brief and offers little transparency.

It is as if the government did not want

to draw attention to the new scheme even though, despite its inadequacies, it is a clear improvement on the existing broken scheme. Instead of allowing the government to ram through this halfbaked scheme in the hope that problems can be corrected later, it is worth the Upper House giving this mechanism some proper attention so that the state does not introduce yet another inadequate scheme and then need to fund a string of inquiries as well as defend costly litigation. B

Endnotes 1 Ombudsman SA, An Audit of Prisoner Complaint Handling in the SA Department for Correctional Services (June 2012) p37.

2 Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Guidelines on National Preventive Mechanisms, (9 December 2010) UN Doc. CAT/ OP/12/5, para 12.

3 As above, para 18.

4 [2020] HCA 22.

October 2020 THE BULLETIN

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PLANNING LAWS

Planning 101 under the Planning Development and Infrastructure Act 2016 – the new system and the role of local government ALISON BROOKMAN, SPECIAL COUNSEL AND FELICITY NIEMANN, PARTNER, PLANNING & ENVIRONMENT, WALLMANS LAWYERS

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his is a simplified summary of South Australia’s planning system and changes occurring at present pursuant to the Planning Development and Infrastructure Act 2016 (PDI Act). As an overview of the legislation, and not a detailed consideration of the Act, this article may be of interest to those lawyers not practicing in this area.

South Australia’s current planning system is a hybrid of that set up by the Development Act 1993 and the PDI Act. This is because the PDI Act is being phased into operation, with some parts of the State already subject to its provisions for assessment of developments. Full commencement of the new planning system is now expected to occur sometime next year1.

PLANNING POLICY Under the Development Act 1993 all councils in the State are required to have a Development Plan which sets out all the planning provisions applicable in the council area. This includes the various zones into which the area is divided and the provisions or requirements applicable to those zones.

Once the PDI Act is fully operational the planning policies and zoning provisions will be found in a State-wide Code, the Planning and Design Code (the Code). This will be an online tool designed to interact with the e-planning system for development applications known as the SA Planning Portal.

The PDI Act establishes the State Planning Commission which acts as the principal planning advisory and development assessment body. It is also the body responsible for writing and maintaining the Code. The Code will set out the planning policies for the whole State against which developments must be assessed to determine whether approval

28 THE BULLETIN October 2020

will be granted. A council cannot initiate an amendment to the Code, unless it has the approval of the Minister acting on advice of the Commission. One of the more noticeable differences under the new system is that the setting of planning policy will be a very limited function of local government.

A number of council Development Plans have already been revoked as the Code is operational in outback and rural areas. Implementation of the Code in metropolitan Adelaide and a number of large towns has recently been deferred by the government, in these areas the existing Development Plans remain in force.

delegated authority of the council as the relevant authority. Now councils must appoint Assessment Managers and a Council Assessment Panel (CAP) which acts with its own powers pursuant to the PDI Act. There are provisions for other panels in some circumstances, but the CAP will be the most common.

A council itself may be a relevant authority, but this is limited to building rules consent and the issue of final development approval, as distinct from assessment against planning policy and the grant of planning consent. Under the PDI Act the council has no direct power to undertake planning assessment.

APPROVAL OF DEVELOPMENT

DEVELOPMENT ASSESSMENT

For most people any interaction with the planning system comes through development assessment, when a development is proposed or concerns are raised about another’s development. Both the Development Act 1993 and the PDI Act set out various pathways for assessment of developments, these are quite different.

Both planning systems provide a general scheme and also provide for larger or more complex developments, those undertaken by the Crown and also for essential infrastructure.

Once again most people are more likely to come across the general scheme of development assessment as this will include the bulk of developments for which approval is sought.

The new planning system retains the concept of relevant authorities, the decision making body relevant for a particular development. There are now more relevant authorities than previously, but the basic principles are similar.

Under the Development Act 1993 councils established Development Assessment Panels which acted with the

Any development must be approved, unless it is exempt. In order for a proposed development to gain approval it will be assessed against the provisions of the relevant Development Plan or the Code. Eventually the Code will be the only relevant instrument.

The Code exists online, see the SA Planning Portal, plan.sa.gov.au. The portal is also the vehicle by which development applications may be lodged online. It will also be the means by which proposed developments are notified, applications tracked, and where decisions are found.

Currently development applications may be lodged online and also over the counter, but it is expected that in due course online lodgment will be required.

The planning assessment of a proposed development means that it is considered in accordance with the applicable zoning provisions to see if it complies, or fits comfortably enough to warrant consent. Often proposed developments are not word for word compliant with the zone provisions.

Similarly zoning will usually describe a

PLANNING LAWS

variety of types of development which may be suitable in the area even if a particular type is most desirable.

An obvious example is a residential zone where dwellings will be desirable and encouraged. However the zone may also include allowance for other uses which may be appropriate such as offices, consulting rooms or perhaps tourist accommodation. There may be threshold criteria applicable to certain developments,

such as a limit of two storeys or buffer areas for industrial uses.

CONCLUSION At present we have two planning systems in operation for different purposes. Once the Code and the PDI Act are fully operational it will be easier to advise with more certainty.

There is an impression that there is more with which to become familiar,

being a larger Act, Regulations, Practice Directions and the online Code, along with new terminology and acronyms. Those practicing in this field will need to become familiar with the PDI Act and its systems just as happened when the Development Act commenced. B Endnotes 1 Media Release - ‘Updated timeline for new planning system rollout’ Attorney-General’s Department, 18 August 2020

October 2020 THE BULLETIN

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ICAC

Commissioner Lander reflects on seven years of investigating corruption, misconduct & maladministration MICHAEL ESPOSITO

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ruce Lander ended his seven-year tenure as South Australia’s Independent Commissioner Against Corruption on 1 September. His final public report, “Looking Back”, reflects on the past seven years as the State’s chief public integrity watchdog and makes a number of recommendations for reform of ICAC legislation.

MEASURE OF SUCCESS Mr Lander said he was proud of what his office had achieved over the past seven years, and expressed the view that the impact and value of the office was not as well understood as it could be.

He made the point that the success of the office should not be measured by way of the number of successful prosecutions that have arisen from an ICAC investigation, but instead should be evaluated by considering he broader impact of the ICAC in terms of enhancing and promoting integrity within public agencies.

“Corruption investigations that do not lead to a prosecution nevertheless result in a detailed review to identify weaknesses in an agency’s practices, policies, procedures and those findings are routinely communicated to agency heads,” Mr Lander said in his report.

Mr Lander cited several examples of investigations leading to significant reforms, including: • Changes to the manner in which Government assesses unsolicited bids (resulting from the Gillman investigation) • Reforms to the operation of mental health facilities (resulting from the Oakden investigation) • Significant improvements in administration and governance practices in the Public Trustee, Safework SA and City of Playford Council, following investigations into those organisations.

The ICAC office has developed training programs to improve governance and promote integrity in pubic bodies, and has published numerous reports based on state-wide integrity surveys, that address integrity issues.

30 THE BULLETIN October 2020

RESOURCES While all agencies would welcome additional resources, Mr Lander by and large has been satisfied with the level of funding allocated to his office.

However, Mr Lander reported that his request for funding to conduct an evaluation of SA Health was rejected by the State Government, who argued that the ICAC office had discretion with regards to the use the funds in its existing budget to conduct investigations.

Mr Lander said that he sought an additional $2 million in funding to evaluate SA Health because “an evaluation of SA Health could not be undertaken at the same cost as previous and current evaluations for the simple reasons that SA Health is so big and so specialised”.

ASSESSING SERIOUSNESS OF CORRUPTION & MALADMINISTRATION Mr Lander observed in his report that his office had progressively become better at assessing evidence and discerning whether the conduct that is the subject of an assessment was likely to amount to corruption.

“We have become better at focusing our investigation resources on the most serious and complex corruption matters

and we have advanced our capacity and expertise to investigate them,” he said.

Mr Lander supported the existing jurisdiction of ICAC, which includes misconduct and maladministration in addition to corruption, observing that the line between misconduct, maladministration and corruption is often unclear, and the evidence the office evaluates in order to discern the gravity of the conduct is often incomplete.

“The benefit of having a single agency capable of dealing with all three forms of impropriety is that it can continue to address a matter even when information changes the way in which the impugned conduct is assessed.”

TRUST V OVERSIGHT: A BALACING ACT The “Looking Back” report reflected on the delicate balance between trust and oversight in public institutions. Mr Lander acknowledged that too much oversight could be oppressive and degrade trust, but noted that there has been a number of occasions where, during the course of the ICAC office’s work, institutions have been found to have had insufficient oversight mechanisms.

He noted the heightened risk of corruption, misconduct and administration when public officers who gain the trust of employers operate with minimal oversight.

ICAC

PARLIAMENTARY CODE OF CONDUCT The travel expenses saga that has dogged the State Liberal Party has given rise to a complex debate about the privileges and ethical responsibilities of parliamentarians.

Mr Lander, in his recent report, repeated his call for a Parliamentary Code of Conduct.

“A code of conduct provides for agreed clear standards and rules by which behavioural breaches can be measured, and provides the justification upon which appropriate disciplinary action may be taken by the parliament,” Mr Lander said in the report.

Mr Lander notes that the original Bill to establish an ICAC included a provision to form a Parliamentary Standards Committee, whose function would have been to monitor and promote standards of conduct and report any contraventions of the standards to the house. However, the clause in the Bill to establish such a Committee was rejected.

“The unique relationship between members of Parliament and their electorates should not be invoked as an argument against accountability,” Mr Lander said. “Misconduct and improper behaviour by members of Parliament does not need to be tolerated as the price for maintaining parliamentary supremacy.”

RECURUITMENT PROCEDURES Mr Lander said in his report that poor recruitment practices created significant risks in public administration, and noted two particularly concerning issues: • Poor screening and vetting practices • Recruitment processes compromised by conflicts of interest, favouritism, nepotism and discrimination In response to Mr Lander’s recommendations, the State Government in 2018 implemented a register of pubic officers who have been dismissed for misconduct or other inappropriate conduct, or who have resigned during the course of investigation into their conduct.

CONFLICT OF INTEREST Mr Lander said conflict of interest issues made up a large chunk of integrity matters that his office has looked into.

“Many public officers, including some in very senior positions, still struggle to understand why integrity in public administration requires that all conflicts of interest be identified, declared and managed,” he said.

The ICAC office has created an online education course that teaches participants about identifying and disclosing potential conflicts of interest, and how they should be managed.

PERVERSE INCENTIVES Mr Lander said in his report that “perverse incentives lurk behind corruption, misconduct and maladministration matters and are usually underappreciated.”

Mr Lander said that examples of perverse incentives included circumstances where people were rewarded for finding efficient means of achieving outcomes which bypass integrity measures.

He also noted the concerning practice of agencies spending unexpended funds before milestone dates with little justification for the need for those funds to be spent. This can result in ill-conceived, unnecessary or unauthorised expenditure.

CHANGING THE NAME In the “Looking Back” report, Mr Lander recommends a name change to better reflect the functions of the Commissioner, noting that ICAC stands for Independent Commissioner Against Corruption and that there is no actual Commission as such.

Mr Lander suggested that A “Public Integrity Commission” be established, and for a Commissioner for Public Integrity to lead that Commission.

“It would allow the public to understand better the scope of the work that my office undertakes and also its purpose,” Mr Lander argued. “The scope and purpose are much broader than corruption alone because they extend to receiving and assessing complaints and reports, receiving disclosures and notifications under the PID Act, the oversight of police complaints and reports and disciplinary investigations, misconduct and maladministration in public administration, evaluations of public authorities and a broad education function.”

DEFINITION OF CORRUPTION Mr Lander said there was merit in narrowing the definition of corruption under the ICAC Act, stating that the broad definition can lead to “curious results”.

Mr Lander preferred a definition of corruption that focuses on behaviour that constitutes an abuse of public office to obtain a benefit or cause a detriment.

DEFINITION OF SERIOUS OR SYSTEMIC CONDUCT Mr Lander suggested that the ICAC Act focuses almost exclusively on serious misconduct and does not pay enough attention to systemic misconduct.

He stated: “Systemic misconduct or maladministration might arise in circumstances where each incident of misconduct or maladministration is not ‘serious’, but collectively these episodes represent a pattern of behaviour or practice that is infecting the whole or large part of a working group, section, agency or body. The systemic nature of the behaviour may be having a significant adverse impact upon integrity in an institution but is not being recognised because it does not meet the present definition.”

OBTAINING DOCUMENTS Mr Lander argued that the power under section 23 (3) of the ICAC Act be amended to enable the Office for Public Integrity (OPI) or Commissioners to issue a notice requiring an inquiry agency, public authority or public officer to produce documents which would assist in the investigation of a complaint.

Mr Lander clarified that the proposed amendments would not abrogate a public officer’s right to claim privilege against self-incrimination.

REFERRALS TO THE DPP Mr Lander asserted that, in his view, the Commissioner was entitled to refer evidence obtained by an investigation into public corruption directly to the Director of Public Prosecutions.

However, a recent District Court judgment1 in relation to an application for a permanent stay of criminal proceedings held that the ICAC’s referral of the matter direct to the DPP was contrary to the ICAC Act. October 2020 THE BULLETIN

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ICAC

Mr Lander said he was surprised by the findings of the judgment but could not comment further as the matter was the subject of an application to the Supreme Court. However, Mr Lander suggested that amendments be made to remove any ambiguity about the powers of the office with regards to referrals to the DPP.

INVESTIGATIONS INTO SERIOUS MISCONDUCT Mr Lander said the ICAC should continue to have the power to investigate serious or systemic misconduct or maladministration.

He stated: “I think the ICAC Act should be amended to enable the Commissioner to investigate serious or systemic misconduct or maladministration using the powers of a Royal Commission as found in the RC Act, together with the requisite power to make findings and recommendations and publish those findings and any recommendations publically if it is in the public interest to do so.”

PUBLIC HEARINGS Mr Lander repeated his opinion that public hearings should be held in appropriate circumstances. He said public hearings would help the public better understand the way the ICAC office operates, and

will provide greater transparency and accountability within the office.

Mr Lander said: “I have consistently stated that where the Commissioner undertakes an investigation into serious or systemic misconduct or maladministration in public administration there is much wider scope for part or parts of the investigation to be held in public. In those investigations the Commissioner is empowered to make findings about whether or not a public officer has engaged in misconduct or maladministration, or a public authority has engaged in maladministration in public administration.”

SECRECY Mr Lander said in his report that, despite holding the view that corruption investigations necessarily need to be conducted in secret, he believed the current secrecy provisions were “over-engineered”.

“Too little regard is had for the public interest and too much regard is had to avoiding reputational harm,” he said. “I think there is scope when it is in the public interest for those investigations, or at least parts of those investigations, to be conducted in the public eye.”

Mr Lander suggested amending Section 56 of the ICAC Act, which deals with restrictions on publishing material relating to a person who is party to an

ICAC matter, by limiting this section to matters being assessed by the OPI. Mr Lander said: “That would protect a person who has been the subject of a complaint or report that the OPI does not consider worthy of any investigation but leave it open to the media to publish information about those who are being investigated. In the case of a corruption investigation there would be no public report until the investigation is complete, which would protect the integrity of the investigation.”

Mr Lander also recommended amendments to section 54 of the Act which deals with maintaining the confidentiality of material connected to an ICAC matter.

Mr Lander said this section was so broad that it captured benign information that did not need to be kept confidential.

“Consideration ought to be given to reversing section 54 so that information of the kind captured by that section is permitted to be disclosed to another person where the person is satisfied that the disclosure is reasonable in the circumstances, unless there is direction issued by the Commissioner … requiring the information to be kept confidential,” Mr Lander proposed. B Endnotes 1 R v Bell [2020] SADC 107

Ann Vanstone begins new role as Corruption Commissioner

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etired Supreme Court Justice Ann Vanstone QC began her role as Independent Commissioner Against Corruption and Judicial Conduct Commissioner on 2 September.

Ms Vanstone was appointed to the District Court in 1999 and was elevated to the Supreme Court in 2003, where she remained until her retirement from the bench in 2019.

Ms Vanstone was also Chair of the Electoral Boundaries Commission, and in 2016, delivered a decision on the redistribution of State electoral boundaries, which withstood an appeal to

32 THE BULLETIN October 2020

the full bench of the Supreme Court.

More recently, Ms Vanstone was appointed to lead a review of Royal Commission legislation in SA. Attorney General Vickie Chapman said Ms Vanstone was “exceptionally well qualified” to undertake the role of ICAC. ““Ms Vanstone has an extensive understanding of the public service, and a strong, analytical mind,” Ms Chapman said.

“She has also been a trailblazer within the profession - as the third woman to be appointed to the Supreme Court, and part of the first all-woman Court of Criminal Appeal.”

“I have every confidence Ms Vanstone will bring the same degree of rigour and integrity to her approach in this important role that she has in every other aspect of her legal career.

Ms Vanstone made her first public statement as Commissioner on 7 September, when she communicated that she intended to continue the investigation started by Bruce Lander with regards to travel expenses of Liberal MPs Terry Stephens, Fraser Ellis and Adrian Pederick, but has withdrawn a notice requiring them to produce documents, instead requesting a narrower group of documents. B

FAMILY LAW

Ground-breaking project to manage high-risk family law matters MICHAEL ESPOSITO

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technological innovation that originated in South Australia will be used to help vulnerable litigants going through the Family Court and Federal Circuit Court.

The Lighthouse project is a framework that will screen for high-risk cases, particularly parenting matters where participants are exposed to the threat of family violence.

The project will be rolled out in Adelaide, Paramatta and Brisbane and involves: • Early identification and management of safety concerns.

• Assessment and triage of cases by a specialised team, who will provide resources and safe and suitable case management.

• Referring high-risk cases to a dedicated court list, known as the Evatt List in the FCC. The Lighthouse Project is based on the Family DOORS program, developed in South Australia and originally implemented

by Relationship Australia SA as an evidence-based risk screening framework to keep children safe.

The web-based application is designed to assist professionals to detect and evaluate risks before they escalate, and is designed to be used by all helping professionals, including family law practitioners, counsellors, psychologists and social workers.

The tool was created by clinical child psychologist Professor Jennifer McIntosh, who piloted the tool with Relationships Australia SA before it was adopted around Australia and even internationally.

The technology has been adapted for the family law system, and the Family and Federal Circuit Courts have received $13.5 million in funding over 2.5 years to run the Lighthouse Project.

The funding also covers the appointment of additional registrars, including Senior Registrar Kathryn Heuer in South Australia, and extra family consultants. One of the key roles of Ms Heuer will be to help parties navigate the system by hearing interim orders and making trial directions (in consultation with

the judge) for the Evatt list. Fellow staff, such as other registrars, family counsellors, and case coordinators, will be involved in triaging the cases, which includes placing parties in appropriate streams (for example placing parties on the Evatt list if the risk profile is “Red”, or referring parties to alternative dispute resolution if their risk profile is on the lower end.

The pilot program involves a four-step process for assessing and responding to risk as effectively and efficiently as possible:

SCREENING When an Application or Response for parenting only orders is filed with the Courts, parties will be asked to complete a questionnaire via a confidential and secure online platform known as Family DOORS Triage. Developed specifically for the Courts, this can be completed safely and conveniently from any device including a PC, mobile phone or tablet.

Responses are confidential and are only used for risk screening and referral to health support, and to identify suitable case management to improve the safety and wellbeing for children and families.

TRIAGE & CASE MANAGEMENT A dedicated, specialised team will assess and direct cases into the most appropriate case management pathway based on the level of risk. The team is made up of highly skilled registrars, family counsellors, and support staff with detailed knowledge in family violence and family safety risks. The team will triage matters and identify parties who may require additional support and safety measures.

Those cases needing greater support will be offered appointments with family counsellors to engage with health services and implement safety measures. Cases will also be offered safety planning and service referrals as part of the online screening process.

EVATT LIST This specialist court list is designed to assist families that are identified as being at

high risk of family violence and other safety concerns. The Evatt List focuses on early information gathering and intervention, through a judge-led support team. The team has specialised training and is experienced in working with families where high-risk safety issues have been identified.

The way in which the court responds will be based on the program’s “traffic light” risk indication system, where a red light indicates high-risk, amber light indicates medium risk and green light is low risk.

The process of evaluating risk considers a number of factors such as family violence, mental health issues, and drug or alcohol misuse. The courts will then be able to provide tailored supports to participants, depending on their risk profile. This may include referring participants to external supports such as a domestic violence services or psychologists, or it may involve the engagement of an in-court family counsellor.

Critically, those cases identified as high risk will be heard and determined swiftly through the Evatt List. In South Australia, Judge Kari, Judge Kelly and Judge Brown will sit on the Evatt list.

There will also be a greater focus on referring less complex matters to alternative dispute resolution, rather than unnecessarily putting parties through a costly and timeconsuming trial process. This benefits the parties involved and also reduces delays in the more complex matters that do need to be heard in court.

The project team is undertaking a program of consultation and training with key stakeholders. For enquiries please email the Courts at: LighthouseProject@ familycourt.gov.au Details of the Bill to establish the project can be found here: https://www. aph.gov.au/Parliamentary_Business/ Bills_Legislation/Bills_Search_Results/ Result?bId=s1267 The Bulletin expresses its thanks to Family Court of Australia and Federal Circuit Court of Australia Registrar Lisa O’Neill, who has been instrumental in setting up the Lighthouse Project, for taking the time to speak to the author about the establishment, purpose and roll-out of the project. B October 2020 THE BULLETIN

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TAX FILES

Principal Place of Residence exemptions of the Land Tax Act PAUL INGRAM, MINTER ELLISON

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he Principal Place of Residence (PPR) exemptions of the Land Tax Act 1936 (SA) (Act) are relatively complex, and raise some tricky issues in practice. There also appears to be some confusion as to how they have been affected by the Land Tax (Miscellaneous) Amendment Act 2019 (the Amending Act). This article will summarise the key points.

POSITION BEFORE THE AMENDING ACT a. The Land Tax Act contains a series of different PPR exemptions: i. complete exemption: • section 5(10)(a) – the base exemption; • section 5(10)(ab) –where the relevant building has been destroyed or rendered uninhabitable; • section 5(10)(ac) – where the relevant building is being renovated or rebuilt; • section 5(10)(ad) – which appears to cover newly acquired land that contains a building that is being renovated or rebuilt; • section 5(10)(ba) – hotels, motels, serviced holiday apartments or similar where more than 75% of the total floor area of all buildings on the land is used for the owner’s PPR; ii. partial exemptions where more than 25% but less than 75%, of the total floor area is used for a business or commercial purpose: • section 5(10)(b) – the base exemption; • section 5(10)(bb) – an additional exemption for hotels, motels, serviced holiday apartments or similar.

Each exemption has its own eligibility criteria and qualifications, and will need to be carefully considered. Refer in particular sections 5(10a) to 5(12a) inclusive.

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The term ‘principal place of residence’ is not defined. However, the Commissioner’s ‘Guide to Legislation’ states as follows (at page 18): ‘A principal place of residence is where the property: – is the primary residence of the natural person owner(s); – is the natural person owner(s)’s usual abode; (i.e. where they eat and sleep); and – is occupied on an ongoing basis and occupation is not merely transitory or an intention to occupy.’ b. Importantly, where there are two or more joint owners, the house only needed to be the PPR of one of those joint owners. However, this was subject to the ‘minority interest provisions’ of section 13A, which: • automatically ignored interests of 5% or less (subject to the Commissioner’s satisfaction that the creation of the interest was for purposes unrelated to reducing land tax); • gave the Commissioner the power to ignore interests of greater than 5% but less than 50%, if satisfied that one of the purposes for the creation of the interest was to reduce land tax. c. All of the exemptions required the relevant owner to be a natural person.

However, the term ‘natural person’ did not exclude a natural person holding in his or her capacity as trustee.

Accordingly the exemption could be claimed where one of its owners was a natural person trustee who can pass the PPR test. But it could not be claimed where the relevant owner: • was a natural person trustee who could not pass the PPR test (ie. because he or she did not reside at the property, even though another beneficiary did so); or • was a corporate trustee.

POSITION AFTER THE AMENDING ACT a. The Amending Act does not change the wording of the PPR exemptions themselves. However, there are a couple of other changes that need to be noted (see below). b. Where there are two or more joint owners, the house still only needs to be the PPR of one of those joint owners and while the minority interest provisions of section 13A have been repealed. New section 5AA re-enacts them (with some differences in wording) for the purposes of the PPR exemptions only. Accordingly, the position summarised in paragraph 1(b) is essentially unaltered. c. But the Amending Act actually expands the scope of the PPR exemptions in relation to trusts. While it is still not possible to claim the PPR exemptions where the trustee is either: i. a corporate trustee; or ii. a natural person trustee who does not satisfy the PPR test, it may be possible to access the PPR exemptions where the following conditions are satisfied, namely: iii. in the case of land held by a discretionary trust- the interest was held in the discretionary trust as at midnight on 16 October 2019, the corporate trustee or non-qualifying natural person trustee nominates a ‘designated beneficiary’ under section 13A on or before 30 June 2021, and that designated beneficiary can pass the PPR test; iv. in the case of land held by a unit trust or fixed trust – the corporate trustee or non-qualifying natural person trustee makes a nomination under section 12 or 13 (as relevant), and all unitholders/beneficiaries can pass the PPR test.

The provisions achieve this by deeming the designated beneficiary/unitholder/

TAX FILES

beneficiary to be the owner of the land for the purposes of the PPR exemptions.

In this regard, Revenue SA’s new portal allows the designated beneficiary/ unitholder/beneficiary to indicate that the land is his or her PPR. Many advisers thought that this would be sufficient claiming of the exemption, without having to also lodge an additional application form. However, it is now understood that where RevenueSA are unable to verify that the designated beneficiary/unitholder/beneficiary uses the home as his or her PPR through their

own investigation, they will be contacting taxpayers and asking them to lodge the additional application form. d. One other point is that where the trustee of a discretionary trust is itself exempt (ie. because that trustee is a natural person who can pass the PPR test): • there is no need to nominate a designated beneficiary in order to seek the exemption; • but the trustee may wish to do so anyway, in case the land ceases to be his or her PPR at any point in time after 30 June 2021 (as otherwise

the higher tax rates will apply, as no designated beneficiary can be nominated for a discretionary trust after that date).

In this regard, section 13A(10) appears to confirm that the PPR exemption will continue to apply while any trustee continues to occupy the land as his or her PPR, even if the designated beneficiary has moved out.

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

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RISK WATCH

Financial Certificates: Why Take the Risk?

GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

O

ne of the most common questions received at Law Claims goes like this: “A client is looking to [borrow some money/ refinance/go guarantor] for their [son/daughter/ nephew/niece/family/trust/company] and the Bank wants me to sign a certificate about giving the client independent legal advice… I seem to remember that there is some issue with these sorts of things. Does my insurance cover this?”

There are indeed “issues with these sorts of things”—issues which go back over twenty years and which might not be known to less experienced practitioners, or which might have been forgotten by more experienced practitioners1. For present purposes, the story starts with the important High Court judgment in Commercial Bank of Australia v Amadio [1983] HCA 14 where a mortgage and guarantee provided by Mr and Mrs Amadio to support borrowings by their son’s building company was set aside, in summary because Mr & Mrs Amadio had no proper understanding of the effect of the documents they signed. This led to financiers seeking from borrowers’ security providers (i.e. mortgagors, guarantors, indemnifiers etc.—collectively referred to herein as security providers) greater comfort from those security providers that they did in fact understand the documents they were signing as a regular part of their lending procedures.

The financiers may seek a certificate from a lawyer engaged by the security provider that the lawyer has given the security provider legal advice about the nature and effect of the transaction being entered into. Some certificates even go so far as having the lawyer certify that the security provider “understood” the transaction. The very fact that the financiers are seeking such certificates should raise alarm bells—why do the financiers want these certificates? Two reasons spring to mind—the financiers are (1) seeking to outsource to the lawyers the task of explaining the documentation to the security providers and (2) looking to have someone else (i.e. the lawyer) to sue if

36 THE BULLETIN October 2020

the borrower doesn’t pay and the security provider seeks to set aside the transaction based on Amadio type considerations.

The result of all this was, in the mid1990s, a number of legal practitioners were sued—by both financiers and security providers—in respect of the provision of these certificates—see, for example, Micarone and Bechara v Perpetual Trustees (SA Full Court) (1999) 75 SASR1 and Citibank v Nicholson; Pirrotta v Citibank (1997) 70 SASR 206. The effect of these and other cases was to set a very high standard required of lawyers providing these certificates and resulted in Law Claims issuing warnings about the extreme risks involved in such work.

The cases make it clear that advice on financial transactions goes beyond “traditional” legal advice on the nature of the transaction, the terms of the documents, and the rights of the parties. It extends to advice which takes into account commercial and personal matters, so that the client understands the actual legal, financial and personal risks he or she is undertaking.

Such a high standard of care for solicitors is set that it continues to be the view of Law Claims that it is better not to give certificates of independent advice in

financial transactions. It has often proved the case that where security providers have gone back to the financier saying that “my lawyer won’t do this sort of work” the financiers may not insist on the provision of the certificates. Notwithstanding this, however, problems for lawyers continue to arise—see the recent Victorian case in this area of Jams 2 Pty Ltd v Stubbings [2020] VSCA 200 (5 August 2020) where one of the several lawyers involved in various financing transactions gave a financial certificate and was forced to settle the claim against him. The settlement was, in all probability, required in order to avoid findings of breach of duty.

There may, however, be occasions in practice where it is necessary to give independent advice on financial transactions, and where appropriate give a certificate of independent advice. Where that advice is unavoidable, the relevant cases make it very clear that, to fulfil his or her duty, a solicitor must: • make whatever investigations are necessary to fully understand the transaction, the interests of the parties involved in it, and the prudence of entering into it; and • give careful and substantial advice.

RISK WATCH

Certainly, solicitors without extensive commercial experience should not attempt to advise on financial transactions, nor give a certificate. Anyone giving this sort of advice should be familiar with the relevant cases, being at least those referred to above, as well as McNamara v Commonwealth Trading Bank (1984) 37 SASR 232.

In many cases, this advice is likely to involve hours of work, and several appointments. It is very difficult to strike a balance between too much and too little information, and it is not enough to merely go through the document clause by clause. The difficulties inherent in certifying someone else’s understanding ought to be obvious.

From a risk management point of view, key areas that a practitioner needs to address if considering providing legal services in this area are: • Open a file in the client’s name • Insist on identification • Keep copies of the identification documents • Use an independent interpreter when appropriate • If there is more than one security provider, consider whether their interests are the same. Does one need to obtain independent advice?

• Advise any security provider independently of the borrower • Address the possibility of undue influence or duress • Advise the client about the key elements of the documents and the worst case scenario • Ask the client why they are entering into the transaction and record the answer • Make a comprehensive file note of all attendances on your client, whether in your office or elsewhere • Check that your file notes: ○ are dated; ○ identify the author; ○ record the duration of the attendance; ○ record who was present or on the telephone;

○ are legible to you and someone else; and ○ record the substance of the advice given and the client’s response/ instructions • Confirm your advice in writing and seek a signed acknowledgement from the client.

Make sure that your advice is complete.

It is important to explain to clients in the simplest language possible important issues such as: • Joint and several liability • That where a mortgage is involved the mortgagors could lose their homes • That the amount the security covers can be more than the amount borrowed.

The client needs to understand the general nature and effect of the documents and what could happen in the worst case scenario. Asking your client at the end of your explanation what he or she understands to be the position, and recording such responses, is one way of ascertaining the degree of understanding.

It is not sufficient evidence of understand for the client just to nod and say “yes, I understand”. The client needs to state what he or she understands.

Even though the cases say that the lawyers’ duty extends to making sure the client understands the actual legal, financial and personal risks he or she is undertaking, no actual financial advice should be provided—refer the client to a qualified accountant or financial advisor and ensure they have enough time to obtain this advice. Financial advice is not covered by the terms of the Professional Indemnity Insurance Scheme.

In the Bechara case referred to above, the Court found that it was not enough to advise that the client get independent financial advice about an aspect of the transaction. The solicitor should have declined to provide the certificate until that advice was obtained. In cases where any aspects of the transaction and risks are unclear, it seems that it is the solicitor’s duty to refuse to act further and to

refuse to assist the client to enter into the transaction.

Further, given that doing such a job properly will likely involve a substantial bill—it would not be surprising, where everything properly required was done, if the bill was several thousand dollars and possibly more in complex transactions— it may be that the client is not actually prepared to pay. This, of course, is another reason to be especially wary of these sorts of matters.

The Law Claims Scheme recognises the heightened risks to practitioners in carrying out this sort of work by providing for a triple excess to be payable by the insured practitioner if a claim arises out of or is contributed to by any matter in relation to which the insured was retained to provide any advice or any certification in respect of a proposed guarantor, indemnifier, surety, mortgagor or co-borrower who was not to derive substantial direct financial benefit from the said transaction (Policy of Insurance, cl. 4.5). For small practices (three practitioners or conveyancers or fewer) this will increase the excess from $5,000 to $15,000. For the largest practices (fifty-five practitioners or conveyancers or more) it will increase the excess from $60,000 to $180,000. The message to take from this is that it is really not worth taking on this sort of work unless your client is prepared to pay properly for the substantial amount of work involved and the level of care and attention you are prepared to pay to the matter is commensurate with this greatly heightened level of risk.

Endnotes 1 For previous articles relating to this matter see Advice in Financial Transaction and Guarantee Certificates by John White—Riskwatch March 2008, Risky Business: Financial Certificate Claims and Professional Indemnity Insurance by Graham Edmonds-Wilson—Riskwatch September 2009 and Law Risk on Financial Certificates—by John Doyle—Riskwatch July 2013. Much of this article is based on these previous articles.

October 2020 THE BULLETIN

37

FAMILY LAW CASE NOTES

Family law case notes KELEIGH ROBINSON, THE FAMILY LAW BOOK Property – Consent orders obtained based on false information for the purpose of defeating creditors, in most circumstances, justifies an order varying or setting aside the order under s 79A of the Act n Cantrell & North and Anor [2020] FamCAFC 175 (23 July 2020) the Full Court (Ryan, Aldridge & Austin JJ) dismissed an appeal where a couple had entered into consent orders and transferred the former matrimonial home to the wife; and where the Supreme Court of New South Wales declared that the transfer was void against a creditor of the husband pursuant to s 37A of the Conveyancing Act 1919 (NSW), setting the order aside pursuant to s 79A. [T]he creditor was owed $381,000 plus interest, primarily made up of costs orders made against the husband.…. In their application, the couple “wrongly and misleadingly answered ‘No’” as to whether there were any creditors entitled to become a party to the case.

The wife said that the Supreme Court erred in setting the orders aside as it had not considered whether substantially different orders would have been made, had there been proper disclosure.

The Full Court said (from [58]): “ … [W]e do not accept that where there has been a failure to disclose to the Court the existence of a significant creditor who was entitled to join the proceedings, the Court must proceed to consider what final property settlement orders would have been made under s 79 … of the Act assuming proper disclosure. ( … ) [59] … [W]here consent orders have been obtained from the Court on the basis of false information for the purpose of defeating creditors, in most circumstances, this will be sufficient to justify an order varying or setting aside the order under s 79A of the Act. ( … ) [83] The final [s 79A(1)(a)] step may involve a comparison between the orders that were made and those that were likely to be made, absent any relevant default,

I

38 THE BULLETIN October 2020

but that is not the only means by which a Court could be satisfied that it was just to vary or set aside the orders. A denial of procedural fairness … is … sufficient to be able to justify such a course without such comparison ( … ).”

Property – Court’s power to set aside orders pursuant to s 90SN is not fettered by common law considerations In Hadwick & Scadden [2020] FamCAFC 168 (16 July 2020) the Full Court (Aldridge, Watts & Tree JJ) dismissed with costs an appeal where after consent orders had been made, the de facto wife (“respondent”) sought that the orders be set aside pursuant to s 90SN of the Act on the ground of non-disclosure; the de facto husband (“appellant”) seeking that her application be summarily dismissed pursuant to s 45A(4) of the Act. The appellant argued that “the doctrine of res judicata applies to preclude the respondent from ever raising the issue of the adequacy of … disclosure again” and that the Anshun principle applied.

The Full Court said (from [23]): “ … [R]es judicata and the principle in Anshun are common law doctrines … which have no application to the statutory rights provided by s 90SN of the Act. (…)

[24] The sets of circumstances in s 90SN(1) of the Act which can justify the setting aside of the otherwise final property settlement orders extend beyond the common law entitlements to have a judgment set aside for fraud or misrepresentation … There is no reason to read s 90SN(1)(a) … other than in accordance with its terms which make it plain that it is not fettered by the common law considerations of res judicata, issue estoppel or the principle in Anshun. ( … ) [26] The fact that a party could have obtained full disclosure but decided not to do so before entering into consent orders is not therefore a bar to relief under this section. … [T]he applicant’s claim that the respondent is estopped from pursuing

proceedings pursuant to s 90SN of the Act is misconceived. ( … ) [36] … [T]he judicial controversy in the two proceedings is quite different. In proceedings under s 90SM of the Act, the controversy is the identification and proper distribution of the parties’ property. A claim under s 90SN(1) of the Act, raises the controversy as to whether there has been a miscarriage of justice such that earlier orders should be set aside.”

Children – Single expert witness’s professional obligations to the court do not constrain that expert from giving evidence under subpoena in criminal proceedings In Joplin & Parkins [2020] FamCA 403 (26 June 2020) Cleary J dismissed a father’s application to have a single expert (“Dr Z”) released from his obligation to the Court to not use or disclose the contents of his report, the factual underpinnings of his report, and any information obtained in preparing the report. The release was to aid Dr Z’s compliance with a District Court subpoena to give evidence, where the father had been charged with sexual assault of a 15 year old.

The Court said (from [35]): “Dr Z apparently expressed his concern about compromising his ability to perform as a single expert if he gave evidence in the criminal trial. ( … ) [37] ( … ) His concern was that he may be in breach of the law. ( … ) [46] ( … ) This Court cannot dictate matters of practice and procedure in another Court. ( … ) [56] A single expert has obligations to the Court which appoints him/her.

[57] By accepting the appointment of the FCC Dr Z accepted that his duty to the Court was guided by the Federal Court Practice Direction Guidelines including that he be an impartial witness.

[58] Within the context of the parenting proceedings … an expert witness is not and cannot be an advocate for a party. ( … )

FAMILY LAW CASE NOTES

[61] … [I]n a criminal trial, the role of Dr Z …, would not be that of a single expert … but as a witness called to give evidence on matters considered relevant by the party calling such evidence. ( … ) [65] Dr Z has remained an impartial witness by requiring his service with a subpoena to compel his evidence.

[66] He is not constrained by his professional obligations arising from his work in the FCC and this Court from answering questions put to him as a witness in the criminal trial.”

The mother relied on a medical certificate from a general practitioner that identified the child as “a person at risk of severe disease if he contracts COVID-19” and recommended that the child “socially distance … [including] staying home with … [his] primary carer and not … [attend] visits with his Father” ([19]).

Listed on an urgent basis in the Court’s COVID-19 List, the Court directed that an updated medical report be obtained from a paediatric clinic, which said the child’s condition was “not currently considered ‘high-risk’ for severe COVID-19 related illness”, that “attending school is safe and that family members and contacts should comply with government implement social distancing recommendations” ([27]).

The Court said (from [32]): “Whilst the initial medical evidence provided … was somewhat vague and required further clarification …, the medical advice provided to the mother was that, as a result of a pre-existing health concern, the child was at greater risk of suffering an adverse reaction to a possible

Children – Contravention – Parents in COVID-19 List directed to obtain updated medical report – Mother had reasonable excuse not to comply with order until release of the updated medical report, but not afterwards In Pandell & Walburg (No. 2) [2020] FCCA 1853 (13 July 2020) Chief Judge Alstergren heard conflicting medical evidence as to a 4 year old’s risk of contracting COVID-19, the mother withholding the child from time with the father in breach of interim parenting orders.

COVID-19 infection. [I] find that the mother, at that stage, had a reasonable basis for not allowing the child to spend time with the father. … [I] find that the mother has a reasonable excuse for contravening the interim orders up until 5 June 2020. ( … ) [35] From 5 June 2020 or when the updated report came to the mother’s attention, … there was no reasonable basis for the mother believing that it was necessary to withhold the child from the father, after that date, on health grounds.

The mother therefore lacked a reasonable excuse for so withholding the child after 5 June 2020. ( … ) [40] Extensive periods of make-up time with the father would be difficult for the child in this matter, who is 4 years old.

However, … it is appropriate that some make-up time should be provided, but not to the extent sought by the father.”

In addition to compensatory time over 4 weeks, the Court extended the father’s time pursuant to the existing interim orders by two hours on a Sunday. B

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39

WELLBEING & RESILIENCE

20/20 Wellbeing in 2020 ZOE LEWIS, JUSTICENET

I

’m embarrassed to admit that last year I was hospitalised as a result of my determination to do chin-ups. No, I didn’t fall off the gym equipment and knock myself out… I actually pushed myself to the point of developing exertional rhabdomyolysis. (You can Google it if you’re interested.)

After spending hours researching online, I discovered that “rhabdo” is seen as somewhat of a badge of honour within some fitness communities. I even came across a cartoon character called “Uncle Rhabdo”! Reported cases of “rhabdo” have significantly increased in recent years, which is thought to be partly due to our obsession with fitness extremes.

However, there is something else on the rise as well – obesity. Given that two thirds of Australian adults are overweight or obese, it seems we are living in a time and place where health extremes at both ends of the scale are thriving.

With this in mind, I wonder whether perhaps, as we progress towards the end of 2020, we might start to think of our 20/20 wellbeing like 20/20 vision.

It surprised me to learn that 20/20 vision is not perfect eyesight. Rather, it is about whether or not you can see clearly at 20 feet what should normally be seen from that distance. For many people with 20/20 vision, corrective lenses could still improve their overall vision quite considerably, but it isn’t usually considered necessary as the person still enjoys quite good vision.

So perhaps we could adopt a similarly moderate approach to health and wellbeing – aiming for reasonably good rather than striving for perfection.

If you read about health and wellbeing as obsessively as I do, you will find that there are a growing number of blogs and articles about the detrimental effects of pursuing greater health and wellbeing with too much gusto. It can cause eating disorders, fuel the harmful effects of

40 THE BULLETIN October 2020

perfectionism and anxiety, or just make us worry about yet another thing.

Two litres of water. Eight hours of sleep. Ten thousand steps. Ten serves of fruits and vegetables. The last thing the legal profession needs is another list to get through.

It is easy to think of our health and wellbeing as a checklist of numbers such as these. And whilst sleep, exercise, hydration and nutrition are all essential components of taking care of ourselves, a recent debate with colleagues about whether we might in fact be drinking too much water, made me wonder if maybe we have rather overcomplicated things for ourselves.

Both of my grandmothers were healthy into their 90s despite never eating kale – or suffering through chin-ups.

True wellbeing doesn’t need to involve the perfectly balanced meal, the perfect gym attire, or the perfect meditation. It’s about finding personal, sustainable habits that really nourish us, inside and out.

Otherwise, we risk making ourselves into a project that is never quite good enough. There is anecdotal evidence to suggest that this phenomenon amped up during our period of lockdown – some people perceived that they had a lot of extra time to dedicate to this goal and so pursued it more doggedly than ever.

The truth is that seeking out expert, scientific instructions for every aspect of our lives can turn us into obsessive control freaks (well, more obsessive control freaks…). It can also leave us focussed on the wrong things, such as being thin and looking good in yoga pants, rather than having beneficial levels of strength and fitness.

And it can leave us feeling excessively responsible for our health and wellbeing.

The truth is, no healthy habit will prevent us from ever getting sick or guarantee us a good night’s sleep. All we can do is stick to the things that work best for us, as much of the time as we can.

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October 2020 THE BULLETIN

41

GAZING IN THE GAZETTE

3 AUG 2020 – 2 SEPT 2020 ACTS PROCLAIMED Nil

ACTS ASSENTED TO Nil

APPOINTMENTS Judge District Court of South Australia Environment, Resources and Development Court of South Australia Licensing Court of South Australia. effective from 10 August 2020 Adam Patrick Kimber SC Gazetted: 6 August 2020, Gazette No. 66 of 2020 Magistrate Youth Court of South Australia Member South Australian Civil and Administrative Tribunal

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

commencing on 17 August 2020 Panel Member Police Disciplinary Tribunal, Protective Security Officers Disciplinary Tribunal from 17 August 2020 until 28 April 2023 Benjamin James Sale Michelle Louise Sutcliffe as Gazetted: 13 August 2020, Gazette No. 67 of 2020 Commissioner South Australian Employment Tribunal for a term of two years commencing on 21 September 2020 and expiring on 20 September 2022 Anne McDonald Gazetted: 13 August 2020, Gazette No. 67 of 2020 Magistrate (on a full time basis in place of his earlier

appointment on 21 January 2016 to the office of Magistrate on a part-time basis (0.5 full-time equivalent) that commenced on 21 January 2016) commencing on 2 September 2020 Rodney Oates Gazetted: 27 August 2020, Gazette No. 70 of 2020

RULES Magistrates Court Rules 1992 Amendment No. 84 Gazetted: 6 August 2020, Gazette No. 66 of 2020 Uniform Civil (No 1) Amending Rules 2020 Gazetted: 13 August 2020, Gazette No. 67 of 2020 Youth Court of South Australia Gazetted: 27 August 2020, Gazette No. 69 of 2020

REGULATIONS PROMULGATED (3 AUGUST 2020 – 2 SEPTEMBER 2020) REGULATION NAME

REG NO.

DATE GAZETTED

COVID-19 Emergency Response (General) Regulations 2020 Australian Energy Market Commission Establishment Regulations 2020 Subordinate Legislation (Postponement of Expiry) Regulations 2020 Adelaide Dolphin Sanctuary Regulations 2020 Disability Inclusion (Publication of Plans) Variation Regulations 2020 Sheriff's Regulations 2020 State Procurement Regulations 2020 Fisheries Management (Marine Scalefish Fisheries) (Quota) Variation Regulations 2020 Fisheries Management (Blue Crab Fishery) (Quota) Variation Regulations 2020 Fisheries Management (Lakes and Coorong Fishery) (Quota) Variation Regulations 2020 Fisheries Management (Rock Lobster Fisheries) (Quota) (No 2) Variation Regulations 2020

253 of 254 of 255 of 256 of 257 of 258 of 259 of 260 of 261 of 262 of 263 of

13 August 2020, Gazette No. 67 of 13 August 2020, Gazette No. 67 of 13 August 2020, Gazette No. 67 of 13 August 2020, Gazette No. 67 of 20 August 2020, Gazette No. 68 of 20 August 2020, Gazette No. 68 of 20 August 2020, Gazette No. 68 of 27 August 2020, Gazette No. 69 of 27 August 2020, Gazette No. 69 of 27 August 2020, Gazette No. 69 of 27 August 2020, Gazette No. 69 of

MEMBERS ON THE MOVE ANDREA MICHAELS

JOSHUA DAVIES

42 THE BULLETIN October 2020

2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020

Andrea Michaels is stepping back from her role as Managing Director of NDA Law, with Joshua Davies to take up the position of new Managing Director.

Ms Michaels, the State Member for Enfield, said she will step back from her role with the firm she established in 2015 to concentrate on her political career, and has been working on succession planning for the firm since entering Parliament in February 2019.

She will remain an owner of the firm and will spend transition time with clients before stepping back to work in an advisory role on the firm’s board.

Mr Davies specialises in civil litigation and his firm, Joshua Davies Legal, will merge with NDA Law in the coming months.

2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020

Ms Michaels said: “While I am reluctant to move away from my role at NDA Law, playing a more prominent role in politics has been my objective. I want to use my commercial knowledge and experience in the wider business environment to help strengthen our state and to contribute to better decision-making in a way that can reflect all voices in our community.”

Mr Davies said Joshua Davies Legal will bring additional knowledge in building and construction, civil litigation and banking and finance to NDA Law’s current speciality areas of tax, estate planning, employment and commercial law.

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