The Bulletin - Law Society of South Australia

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 43 – ISSUE 9 – OCTOBER 2021

MIGRATION LAW COVID’S IMPACT ON MIGRATION LAW SUPPORT FOR AFGHAN REFUGEES TRAVEL EXEMPTIONS & PARTNER VISAS

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 43 (9) LSB(SA). ISSN 1038-6777

CONTENTS MIGRATION LAW 6

REGULAR COLUMNS

The Power of One: Ministerial Discretion under the Migration Act 1958 By Emily Rutherford

22

Exploring the Parameters of Executive Detention following the High Court’s Decision in Commonwealth of Australia v AJL20

By Dr Sarah Moulds & Raffaele Piccolo

4

President's Message

5

From the Editor

33

Tax Files: All in it together - Payroll Tax Grouping By Paul Tanti

34

Wellbeing & Resilience: Musings of a migrant workerg By Rosalina Torrefranca

35

Young Lawyers: Golden Gavel Heads to Golden North Heartland

By Patrick Kerin & Mikayla Wilson

8

The Afghanistan Response Clinic: Helping refugees in crisis By Rebecca Ross

10

Travel exemptions & partner visas: What’s going on? By Catherin Follett

FEATURES & NEWS

12

The end of dual regulation and the practice of immigration law

By Mitchell Simmons

26

The new casual conversion regime

By Tom Earles & Ashleigh De Silva

28

Criminal offences of wage theft in Victoria and Queensland By Stephen Ranieri 42 Access to Justice through innovation

By Mario Pegoli, Guglielmo Plain, Tayne Redman, and Cheryll Rosales 43 Asian Australian Lawyers Association 44 builds on cultural diversity goals

By Jessica Teoh 45 Event wrap-up: Legal Profession Dinner

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16

20

Developments on Outer Space Citizenship Theory By Luke Edwards & Christina Lien Should I stay or should I go?

COVID’s impact on Australian migration law By Chris Johnson & Victoria Phillips Mandatory visa cancellation and crimmigration considerations in sentencing Lochlan Reef McNicol

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

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

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

30

36

38 40

Sudden loss of capacity of a sole practitioner David Barnfield

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

46

Something bad has happened in my practice: Can I fix it?

By Grant Feary Members on the Move Bookshelf Gazing in the Gazette Complied By Master Elizabeth Olsson Family Law Case Notes

By Craig Nichol & Keleigh Robinson

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

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

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

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FROM THE EDITOR

Migration lawyers have the ability to change people’s lives

IN THIS ISSUE

MICHAEL ESPOSITO, EDITOR

I

f you ever wanted evidence of the impact that the legal profession can have on the community, you need not look further than the coordinated effort to assist Afghan refugees who have fled Taliban rule.

Hundreds of Afghan refugees have come to Australia, including South Australia, with the Australian Government at this stage allocating 3,000 humanitarian visas to Afghans.

The Asylum Seeker Resource Centre has partnered with a number of law firms and volunteer lawyers to provide free legal assistance to people from Afghanistan through a “pop-up” legal clinic, while in SA, JusticeNet and Refugee Advocacy Service of South Australia established a response clinic to assist with drafting letters to the Minister to reapply for urgent intervention It certainly is an interesting time to be a migration lawyer. Obtaining an Australian visa can be a challenge at the best of times, but the COVID-19 pandemic has exponentially complicated matters.

Compiling the evidence to demonstrate the bonafides of a visa applicant is an immense information gathering exercise, often made more challenging by language barriers, the difficulties of long-distance communication, the stringency of Australian immigration laws, and the significant cost associated with applying for a visa.

The financial impost on families who have one or more members trying to get to Australia can be eye-watering, but, much like those risking death to flee persecution and oppression, many of these visa

4 THE BULLETIN October 2021

applicants are willing to risk so much on what could well be a futile endeavour.

Compounding these challenges is the extraordinary discretionary power of the Minister to approve or deny visa applications.

Probably the most high-profile immigration case is that of the Nadesalingams. Nades and Priya, fearing for their safety as part of the minority Tamil ethno-linguistic group, independently fled Sri Lanka by boat, met and married in Australia, set up life in the Queensland town of Bioela, and subsequently had two daughters.

But the family’s claims for permanent residency have been repeatedly knocked back, meaning the only real chance the family has of saying in Australia is if the Minister for Immigration, currently Alex Hawke, uses his discretionary power to allow them to stay.

Most recently, he granted Nades, Priya and eldest daughter Kopika 12 month bridging visas, but youngest daughter Tharnicaa was kept under a community detention order, meaning the whole family has to remain in community detention in Perth.

Looking at this matter in isolation, the case for them to remain in Australia is utterly compelling. However, the Australian Government is clearly concerned about what kind of precedent would be set by letting them stay.

After all the appeals and cross-appeals, the technical legal arguments and debates over procedural fairness, the fate of this family may ultimately come down to a question of Australia’s moral obligations. B

6

MINISTERIAL DISCRETION Powers exercised by the Minister under the Migration Act

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IMMIGRATION REFORM The end of dual regulation in immigration law

26

CASUAL WORK Workplaces law changes for casual employees

PRESIDENT’S MESSAGE

Migration assistance just one of many examples of pro bono commitment REBECCA SANDFORD, PRESIDENT

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igration law has been the focus of significant attention recently, with unprecedented changes to international travel bringing the processes by which we are legally able to enter and leave Australia into sharp relief. A number of comprehensive changes to immigration law have also been implemented in the last 12 months, including new requirements brought in from 1 January and again in July 2021. With Australia’s international borders now anticipated to open up again in November this year, it seems certain that this area of the law will continue to rapidly shift for some time yet.

In addition to difficulties presented by this frequently changing legal landscape, the recent crisis in Afghanistan created a dramatic influx of people in and outside of Australia suddenly requiring legal advice and assistance to navigate the legal complexities and uncertainty arising from those events. Lawyers around Australia promptly rallied to provide a significant pro-bono response, ensuring those in urgent need of help are able to receive it.

It is to the credit of the profession and those within it who give many hours of their time on a volunteer basis that this response is instinctive, compassionate, and comprehensive. In particular, in response to the needs of Afghan refugees and visa holders in South Australia, we saw a strong response not only from individual practitioners and firms experienced in the relevant areas, but also a coordinated volunteer-led approach from organisations such as JusticeNet, which meant that even law students and lawyers without migration law expertise, were able to assist with the taking of instructions or drafting of supporting affidavits, or could give to fundraising drives to ensure interpreters could be made available where needed.

Across Australia, the responses were the same, with the profession immediately asking, “how can I help?”. That assistance unfortunately appears likely to still be

needed for quite some time yet.1 The legal profession is of course no stranger to the concept of probono work - as a profession, we are one of the strongest contributors of volunteer hours, to the benefit of society generally. In September, the Australian Pro Bono Centre released its 14th Annual Performance Report of the National Pro Bono Target, announcing that Australian lawyers had reported having undertaken a “record-breaking” 641,966 hours of pro-bono legal work in the 2021 financial year - a 16% increase on the 2020 financial year’s numbers, and a 36% lift from the figures reported in 2019. The Target, which is voluntary, encourages its 270 firm, individual practitioner and barrister signatories to make their best efforts to provide at least 35 hours of pro-bono legal services per lawyer per year (with in-house lawyers agreeing to aim for at least 20 hours per year). Nearly 16,500 lawyers around Australia are covered by the commitment, and the Report indicated that during the 2021 financial year, averaged across the Target signatories, each lawyer provided the equivalent of one week’s worth of work during the year on a pro-bono basis - the highest average hours per lawyer in the last decade (though the 2009 benchmark figure of 41.9 hours per lawyer remains the number to beat).

This all indicates that even in the midst of significant upheaval to our work and lives during the pandemic, lawyers stepped up their efforts to help the most vulnerable in our communities.

The Report also identified however that only around 45% of the Target signatories actually met or exceeded their targets, indicating that many in the profession are significantly exceeding that ‘average’ commitment. Indeed, the Report records that 70 individuals provided a total of 5,000 hours, averaging to over 70 hours per practitioner in that group.

The Report also suggests some scope for

growth in this space in South Australia, with our jurisdiction contributing only 1.3% of the total number of hours reported by signatories last year (despite SA being home to 5% of the nation’s lawyers). In case further encouragement is needed, it is worth noting that in addition to the “feel-good” factor, there are also other benefits that can flow from undertaking pro-bono work, including skill development and building of connections within the community. It is also becoming increasingly common that corporate clients with a focus on environmental, social, and governance considerations are looking closely at firms’ pro-bono commitments as a condition for procurement of legal services.

Pro-bono work is often undertaken quietly, without intention or desire for attention to be drawn to it, and is in many respects seen almost as an expected component of the privilege and responsibility that being a lawyer carries.

Though lawyers can sometimes be seen as an easy target for bad publicity, that view certainly does not reflect my experience of the profession as, on the whole, made up of people who are generous and giving, and determined to fight for access to justice for all, especially the vulnerable.

So in recognition of the significance of the sorts of numbers reflected in the Report (especially in a COVID-19 context), I want to take this opportunity, on my own behalf and, though it may be bold of me to do so, on behalf of the public, to sincerely thank all of you who give so freely of your time and expertise in many different places, to support those in need and ensure our fundamental democratic principles are upheld. Your contribution is seen, recognised, and greatly appreciated. B Endnotes 1 Those looking to assist with JusticeNet’s work are encouraged to visit https://justicenet.org.au/ get-involved

October 2021 THE BULLETIN

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FEATURE

The Power of One: Ministerial Discretion under the Migration Act 1958 EMILY RUTHERFORD, ACCREDITED SPECIALIST IN IMMIGRATION LAW, CAMATTA LEMPENS PTY LTD

P

owers able to be personally exercised by the Minister1 pursuant to the Migration Act 1958 (the Act) feature regularly in the media. They have done so again recently in the case of the Biloela family—detained on Christmas Island for three years, and finally released into the community in Perth following the illness of youngest daughter, Tharnicaa.

The spotlight was shone through the Biloela family’s example on powers of the Minister to make a residence determination (to allow them to live in community detention), and on the power to “lift the bar” (to allow Tharnicaa to apply for a visa).

These are just two examples of powers exercisable by the Minister. There are—on my count—19 separate powers which can be exercised by the Minister.

All are non-compellable and nonreviewable.

Why are there so many of these discretionary powers, and are they all justified?

This article will attempt to explain some of these powers, why they exist, and analyse whether the stated purpose is actually being achieved.

POWERS TO SUBSTITUTE A MORE FAVOURABLE DECISION (SS 351, 417 501J) Following a negative outcome on review at the Administrative Appeals Tribunal (AAT), an applicant may ask the Minister to intervene to substitute a more favourable decision. The AAT also may refer a case if they consider it warrants such attention. The Minister is not limited in his or her consideration to the visa which was applied for, and may ignore the regulations and any legislative bars.

A senate committee in 2004 found that the powers therein considered (351 and 417) were being used hundreds of times each year, which suggested that the powers were not for such exceptional circumstances as intended.

The lack of accountability was described as a “black hole” of information.

6 THE BULLETIN October 2021

Guidelines are issued by the Minister as to when intervention may be warranted.

These also set out the types of cases which should not be referred to the Minister at all, which can then be refused by a Departmental Officer. Such a decision is also not reviewable, except potentially for legal unreasonableness.2 From time to time, reports emerge about unique situations which have given rise to an exercise of a ministerial power.

The scenario that comes to mind is that of a family refused a visa to remain in Australia due to their sick child.3 If the AAT has no option but to affirm the Department’s decision (due to health criteria on certain visas not having any waiver option available), it is likely to refer such a case to the Minister to intervene under section 351, to consider substituting a more favourable decision.

When such tales exist, it can be understood why the senate committee in 2004 recommended that the powers remain as “the ultimate safety net”. What cannot be understood however, is why there is so little information available about why the Minister does or doesn’t intervene in individual cases.

POWERS TO “LIFT THE BAR” (SS 46A, 48B, 91F, 91L, 91P) Although these powers are quite different to one another, in a sense they allow a similar outcome. Barriers exist throughout the Act stopping certain people from applying for visas. Section 46A prevents a person who has arrived in Australia by boat from applying for any visa. Only the Minister may allow such as person to make a valid visa application (called “lifting the bar”). Section 48A prevents a person who has already been refused a protection visa from reapplying, and only the Minister may allow them to make a valid application. The section 91F, 91L and 91P powers overcome barriers which apply to certain protection visa applicants.

Photo: Facebook.com

Section 46A applies to the Biloela family, and to every other person or family who arrived in Australia by boat. Does a rationale exist for requiring the Minister to personally intervene to lift the bar to allow each to apply for a visa?

The explanatory memorandum of the Bill introducing section 46A stated that the power was created for “situations of emergency, hardship and overwhelming humanitarian need.” In practice, this is just not the case. Every single person of the “legacy caseload” required a section 46A bar lift to apply for protection visas. This is a group of an estimated 30,000 people.4 One additional consequence of that section has been that persons who arrived in Australia even more than a decade ago by boat, cannot apply for a Bridging visa, if their substantive visa is cancelled.

Dozens of names of people at a time pass over the Minister’s desk for him to personally consider allowing them to be granted a Bridging E visa while they await an AAT hearing. In the meantime, they can be unlawful for years. The Minister has effectively become a bottleneck to the regularisation of their visa status.

POWER TO GRANT A VISA TO A DETAINEE, OR TO MAKE A RESIDENCE DETERMINATION (SS 195A AND 197AB) Certain detainees are unable to apply for a visa for release. This might be

FEATURE

because they have had a visa refused, cancelled, or one of the many bars in the Act may apply. Section 195A allows the Minister to grant them a visa if the Minister considers it to be in the public interest. Section 197AB allows the Minister to allow a person to reside instead in community detention. A pending request to the Minister does not prevent the person’s removal from Australia.

Section 195A is the power used by Peter Dutton MP in 2018 to grant visas to two au pairs. When considered by the Standing Committee on Legal and Constitutional Affairs, recommendations were made for an increase in transparency surrounding the exercise of this power.5 The cost of detaining the Biloela family on Christmas Island for three years was reportedly over $11 million.6 In comparison, it costs approximately $4,429 for one person to live in Australia for a year on a Bridging E visa,7 where they are able to work and contribute to the Australian community.

POWERS WITH RESPECT TO VISA CANCELLATIONS (SS 133A, 133C, 501(3), 501CA) When the Minister personally makes a decision with respect to a visa cancellation, no review to the AAT exists. Judicial review remains on grounds limited by the privative clause (s 474).

The first of these powers, section 501(3) was introduced in 1998, with the stated purpose of being available for “emergency cases”.8 The powers were then substantially expanded in 2014 by the Migration Amendment (Character and General Visa Cancellation) Bill 2014.

The justification given for excluding merits review when introducing the 2014 Bill creating an expansion of such powers was to allow the government to “act quickly and decisively to remove the person from the Australian community”, and to provide “a greater opportunity to ensure noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved.”9 The legislation itself merely requires that the Minister form a state of satisfaction that cancellation is in the national or public interest.

Cases considering the use of the

Minister’s personal powers under section 501CA was last year described as an “explosion of decisions” in the case of Ali v Minister for Home Affairs [2020] FCAFC 109 at [2]. This reflects the huge increase in cancellation decisions being made since the 2014 Bill was passed: 76 character cancellations in the 2013/2014 financial year as against 946 in 2020/2021.10 The courts take their decision-making power in this respect extremely seriously.

Chief Justice Allsop observed in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225: By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. …

The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required

by Parliament.

In the most recently published statistics of the Department of Home Affairs (31 May, 2021), it was reported that a total of 786 people were being held in immigration detention as a result of character cancellations. The greatest number of these (176) are New Zealanders. The average period of time for people held in detention (not confined to character cancellations) is 668 days. Again, in comparison to 2013, this has increased from less than 100 days.11

The statistics would suggest that the stated aim of allowing the government to remove people quickly from Australia is not being achieved, but rather keeping people in immigration detention for excessive periods of time. The removal of merits review from large numbers of people serves only to shift the burden onto the courts instead, and disallows an important safeguard of administrative decision making for those affected.

CONCLUSION Questions remain as to why so many discretionary powers are granted to the Minister by the Act, and whether their use in practice is warranted. Calls for greater transparency and accountability have gone unheeded, and instead powers have expanded. When the exercise of (or refusal to exercise) these powers creates such an excessive cost as seen in the case of the Biloela family, we are reminded again to maintain those calls. B Endnotes 1 There are a number of Ministers and Assistant Ministers who can exercise these powers, but for the sake of this article the singular Minister will be used to encompass all.

2 Jabbour v Secretary, Department of Home Affairs [2019] FCA 452.

3 See for example: https://www.sbs.com. au/news/bhutanese-family-rejoices-afterdeportation-overturned-by-minister/3d208fc9247a-475d-a387-8e1d087bdd25; https:// www.sbs.com.au/news/year-12-student-andfamily-will-be-allowed-to-stay-in-australia-afterministerial-intervention/96313117-4dc1-47b79574-8436322f5f75; https://www.sbs.com.au/ language/english/audio/australia-is-our-homefilipino-family-facing-deportation-calls-forminister-s-intervention 4 https://www.kaldorcentre.unsw.edu.au/ publication/legacy-caseload.

5 https://www.aph.gov.au/Parliamentary_ Business/Committees/Senate/Legal_and_ Constitutional_Affairs/AuPairs/Report 6 https://www.refugeecouncil.org.au/detentionaustralia-statistics/9/.

7 https://www.kaldorcentre.unsw.edu.au/ publication/cost-australias-asylum-policy.

8 House of Representatives, Parliamentary Debates (Hansard), 2 December 1998.

9 Second reading speech, Migration Amendment (Character and General Visa Cancellation) Bill 2014.

10 https://www.homeaffairs.gov.au/researchand-statistics/statistics/visa-statistics/visacancellation.

11 https://www.homeaffairs.gov.au/research-andstats/files/immigration-detention-statistics-31may-2021.pdf.

October 2021 THE BULLETIN

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MIGRATION LAW

The Afghanistan Response Clinic: Helping refugees in crisis REBECCA ROSS, CHIEF EXECUTIVE OFFICER, JUSTICENET SA

W

hen the Taliban seized Kabul on 15 August 2021, it quickly became apparent that there would be significant implications for Afghans everywhere.

Community services around Australia began receiving enquiries from local Afghans, worried about their own visa situation, their safety and the safety of their family members, still living in Afghanistan.

JusticeNet has had a presence in this important area of work for many years.

Since its inception in 2008, JusticeNet has provided assistance in Migration Law matters through its in-house referral service and network of pro bono lawyers. In response to the demand for this assistance, JusticeNet formed the Refugee & Asylum Seeker Project (RASP) in 2012, assisting refugees who arrived in South Australia to seek asylum. Many applied for visas but were refused, spending years in appeals to the various Tribunals and Courts. It was envisioned that this service would sunset as the demand decreased. Nonetheless whether it be for changing factors of war, geopolitics, climate or domestic governance, the demand has continued. JusticeNet’s network of pro bono lawyers have assisted hundreds of refugees to seek judicial review and have donated millions of dollars’ worth of free legal advice and representation.

When it became apparent that Afghan individuals may have the opportunity to reapply for protection (an option not usually available once a decision to refuse protection has been made), JusticeNet and the Refugee Advocacy Service of South Australia (RASSA) decided to work together to provide assistance in South Australia.

A coalition of staff and board members from JusticeNet SA and RAASA formed on 23 August 2021. It was decided a response clinic would be held to assist with drafting letters to the Minister to reapply for urgent intervention.

Via the Refugee and Asylum Seeker Project, JusticeNet had already provided assistance to many individuals from Afghanistan, particularly in response to the 2013 Australian policy changes relating to asylum seekers. Drawing on existing

8 THE BULLETIN October 2021

databases, we were able to quickly contact some of the people who might be eligible to reapply.

On Sunday 29 August JusticeNet and RASSA successfully ran a clinic at the University of Adelaide, who offered their premises for this purpose. From 9am to 12 noon on that Sunday morning the following group came together: • 12 clients • 12 lawyers provided by JusticeNet’s pro bono network • JusticeNet SA and RASSA Staff • 12 accredited interpreters • A handful of law students and other helpers Legal and administrative support was donated by JusticeNet staff and members as well as the RASSA team. JusticeNet SA’s Zoe Lewis, who was the coordinating lawyer on the day, said: “although it was a lot of work, it was inspiring to see the collaboration and enthusiasm to help”.

On the day, JusticeNet’s volunteer lawyers provided advice, and in many cases a request letter to the Minister was also completed. The RASSA migration agent, Edel Arvin Chang, agreed to provide the necessary follow up assistance.

JusticeNet SA’s administrator/paralegal, Jacqui Nuske, established an online appeal and commented that “it was encouraging to see people respond to the appeal so quickly, even if it was $5 or $20, every little bit helped and meant we were able to cover the cost of interpreters for the day”. We sincerely thank all our donors who made it possible to provide this critical service at short notice.

While this was a highly successful clinic, the need remains, and our work is far from over.

A dedicated inbox has been established (afghanistan@justicenet. org.au) and is being monitored daily by JusticeNet staff. Enquiries continue to pour in from people within Australia, seeking help to avoid being deported to a devastated Afghanistan. We are also receiving distressed emails from people in Afghanistan wanting help to leave, and

Afghans in Australia who fear for the safety of their family members still in Afghanistan.

JusticeNet is committed to providing a timely response to each and every enquiry and are endeavouring to point people in the right direction wherever possible. We have also established a dedicated page on our website with information which is regularly updated: https://justicenet.org.au/ /afghanistan The work of JusticeNet SA’s Refugee Asylum Seeker Project (RASP) is largely unfunded. Ideally we hope to employ a fulltime lawyer with experience in this area to answer these queries, compile briefs for our pro bono lawyers and ensure that people in South Australia going through this ordeal are able to get assistance.

To donate to our Afghanistan Response Appeal and RASP more broadly, please visit https://justicenet-afghanistan.raisely.com/ For members of the profession who would like to get involved, we encourage you to visit our website at https:// justicenet.org.au/get-involved. We welcome new members and referral partners, including those wanting to receive referrals to assist refugees and asylum seekers.

A special thank you to the lawyers who volunteered their time at the Afghanistan Response Clinic on Sunday 29 August 2021: Sam Beer, Thomas Cadd, Kaeli Convey, Catherine Follett, Stephanie Ghellar, Karen Guazzelli, Debrah Mercurio, Sarah Newman, Emily Rutherford, Joshua Schultz, Nadeem Shaki, Mitchell Simmons, Airlie Waterman, and Joseph Wearing. B

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MIGRATION LAW

TRAVEL EXEMPTIONS AND PARTNER VISAS: WHAT IS GOING ON? CATHERINE FOLLETT, DIRECTOR, MSM LEGAL

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ustralia’s visa program is notoriously complex and technical. The primary legislation is the Migration Act 1958 (the Act). This legislation is a beast, with over 500 sections. The visa program as set out in the Act provides that only the Department of Home Affairs may grant visas.

Visas are divided into classes, and then into subclasses.

THE COMPLEX WORLD OF PARTNER VISAS & PROSPECTIVE MARRIAGE VISAS ‘Partner Visas’ are divided into a number of subclasses, depending on a number of factors, inter alia: • Partner (subclass 820), which leads to the Partner (subclass 801) permanent residency visa.

• Partner (subclass 309), which leads to the Partner (subclass 100) permanent residency visa.

The only meaningful difference between the 820/801 Partner Visa and the 309/100 Partner Visa is that an application for 820/801 visa is lodged when the visa applicant (the foreigner) is onshore in Australia, and the 309/100 visa is lodged when the visa applicant (the foreigner) is offshore outside Australia. The 820 and 309 visas are temporary residency visas, while the following 801 and 100 visas are permanent residency visas.

There is another visa subclass which is often listed together with the above Partner visas: this is the Prospective Marriage (subclass 300) visa, which is often referred to as the Fiancé / Fiancée visa. The visa applicant (the foreigner) is always offshore at the time of applying for the 300 visa. The couple are engaged to be married but have not yet married. They may already be living together in a de facto

10 THE BULLETIN October 2021

marriage-like relationship. Once the 300 visa is granted, the non-Australian comes to Australia, the couple legally marry, and they then lodge an application for the 820/801 Partner visa.

To the average person on the street, the Partner Visas and the Prospective Marriage Visa are the same thing. They are not, and as is discussed below, in terms of travel exemptions they are definitely not. The Prospective Marriage visa is designed as a precursor to the onshore Partner (820/801) visa. In an ordinary world, pre-COVID-19, a Prospective Marriage visa is a quicker, more streamlined option for couples who are not legally married to each other, designed to get the offshore fiancé/fiancée here in Australia, so that the couple can marry and then lodge the Partner (subclass 820/801) visa application. From their point of view, once the non-Australian is here onshore, it often does not matter how long the 820/801 visa application then takes to be processed, because the couple is united in Australia and can get on with their life together while the Department of Home Affairs processes the application. On average, these 820/801 and 309/100 visa applications can take around two years to be processed from the date of lodgment.

The Migration Regulations set out (in painful detail) the requirements for each of these visa subclasses.

The Department is always on the lookout for sham relationships. For public policy reasons, the partner visa process (including the Prospective Marriage visa, when used) is designed to ensure that relationships are genuine and continuing, and this is part of the reason for all of these hoops which need to be jumped through. If a couple can survive this visa

application process, then the chances are that their relationship is strong and genuine.

The crucial (and technical) difference between the Partner visas and the Prospective Marriage visas is that there is less evidence required when applying for the Prospective Marriage visa. A couple is not showing that they are in a genuine and continuing relationship. Instead, they are showing that they have the intention to marry. This is a lower hurdle to jump over.

TRAVEL EXEMPTIONS As we all know, the World Health Organisation declared COVID-19 a pandemic in March 2020, and shortly thereafter Australia closed its borders and implemented a travel exemption regime in order to control the movement of travelers in and out of Australia. It imposed a requirement for many travelers to be granted a travel exemption in addition to the visa they hold. While this is not intended to be a complete discussion on the intricacies of travel exemptions, the following brief synopsis goes into some detail. It is this additional layer of the travel exemption which is causing distress and, in some cases, trauma.

Without going into a great deal of extra detail, the following people are automatically exempt from travel exemptions and can enter Australia: • an Australian citizen • a permanent resident of Australia • a New Zealand citizen usually resident in Australia and their immediate family members.1 So – and this is the important point- - Partner visa holders (subclasses 309/100 and 820/801) do not need travel exemptions in addition to their visas to

MIGRATION LAW

enter Australia, as they are eligible to enter Australia as the result of being an immediate family member of an Australian citizen or permanent resident.

They do not need to go through the extra step of applying for a travel exemption because they are deemed to meet the requirements of being an immediate family member of an Australian citizen or permanent resident as a result of the 309/820 being granted.

But Prospective Marriage (subclass 300) visa holders do need a travel exemption in addition to their visas to enter Australia. And until 18 August 2021 none of them were getting travel exemptions, seemingly no matter how distressing their circumstances.

This is the issue that has been causing enormous consternation and heartache.

To the couple who have made a careful assessment of what kind of visa to apply for to suit their circumstances, the Government’s decision to impose the need for a travel exemption on Prospective Marriage visa holders has been cruel and draconian. And the average person in the street usually does not understand the difference between the Partner visas and the Prospective Marriage visas.

In a pre-COVID world, the decision to apply for a Prospective Marriage visa rather than a Partner visa makes perfect sense.

In a COVID world, the ramifications of Australia’s travel exemption system have made it a dystopian nightmare.2 Thankfully, as of 18 August 2021, the Department of Home Affairs announced that 300 visa holders would be able to apply for, and be eligible to be granted, travel exemptions 12 months after the date of lodging their 300 visa applications.

WHAT CAN PROSPECTIVE MARRIAGE VISA HOLDERS DO NOW? For about 15 months until 18 August 2021 there was a great deal of discussion and war-gaming going on within the 300 visa application cohort, both those who had been granted their 300 visas but were not being granted travel exemptions, and those who had applied and were still waiting for the Department of Home Affairs to make a decision.

The general options for this group of people were as follows, and all of them involved big leaps of faith, and money: • Marry or register your de facto relationship (ie under the SA legislation3) and apply for a 309/100 visa (paying the $7,850 lodgment fee4 again), then request a refund on the original lodgment fee paid for the 300 visa; • If you had not already been granted the 300 visa, the sponsoring partner in Australia could go offshore (needing their own travel exemption to leave Australia) and the couple could marry, then inform the Department of Home Affairs of the marriage, and that would convert the 300 application into a 309/100 application; • Depending on the location of the nonAustralian visa applicant, the couple could marry by proxy, and then inform the Department of Home Affairs of the marriage, and that would convert the 300 application into a 309/100 application;5 or • Wait for the pandemic to end so that the travel exemption was no longer needed for anyone holding a 300 visa.

SUMMARY Where does this leave everybody? We are still in the middle of a pandemic. Our state borders are shutting and opening at the drop of a hat. Anybody going through any sort of visa issue has that added layer of stress and uncertainty in their lives. We do not choose whom we love6, wherever they come from around the world.

But visas, and the associate travel exemptions, have been and will continue to be a stressful, angst-ridden nightmare for many people.7 The government’s talk of opening up our international borders and issuing vaccination passports are all welcome discussions to be having, but at this point in time we have no crystal balls, and all we can do is work within the complex options in front of us. B Endnotes 1 https://covid19.homeaffairs.gov.au/travelrestrictions 2 None of this article addresses the other layer of ‘travel exemption’ possible for established partners of Australian citizens, permanent residents, or eligible New Zealand citizens who need to demonstrate the relationship, and obtain a different kind of visa in order to enter Australia.

3 Relationships Register Act 2016 (SA).

4 This is the lodgement fee payable to the Department of Home Affairs for the 300, 309/100, and 820/100 visa applications.

5 Proxy marriage is absolutely a ‘thing’. It is only legal in a very few jurisdictions, and most migration lawyers will go years without coming across one. But they do exist. This is not an option for the fainthearted, given the delays and cost involved if the proxy marriage turns out not to be lawful in the overseas jurisdiction.

6 Thank you George RR Martin.

7 None of the above addresses situations where the issues are even more complex – such as couples where the non-Australian is in a country experiencing significant security issues or risks to health and safety, such as Afghanistan.

October 2021 THE BULLETIN

11

MIGRATION LAW

The end of dual regulation and the practice of immigration law MITCHELL SIMMONS, SENIOR LAWYER, MSM LEGAL

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n 22 March 2021 the Migration Amendment (Regulation of Migration Agents) Act 2020 (‘the Act’) came into effect allowing Australian lawyers to provide immigration assistance in connection with legal practice. This means that lawyers can now provide immigration assistance without being a Registered Migration Agent (RMA’) and are no longer subject to the regulatory scheme administered by the Office of the Migration Agents Registration Authority (‘OMARA’).

Why this happened This change is the result of multiple reports and recommendations over many years, and has been a long-held advocacy position of the state and territory Law Societies and the Law Council of Australia.

Part 3 of the Migration Act is concerned with regulating the provision of immigration assistance and migration agents. This is managed by the OMARA, which is part of the Department of Home Affairs (‘the Department’). Prior to 22 March 2021, the Act effectively provided that ‘immigration assistance’ could only be provided by an RMA who was registered with the OMARA, and OMARA was tasked with a number of functions including:1 • managing registration and re-registration of migration agent applications; • administering provision of the industry’s entrance exam and continuing professional development program; • monitoring the conduct of RMAs; • investigating complaints about RMAs; and • taking appropriate disciplinary action against RMAs who breach the migration agents’ Code of Conduct or otherwise behave in an unprofessional or unethical way.

This had meant that, prior to deregulation, lawyers who were providing immigration advice were required to register as migration agents and were regulated by OMARA. As at June 2019, approximately 30 percent of RMAs had a legal practicing certificate.2 This had the practical effect that these lawyers were subject to two separate schemes of regulation on the purported

12 THE BULLETIN October 2021

basis of achieving ‘consistent standards of professional conduct and quality of service within the migration advice profession’.3 Whilst the issue had been the subject of much debate and significant advocacy since immigration lawyers were first subjected to this dual regulation in 1992, it was the recommendation of an independent review of OMARA in 2014 (the Kendall Review) that prompted the government to first announce that it intended to remove lawyers from the OMARA scheme. The Kendall Review found that dual regulation risks confusing those persons seeking migration assistance and imposes an unjustified burden on lawyer agents who, as lawyers, are already subjected to one of the strictest regulatory regimes of any profession in Australia.4 It was also observed that there was no evidence to support the position that the removal of lawyers from the OMARA scheme would be likely to result in reduced protection for clients.5 However, whilst the government announced this intention in 2015, the initial Migration Amendment (Regulation of Migration Agents) Bill was not introduced until 2017 and ultimately lapsed in July 2019. After being reintroduced, the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee which ran a public inquiry into the legislation between November 2019 and February 2020. The committee’s report released on 27 February 2020 noted the overwhelming support for the legislation and recommended the Senate pass the legislation without delay. The Bill passed both houses on 15 June 2020.

The amendments did not immediately come into effect as significant practical measures had to be undertaken to allow this new system, such as the changing of Department forms and other material to now refer to both RMAs and lawyers.

What the changes mean for lawyers The implications for lawyers following 22 March 2021 are summarised as follows: 1. lawyers with unrestricted practising certificates who were RMAs were removed from the OMARA scheme,

are no longer able to apply to be registered under OMARA and are now entirely regulated by their own professional bodies; 2. any lawyer with an unrestricted practising certificate who wishes to be an RMA under the OMARA scheme can only do so through first relinquishing their practising certificate; 3. lawyer’s with restricted practising certificates can continue to be registered as RMAs for an eligible period of two years, which can be extended to up to four years with the agreement of OMARA; 4. future lawyers with restricted practising certificates will still be eligible to be registered as RMAs if they have completed the qualifications to become a migration agent (Schedule 2 to the Bill). They can register as migration agents for two years, which can be extended to up to four years with the agreement of the OMARA; 5. future lawyers with restricted practising certificates who have not completed these qualifications will be regulated entirely by the relevant State or Territory disciplinary legal body.

The new subsection 280(3) of the Migration Act 1958 ensures that an Australian lawyer can give immigration assistance without being required to register as a migration agent, as long as the giving of immigration assistance is in connection with legal practice. The Senate Legal and Constitutional Affairs Legislation Committee has clarified that ‘Legal practice’ in this context is defined as ‘the provision of legal services regulated by a law of a State of Territory’ and it is therefore not concerned with identifying a specific organisational structure but rather relates to referring lawyers to the legal regulatory rules of the relevant state and territory legal professional bodies.6 Therefore ‘in connection with legal practice’ will ensure that South Australian lawyers will be able to give immigration assistance provided it is consistent with their existing obligations and practice requirements.

IMMIGRATION LAW

What you need to practice immigration law Australia’s immigration law is complex and frequently changing, and advising clients requires navigating a labyrinth of dynamic and multilayered legislation, regulation, and policy.

In order to ensure an understanding of this framework, RMAs under the OMARA scheme are subject to a Code of Conduct which requires that they have access to a current and complete “professional library”, and are required to provide OMARA with evidence of this with their initial registration application and when applying to renew registration each year. This requirement was met through a subscription to one of two services: LegendCOM, which is a service managed by the Department; or LexisNexis. Each of these services provides an electronic database of all relevant migration and citizenship legislation, regulations, instruments, ministerial directions and gazette notices, as well as access to the Procedural Advice Manual (PAM3) which is the detailed and regularly policy material produced by the Department to guide decision making.

Given lawyers are no longer subject to the OMARA code of conduct, the

‘professional library’ requirement does not strictly apply. However, access to PAM3 is only available through either a subscription to LegendCOM or Lexisnexis and this manual can be critical to providing accurate and practical advice, and so practice in this area will almost certainly require a subscription to one of these services.

In order to lodge visa applications on behalf of clients, lawyers will also need to register for an ImmiAccount with the Department as the majority of visa applications can only be lodged through this service. It is through ImmiAccount that LegendCOM is accessed, as well as other services such as VEVO which can be used to check the visa status of clients. To register for an ImmiAccount, lawyers are required to first apply to the Department for an Australian Legal Practitioner number (LPN).7 A consequence of the removal of lawyers from the OMARA scheme has been that lawyers have been removed from the listing of RMAs on the OMARA website and so there is no longer a single source for the public to search for professional assistance. The Department now directs those seeking a lawyer to a website hosted by the Law Council of Australia which

which provides information about the services Australia’s specialist migration lawyers offer along with referral to further sources of legal assistance. The webpage is available at: https://www.lawcouncil.asn. au/federal-litigation-dispute-resolution/lcaimmigration-lawyers.

The Law Society now also maintains a register of South Australian lawyers who provide migration services, and lawyers can apply to be named on this register. This register is available at: https://www.lawsocietysa.asn.au/ Public/Community/MigrationLawyers Register.aspx B Endnotes 1 S316 of Migration Act 2 DoHA, Office of the Migration Agents Registration Authority (OMARA), Migration agent activity report 1 Jan – 30 Jun 2019, DoHA, Canberra, 2019.

3 Explained in the Hodges Review and quoted in the Kendall Review, op. cit., p. 42.

4 CN Kendall, 2014 independent review of the Office of the Migration Agents Registration Authority: final report, September 2014, p 67 5 Ibid., p. 71 6 Committee report (27/02/2020), Senate Legal and Constitutional Affairs Legislation Committee 7 https://immi.homeaffairs.gov.au/help-support/ who-can-help-with-your-application/using-alegal-practitioner

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13

SPACE LAW

Developments on Outer Space Citizenship Theory LUKE EDWARDS, ASSOCIATE IMMIGRATION LAWYER AT WORK VISA LAWYERS, & CHRISTINA LIEN, IMMIGRATION LAWYER AT CRADDOCK MURRAY NEUMANN LAWYERS

S

tates and private actors are simultaneously forging ahead in developing and contributing to the growing interest in space tourism.

When humans eventually travel beyond Earth’s atmosphere on a fairly regular basis and for recreational reasons, it is interesting to think about their existence beyond: Will space tourists be entitled to the same protections as astronauts? What would be the legal status of a child born to two space tourists whose citizenships on Earth differ? As some have predicted the first birth in space could happen as soon as 20401, this prospect might not be so farfetched.

This short article seeks to develop the ideas surrounding outer space citizenship and what it may look like in the future. We draw on historical notions of citizenship and examine what it may come to look like once humans are born in outer space.

National Framework Citizenship on Earth is primarily dealt with on a national basis by each sovereign nation state.

There are two distinct models that have been adopted: • Jus soli • Jus sanguinis

Jus Soli Jus soli is known as land based citizenship, where countries automatically afford citizenship to any and all who are born on their soil. This includes many countries who were ruled by the British Empire,2 but not Australia.

Jus Sanguinis Other countries recognise citizenship by adopting jus sanguinis, which is

14 THE BULLETIN October 2021

citizenship only if one or both parents hold citizenship, as is the law in Australia.

Dual Citizenship Certain countries do not allow their citizens to be dual citizens and their citizenship is forfeited if another citizenship is acquired. Upon acquisition of the new citizenship, other rights may be lost, such as the right to own property. Other countries have no barrier to multiple citizenships, as is the law in Australia.

International Framework Outer space is defined in different ways in a range of different places. Some jurisdictions have chosen to define this as anything above the Karman Line (which is typically approximated as above an altitude of 100 kilometers, 62 miles or 330,000 feet above Earth’s sea level). As sovereignty is not permitted in space,3 it becomes a very real possibility that a human born in outer space could be stateless at birth, such as if they were born on the sovereign-less surface of a celestial body.

With statelessness a more immediate problem for too many on earth, the right to citizenship (nationality) is enshrined in Article 15 of the Universal Declaration of Human Rights, Article 7 of the Convention on the Rights of the Child and Article 1 of the 1961 Convention on the Reduction of Statelessness. Many of the top spacefaring nations have ratified these conventions, and so we do not expect they will tolerate statelessness of space children.

As international law applies in outer space (under Article 3 of the Outer Space Treaty 1967), the right to nationality in

these articles will apply in outer space. It cannot be the case that a child born in space is allowed to remain stateless.

There are a range of jurisdictions whose citizenship laws would need to be (or could be) consulted to determine what citizenship would be available to a “space child”.

Determining citizenship in these circumstances in the future will require transnational legal thinking.

Let us consider as a brief case study the following situation: In outer space, a child is born on a long-term habitation and research facility (which is not attached to a celestial body) launched, owned and operated by the United States of America, to a female astronaut who is a citizen (by birth) of the United Arab Emirates and a father who is a citizen (by birth) of Australia.

We anticipate that states will be eager to claim the first child born in outer space among their citizenry. However, as birth in space becomes more commonplace, the citizenship of a child born in space might be less clear.

Article VIII of the Outer Space Treaty states that the nation “on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and any personnel thereof, while in outer space or on a celestial body.”

The first question is whether the inside of a USA-registered space object will be recognised as an extension of the USA for the purposes of jus soli citizenship.

Whether this is so will be determined subject to the laws of the USA irrespective of the Australian or UAE laws. Thus, it

SPACE LAW

is possible the child will be an American citizen.

However, Australian citizenship could also be granted by descent (jus sanguinis) under s 16 of the Australian Citizenship Act 2007 (Cth). This is available irrespective of the location in which the child is born.

As the child is born outside of Australia, citizenship would not be automatic and the child (or the parents on their behalf) could apply for Australian citizenship by descent.

It appears that a child born outside of the UAE to an Emirati mother and a foreign (to UAE) father can apply for Emirati citizenship upon turning 18 years of age.4 While this does not address the “right to nationality” issue, it provides an opportunity for acquiring Emirati citizenship in the future.

Thus, it is possible that the child in this

example may be born with no citizenship, or with American citizenship, and may be eligible on application (either immediately or on turning 18) for citizenship of Australia and the UAE. Dual citizenship rules pose an additional layer of complexity. While some countries permit dual citizenship, many do not: it was only 20 years ago that Australia began permitting dual citizenship. The UAE has not traditionally permitted dual citizenship, but citizenship changes in February 2021 appear to allow for dual citizenship.

The above case study is just one example of the interesting legal issues that arise in outer space as humanity’s presence there matures. We are also interested to see how new concepts of citizenship and nationality might develop in outer space,

such as the proposed Asgardian nation, 1,074,787 strong at 17 Sep 2021.5 Luke Edwards is a member of the Society’s Space Law Committee, and Christina Lien is a former member of the Space Law Committee B Endnotes 1 When will the first baby be born in space? Chris Impey, May 21, 2021 <https://theconversation. com/when-will-the-first-baby-be-born-inspace-160966> 2 Birthright Citizenship Around the World, Nov 2018, <https://www.loc.gov/law/help/ birthright-citizenship/global.php> 3 Article II of the Outer Space Treaty states that no nation may lay any sovereign claims “by means of use or occupation, or by any other means” 4 https://www.thenational.ae/uae/children-ofemirati-mothers-expatriate-fathers-offeredcitizenship-1.435309 5 https://asgardia.space/en/

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FEATURE

SHOULD I STAY OR SHOULD I GO? COVID’S IMPACT ON AUSTRALIAN MIGRATION LAW CHRIS JOHNSTON AND VICTORIA PHILLIPS, WORK VISA LAWYERS

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hen people hear we work in migration their initial response is usually pity. “Things must be really quiet for you,” they sympathise, imagining that travel restrictions, flight caps and border closures have stemmed the flow of work for migration lawyers. On the contrary, we are busier than we have ever been. Things have certainly changed and migration laws are constantly evolving, but the demand for Australian visas is higher now than it was before Covid turned our world upside down.

As a boutique migration firm in Adelaide, we initially specialised in employment visas only. Over time however, our practice expanded to assisting with visas for family members, business owners, investors and students as well as citizenship applications and of course, appeals. You may well wonder why a lawyer would be involved in these processes, and rightly so. Not so long ago, these areas were the sole province of migration agents, not lawyers. But on 22 March 2021, Australian legal practitioners were no longer subject to regulation by the Office of the Migration Agents’ Registration Authority. This meant the practice of migration law in Australia was no longer just a matter of conducting appeals, but would now cover the full gambit - including initial advice and submitting visa applications. The fact that our firm embraced this diversity helped us not only stay afloat but to surge ahead in these stormy waters of Covid chaos.

Border Closures and Travel Exemptions Australia’s borders officially closed on 20 March 2021 and since then any non-resident wishing to travel into the

16 THE BULLETIN October 2021

country has required not only a valid visa but a travel exemption too, and the latter is granted neither readily nor promptly. Certain groups of people are automatically exempt from the travel ban such as citizens, permanent residents, and the immediate family of either, but if you do not fit into one of these categories, you must be of some practical benefit to Australia in the post-Covid recovery phase, or have “compelling and compassionate reasons” to receive a travel exemption (and these seem to be reserved for end-of-life situations only).

Australia has had to make some difficult decisions and has chosen to put the interests of its residents first… a choice which has made us very unpopular with the rest of the world.

Prior to Covid, to enter Australia on a

skilled-visa an applicant needed to show they had adequate skills in their role, could easily find employment in Australia, spoke sufficient English, and met health and character requirements. Now in the pandemic era, an applicant must also possess “critical skills” such as medicine, nursing or engineering. Whether or not a skill is “critical” is decided by the Priority Migration Skilled Occupation List, an ever-evolving beast which morphs form on a regular basis and with little warning.

Fewer and fewer of these visas are being granted as the number granted fails to meet the available places in each round of invitations. The Federal Government is predicting a massive resumption of migration numbers for 2022 (Figure 1) but given recent trends we are dubious as to how these projected figures will be met.

NET OVERSEAS MIGRATION, ACTUAL AND PROJECTED, 1981/82 TO 2031/32 Data Source: Australian Government, Centre for Population

FEATURE

Global Talent Visas – Targeting Tech Talent Given the difficulties of general skilled migration, the Global Talent visa has been the star performer of the pandemic. The program was conceived as a faster alternative to traditional visas for highly skilled individuals wanting to come to Australia, and it was a success. So successful in fact, that the Government increased the number of visas available from its initial 5,000 per annum in 2019/20 to 15,000 places in 2021/22 where it remains. With overall visa planning levels for the 2021/22 financial year having a ceiling of 160,000, the Global Talent visa represents almost 10% of the country’s total visa availability.

For an applicant who can show they are internationally recognised for outstanding achievement in their field, earn an income above AU $158,500, have an Australian nominator, and fall into one of the sectors the Federal Government has deemed useful in the post-pandemic world, the reward is permanent residency. The visa is extremely appealing as it has no English language skill requirement or points system with which to comply. It is however, extremely vague and thus difficult to provide definitive advice on. Policy rather than legislation rules the Global Talent visa and the policies regularly change and use unclear, ill-defined terminology. The only way to become an expert in this visa is experience and even after multitudinous applications, it is still a blurry area of law even for us!

One thing that has become evident in our practice is that regardless of everything else, the higher your income, the higher your chances are of a Global Talent visa being granted.

MIGRATION PLANNING LEVELS 2021/22 Data Source: Australian Government, Department of Home Affairs

Business & Investor Visas – Money Talks Similarly, business and investor visas grant permanent residency and automatic travel exemptions to high net-worth individuals. The 188 Significant Investor (SIV) for example, bestows almost diplomat-status to the holder if they are willing and able to invest AU $5 million in the Australian economy. An SIV holder may bring their family with them, need not speak any English at all, and is exempt from any travel restrictions. In exchange for the invested funds, they may fly in and out of Australia as many times as they like (yes, even during Covid!) and need only reside in Australia for 40 days of each year. Even in a global pandemic it seems, money talks.

Partners & Parents – Not Totally Forgotten While the jet-set flies in and out of the country at leisure, many families have been

torn apart by Corona. Although immediate family members of Australian citizens and permanent residents are exempt from the travel ban, family members of temporaryvisa holders like students and workers, have been separated from their loved ones for almost 18 months. The level of despair is growing and we are inundated daily with desperate requests for help on our phones, emails and social media channels. The heartbreaking part is, there is little anyone can do to help as the predicament is the result of government policy and not a question of simply getting a visa.

For those who are lucky enough to have a romantic relationship with an Australian resident, partner visas are more popular than ever. The increase is not, as the cynical amongst us may think, due to bogus relationships (who remembers Gerard Depardieu in Green Card?) rather it is the result of fewer October 2021 THE BULLETIN

17

FEATURE

visa options being available. People who might have previously applied for a work or student visa are now relying on their personal relationships to maintain their place in the country. This has resulted in an enormous build-up of unprocessed partner visa applications. Rather than increase the number of places for partner visas in Australia in 2021-2022 (which are already higher than in any other category) the Federal Government has retained the existing limits and is endeavouring to clear some of the backlog1. The current waiting time for an offshore partner visa to be processed is up to 30 months2. That’s an awfully long time to be away from your partner, and our clients are feeling it.

The Administrative Appeals Tribunal – An Unappealing Prospect Given the limited options for visa hopefuls, more and more applicants are choosing to appeal the Department of Home Affairs’ decision to refuse their visa rather than simply apply for a different type or try again. Like the partner visa problem, this has now led to an unmatchable demand and as of 30 April this year, the AAT had a backlog of 57,847 migration cases waiting to be heard3. Adding to the difficulty are lockdowns and social distancing requirements. Working with clients who are not native English speakers requires a level of skill at the best of times.

Attending hearings via video link with 4 attendees in 4 different locations makes the process a lot more complicated.

The 2021-2022 Federal Budget allocated $54.8 million to clear the builtup accumulation4, but why only use a carrot when there’s a stick too? Earlier this year, the fees to commence a matter at the Tribunal increased from $1,800 to $3,000, and at Federal Circuit Court from $690 to $3,330! It is hard to envisage how the actual cost of hearing a matter has increased so very much in the space of just a year and we can’t help but feel the increase is a thinly veiled attempt to make the prospect less appealing.

Student Visas – the Unhappy Majority Perhaps the biggest losers in the Covid crisis have been our international students. There are currently over 150,000 international students waiting to return to Australia5. Having returned to their home

18 THE BULLETIN October 2021

nations to be with their families at the onset of Covid, these are legitimate holders of Australian visas who are blocked from re-entering the country. Under the current travel criteria, it is virtually impossible for a student visa holder to get an exemption.

International students who are outside Australia are now having to either complete their degree online or postpone their studies, and the result is thousands of frustrated people, angry with Australia for robbing them of their legitimate expectations. According to one study 93% of international students stranded outside Australia are experiencing negative mental health symptoms due to studying at home alone6, and more than a quarter have had thoughts of self-harm7. If that isn’t bad enough, the lock-out is also decimating the Australian economy, with a projected loss of $18 billion resulting from the lack of international students8.

In June 2021, several States announced that plans had been approved by the Federal Government to begin bringing students back to Australia. The plans were fully funded by the institutions and students themselves, and in excess of existing flight caps. South Australia was the first to be approved followed shortly thereafter by New South Wales, though the latter’s progress has been hindered significantly by the Delta outbreak. SA Universities are still planning to bring back 160 students per fortnight9, a plan which we are told will commence before the end of the year, but with so many last-minute backflips and policy changes, we won’t count our chickens until they hatch.

For some people, such as the independently wealthy or extraordinarily gifted, there are alternate pathways back to Australia, but for the unhappy majority there is nothing to do but sit and wait. As immigration lawyers and indeed, as human beings, it is painful to have to tell people in such desperate circumstances to “just wait” for an indefinite period.

Skills Shortages & the Shrinking Candidate Pool - The Department Gets Creative On the other side of the coin, the Government is desperate to retain international students who are already in Australia. So many students have left

Australia and are unable to return, and with the additional lack of working holiday makers, the roles these people would have filled are now vacant. The industries to feel this skills shortage the most are hospitality, agriculture, health and aged care. In a bid to keep temporary visa holders local, the Department of Home Affairs has granted additional rights to foreign workers. Pre-Covid, student visa holders were only permitted to work a maximum of 20 hours per week. Now, the Department allows students to undertake unlimited hours provided they are working in health, aged care, agriculture, tourism or supermarket supply chains. Similarly, Australia has created the 408 COVID-19 Pandemic Event visa, an emergency event visa which allows temporary visitors to remain in Australia a further 12 months if they work in one of the critical sectors.

It is evident the Australian economy relies heavily on both temporary and permanent migration. The longer the borders stay closed and our temporary visa holders take one-way flights home, the more dire things are going to become.

Difficult Decisions Of course, things could always be worse. We are all too aware of the violent protests in Hong Kong and the horrors of the Afghanistan conflict. The Australian Government has granted an automatic extension to temporary visa holders from Hong Kong and priority processing for Hong Kong applicants seeking skilled visas. There are also an additional 3,000 places for Afghan refugees in addition to existing numbers. The Murugappan family continue to make headlines as they seek asylum from persecution in Sri Lanka while their two young daughters battle ongoing health conditions. The politics of immigration are as divisive as ever and with a federal election looming, we expect the major parties to avoid making any commitments in this area lest it drive a wedge between them and the voter. As our nation’s economic reliance on migration grows ever more evident, we can only hope our country is willing to reconsider some of its more difficult decisions.

Where To Next?

Australia is moving closer to peak vaccination every day10 and a plan to re-open

FEATURE

once the borders re-open, we expect to see international tourism advertising campaigns resume at peak intensity. There is much speculation but our prediction is once the Australian borders open, we will be met with a flood of new immigration enquiries and we hope to welcome them all. B

our international borders is in sight11, so how will immigration law look in the future?

The prospect of vaccination passports is certainly intriguing from a legal perspective and we look forward to learning how it will work in conjunction with Australian privacy, anti-discrimination, and migration laws.

Moreover, with multiple Covid vaccinations being used around the globe and differing nations each recognising only a select few12, we are curious to see how Australia will negotiate the politics of the new system.

One way to predict the future is to examine the past and it is worth noting that passports for international travel were not mandatory prior to World War I, but were introduced via the 1919 Treaty of Versailles to “secure and maintain freedom of communications and of transit” 13. Discussions to abolish this new passport requirement commenced as early as 1920 but have never met with any success. Whatever we implement now to navigate Covid-19 may well become our new normal.

What is abundantly clear is that recovery of the Australian economy is dependent on migration. The decline in temporary visa arrivals and permanent immigrants has hit our industries hard, with universities and hotels in particular feeling the pinch.

Australia needs migrants but will migrants still want Australia after we have shut them out for so long? Our country has a lot of work to do in rebuilding our brand so

Endnotes 1 Australian Government, 2021, Federal Budget 20212022, Commonwealth of Australia, Canberra, viewed 08 September 2021, URL: https://budget. gov.au/2021-22/content/documents.htm.

2 Australian Government, 2021, Visa Processing Times, Department of Home Affairs, Canberra, viewed 08 September 2021, URL: https://immi. homeaffairs.gov.au/visas/getting-a-visa/visaprocessing-times/global-visa-processing-times.

3 Australian Government, 2021, Federal Budget 20212022, Commonwealth of Australia, Canberra, viewed 08 September 2021, URL: https://budget. gov.au/2021-22/content/documents.htm.

4 Ibid.

5 Victoria University, 2021, “Stuck In Transit: International Student Update”, Mitchell Institute, viewed 08 September 2021, URL: https://www. vu.edu.au/mitchell-institute/tertiary-education/ stuck-in-transit-international-student-update.

6 Young, Evan, 2021, “93 per cent of international students suffering poor mental health due to no on-campus study, survey finds”, SBS News, viewed 08 September 2021, URL: https://www.sbs.com. au/news/93-per-cent-of-international-studentssuffering-poor-mental-health-due-to-no-oncampus-study-survey-finds/80684807-6485-48f8ada3-8b9c8213fe28.

7

8

9

10

11

12

13

Nott, Will, 2021, “Australia: stranded students having ‘thoughts of self-harm’”, The Pie News, viewed 08 September 2021, URL: https:// thepienews.com/news/aus-stranded-studentshaving-thoughts-of-self-harm-and-facefinancial-strain.

Carey, A, Millar, R & Tomazin, F, 2021, “International student losses set to punch $18 billion hole in economy”, The Age, viewed 16 September 2021, URL: https://www.theage.com. au/national/international-student-losses-set-topunch-18-billion-hole-in-economy-20210403p57ga7.html.

Kaul, Natasha, 2021, “Federal government approves South Australia’s plan to bring back international students”, SBS Hindi, viewed 08 September 2021, URL: https://www.sbs.com.au/ language/english/federal-government-approvessouth-australia-s-plan-to-bring-back-internationalstudents.

Australian Government, 2021, Department of Health, COVID-19 vaccination daily rollout update, viewed 15 September 2021, URL: https://www. health.gov.au/resources/collections/covid-19vaccination-daily-rollout-update.

Prime Minister of Australia, 30 July 2021, (media statement), National Cabinet Statement, viewed 15 September 2021, URL: https://www.pm.gov.au/ media/national-cabinet-statement-10.

Hitch, Georgia, 2021, “International COVID vaccine passports available next month, but no change on international border closures”, ABC News, viewed 15 September 2021, URL: https:// www.abc.net.au/news/2021-09-08/vaccinepassports-available-next-month-covid/100442992.

Dumitru, Speranta, 2016, “When world leaders thought you shouldn’t need passports or visas”, The Conversation, viewed 15 September 2015, URL: https://theconversation.com/when-worldleaders-thought-you-shouldnt-need-passports-orvisas-64847.

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FEATURE

Mandatory visa cancellation and crimmigration considerations in sentencing LOCHLAN REEF MCNICOL, WORK VISA LAWYERS

T

he issue of crimmigration has recently been brought into the headlines as a point of contention in Australia’s relationship with New Zealand as we continue to deport a disproportionate number of New Zealand citizens who have had their visas cancelled on character grounds.

Crimmigration is the slightly ungainly term used to describe the fluctuating intersection of criminal and migration law that has become of increasing relevance since 2014. Following the amendment of s 501 of the Migration Act 1958 and the introduction of mandatory visa cancellation via s 501(3A) visa cancellation and deportation has risen dramatically.

The expansion of executive power that culminated in the updated character test, and mandatory visa cancellation for those who fail it, was driven by a national crackdown on particular criminal groups – particularly ‘bikie’ gangs.

The reality is that the range of visaholders who fall foul of the application of the s 501(3A) mandatory cancellation mechanism is much wider than just noncitizen ‘bikies’ and includes individuals who have been resident in Australia since they were children. In some cases, such individuals are unaware that they aren’t citizens until notified of the cancellation of their visas.

PASSING THE BUCK? Prior to 1998 and the introduction of s 501 to the Migration Act, non-citizens who had resided lawfully in Australia for at least 10 years were protected from deportation. Among other things, the new s 501 provided an avenue to circumvent the ‘10-year-rule’ found in ss 200 and 201 of the Migration Act. It did so by introducing new criteria for visa cancellation for those who fail the ‘character test’ – most commonly by receiving a sentence of imprisonment of at least 12 months – and are serving a full-time sentence of imprisonment

20 THE BULLETIN October 2021

Source: Department of Home Affairs website accessed 6 September 2021 https://www.homeaffairs.gov.au/research-and-statistics/statistics/visa-statistics/visa-cancellation.

of any length. Serving only one day of a 12-month sentence of imprisonment, even if the rest is fully suspended, is sufficient to trigger cancellation under s 501(3A).

While the Migration Act has retained numerous and varied discretionary cancellation powers, the addition of s 501(3A) shifted the onus from the Minister for Immigration to justify a discretionary cancellation decision to the non-citizen to demonstrate why the mandatory cancellation should be revoked.

As then Minister for Immigration and Border Protection, Scott Morrison noted in his second reading speech introducing the amendments to s 501 in 2014: “[mandatory cancellation] will be a streamlined process which will deliver the key benefit of providing a greater opportunity to ensure non-citizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved.”

PUNITIVE NON-JUDICIAL SENTENCING OUTCOMES One of the key issues that arises in many instances of mandatory cancellation is that it can be excessively punitive. For example, in South Australia the maximum

penalty for the basic offence of cultivating a controlled plant, such as cannabis, for a first-time offender is 10 years imprisonment.1 A non-citizen could receive a sentence of one year imprisonment for an offence at the bottom end, have 99% of the sentence suspended, but still enliven mandatory cancellation under s 501(3A).

That non-citizen could be someone who has lived here for decades since arriving as a child, has an Australian citizen spouse and children, and is an otherwise productive member of society. The removal of discretion in the application of cancellation on character grounds in such instances can result in the outcome of sentencing ballooning into something that can destroy the life of the offender and their family, or at least incur significant legal bills in seeking to revoke the cancellation. A short period of incarceration can lead to months or years in immigration detention waiting for a decision to be made on whether the visa cancellation will be revoked.

It is in these situations in which the murky boundaries of crimmigration are their most opaque. The common law basis for considering deportation or longterm immigration detention as a factor for mitigation in sentencing is generally considered to be the Victorian case of

FEATURE

Guden v The Queen (2010) 28 VR 288. There it was stated that deportation was “a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release”.

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

Since the introduction of s 501(3A), cancellation is no longer a ‘speculative possibility’ for non-citizens incurring certain sentencing outcomes. It is an indiscriminate certainty. Where a visa holder receives a conviction meeting the mandatory cancellation conditions, their visa will be cancelled. Beyond acknowledging the potential migration law effects of sentencing, judges appear to still be very wary of letting those nonjudicial outcomes affect their calculations of an appropriate sentence for criminal offending. This is an additional stress that afflicts not only those living in Australia on a temporary basis, but also established Australian families from migrant backgrounds: s 501(3A) does not discriminate between temporary and permanent visas holders.

CONFLICT IN THE CASE LAW There is some disagreement between Queensland and Victorian courts – where the likelihood of deportation may be considered a factor in sentencing – and Western Australian and New South Wales courts – which have rejected consideration of deportation as a mitigating factor in sentencing on the basis that it is a matter to be settled by the Commonwealth executive, rather than to be speculated over by state courts. As has been noted,2 while there is now a reasonable body of case law addressing this issue, South Australia is perhaps

the least settled of the jurisdictions in its sentencing approach to cancellation considerations. There remains ongoing debate regarding the extent to which the risk of cancellation, long-term immigration detention, and deportation ought to be considered in sentencing.

By way of example of the slightly unsettled position of the South Australian courts I note the recent comments of Kourakis CJ in Kroni v The Queen [2021] SASCFC 15 at [13]: I accept that the consequences of a conviction on a defendant’s migration status is, in a general sense, a relevant aspect of his or her personal circumstances. However, it will generally not make a material difference to the sentence that should be imposed.

He goes on to qualify those comments and open the door to the possibility of considering the outcomes of deportation in certain circumstances at [15]: The cancellation of the appellant’s visa and his return to Europe, and his anxiety about that prospect, may, in itself, cause some hardship, but not of a degree that would warrant a reduction below the sentence imposed by the Judge. Different considerations may apply if a threatened repatriation would seriously imperil a defendant. [emphasis added] The South Australian Supreme Court has, on a number of occasions, noted the conflict in approach of the other states (for example, in R v Zhang [2017] SASCFC 5 and more recently R v Arrowsmith [2018] SASCFC 47) but has avoided attempting to resolve that conflict in this jurisdiction.

As Kourakis CJ further noted in Kroni v The Queen regarding the possibility of a non-citizen enduring long-term immigration detention at the conclusion of a sentence of imprisonment while awaiting the outcome of a cancellation revocation application:

I accept that the prospect of a substantial period of migration detention may, in some cases, moderate a very long, close to crushing, sentence which the circumstances would otherwise call for.

THE CERTAINTY OF MANDATORY CANCELLATION Certain migration law outcomes of certain sentencing decisions with respect to mandatory cancellation are now predictable, tangible and inevitable. Of 717 revocation requests processed in the 2020/2021 financial year, only 265 were ended in revocation.3 There are arguments to be made that mandatory cancellation goes a long way towards resolving the issue of courts having to speculate on certain migration outcomes of sentencing.

In cases in which mandatory cancellation will arise from certain sentencing decisions the courts can respond to that outcome with confidence.

For non-citizens of all kinds who find themselves attempting to navigate the middle of the Venn diagram of criminal and migration law through the courts it can be very difficult to determine where one ends and the other begins. The indistinct edges at the meeting points of criminal and migration law poses problems for non-citizen offenders, their representatives, and the courts.

Practice tip: the best way to avoid visa cancellation is to not have a visa to be cancelled. While we strongly recommend all non-citizens to avoid committing crimes, we would also encourage all eligible non-citizens to apply for citizenship to eliminate the risk of visa cancellation, immigration detention and deportation. B Endnotes 1 Section 33B(3)(b) Controlled Substances Act 1984 (SA) 2 See, for example, P McGorrery, Deportation and Sentencing: An Emerging Area of Jurisprudence (Sentencing Advisory Council, 2019).

3 https://www.homeaffairs.gov.au/research-andstatistics/statistics/visa-statistics/visa-cancellation

October 2021 THE BULLETIN

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CASE NOTE

Exploring the Parameters of Executive Detention following the High Court’s Decision in Commonwealth of Australia v AJL20 DR SARAH MOULDS, SENIOR LECTURER, UNISA AND RAFFAELE PICCOLO, BARRISTER, ANTHONY MASON CHAMBERS

T

he High Court’s decision in Commonwealth of Australia v AJL201 is a revealing glimpse into the breadth of executive power to detain unlawful non-citizens2 under the Migration Act 1958 (Cth) (the Migration Act) with potential implications for the exercise of executive power in other contexts. The decision split the Court 4:3: the majority led by Chief Justice Kiefel, and Justices Gageler, Keane and Steward, and powerful minority judgments penned by Justices Gordon and Gleeson and (separately) Justice Edelman.

In this article we briefly outline the key features of the majority and minority judgments, and offer some thoughts on the possible implications of this decision for future unlawful detention and executive power cases.

BACKGROUND This decision concerned Australia’s mandatory immigration detention regime that applies to people that fall within the category of ‘unlawful non-citizen’ under the Migration Act. Relevantly, s 189(1) of the Migration Act requires that an officer (of the Executive) detain a person that the officer knows or reasonably suspects is an unlawful non-citizen. Section 196(1) relevantly provides that an unlawful non-citizen must be kept in immigration detention until he or she is removed from Australia or until he or she is granted a visa. Section 198 then provides that an unlawful non-citizen must be removed

22 THE BULLETIN October 2021

from Australia ‘as soon as reasonably practicable’.

The High Court was asked to consider the construction of s 198 and other sections of the Migration Act in the context of the detention of the unlawful non-citizen AJL20. AJL20 was a Syrian citizen who had arrived as the holder of a child visa in Australia in May, 2005. The Minister for Immigration and Border Protection subsequently cancelled the visa of AJL20 on character grounds on 2 October, 2014. AJL20 consequently became an ‘unlawful non-citizen’ and was thereafter detained in immigration detention, pursuant to s 189(1) of the Migration Act.3

DECISION AT FIRST INSTANCE On 11 September, 2020 AJL20 was released upon the Federal Court (Bromberg J) making an order directing the Commonwealth of Australia to release him from immigration detention forthwith.4 The Federal Court determined that the continuing detention of him, since 26 July, 2019, was unlawful because the Executive had not removed him from Australia ‘as soon as reasonably practicable’. The reason for the delay was the Executive’s decision to consider Australia’s non-refoulement obligations with respect to AJL20, which was specifically identified as an irrelevant consideration by virtue of s 197C of the Migration Act.5 In making this decision, the Federal Court referred to the need to observe the limitations on the Parliament’s

power to authorise detention by the Executive flowing from the separation of judicial power effected by Ch III of the Constitution.6

DECISION OF THE HIGH COURT The majority determined that ss 189(1) and 196(1) of the Migration Act in authorising a person’s detention was not conditioned on the actual achievement of removal of the unlawful non‑citizen as soon as reasonably practicable by the Executive. Moreover, the only appropriate remedy for non‑compliance with s 198 was an order for mandamus, compelling the Executive to perform that statutory duty.

According to the majority, ‘[s]uch an order would give effect to the statutory scheme, whereas an order for the release of an unlawful non‑citizen into the community would undermine it.’7

THE MAJORITY JUDGEMENT: EXECUTIVE (IN) ACTION CANNOT AFFECT THE CONSTITUTIONAL VALIDITY OF A STATUTE The majority commenced with a review of the relevant authorities regarding the power of the Parliament to make laws with respect to immigration and aliens, and in particular the power of the Executive to detain a person in order to prevent unauthorised entry into, and/ or to facilitate removal from Australia (being an exception to the implications of Ch III of the Constitution that involuntary detention is ordinarily within the exclusive

CASE NOTE

province of the judiciary). The majority concluded the review of the authorities in this respect with reference to Al-Kateb v Godwin8 and cases following. In short, the majority confirmed the constitutional validity of ss 189, 196 and 198, insofar as those sections authorised and required the detention of an unlawful non-citizen, even where removal is not reasonably practicable within the foreseeable future. In the view of the majority, the correctness of that proposition, as held in Al-Kateb, did not arise for reconsideration in the case of AJL20.9 In the view of the majority, the primary judge’s reasoning disclosed two errors. First, the primary judge erroneously read down the requirement in s 196 such that the period of detention mandated by s 196 ended when the duty in s 198 (to remove the person as soon as reasonably practicable) had in fact been performed.

The view of the primary judge was that s 196 had to be read down to maintain the constitutional validity of the section.

Second, the primary judge erroneously held that non-compliance with s 198 meant that the purpose of detention, as authorised and required by ss 189 and 196, was no longer for the permissible purpose of removal, and was thus, unlawful.

Taking the above approach, the majority determined that the primary judge had ‘conflated questions of constitutional validity with questions of statutory interpretation, and questions concerning the purpose of the Act with questions

concerning the purpose of the officers of the Executive bound by it.’10 The majority explained that if a statute, properly construed, conforms to the constitutional limitations without need to be read down to save the validity of the statute, then the statute is valid in all applications, and there are no further constitutional questions to consider. Thereafter, whether the relevant action of the Executive was authorised by that statute, is a question to be resolved by reference to the statute, and principles of administrative law.11 As the majority plainly explained, ss 189 and 196 only permit detention of a noncitizen for the non-punitive purposes of segregation from the Australian community pending investigation and determination of any visa application, or removal. The power of the Executive to detain is limited to those purposes, and the Migration Act requires that detention comes to an end with the performance of those duties. It is these constraints upon the Executive that preserve the validity of the Migration Act; ensuring that the purpose of detention does not manifest into the non-permissible purpose of punishment. If it were otherwise, the purposes, and the consequent validity of the Migration Act, could ‘be set at nought by the intents or purposes of the officers of the Executive whose duty it is to enforce the Act.’12 Accordingly, there was no need for the primary judge to read down s 196.

As to the duties imposed upon officers (the Executive) by ss 189 and 196, and non-compliance with those duties, the

majority explained that issue of a writ of mandamus was the only remedy available.

This is because the duty to detain an unlawful non‑citizen until he or she is removed from Australia or until he or she is granted a visa, is neither conditional upon, nor co‑extensive with, the intents or purposes of officer. It follows that then the only available remedy is the issue of a writ of mandamus to compel the performance of that duty. Thereafter, any non-compliance on the part of the said officer might amount to a contempt of court (and liable to punishment, including by imprisonment).13 Moreover, contrary to the reasoning of the primary judge, given that ss 189 and 196 of the Migration Act requires the detention of unlawful non‑citizens, the rationale for an officer detaining that person is irrelevant (provided that the person is an unlawful non-citizen). Thus, no question of relief in the nature of habeas corpus arises.14 In sum, in this matter, as the relevant statutory provision relates to the performance of a duty, rather than any exercise of a discretion, any unauthorised or prohibited purpose on the part of the officer (of the Executive) in prolonging the period of detention (provided the requisite knowledge or suspicion that the person is an unlawful non-citizen continues to exist throughout the period of detention), did not and could affect the duty to detain, nor the duty to remove, an unlawful non-citizen.15 October 2021 THE BULLETIN

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CASE NOTE

THE MINORITY JUDGMENTS: CLEAR LIMITS ON EXECUTIVE DETENTION The minority judgments, delivered by Justices Gordon, Gleeson and Edelman, reveal a marked distinction in the way these members of the High Court approach the task of statutory interpretation and the question of unlawful executive detention in the context of the Migration Act. Justices Gordon and Gleeson delivered a joint judgement that began with a consideration of the principles discussed in Lim16 and Plaintiff M76/2013,17 placing an emphasis on the principle that there are ‘limits on the Executive’s authority to detain an alien in custody’ and that in order to be lawful, such detention ‘must be necessary for the purposes of deportation or necessary to enable an application for entry permit to be made’.18 Their Honours observed that the Executive has no prerogative to detain a person.19 Instead, powers of detention derive from statute and therefore any detention of unlawful non-citizens must serve the purpose of the Migration Act and the duration of that detention must be fixed by reference to what is necessary and incidental to the valid purposes prescribed by that Act. 20 Their Honours agreed with the majority that the circumstances of applicant AJL20 were different to those of the applicant in Al-Kateb. However they departed from the majority’s reasoning by explaining that the lawfulness of detention of AJL20 did not turn on the event of removal but rather the time by which removal must occur.21 In this case, the Executive’s authority to keep AJL20 in detention stopped when the ‘reasonably practicable’ time period had expired.22 Gleeson and Gordon JJ explained that while in Al-Kateb v Godwin23 the detention was prolonged by an inability to remove the applicant, here the detention was unlawfully prolonged by Executive’s consideration of

24 THE BULLETIN October 2021

non-refoulment obligations which were expressly stated to be irrelevant to whether a non-citizen should be removed.

Justices Gordon and Gleeson rejected the Commonwealth’s claims that detention remains lawful subject only to a requirement that the relevant officer reasonably suspects the person is an unlawful non-citizen. Their Honours observed that this contention would lead to the detention of unlawful non-citizens “at the unconstrainted discretion of the Executive” in circumstances where the “terminating event may never occur despite being reasonably practicable”.24 In a separate judgement, Justice Edelman also found the detention of AJL20 to be unlawful, and rejected the idea that the Executive is authorised to continue to detain an unlawful noncitizen for a purpose that is contrary to an express provision of the Migration Act.25 Justice Edelman distinguished a number of past ‘indefinite detention’ cases26 on the facts, noting that those cases turned on the question of whether release would be inconsistent with the statutory scheme of the Migration Act. Here the question was whether the prolonged detention of AJL20 beyond the time permitted by the Migration Act was lawful.27 Justice Edelman explained that in this case, the duty in s 198 had been engaged, but the detention was extending beyond the requirements of that section. This was because from 26 July, 2019 the purpose of detaining AJL20 was solely for removal in a manner consistent with Australia’s non-refoulment obligations, contrary to the express terms of s197C of the Act. In other words, Edelman J found that the Executive could have lawfully detained AJL20 if it changed its purpose to one of removal or it could have fulfilled is obligations by granting a visa - but it could not detain AJL20 while it considered

non-refoulment obligations as that was not a purpose authorised by s189 of the Migration Act. Justice Edelman’s judgment also directly addressed the question of whether mandamus could constitute an appropriate remedy for the executive’s delay or failure to remove or release applicant AJL20.

Disagreeing with the majority, Edelman J described the reference to mandamus in this case as ‘glib’, noting that there will be ‘some if not many cases where an unlawful non-citizen in immigration detention will have no means of obtaining information necessary to mount a case for mandamus’.28 In such circumstances, His Honour warned, ‘the unlawful prolongation of detention that is brought about by the Executive’s failure to remove as soon as reasonably practicable will go unremedied.’29

SO WHERE TO FROM HERE? On the one hand, this decision is unremarkable – with the majority following a line of High Court decisions that effectively locks in the Australian Government’s policy of mandatory, potentially indefinite detention of unlawful non-citizens and refusing to ‘reopen’ the decision in Al-Kateb. On the other hand, this decision brings into stark focus the lack of protections under Australian law to guard against arbitrary (and prolonged) detention and the distinct limitations on running habeas corpus or Ch III arguments in the context of detention of unlawful non-citizens under the Migration Act. According to the majority, statutory duties to act under the Migration Act can be actively ignored or deliberately delayed by the Executive, without giving rise to unlawful detention. In such circumstances, mandamus is the only appropriate remedy– and the only remedy that promotes the statutory purpose of the Migration Act.

CASE NOTE

This finding was made despite the fact that this remedy is likely to be of no practical use to an unlawful non-citizen who has no prospect of being granted a visa, lacks access to relevant information, and who will be immediately re-detained even if mandamus is issued and the relevant decision maker is compelled to exercise their statutory duty under s 196.

Justices Gordon and Gleeson’s minority judgment provides a glimmer of hope to those who remain of the view that Ch III of the Constitution provides an important safeguard against the misuse of executive power. Their Honours clearly reject the possibility of detention at the ‘unconstrainted discretion of the Executive’30 and reassert the significance of imposing temporal limits on the power to detain under ss 189 and 196 of the Migration Act. Justice Edelman provides a particularly interesting analysis of the scope and purpose of the Migration Act, and the powers of detention contained in ss 189 and 196. His Honour does not dispute that detention of an unlawful non-citizen can be prolonged and still lawful – but makes it clear that such detention will only be lawful if done in line with statutory purpose. Here, the fact that the officers considered non-refoulment obligations when they were explicitly excluded from doing so by s197C rendered the detention unlawful. His Honour is keen to put the Migration Act on the same plane as any other statute granting executive power, and observes that ‘it would be very strange if the Migration Act were an island of freedom from established legal concepts, permitting the Executive to act for any purpose in the exercise of its powers or the performance of its duties, no matter how far that purpose departs from the express or implied terms of statutory authority.’31

Interestingly, both the majority,32 and minority,33 judgements evoke the separation of powers to support their conclusions, bringing into sharp focus the central role statutory interpretation – and in particular the articulation of statutory purpose, plays in determining the parameters of lawful executive power in Australian law. B Endnotes 1 Commonwealth of Australia v AJL20 [2021] HCA 21. On 23 June 2021 a 4:3 majority of the High Court allowed appeals from the Commonwealth concerning the construction of ss 189, 196, 197C and 198 of the Migration Act 1958 (Cth) (‘Migration Act’).

2 ‘Unlawful non-citizens’ are non-citizens in the ‘migration zone’ (in broad terms, Australia) who do not hold effective visas.

3 Section 189(1) of the Migration Act, read with the s 5(1) definition of ‘detain’, authorises and requires the Executive to take into and keep ‘unlawful non-citizens’ in immigration detention.

4 [2020] FCA 1305 (Bromberg J).

5 Section 197C had the effect that it was irrelevant whether the Executive’s performance of the s 198 duty would place Australia in breach of its nonrefoulement obligations under international law.

6 [2020] FCA 1305, [95]-[99], [123] (Bromberg J).

7 Commonwealth of Australia v AJL20 [2021] HCA 21, [4].

8 Al-Kateb v Godwin (2004) 219 CLR 562.

9 Commonwealth of Australia v AJL20 [2021] HCA 21, [25]-[26].

10 Commonwealth of Australia v AJL20 [2021] HCA 21, [42].

11 Commonwealth of Australia v AJL20 [2021] HCA 21, [43].

12 Commonwealth of Australia v AJL20 [2021] HCA 21, [44]-[45].

13 Commonwealth of Australia v AJL20 [2021] HCA 21, [51]-[52].

14 Commonwealth of Australia v AJL20 [2021] HCA 21, [61].

15 Commonwealth of Australia v AJL20 [2021] HCA 21, [71]-[72].

16 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 57.

17 (2013) 251 CLR 322 at 369370 [139].

18 (2013) 251 CLR 322 at 369370 [139].

19 Commonwealth of Australia v AJL20 [2021] HCA 21, [80] (Gordon and Gleeson JJ) citing Lim (1992) 176 CLR 1 at 19, 63; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 567-568 [148]-[150], 599600 [273]-[275]; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 105 [159], 158 [372].

20 Commonwealth of Australia v AJL20 [2021] HCA 21, [80] (Gordon and Gleeson JJ) citing Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 232 [29].

21 Commonwealth of Australia v AJL20 [2021] HCA 21, [87] (Gordon and Gleeson JJ) 22 Commonwealth of Australia v AJL20 [2021] HCA 21, [84] (Gordon and Gleeson JJ) 23 Al-Kateb v Godwin (2004) 219 CLR 562 at 647 [254].

24 Commonwealth of Australia v AJL20 [2021] HCA 21, [83] (Gordon and Gleeson JJ) 25 Commonwealth of Australia v AJL20 [2021] HCA 21, [106] (Edelman J).

26 Commonwealth of Australia v AJL20 [2021] HCA 21, [100] (Edelman J) citing WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 and NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2.

27 Commonwealth of Australia v AJL20 [2021] HCA 21, [100] (Edelman J).

28 Commonwealth of Australia v AJL20 [2021] HCA 21, [99] (Edelman J).

29 Commonwealth of Australia v AJL20 [2021] HCA 21 [99], (Edelman J).

30 Commonwealth of Australia v AJL20 [2021] HCA 21, [83].

31 Commonwealth of Australia v AJL20 [2021] HCA 21, [108].

32 For example, Kiefel CJ, Gageler, Keane and Steward JJ observed (at [48]) that, ‘A failure by the Executive diligently to perform the duties that give effect to the legitimate non-punitive purpose for which detention is authorised and required by the Act erases neither those duties nor the statutory purpose which those duties support. Were it otherwise, the supremacy of the Parliament over the Executive would be reversed and the rule of law subverted.’

33 For example, Edelman J observed (at [156]) that, ‘For a court to uphold a purpose of detention that is beyond the scope and purposes of statutory authority would deny “the supremacy of Parliament over the Executive.”’

October 2021 THE BULLETIN

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FEATURE

The new casual conversion regime TOM EARLS AND ASHLEIGH DE SILVA, FAIR WORK LAWYERS

R

ecently, legislative amendments were introduced to the Fair Work Act 2009 (Cth) (FW Act),1 designed to clear up uncertainty surrounding casual engagements and the risk of doubledipping of leave and other entitlements arising from the Workpac litigation.2 This amendment places a time sensitive positive obligation on all businesses other than “small businesses”3 and creates a general right for employees in any business to request to convert their employment (with an accompanying dispute mechanism if the request is refused) after they complete 12 months’ service. There is also a time sensitive transitional period which expires on 27 September, 2021 (see below).

DEFINITION OF CASUAL This amendment now provides a statutory definition of a casual employee which focusses on whether, at the time of offering employment to the employee, the employer makes a firm advance commitment to continuing and indefinite work.4 The Fair Work Commission is presently reviewing casual provisions within modern awards to remove ambiguity and uncertainty but unless/until that occurs, award provisions relating to casual employment prima facie continue to apply.

Periods of service as a casual are expressly excluded from service-based credits.5

CASUAL EMPLOYMENT INFORMATION STATEMENT In addition to giving the Fair Work

26 THE BULLETIN October 2021

Information Statement (required for all employees),6 casual employees must also be given the Casual Employment Information Statement before or as soon as practically possible after commencing employment.7 Any failure to provide either statement can result in penalties, including accessorial liability for persons ‘involved in’ the contravention.8 Small business employers should have already handed a copy of this to their casual employees but if they have not, they should do it as soon as possible.

RIGHT TO CONVERT CASUAL EMPLOYMENT The key feature of the legislation was the introduction of a broad right for casual employees to convert to permanent employment. These obligations are split between small business employers (broadly speaking, less than 15 employees) and all others. Importantly, the obligation on nonsmall business employers is time sensitive.

OTHER THAN SMALL BUSINESS EMPLOYERS: THE POSITIVE OBLIGATION Unless any exceptions apply, nonsmall business employers must9 within 21 days of the first anniversary of each casual employee’s employment (the Offer Window), follow a process which includes providing written correspondence to the casual employee, whether they are being offered permanent employment or not.

The first step is to consider whether the employee has for at least the last six months of employment, worked a regular

pattern of hours on an ongoing basis that without significant adjustment, they could continue to work as a full-time/part-time employee (‘Eligible Employee’).

If so, the employee must be offered permanent employment, with the offer including certain prescribed details10 within the Offer Window, unless an exception applies. The employee must respond to the offer within 21 days or it is deemed rejected.11 If accepted, there is a further 21 day window during which the employer must discuss various details about the acceptance and provide a written notice setting this out.12 Unless otherwise agreed, the date of commencement must be the start of the next full pay period.

Where an employee is otherwise an Eligible Employee, an offer is not required where there are reasonable grounds (based on facts known or reasonably foreseeable at the time of making the decision). This could include both known or expected operational changes or end of projects. As new law, there is considerable scope for disputation about what is, or is not, reasonable. 13 This must be communicated, in writing, to the employee within the Offer Window, including the prescribed details.14 If the employer considers the employee is not an Eligible Employee, they must also advise them of this, in writing, within the Offer Window and including the prescribed details.

In both cases where an offer is not being made, there is a dispute resolution process.15

FEATURE

THE RESIDUAL RIGHT TO REQUEST The legislative also provides a residual right to request conversion. This includes employees in small businesses and employees of other than small businesses outside of the above procedures (including where a previous offer has been rejected or a decision was made to not offer casual employment).

RIGHT TO REQUEST An Eligible Employee may request conversion for all employees who meet the applicable criteria.16 Generally, there is a six month ‘cooling off ’ period between either rejections or refusals, or making a new request. Such requests must be given to the employer in writing and should specify whether employment relates to full or part-time work.

commencement must be the start of the next full pay period.

DISPUTES When it comes to disputations, the Fair Work Commission handles disputes concerning the operation of the provision (unless there is an award/enterprise agreement or contract or other agreement that deals with the disputes, in which case that must be complied with). Penalties can apply to employers who fail to comply with or attempt to avoid the legislation.20

TRANSITIONAL OBLIGATIONS

EMPLOYER RESPONSES

Small businesses: For small businesses, there is no positive obligation but the residual right to request is enlivened at this time.21 As noted above, a copy of the Casual Employment Information Statement must be provided ASAP if not already provided.

In their response, the Employer must reply, in writing, within 21 days after the receipt of the request.17 The employer can only refuse if there are reasonable grounds for doing so.18 This must be communicated to the employee in writing as part of the response, and then may be subject to disputation.

In the same vein as the acceptance process, if the employer grants the request, they must firstly discuss the terms of the employment and within 21 days after the acceptance, provide a written notice setting out the terms of the conversion.19 Unless otherwise agreed, the date of

Other than small businesses: Casual employees of non-small businesses who were employed as of 27 March, 2021 are subject to transitional provisions. Broadly speaking, the employer is required to select a date (any date) between 27 March and 27 September, 2021.

On that day, they are required to conduct an assessment of any casual employees who have at least 12 months’ service as at the selected date and send one of the three notices above (ie. offering permanent or advising why an offer is not being made – either on business grounds

or they are not eligible) within 21 days from that date. For all casual employees with less than 12 months’ service at that time, the relevant steps would need to be made on the anniversary of their employment (as above).

At the end of the transition period, any remaining casual employees must be given a copy of the Casual Employment Information Statement as soon as practicable. B

Endnotes 1 See Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021.

2 See for example, Workpac Pty Ltd v Rossato [2020] FCAFC 84, which is presently under appeal to the High Court 3 s23 FW Act. 4 s15A FW Act. 5 See, for example, annual leave s87(1) or personal leave s96(1) of the FW Act. 6 For more information, see https://www. fairwork.gov.au/tools-and-resources/factsheets/minimum-workplace-entitlements/fairwork-information-statement 7 For more information, see https://www. fairwork.gov.au/employee-entitlements/nationalemployment-standards/casual-employmentinformation-statement 8 s550 FW Act. 9 s66B FW Act. 10 s66B FW Act. 11 S66D FW Act 12 S66E FW Act. 13 s66C FW Act. 14 s66C FW Act. 15 s66M FW Act. 16 s66F FW Act. 17 s66G FW Act. 18 s66H FW Act. 19 s66J FW Act. 20 s66L FW Act. 21 Schedule 1 FW Act.

October 2021 THE BULLETIN

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FEATURE

Criminal offences of wage theft in Victoria and Queensland STEPHEN RANIERI, CRIMINAL LAW COMMITTEE

I

n 2020 and 2021, Queensland and Victoria respectively became the first Australian jurisdictions to criminalise wage theft. That the Victorian and Queensland Parliaments chose to take this course undoubtedly reflected growing concerns of widespread worker exploitation in Australia. It is commonly understood that worker exploitation is a problem in Australia; particularly for vulnerable groups like temporary migrant workers, disabled workers, young workers, and the casualised workforce. Moreover, if properly characterised as employees as a matter of law, some groups working within the ‘gig economy’ or ‘on demand’ workforce have also been subject of growing concerns of worker exploitation.1 The problem is compounded by the so-called ‘fissuring’ or fragmentation of the workforce through growth in labour hire and franchising business models.2 Even prominent Australian employers have been found to have underpaid local staff working in salaried roles on a widespread and systematic basis. It is also no secret that employers like the 7-Eleven and Dominos franchises have previously relied on the widespread underpayment of its (often casualised) workforce. The COVID-19 pandemic has fuelled these concerns by adding to the insecurity of the Australian job market, particularly within the hospitality and service delivery industries. It is unsurprising, then, that Victoria and Queensland have led the charge to criminalise wage theft in Australia.

The composite phrase ‘wage theft’ is somewhat imprecise, however commentators agree that it essentially comprises conduct the effect of which is to dishonestly or fraudulently deny lawful entitlements due to an employee by an employer.3 Indeed, Victoria’s and Queensland’s wage theft offences adopt

28 THE BULLETIN October 2021

this formula by coupling the withholding of an employee entitlement4 to a fault element of ‘dishonesty’ (or in Queensland’s case, ‘fraudulently’). Conduct comprising wage theft often includes associated issues such as unlawful deductions, maintaining inadequate or false/misleading employment records, and intentionally misrepresenting an employment relationship so as to avoid the provision of employee-specific entitlements.5 It remains the case that the majority of employers and employees in Australia are bound by the Commonwealth workplace relations system and the Fair Work Act 2009 (Cth) (FW Act). But the FW Act does not provide criminal liability for conduct comprising wage theft. Instead, the FW Act contains civil remedy provisions for underpayments of minimum entitlements which empower a court in prescribed circumstances to impose a fine or any other order it considers appropriate.6 Despite growing calls to criminalise wage theft at the Commonwealth level, a recent attempt to do so was defeated in the Senate.7 It appears, at least for now, that any progress in criminalising wage theft will be led at the state level.

In criminalising wage theft, both the Victorian and Queensland Parliaments recognised that deterrence was the essential feature underpinning these provisions.

In that sense, it is well-understood that significant criminal sanctions may drive scrupulous employers to change (or not change) their behaviour based on the perceived costs of legal punishment versus the potential gains of non-compliance.8 In that regard, wage theft offences in Victoria and Queensland both carry penalties of imprisonment of up to 10 years. Despite this common ground between Victoria’s and Queensland’s

core wage theft criminal offences, the two frameworks differ markedly in other respects. For example, Victoria’s wage theft offences are housed within a standalone enactment — the Wage Theft Act 2020 (Vic); whereas Queensland’s originated through amendments to its Criminal Code Act 1899 (Qld). Queensland’s wage theft provisions essentially operate to broaden conduct comprising the well-known offence of stealing to include fraudulently withholding an amount payable to an employee in relation to the performance of work.9 Victoria’s Act also includes associated criminal offences of failing to maintain, or falsifying, employment records. Moreover, Victoria’s Wage Theft Act provides for the establishment of a statutory body corporate, the Wage Inspectorate Victoria, which is conferred with investigative and prosecutorial functions. In contrast, investigation and prosecution of Queensland’s wage theft offences are left to Queensland Police. It remains to be seen whether criminal offences of wage theft will achieve their ostensible deterrent aim, and have the consequence of reducing employee exploitation in Victoria and Queensland.

Closer to home, in October, 2018 the Legislative Council established a Select Committee on Wage Theft in South Australia where possible criminal offences for wage theft were mooted.

The Committee handed down its Interim Report on 21 July, 2020, setting out the arguments for and against criminalising wage theft.10 It is also noteworthy that South Australia has also passed legislation in 2017 mandating labour hire licencing (with associated criminal offences for operating unlicensed), underscored by the stated aim of reducing roge labour hire providers in the state.11

FEATURE

Whether South Australia ultimately resolves to criminalise wage theft like Victoria and Queensland remains to be seen; however, it will likely depend on the ultimate findings and recommendations of the Select Committee on Wage Theft. B Endnotes 1 Such as ride sharing and food delivery services.

Whether these workers are properly characterised as employees or independent contractors as a matter of law is far from clear.

2 A term coined by David Weil Weil. See The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It, Harvard University Press, Massachusetts, 2014.

3 It is noteworthy that some commentators take the view that non-payment of employee entitlements can be ‘wage theft’ even if it is not accompanied by a fault element — as a strict liability offence.

4 Defined to include those arising through relevant legislative minima or even in individual contracts of employment.

5 Colloquially known as ‘sham contracting’.

6 See FW Act ss 546(1) and 545(1).

7 Through the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 (Cth).

8 Tess Hardy, ‘Digging Into Deterrence: An Examination of Deterrence-Based Theories and Evidence in Employment Standards Enforcement’ (2021) 37(2-3) International Journal of Comparative Labour Law and Industrial Relations 133, 136.

9 Criminal Code Act 1899 (Qld) s 391(6A).

10 Select Committee on Wage Theft in South Australia, Interim Report (21 July 2020), 42-3.

11 See Labour Hire Licensing Act 2017 (SA).

A Record-Breaking Year for Pro Bono

T

he Australian legal profession reported a record-breaking 641,966 hours of pro bono legal work in the 2021 financial year (FY2021), according to the Australian Pro Bono Centre’s 14th Annual Performance Report of the National Pro Bono Target.

The report captured data reported by signatory firms, being those that have signed up to meet the Target.

South Australian signatories clocked up 8,758 pro bono hours in the 2021 financial year, according to the report.

The report shows a 16% increase in pro bono hours worked compared to FY2020, and 36% more than the 2019 financial year, despite the financial struggles many have faced due to the COVID 19 pandemic.

Lawyers recorded an average of 39.7 pro bono hours individually, significantly exceeding the Pro Bono Centre’s target of 35 pro bono hours per lawyer. This is the largest increase to have been recorded over the past decade. There are now 16,435

STATE/TERRITORY

PROPORTION OF AUSTRALIA’S POPULATION

PROPORTION OF PRACTISING SOLICITORS IN EACH JURISDICTION

PROPORTION OF TOTAL PRO BONO HOURS REPORTED BY SOLICITORS

ACT

1.7%

3%

3.16%

NSW

31.8%

43%

44.16%

NT

1%

1%

0.36%

QLD

20.2%

16%

11.58%

SA

6.9%

5%

1.35%

TAS

2.1%

1%

0.05%

VIC

25.9%

25%

31.96%

WA

10.4%

7%

7.44%

lawyers who have signed up to the Target, having increased from 187 signatories in the previous financial year.

This is the first year the Target Inhouse legal individuals and teams, with a minimum of 20 hours being contributed by all who represented. This financial year, 27 signatories reported a total of 981 pro bono hours, dedicated to their new commitment with the Target.

This was also the first year was the first year the Centre asked Target signatories to report on hours of pro bono work undertaken by lawyers based in each Australian State and Territory.

NSW’s lawyers, who make up 43% of the profession, contributed 44% of the total number of pro bono hours in Australia, while SA’s signatories contributed 1.35% of total pro bono hours.

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FEATURE

ACCESS TO JUSTICE THROUGH INNOVATION T

he Accessible Justice Project (‘AJP’) is a not-for-profit legal practice based in Adelaide, established in 2020. We provide affordable ‘low-bono’ legal services to people who would otherwise be without help because they are ineligible for publicly funded legal aid and cannot afford the costs of private legal services.

The project is a collaboration between Lipman Karas and The University of Adelaide and is Australia’s first collaboration between the private profession and a law school.

Each of the inaugural AJP lawyers completed a Master of Laws degree, which included working in the new practice and preparing a dissertation that focussed on the theme ‘Improving Access to Justice through Innovation and Technology.’ This article presents a snapshot of each of the four LLM dissertations.

DISSERTATION ONE WRITTEN BY MARIO PEGOLI: CAN INHERITANCE FOR A PERSON WITH A DISABILITY BE PROTECTED THROUGH THE USE OF A MICROBOARD? Historically, a person with a disability was not seen as equal. Laws were passed and decisions were made for the person with a disability without consideration of their autonomy. In the 1970s and 1980s, the ‘medical model’ adopted a substitute decision-making process where preferences and freedom to self-govern were secondary to perceived protection mechanisms. This meant decisions were made, without considering the views, preference or rights of the person with disability. In the 1980s, the international human-rights based movement accelerated and advocated for supported decisionmaking models, placing the person with a disability at the centre of decisions.

This thesis looked at how people can be supported to make decision for themselves, including decisions around estate planning and receiving an inheritance. A person with a disability can be overlooked when land, money or

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property is passed down due to disability discrimination. The thesis considered the link between inheritance, poverty, and disability and how government action is required. Article 12 of the UNCRPD1 places an obligation on State Parties to affirm equal recognition before the law for a person with a disability and confirms that supported decision making is now strongly favoured over substitute decisionmaking, principally because it affects the equality principle in Article 12.2 Current Mechanisms General and Enduring Powers of Attorney, Advanced Care Directives, and Guardianship are current mechanisms that support a person with a disability in managing their affairs which include an inheritance. Whilst useful, these tools are not optimal as they do not provide a mechanism for enabling supported decision-making arrangements for a person with a disability throughout their life. They provide for substitute decision makers (usually one or two) to make decisions in the perceived best interests of the person and/or are limited in scope.

Microboard A very different, long lasting, and flexible approach is a Microboard which includes a small group of interested individuals gathering around a person with a disability to support them with decisionmaking throughout their life.3 Comparative Analysis Analysis was completed in three jurisdictions considering how Microboards are established and governed in Australia, Canada, and the USA. Key learnings of the comparative analysis provide input into the recommendations on how legislative reform in Australia could lead to innovation and create legislation that provides a supported decision-making model to protect an inheritance for a person with a disability.

In Canada, a Microboard is recognised as a supported decision-making mechanism for a person with a disability. This mechanism

allows for the person with a disability to receive the right supports throughout their life, to make decisions and participate in society. The mechanism is recognised in legislation and funding is provided to support the microboard.

Recommendations Enacting legislation to deal with this issue is important because society demands equality and recognises that all persons, with the right supports, can contribute and participate whilst protecting individual rights and freedoms. This thesis advocated for South Australia to lead legal innovation and create Australia’s first Microboard Act to protect persons with disability and their inheritance, and to provide a supported decision-making model throughout their lives. This supported decision-making model provides access to justice as it considers the autonomy and preferences of the person living with a disability, while ensuring their choices are heard and respected.

DISSERTATION TWO WRITTEN BY GUGLIELMO PLAIN: ACCESS TO JUSTICE THROUGH TRIAGE IN SOUTH AUSTRALIA: MECHANISMS TO ENSURE THAT CLIENTS ARE ADEQUATELY USHERED TOWARDS APPROPRIATE LEGAL SUPPORT FOR CIVIL MATTERS Entering the legal system and accessing adequate support is complex, particularly for vulnerable individuals. Despite research demonstrating the importance of triage or referral systems, implementation has been limited. Referral and triage would improve access to justice in civil disputes in SA. There are systemic and individual barriers to accessing justice. Systemic barriers include a lack of funding, insufficient focus on civil matters, excessive resource expenditure on inter agency referrals, and assistance to individuals who have not been adequately assessed for eligibility. Individuals who need free or subsidised legal services often have limited capability. Capability is comprised of factors

FEATURE

Mario Pegoli, Alice Rolls (Principal, Lipman Karas), Guglielmo Plain, Tayne Redman and Cheryl Rosales.

including literacy skills, access to digital technology, disability, and many others.

Without adequate support, individuals are unable to access appropriate legal services.

Many people searching for legal assistance go through multiple agencies before they find the right advice (if indeed they find it at all). A triage service would decrease the need for inter-agency referral, increase the efficiency of the system, and provide appropriate capability-dependant support based on the nature of the legal problem faced by an individual.

To devise a model that overcomes the barriers and sets out a triage process, five different models were critiqued.

Examination of these models showed that the focus should be on resolving issues early and including non-legal forms of support, highlighted the value of the Legal Services Commission of SA (“LSC”) as a centralised triaging agency, and demonstrated the importance of services being user-centric and flexible. There was also a focus on how digital technology could be leveraged to optimise resource allocation.

The key recommendation made was that triage be conducted centrally, perhaps by the LSC, which is often the first port of call for people seeking direction to legal assistance. This would comprise an online questionnaire, an interview stage, and an exit stage. The initial online questionnaire would include links to multiple support mechanisms to improve accessibility. The interview stage would rely on information gathered in the initial stage to determine capability and legal needs, leading to suggestions of appropriate support options. The exit stage would support outcomes depending on client needs and capability: directing individuals to legal, non-legal, self-representation or other avenues of support as necessary.

Implementing this model would necessitate further research and stakeholder engagement to ensure that the burden on the LSC is minimised, and that the system be streamlined for individuals and recipient organisations. The model would increase

the efficiency of existing organisations and decrease entry barriers for organisations wishing to provide low-bono or pro-bono services. It would also improve the usage of existing organisations providing legal and non-legal assistance to vulnerable individuals. Significant resources are already expended in ineffectual referral / cross referral and in providing unguided ad hoc assistance to individuals entering the legal system. The proposed model would reduce costs and increase efficiency by focusing resources on triage interviews and directing individuals to the correct support.

that is currently available to help guide the early resolution of disputes before the commencement of an action. Participants’ observations mirrored the challenges seen in different Commonwealth jurisdictions across the world. However, other jurisdictions have made the necessary infrastructure changes to address these challenges. Although the study was small in scale, it provides the foundations for the practical implementation of similar innovative models in South Australia to improve and transform how SRLs engage with dispute resolution, either in tandem with or independent of human assistance.

DISSERTATION THREE WRITTEN BY TAYNE REDMAN: PRE-ACTION ONLINE DISPUTE RESOLUTION: IMPROVING SELFREPRESENTED LITIGANTS’ ENGAGEMENT WITH SOUTH AUSTRALIA’S PRE-ACTION PROTOCOLS

Recommendations The dissertation proposed expanding South Australian court service’s infrastructure to include innovations in online technologies that help SRLs comply with the Pre-Action Protocols.

These online infrastructure improvements would substitute the functions of legal representation in the early stages of a civil claim, including narrowing legal issues, generating documents (such as pre-action claims), and providing forums for online mediations.7 These changes could minimise the impediments inherent with litigating, such as the overall time to resolve the dispute, the cost of proceedings that may have been avoided, and the geographic barriers. Implementing new online infrastructure into South Australian court services will assist a large segment of the South Australian community to access the Pre-Action Protocols, ultimately improving access to justice.

This research was the first in-depth study of how self-represented litigants (SRL) engage with civil pre-action protocols under the new Uniform Civil Rules 2020 (SA) (Pre-Action Protocols).

Pre-Action Protocols are the formal rules of exchanges and offers before the commencement of legal proceedings. In 2020, the rules transformed to include a pre-action meeting as the default mechanism for all civil claims above $12,000 and a favourable option for civil claims below $12,000.4 This research confirmed earlier findings that more infrastructure is required to achieve the objects of the Pre-Action Protocols.5 Without new infrastructure, the 8.9% of South Australians who do not have access to legal representation remain outside the protections, benefits and entitlements the law should be providing.6 Implications This research suggests the objects of the Pre-Action Protocols are not meeting their intended purpose for SRLs. The data highlights many SRLs are either unaware of the Pre-Action Protocols or unable to understand the information

DISSERTATION FOUR WRITTEN BY CHERYLL ROSALES: COMPARING THE USE OF INTERMEDIARIES WITH SUSPECTS AND THE ACCUSED IN SOUTH AUSTRALIA AND NORTHERN IRELAND This dissertation explored the history of intermediary schemes and the impact of disability on suspects and accused when speaking to criminal justice personnel. Northern Ireland was selected October 2021 THE BULLETIN

31

FEATURE

as the comparison jurisdiction for South Australia because, not only are they similar in population size, but they are also the only other jurisdiction that has legislative entitlements for suspects and accused to access intermediaries.8 An intermediary is an impartial person9, considered an officer of the court, who assesses individual communication needs and abilities and advises the questioner on how to make reasonable adjustments to their communication or the environment so that an individual with complex communication needs is able to give their best evidence.

In reviewing the scheme in Northern Ireland10 and the old scheme in South Australia11, my research found that both schemes had a central organising body that managed the training, registration and allocation of intermediaries when there was a request for assistance. Importantly, there were similar barriers identified in both services, such as the ability of criminal justice personnel to identify those with communication disability, an over estimation of their ability to make communication adjustments, awareness of legislative entitlements and the existence of the intermediary schemes, generally.

Interestingly, there were similar numbers of requests for intermediaries in both jurisdictions in the relevant time periods.

While Northern Ireland extended their program to conduct further investigations, in 2018 South Australia announced the discontinuation of funding to the old scheme 15 months before the end of the funded period for the old scheme.12 It was replaced with a new user pays model.

This new model13 is problematic as there is no guidance on how much intermediaries should charge. Persons in need of intermediaries may not be able to afford the cost and miss out on a legislative entitlement. Even if the need for an intermediary was recognised, the

32 THE BULLETIN October 2021

new model has no centralised way of locating an intermediary and there is no organising body overseeing the registration and quality of service provided.

Results This dissertation compared the three models to ascertain what was successful within each model in order to make suggestions that could be taken into consideration should a new iteration of an intermediary scheme in South Australia be developed.

The following recommendations were made: 1) Create a body to oversee registered intermediaries; 2) Define the scope of the role of an intermediary; 3) Ensure pre-trial special hearings take place when an intermediary has been utilised; 4) Provide guidance on cost for the use of an intermediary.

Learning from the experiences of Northern Ireland, South Australia could create an intermediary scheme where South Australia is once again ‘at the forefront of national thinking and reform’14 and leading the way towards ensuring access to justice for all people who come into contact with the criminal justice system.

For further information, please reach out to us at www.accessiblejustice.org.au B Endnotes 1 United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) (‘Convention on the Rights of Persons with Disabilities’).

2 Terry Carney and Fleur Beaupert, ‘Public and Private Bricolage – Challenges Balancing Law, Services and Civil Society in Advancing CRPD Supported Decision-Making’ (n 1) 177-178.

3 South Australian Law Reform Institute, Valuable Instrument or the Single Most Abused Legal Document in our Judicial System? A Review of the Role and Operation of Powers of Attorney in South Australia (Final Report, December 2020) 403 [10.1.2] (‘Valuable Instrument or the Single Most Abused Legal Document in our Judicial System? A Review of the Role and Operation of Powers of Attorney in South Australia’).

4 See the Uniform Civil Rules 2020 (SA) Chapter 7, Divisions 3 and 4, for General Civil Claims; and Uniform Civil Rules 2020 (SA) Chapter 24, Part 2, for Minor Civil Claims. The author notes there is far greater emphasis for pre-action meetings in General Claims under rule 61.12 than for Minor Civil Claims, albeit the requirement is still included for consideration in Minor Civil Claims through rule 332.3(1)(f).

5 Tania Sourdin, Margaret Castles and Madeline Muddle, ‘Pre-action Requirements in Medical Negligence Matters’ (2018) 7 Journal of Civil Litigation and Practice 77, 93.

6 South Australian Council of Social Services (SACOSS), Submission to the Legislative Council of South Australia Select Committee on Poverty, Poverty In South Australia (13 August 2018) 6.

7 Darin Thompson, ‘Creating New Pathways to Justice Using Simple Artificial Intelligence and Online Dispute Resolution’ (2015) 1(2) International Journal of Online Dispute Resolution 4, 7.

8 In South Australia intermediaries are known as Communication Partners. Evidence Act 1929 (SA) section 4(1) defines communication partner as ‘a person, or a person of a class approved by the minister for the purposes of providing assistance in proceedings to a witness with complex communication needs’.

9 In South Australia Communication Partners must be Speech Therapists, Developmental Educators, Social Workers, Occupational Therapists or Psychologists registered with the appropriate licencing body and with at least 5 years relevant experience. See Attorney Generals Department, A guide to Engaging a Communication Partner (PDF, June 2020) 7 <https://www.sa.gov.au/ topics/rights-and-law/arrest-and-court#hiring>.

10 Department of Justice Northern Ireland, Northern Ireland Registered Intermediaries Schemes Pilot Project Post-Project Review (2015).

11 Jennifer Jacobs, Communication Partner Service Final Report (2020).

12 The budget announcement was released in September of 2018, while the service was funded until 29 February 2020. See also Isabel Dayman, ‘SA budget: Parents of sex abuse victim condemn funding cut to legal support service’, ABC News, 13 September 2018, < http://www.abc.net.au/ news/2018-09-13/sex-abuse-victim-servicefunding-cut-condemned/10238582>.

13 Attorney Generals Department, A guide to Engaging a Communication Partner (PDF, June 2020) 7 <https://www.sa.gov.au/topics/rightsand-law/arrest-and-court#hiring>.

14 South Australia, Parliamentary Debates, House of Assembly, 29 July 2015, 2130 (Hon John Rau).

TAX FILES

All in it together - Payroll Tax Grouping PAUL TANTI, PARTNER, THOMSON GEER

T

he grouping provisions in the Payroll Tax Act 2009 (Act) have been with us in substantially the same form for many years. However, they are often either overlooked or not applied correctly by taxpayers.

There appears to be recent activity by RevenueSA in relation to the grouping of entities. RevenueSA usually amends returns for the previous five years. The combination of the primary tax, interest and penalties can result in significant liabilities for taxpayers.

Taxpayers should review their structures to ensure that either they are not grouped or, if they are, whether a successful de-grouping application could be made.

The grouping provisions are contained in Division 2 of the Act. Essentially, entities can be grouped on the basis that they are either: • a corporate group under section 70; • use common employees under section 71; or • are commonly owned or are commonly controlled under section 72. Common ownership or control requires more than 50% of the ownership of an entity or control of the directors or equity owners of an entity.

There are provisions in the Act which considerably broaden the above provisions and result in them having a much wider application than may first appear. For example: 1. control includes a consideration of the terms of any shareholders or unitholders agreement between the parties; 2. a single employee of an entity can be sufficient to group the employer with another entity (section 71); 3. all beneficiaries of a standard

discretionary trust are deemed to control the trust (section 72(6)).

Therefore, multiple beneficiaries can each be deemed to control the same trust; 4. interests in companies can be traced through to the ultimate owners (sections 73, 76 and 77); 5. direct and indirect interests in entities can be aggregated (section 78); 6. control includes not only the control by a person but also control by a person and their associates (section 73(4)); and 7. smaller groups can be consolidated into a single larger group (section 74).

Section 74 can result in completely separate, independently owned and operated entities or businesses being grouped for payroll tax purposes.

For example, if: • entities A and B are each owned by independent and non-related owners and carry on separate businesses; • entities C and D are grouped; • A is grouped with C; and • B is grouped with D, The result is there are three groups, C and D, A and C and B and D. Under section 74 all six entities can be grouped together.

One of the consequences of grouping is that all of the members of the group are jointly and severally liable for each other’s payroll tax liability. Therefore, in the above example, if entity A defaults in paying its payroll tax liabilities, all of the other entities, including entities B and D which have no relationship or connection with entity A, can be liable for entity A’s liability.

If entities are grouped, they can apply to the Commissioner to be de-grouped under section 79(2).

To be de-grouped under section 79(2)

requires the Commissioner to be satisfied that the two businesses carried on by the entities are carried on independently of each other and one business is not connected with the carrying on of the business carried on by the other entity.

Section 79(2) previously required the two entities to be carried on substantially independently of and not to be substantially connected with each other.

Even though the word ‘substantially’ was deleted from the de-grouping provisions, it is understood that RevenueSA applies section 79(2) on the basis that the word ‘substantially’ still exists.

If, on the facts, the two entities are independent and not connected with each other, the Commissioner must de-group the entities.

If a de-grouping application is to be made, a forensic examination of how the businesses are owned, structured and carried on in practice must be undertaken.

Consideration must also be given to the weight to be attributed to the various factors in the particular circumstances. The details of the factors to be considered are contained on the RevenueSA website.

The payroll tax grouping provisions are extremely broad and can group entities which, on an objective basis, are completely independent and separate from each other. In such circumstances an assessment needs to be made whether the entities are, in fact, grouped and, if so, whether a de-grouping application may succeed.

When reviewing the structure of entities to determine whether they are grouped, care must be taken to ensure the provisions are applied correctly, in particular, the common ownership and control and common employee provisions. B October 2021 THE BULLETIN

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WELLBEING & RESILIENCE

Musings of a migrant worker ROSALINA TORREFRANCA, WELLBEING & RESILIENCE COMMITTEE

I

arrived in Australia to live permanently in late 2008. I came with my 30kg suitcase, so full of hope and excitement, confidence even. All bright-eyed and bushy tailed. This, however, was quickly tempered when the time came to look for a job.

When I arrived in Australia, I already had two degrees (the Bachelor of Laws degree in the Philippines is a postgraduate degree), had worked as a legal assistant, paralegal and executive assistant to support myself through law school, had already passed my country’s Bar exams and worked for years as a lawyer with non-governmental organisations doing developmental legal advocacy work. I’ve worked with people from around the world. I have been on fact-finding missions and ceasefire monitoring, worked with victims of domestic abuse, gave legal literacy training for labour union leaders and farmers. I was doing work which I believed mattered. I quickly learned though that my education and experience were viewed as practically useless in my adopted country. I naively thought that I had the something to offer to my adopted country.

But back then, to me, Australia did not see it that way. As my qualifications and my experience were not from Australia, somehow, it did not count. This is notwithstanding that I have had my qualifications assessed as being equivalent to an Australian degree.

I submitted countless applications to most of which I did not get any response at all, and countless more applications were turned down because I did have not any “Australian work experience”. There was even a time when I missed out on a legal secretarial job because they preferred an 18-year-old school leaver. What a massive ego-deflating, bubble-bursting, harsh reality check that was. To placate me, my family told me that the 18-year-old was “cheaper” labour. But still.

I did not know this then but to get work in Australia one must have Australian work experience. How can migrants

34 THE BULLETIN October 2021

Rosalina (near right) with fellow international students in 2009

Rosalina at the Migration Museum in 2008, just days after arriving in Adelaide

get the required work experience when nobody was giving them the chance? It was a catch-22 situation. It all would have seemed comical if it was not happening to me.

I must clarify though that I was not applying for solicitor jobs because at that time, I was not yet admitted to the practice. I was applying for whatever jobs I thought I was qualified to do, and which matched my skills.

I was getting depressed when I was introduced to another Filipino lawyerslash-migrant who was admitted to the practice in South Australia and was running her small sole practitioner firm dealing mostly in migration law. She took me under her wing and gave me work experience doing tasks like administrative duties and doing legal research.

By this time, I had accepted that I had to start from scratch. I enrolled in TAFE SA for a certificate course in Legal Services.

I revamped my CV and deleted my “substantial” work experience. Anything pre-2009 and anything that happened overseas was downplayed or omitted.

I even became someone with a different name. I had heard of some migrant jobseekers changing their names to make themselves sound less foreign in order to get job interviews. I have never used or adopted my husband’s family name, but I capitulated and started putting

it on my CV to make my name sound more “Australian”. Desperate times call for desperate measures. On paper I became someone who lives in the eastern suburbs of Adelaide with an Australian sounding name doing a TAFE SA course and who is looking for a new challenge and with a “willingness to learn”.

I eventually got a job and earned my stripes. I have since had my overseas legal qualifications assessed, went back to university and got admitted to practice in South Australia and am now working for a migration law firm.

My experience or, dare I say, struggle is not unique, Many migrants have been through the same experience and sadly many more will go through the same.

BUILDING RESILIENCE Migrants are generally a resilient lot.

And I should preface this by saying that migrants are not this one indistinguishable mass, we are not a monolith who acts and reacts the same way. Each individual migrant of course copes differently from others. Some do better than others. Some are more equipped than others. More migrants have had it worse than I did, and they not only survived but thrived. And perhaps we could learn from them (and I do not mean from me or my experience).

Perhaps because migrants gave up a lot to come here to pursue their dreams

WELLBEING & RESILIENCE

or flee danger or for whatever reason and had to build their lives from the ground up, they had almost no choice but to cope and learn to be resilient. It is as if resilience is a muscle that gets a work-out with every rejection and every setback.

It may be that migrants have a more inherently positive bias. They have left their country, friends, family and all they know to build a new life in a foreign country.

They have to believe that ‘life will get better’ for all the sacrifice they have made.

They may also have an inherently positive view of their adopted country. Despite their

difficulties and setbacks, migrants have made a decision to come to Australia over other options they may have had.

But to get ahead, and in order to get back up and keep going despite the setbacks and difficulties, they also need a network of support. Many migrants first turn to their country groups and those with similar cultural, linguistic or religious links. This can be seen as inward-facing in their new country but the key thing is to start with that support and expand it outwards. We all know that in Adelaide, who you know is a very important determinant of your

progress and success. As a profession we can welcome diversity, value experience and help to smooth transitions.

Settling into a new environment is always challenging but migrants generally have a sense of gratitude to have been given the opportunity that Australia offers.

This often makes migrants get up again after each setback and, with the help of their new friends and new professional networks, make significant contributions to our community.

P.S. – I now always use my name in all its hard to pronounce, hard to spell glory.

YOUNG LAWYERS

Fox on the Run: Golden Gavel Heads to Golden North Heartland PATRICK KERIN, LYNCH MEYER LAWYERS AND MIKAYLA WILSON, SEDSMAN LEGAL

O

n Thursday, 9 September 2021, a number of Young Lawyers assembled at the Rhino Room on Pirie Street to spectate the 2021 South Australian Golden Gavel competition.

The judging panel comprised her Honour Judge Bochner, Mr Alex Ward and Mr Will Snow. Thank you to all three of our judges whose witty critiques of our performers, proved that they were still in touch with the common man.

The ultimate runner-up of this year’s competition, Stephanie Moore from the DPP, kicked off the evening with her topic, “How to lose your grad job in 10 days”. Stephanie gave the audience some sound advice on how to sabotage their careers before they have even begun. Stephanie’s tips included showing the judge that you’re the smartest in the room and neglecting Court deadlines.

The judges on the evening, found that any graduate that took on Stephanie’s advice would be lucky to last 3 days, let alone 10.

We next welcomed YouTube sensation Steven Zogopoulos or “Stevey-Z” (see “5.0.6.7. NORWOOD) to the stage to present his topic, “Why Scotty from Marketing is the greatest political leader of all time”. Stevey Z was a late addition to the line-up of

competitors, deciding at 10am on the day of the event, to have a final go at taking home the Golden Gavel SA title, before aging out of the Young Lawyers demographic. Jenny was said to have thoroughly enjoyed Steven’s presentation.

Next up was the third competitor, the Bagman, Edward Satchell. The Bagman is a solicitor at the SDA, who entertained the audience with his topic, “Another Zoom call that could have been an email – parables from the pandemic”.

Finally, Daniel Fox aka “Foxy Boy” of Kelly Kelly Legal in Jamestown, graced the stage with the topic “Swipe right, I’m a lawyer”. Although Foxy Boy claimed that he had never used a dating app in his life, he sure seemed to know a lot about how they worked, with his performance winning him the title of the SA Golden Gavel champion for 2021. Daniel emphasised how important it is to highlight in your dating profile the crucial role that lawyers play in the justice system, and to hide the reality of a lawyer’s role (i.e. spending twice as long formatting your court document than you actually spent drafting it).

Foxy Boy proceeded to represent SA in the National Golden Gavel competition

Young Lawyers Committee co-Chair Patrick Kerin (left), Alex Ward (Golden Gavel judge), Will Snow (Golden Gavel judge), Edward Satchell, Steven Zogopoulos, Stephanie Moore, Daniel Fox, and Judge Katrina Bochner (Golden Gavel judge)

in Brisbane on Friday, 17 September 2021, where he came runner-up with another hilarious performance. Daniel will write about his experience for next month's Bulletin.

Thank you to our major sponsor Burgess Paluch Legal Recruitment and Mr Paul Burgess for their continued support of the Young Lawyers.

Special mention must also go to Kate Walkley for all of her work in organising and co-ordinating the event.

October 2021 THE BULLETIN

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FEATURE

AALA looks to build on cultural diversity goals JESSICA TEOH, PRESIDENT, ASIAN AUSTRALIAN LAWYERS ASSOCIATION (SA BRANCH)

T

he South Australian legal profession was introduced to the SA Branch for the Asian Australian Lawyers Association (AALA) in the November 2020 edition of the Bulletin.

At that time, the SA Branch was only a month old and had three Committee Members: Jessica Teoh (Director at Laity Morrow – President), Brian Vuong (Director at Kain Lawyers – Secretary) and Helen Luu (Barrister at Bar Chambers – Committee Member). Shortly afterwards, the Committee doubled in size, with Christina Lien (Craddock, Murray Neumann), Tina Tran (Stanley & Co) and Edwin Fah (Johnson Winter & Slattery) joining the Committee. With an increasing SA member base, the Committee further expanded in July, with Vanessa Ho (Websters Lawyers) and Jessica Le (DMAW Lawyers) joining the Committee.

Since then, we have been keeping busy, putting on nearly one event per month in 2021.

THE SA BRANCH’S FIRST YEAR The Committee held its first Planning Day on one of the hottest days of the year, in January 2021 at Little NNQ on Gouger Street. As it was our first year, the Committee sketched out a rough plan to aim to put on a handful of events throughout 2021 to help promote cultural diversity in the legal profession. However, the main highlight was Brian insisting that we all go to 48 Flavours (a few minutes away on Gouger Street) which offers a wide variety of gelatos and sorbets. This would set the tone for future Committee meetings, the locations of which would

36 THE BULLETIN October 2021

be (and are) based mostly on which restaurants we wanted to visit next.

This was followed by the official launch of the SA Branch on 25 February, 2021, which was held at Kosho in North Adelaide. The keynote speaker was Magistrate Jayanthi McGrath (of the Magistrates Court of South Australia).

Magistrate McGrath held everyone’s attention as she recounted her early days as a junior solicitor and the progression of her career, culminating in her current role.

Many attendees stayed well into the night, beyond the official close of the event (and enjoyed all the good food).

Good food is of course not the only focus of the SA Branch. One of the main goals of the SA Branch is to establish an effective support network for Asian Australian lawyers, especially at the junior levels. It is no secret that the legal profession has a long way to go in effectively mentoring junior lawyers, and this deficiency is more obvious in minority groups.

So, in March, and in conjunction with the College of Law, we hosted a mentoring panel discussion featuring lawyers of Asian heritage in diverse fields of law. Magistrate McGrath chaired this panel discussion and described how important effective mentoring is at all levels. The panelists discussed various topics including the pros and cons of following a mentor to a new firm and what they have found to be effective mentoring.

The mentoring program was then formally launched in April, at Sparkke on Whitmore Square (with the assistance of red packets containing questions for

mentors and mentees to help start their mentoring relationship). The keynote speaker was former District Court Judge, the Honourable Steven Millsteed QC, who spoke about the importance of mentoring, and how groups such as AALA are important for the profession.

As an indication of the importance of mentoring, 30 AALA members sought a mentor but pleasingly, almost 20 people volunteered to be mentors.

In June, we were privileged to have Nathan Schwarz (Director and Founder of Black Box Restructuring and Forensic Accounting) deliver to our members a CPD on what insolvency practitioners look for in a lawyer, and how the sharing of knowledge between insolvency practitioners and lawyers can provide real gains for clients.

The National Cultural Diversity Summit was held in September. After the daytime formalities, an after party was held at 1/3 by NNQ where a panel of speakers spoke to us about being more than a lawyer. It was fascinating to hear about what these very successful lawyers do when they aren’t lawyering. Most people in the audience wondered where they manage to find the time!

WHAT NEXT FOR THE SA BRANCH? Our first year has not always gone to plan. We intended to hold an event in August, a cocktail function at Parliament House hosted by the Honourable Zoe Bettison MP (State Member for Ramsay) who is the Shadow Minister for Multicultural Affairs (amongst her other portfolios) however, due to restrictions

FEATURE

Brian Vuong (Secretary of the AALA' SA Branch), Jessica Le, Edwin Fah, Jessica Teoh (President of the AALA's SA Branch), Tina Tran, Vanessa Ho and Helen Luu.

imposed by COVID-19, this event has been deferred.

The mentoring program runs for six months and will formally conclude where it began, in a “full circle”, at Sparkke, on 28 October. This is not to say that the relationships that have been formed between mentors and mentees will end here; we have heard from a number of mentors and mentees that they intend continuing to keep in touch after the program formally concludes.

The mentoring program will also run again in 2022.

Given the year we have had, why not end the year with our biggest event to date.

Early next year, we will be hosting our first AALA Quiz Night, with Brian Vuong

as our resident Quizmaster and at the end of November the SA Branch will hold its AGM. Further details to follow.

These events, whilst being networking opportunities, are intended to be casual.

The main goal is to bring together members of the legal profession of Asian heritage or cultural background in a welcoming and inclusive forum. In saying that, AALA is not, and does not want to be, an exclusive organisation. So long as cultural diversity is something you believe in, we want you as a member. We can never be too inclusive.

The first year of the SA Branch has certainly been a learning experience, but what is clear to us is that there is a real need for an organisation like this one,

as evidenced by the huge support and feedback we have received from our members (including that we have held the best networking event that they have ever attended!) in planning these events, and making sure they are well attended.

The Committee thanks all its South Australian members, sponsors and supporters for making 2021 such a success, and we hope to continue that into 2022 and beyond.

If you would like to become a member of AALA, please apply here: http://aala.org.au/page-18087.

If you would like any information about the SA Branch or AALA, please contact the SA Branch at sa@aala.org.au B

New Major Complex Financial Proceedings List Pilot for financial cases in family law

T

he Federal Circuit and Family Court of Australia is launching a Major Complex Financial Proceedings List (MCFP List) to more efficiently deal with commercially complex financial family law cases.

The purpose of the MCFP List will be achieved by strict timetabling, early dispute resolution, and intensive case management.

The new List will manage family law matters involving complex financial disputes where the value of net asset pool is over $20 million.

The MCFP List commenced on 1 October and will operate as a pilot program in the Melbourne, Sydney and Brisbane registries of the Court. Cases in other registries that meet the criteria for the List may be included if they are appropriate to be heard and managed electronically.

The Chief Justice, the Hon Will Alstergren, said: “The Court acknowledges that matters that involve high net property pools and

include complex financial or commercial issues have often required numerous court events and generated significant costs to the parties. The Court is committed to ensuring these disputes are resolved in a timely manner and at a cost that is proportionate to the complexity of the matters in dispute.”

More information on the Pilot is available in Family Law Practice Direction – Major Complex Financial Proceedings List. B

October 2021 THE BULLETIN

37

EVENTS

PROFESSION CELEBRATES AS MARQUEE EVENT RETURNS S

everal practitioners were honoured and thousands of dollars were raised for charity at the Legal Profession Dinner on 27 August.

The dinner hosted 300 guests at the new SkyCity Ballroom, and was emceed by the hilarious former stand-up comic Corinne Grant, who is now a lawyer and moved to Adelaide with her family earlier this year.

The celebratory mood of the evening was palpable, as the guests were eager to socialise after the cancellation of last year’s dinner due to the November lockdown in SA. Before last year, the Legal Profession Dinner had not been cancelled since World War II. Guest speaker Gabrielle Canny, the founder of SAHMRI’s Wellbeing & Resilience Centre, gave a passionate address about the importance of building resilience and mental wellbeing, not just to deal with the trials and stressors of everyday life as lawyers and human beings, but to rise to the existential challenges facing society.

State Attorney General, The Hon Vickie Chapman, closed the night with a toast to the profession, thanking the profession for its efforts, particularly

LEGAL PROFESSION DINNER PHOTOS Top left: Marissa Mackie (left), Emma Green (PEXA), Rebecca Sandford and Matt Kelly (PEXA).

Top centre: Jed Hicks from Cobbs Hill Estate Top right: John Ward (left), Emma Ward, Steven Ellis, Guy Biddle, Amanda Trudgian, Jane Richards and Mark Wood Middle left: Katie Wren Sarah Hooper, Jenny Paglia, and Tayne Redman Middle centre: Sarah Schultz (left), Sophie Howe and Fiona Luu Middle right: Rachel Shearer (left) and Chloe Pruszinski Bottom left: Justin Stewart-Rattray (left) and Alex Lazarevich Bottom centre: Judith Jordan (left) and Dora Fuda Bottom right: Andrea Michaels MP (left) and Lisa Christo

38 THE BULLETIN October 2021

during what has been an especially challenging 18 months in the midst of a pandemic.

The Society ran a hugely popular wine wall, where guests were able to purchase gift-wrapped bottles of generously donated wine, with many of the wines retailing for much more than the $25 it cost for the “lucky dip”.

The money raised from the wine wall, combined with the $6000 pledged on the night for four “friendship benches” to be donated to various schools, amounted to in excess of $11,000 being raised for the President’s charity, the Breakthrough Mental Health Research Foundation The Law Society sincerely thanks all the sponsors who supported this special event: Major Sponsor of the Law Society of South Australia • BankSA – A longstanding partner for 26 years.

Premier Sponsors of the Dinner • Gallagher - The Society’s Professional Indemnity Insurance Scheme insurance broker; and • Liberty - The Scheme’s underwriter.

Major Sponsors of the Dinner • Notable Imprint; and • Annature Supporting Sponsors: • LexisNexis • Peter Shearer Menswear • The Society’s various support, wellbeing & resilience services ∘ LawCare ∘ Professional Advice Service ∘ Young Lawyers’ Support Group ∘ Lawyers’ Complaint Companion Service ∘ Women Lawyers Mentoring Program; and ∘ The Ethics Enquiry Service • Lawguard • Law Claims; and • Risk Management Wine Sponsor: • Wine Direct Mary Kitson Award Sponsor: • PEXA Young Lawyer of the Year Award Sponsor: • Liberty Gin Bar Sponsor: • Cobb’s Hill Estate

EVENTS

LEGAL PROFESSION DINNER AWARD WINNERS JUSTICE AWARD

Attorney General, The Hon Vicki Chapman MP, flanked by Danielle Stopp (left) and Bianca Paterson of the Women’s Domestic Violence Court Assistance Service, which won the Justice Award.

Women’s Domestic Violence Court Assistance Service The Women’s Domestic Violence Court Assistance Service, operated by the Legal Services Commission, helps women who have been exposed to domestic violence navigate the justice system. They provide advice about intervention orders and tenancy disputes, and have guided thousands of clients through the process, including all throughout the pandemic.

YOUNG LAWYER OF THE YEAR

Young Lawyer of the Year winner Antonella Rodriguez flanked by Young Lawyers Committee Co-Chairs Patrick Kerin (left) and Bianca Geppa.

Antonella Rodriguez Antonella Rodriguez made an immediate impact in her first role as Associate to Justice Berman in the Family Court of Australia Antonella was heavily involved in the Judicial Council on Cultural Diversity’s efforts to improve services to culturally diverse participants in the justice system, which included, but was

MARY KITSON AWARD certainly not limited to, being involved in the preparation of plain English interpretations for the Judicial Council on Cultural Diversity’s Legal Literate App, which is a resource for interpreters in the court and tribunal context which contained common legal and judicial terms with plain English explanations.

She assisted with the preparation of several guidance notes to judicial officers, including on subjects such as modern slavery and cultural considerations in alternative dispute resolution.

Antonella has excelled in her current role as an Associate with Tolis & Co, where she has become a highly regarded family lawyer dealing extensively with parenting and property matters.

Antonella has also been volunteering with the Red Cross Emergency Services, assisting people to access shelter, resources, and emergency funds and reuniting families following last year’s bushfires.

She is also a volunteer ranger with the National Parks and Wildlife service.

BULLETIN ARTICLE OF THE YEAR AWARDS Article of the Year “Supreme Court decision highlights pitfalls of raising money for charitable purposes”, by Philip Ritson

Bulletin Committee Chair Alison Bradshaw (left) and Rebecca Sandford

Between 1 July 2019 and 30 June 2020, the Service assisted 845 clients.

Attorney General, The Hon Vickie Chapman said: “This free and confidential service provides women in need with expert legal advice, which, in turn, empowers and protects them.

“I was incredibly proud to present this prestigious Award to the service, and want to thank all those who work, day in, day out, to help guide and protect people who have experienced domestic violence,” she said.

Article of the Year – Special interest category “The path to gender equality requires removing cultural & structural barriers in the profession”

By Justice Sam Doyle

Justice Trish Kelly Early in her career, Justice Kelly worked within the Office of the Director of Public Prosecutions where she advanced the rights of victims of violence, including victims of sexual and family violence.

Between 1985 and 1986 she was a senior legal officer within the Commissioner for Equal Opportunity. Whilst doing so she promoted an understanding in the broader community of equal opportunity law and assisted in resolving complaints of discrimination or harassment.

She has also been a Member of the Intellectually Disabled Services Council of South Australia and a member of the Rape Crisis Centre Board.

Justice Kelly was appointed as a Judge of the District Court of South Australia in 2003, and in 2007 was appointed a Justice of the Supreme Court of South Australia.

In 2020, Her Honour was appointed as the inaugural President of the Court of Appeal.

Justice Kelly has been one of the most highly regarded and respected judicial officers in SA, and tireless and effective advocate for the advancement of women, as well as a widely published voice on child welfare matters.

October 2021 THE BULLETIN

39

FEATURE

Sudden loss of capacity of a sole practitioner DAVID BARNFIELD

I

f a sole practitioner unexpectedly loses capacity or dies, the Law Society, by resolution of the Council under Section 45 of the Legal Practitioners Act 1981 (“the Act”), has the power to appoint a practice manager to avoid the practice being left in limbo.

The important point to remember is that the very nature of legal practice and the risks associated with it require the involvement of the Law Society under the Act to protect the public, the firm and the firm’s clients and the Society must be kept fully informed and approve whatever steps are put in place to manage your practice.

If you have an enduring power of attorney and a carefully drafted Will, these documents may prove invaluable in ensuring minimal disruption to your practice.

ENDURING POWER OF ATTORNEY It is helpful to have an experienced legal practitioner as your enduring attorney.

The enduring power of attorney does not, of itself, permit your attorney to step in and manage your practice unless the Law Society is notified first and approves. If the attorney is a practitioner with sufficient experience however, who holds an appropriate practising certificate and professional indemnity insurance, then there should be no obstacle to your attorney managing the practice without a formal Manager appointment by the Society being required.

Further, even if your enduring attorney is not a lawyer, there is nothing preventing your attorney nominating a legal practitioner to manage the practice.

40 THE BULLETIN October 2021

Once again, if the nominated practitioner meets the practical requirements referred to above, the Society would be unlikely to insist on a formal Manager appointment.

If there is no money in trust and if active files can be transferred to another firm quickly so the Practice can be closed - assuming that is appropriate in all the circumstances - a Manager is unlikely to be needed. In this situation the Society would help with the transfer of files and the closure of the firm.

NOMINATION OF PREFERRED PRACTICE MANAGER Even if you do not have an enduring power of attorney, you can write to the Law Society at any time nominating an experienced legal practitioner as your preferred practice manager in the event of your incapacity. Ethics and Practice file your letter and in an emergency, if the nominated lawyer meets the requirements, then barring some compelling reason to the contrary, it is likely they will be permitted by the Law Society to manage your practice without the necessity of a formal Manager appointment.

THE LAW SOCIETY The Law Society acts as quickly as possible and to the extent necessary to make sure the practice is professionally managed and if you have an enduring power of attorney and/or you have nominated a preferred practice manager by letter (preferably the same legal practitioner if you have done both) it will make life easier for all concerned.

The Act contains specific provisions regarding the appointment of a practice manager. That person will be approved by the Law Society, with remuneration decided under Section 48. Each case is dealt with on its merits. The Society gauges the degree of assistance, supervision and management required and uses its powers accordingly.

SUDDEN DEATH OF SOLE PRACTITIONER There are two things to keep in mind to plan for this event: • Make sure you have a Will. And because time is of the essence, make sure your executor can act immediately and not, for example, after 28 days; • Better still, make a Will appointing an experienced, practising lawyer your Practice Trustee to manage your firm, and appointing Executor(s) in the usual way to administer the rest of your estate.

Managing the Practice after unexpected death of Principal Under the Act, the Law Society has power to appoint a legal practitioner (who meets the requirements) as manager of your practice. This can be done immediately if a Practice Trustee is named in the Will. The Society may approve your Practice Trustee stepping in without a formal Manager appointment. Further, the Practice Trustee does not need to obtain a grant of probate before commencing as manager.

Are two grants of Probate required if you appoint a Practice Trustee?

If for some reason your Practice

FEATURE

Trustee needs to obtain probate, they can apply for a grant limited to the legal practice. In this situation, your Executor applies for a separate grant (called a caeterorum grant) to deal with the rest of the estate.

In most situations a limited grant to the Practice Trustee will not be required and your Executor applies for a grant save and except for the legal practice.

Either way, your Executor is not restricted in administering the rest of your estate.

How do you appoint a Practice Trustee?

A Practice Trustee can be appointed in your Will. The Sole Practitioner’s Will precedent, available through the Law Society, includes the appropriate clauses and a Word version is available through the Society.

It makes sense to appoint a Practice Trustee who has a good rapport with your Executor(s).

What happens if there’s no one to run the Practice?

The case of the late Hugh Rowell Appointing a Practice Trustee would have been one way to avoid the difficulties

faced by the executor in the estate of the late Hugh Rowell. By his Will the testator, who was a sole practitioner, appointed his wife sole executor if she survived him by one month. The problem was, in that interim period, there was a busy firm to run with lawyers and support staff to pay and clients whose funds were held in trust. There was no-one authorised to operate the trust and business accounts and to carry on the business generally in the meantime.

To prevent the practice floundering, Mrs Rowell applied first to the Supreme Court for a grant of letters of administration bona ad colligenda1 and then for an order under Section 50 of the Act allowing her to carry on the practice. As she was not a legal practitioner, the Court ruled that an experienced solicitor be appointed to supervise and this was done.

Debelle J. found it was “plainly necessary for Mrs Rowell to make an application under Section 50 as soon as [was] reasonably possible in order to preserve to the best possible advantage the practice of Rowell Forrest & Co”.2 Mrs Rowell was granted letters of administration eleven days after her

husband’s death and a week after that, the order was made under the Act. His Honour did not think an order could be made under Section 50 “unless a person who holds a practising certificate and who has a relatively long experience as a legal practitioner is in a position to manage the business of the firm.

That is plainly necessary in the interests of the clients and the practice.”3

PLAN AHEAD In summary, if you are a sole practitioner, plan ahead. Make sure you have an enduring power of attorney and/ or nominate a preferred Practice Manager by letter to the Law Society and make sure you appoint a Practice Trustee in your Will. B Endnotes 1 [To collect the goods] A form of grant where the estate is of a perishable or precarious nature and where regular administration cannot be granted at once.

2 Hugh Grant Rowell Deceased (No 2) [2006] SASC 314.

3 Ibid.

October 2021 THE BULLETIN

41

RISK WATCH

Something bad has happened in my practice: Can I fix it?

GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

S

ometimes bad things happen in practice.

The ways in which something can go awry in legal practice are many and varied, whether it is a mistake on a file that leads to a time limit being missed or a multimilliondollar fraud committed by an employee. If an error or something worse occurs there is a temptation to seek to fix it yourself.

However, this is often not the best course as there may be conflict or insurance issues that arise which, if not handled correctly, can make a bad situation even worse.

A prime example of a situation going from bad to worse can be found in the recent NSW Court of Appeal case of Atanaskovic Hartnell v Birketu Pty Ltd [2021] NSW CA 201 (3 September 2021).

The case involved the fallout from the discovery, in about September, 2017, that Brody Clarke (BC) a solicitor employed

by Atanaskovic Hartnell (AH) had perpetrated several frauds on two clients of AH, Birketu Pty Ltd (Birketu) and WIN Corporation Pty Ltd (WIN). Both clients were associated with Bruce Gordon, a well-known businessman who had been a client of AH for many years.

One of the frauds involved BC fraudulently inducing Deutsche Bank (DB) to transfer amounts totalling over $7m from an account held by Birketu with DB (as collateral for a share swap agreement) to an account that was purportedly AH’s trust account but which in fact was BC’s personal bank account.

Birketu therefore had a claim against DB for transferring the $7m, which claim gave rise to considerations of BC’s ostensible authority. Birketu also had an obvious claim against BC for fraud, and against AH, if AH was vicariously liable for BC’s acts.

Birketu and WIN, represented by AH, commenced proceedings against BC. They also retained AH to act for them in the dispute with DB. In addition, John Atanaskovic (a partner of AH) said to Mr Gordon that AH would not charge for any work done in investigating the DB fraud “because this whole matter was created as a result of one of [AH’s] staff members.”

42 THE BULLETIN October 2021

AH’s retainer referred to a “potential” conflict, or “one that may arise in the future” between Birketu/WIN and AH in the claim against DB. It was in the interests of both Birketu and AH for it to be shown that BC did not have Birketu’s ostensible authority. In that respect there was a confluence of interest, rather than a conflict, between Birketu and AH. Further, it was AH’s position that it was not vicariously liable for the acts of BC because they were not within the scope of his employment.1 After AH had been acting for some time Birketu and WIN changed solicitors and AH issued an invoice for $172,686.27 relating to work done investigating the DB fraud. Birketu and WIN’s new solicitors joined AH and DB as defendants in the fraud case against BC. AH sued for its fees and the fee claim and the fraud claim were heard together. The fraud claim settled after judgment had been reserved leaving only the claim for fees to be decided.

The primary judge (Hammerschlag J) found that the supervisory jurisdiction of the Court should be exercised to preclude recovery of the fees claimed because: a. AH did not obtain the fully informed consent of Birketu/WIN to act;

b. Birketu/WIN should not have to pay for work done in AH’s interests and for AH’s own benefit; and c. AH ought to be held to the statement made by Mr Atanaskovic that they would not charge fees, which was found to be an undertaking given in a professional capacity.

The NSW Court of Appeal dismissed AH’s appeal, holding in effect that the conflict was not a potential one but an actual conflict between AH’s personal interests and AH’s fiduciary duty to Birketu/WIN. This was because the question of whether AH was vicariously liable to Birketu/WIN because of AH’s employment of BC was unavoidable and raised the same factual considerations as the ostensible authority question raised in the claim against DB. It was also held that AH had failed to make full disclosure of all material facts concerning the conflict including: a. the benefit that the retainer would provide to AH by way of access to information which AH might use against Birketu/WIN in subsequent litigation; and b. that AH had a personal interest in the question of BC’s ostensible authority

RISK WATCH

given that the same facts would also be relevant to the question of AH’s vicarious liability for BC’s conduct.

Interestingly the Court also said that in some cases the circumstances of a solicitor’s conflict of interest and duty may be so profound that the objective of the conflict rule can only be achieved if the solicitor does not act for the client. In some cases it may be that it is not even possible for the solicitor to obtain the client’s fully informed consent given the high standard of disclosure. In Law Society of NSW v Harvey [1976] 2 NSWLR 154 Street CJ described this standard as “a conscientious disclosure of all material circumstances, and everything known to [the solicitor] relating to the proposed transaction which might influence the conduct of the client or anybody from whom he might seek advice.”

In this regard the local case of Lyons v Legalese Pty Ltd [2016] SASC 160 is also relevant. In that case solicitors were prevented from continuing to act for a client in a personal injury claim where a time limit had been missed. Hinton J

found that the conduct of the solicitors was so integrally identified with the issues that were the subject of the extension of time application that it was appropriate, on the application of the defendant to restrain by injunction the solicitors from further acting for the plaintiff. This finding was made notwithstanding the fact that the plaintiff herself was content for the solicitors to continue to act. At para [159] Hinton J said that he was not prepared to find that the plaintiff had given her fully informed consent in the absence of hearing oral evidence.

As to the statement made by Mr Atanaskovic, AH argued that the statement did not amount to an undertaking, and that if it did the Court should not enforce it. All Judges found that the statement was an undertaking made in a professional capacity. The supervisory jurisdiction of the Court is both disciplinary and compensatory. The enforcement of an undertaking for the purpose of ensuring honourable conduct on the part of Court’s officers is distinct from the legal rights and remedies of the parties and does

not depend on there being consideration for the undertaking. Resiling from the undertaking was dishonourable conduct

by AH which warranted the exercise of the Court’s supervisory jurisdiction to preclude AH from recovering the fees.

Further, trying to fix up an error yourself may have insurance consequences. Under the South Australian Scheme Documents an Insured cannot make any admission of liability without Underwriter’s consent. If there is any possibility of Law Claims’ involvement where “something bad” has happened it is in most, if not all, cases, better for new solicitors to be instructed.

In summary, great care needs to be exercised in seeking to rectify errors or problems which arise. A quick call to Law Claims for advice could prevent you making a bad situation worse.

Endnotes 1 How this could be sustained in light of authorities such as Lloyd v Grace Smith [1912] AC 716 was never made clear.

MEMBERS ON THE MOVE STEPHEN M c EWEN QC

S

tephen McEwen QC wishes to advise the profession that he recently commenced private practice as a mediator.

Mr McEwen is accredited with the Resolution Institute, LEADR, Australian Disputes Centre and the National Mediation Accreditation System.

Enquiries as to his availability, fees, or any mediation issues can be directed to Anthony Mason Chambers: Email: clerk@anthonymasonchambers.com.au / smcewen@anthonymasonchambers.com.au Tel: 08 8228 0000

Caldicott Lawyers has changed its name to Caldicott + Isaacs Lawyers, in recognition of Casey Isaacs becoming a named partner at Caldicott Lawyers.

Caldicott’s was started by founding partner Craig Caldicott in 1979 before transitioning to ‘Caldicott Lawyers’ in 2012, with Casey Isaacs as a partner.

Casey has been a practising lawyer since 2001, appearing in all jurisdictions as a barrister and solicitor in the practice of criminal law.

Founding partner, Craig Caldicott, said: “It is my pleasure to recognise Casey’s achievements and contribution to the firm

by announcing the rebranding of our firm Caldicott + Isaacs Lawyers. Not only has Casey proved to be an outstanding lawyer, but also an excellent business partner. I am looking forward to continuing our work together into the future.”

Casey Isaacs also expressed his excitement for the future of Caldicott + Isaacs Lawyers: “I am extremely humbled to be a named partner of such a recognised, longstanding law firm. I would like to thank Craig for all the guidance, mentoring and friendship that he has provided me in the last 20 years and I’m excited for what is to come for Caldicott + Isaacs.”

October 2021 THE BULLETIN

43

BOOKSHELF

THE AUTOMATED STATE: IMPLICATIONS, CHALLENGES AND OPPORTUNITIES FOR PUBLIC LAW Abstract from Federation Press The first Australian book to examine in depth the public law implications of government automation. Australian governments are using technology to assist in the administration of the law and delivery of services to the community in a range

of contexts, including tax, social security, immigration, health and national security. Use of automation by Australian governments has a mixed record of success. It allows governments to administer complex laws and deliver services more efficiently and accurately than humans could.

Edited by J Boughey & K Miller Federation Press 2021 PB $120.00

FAMILY LAW IN AUSTRALIA Abstract from LexisNexis Family Law in Australia provides a comprehensive, detailed and accessible analysis of key family law issues and their positioning in Australian society. The underlying principles of family law as expressed in the present law are placed in their historical, social and legal

context. The authors critically evaluate patterns of past and future reforms, making this text invaluable for scholarly and vocational study in law and as an authoritative text for practitioner use. The tenth edition has been fully revised and updated by a team of authors highly experienced in family law.

A Sifris et al 10th ed LexisNexis 2021 PB $162.00

LUNTZ ASSESSMENT OF DAMAGES FOR PERSONAL INJURY AND DEATH

H Luntz & S Harder 5th ed LexisNexis 2021 HB $315.00

Abstract from LexisNexis Luntz Assessment of Damages for Personal Injury and Death 5th edition is an authoritative text, providing knowledge on a wide range of law and policy in an ever-changing area.

First published in 1974, Luntz Assessment of Damages for Personal Injury and Death has evolved to provide comprehensive commentary of the general principles of tort law, covering

the major tort law reforms in Australia. For the last two decades, this text has been a leading authority in assessment of damages, as evidenced by the many High Court citations.

This comprehensive book provides invaluable assistance in preparing cases and negotiating settlements out of court. It also includes arithmetical and actuarial tables to assist in the calculation of future economic loss.

AUSTRALIAN COMPETITION LAW

A Bruce 4th ed LexisNexis 2021 PB $125.00

44 THE BULLETIN October 2021

Abstract from LexisNexis Australian Competition Law provides an engaging and authoritative treatment of Australian competition law and is an ideal text for both practitioners and students. The clear explanations of complex concepts foster a sound understanding of the legal principles and their economic underpinnings. It includes

a chapter how to understand competition law cases to develop skill in area-specific case analysis. The work focuses on the contemporary situation and recent developments but also explains the historical context. The fully revised new edition covers recent developments in case law, policy and legislation.

GAZING IN THE GAZETTE

3 AUG 2021 – 2 SEPT 2021

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

ACTS PROCLAIMED

APPOINTMENTS

Statutes Amendment (COVID-19 Permanent Measures) Act 2021 (No 25 of 2021) Commencement: 9 September 2021 Gazetted: 18 August 2021, Gazette No. 54 of 2021

Magistrate South Australian Civil and Administrative Tribunal Member Youth Court of South Australia Ancillary Magistrate South Australian Civil and Administrative Tribunal Member from 6 August 2021 Todd Matthew Grant Adelaide, 5 August 2021 from 12 August 2021 Kathryn Ann White Gazetted: 5 August 2021, Gazette No. 51 of 2021

Unexplained Wealth (Commonwealth Powers) Act 2021 (No 27 of 2021) Commencement: 1 September 2021 Gazetted: 18 August 2021, Gazette No. 54 of 2021

ACTS ASSENTED TO Rail Safety National Law (South Australia) (Alcohol and Drug Offence) Amendment Act 2021, No. 30 of 2021 Gazetted: 2 September 2021, Gazette No. 59 of 2021 Oaths (Miscellaneous) Amendment Act 2021, No. 31 of 2021 (amends Oaths Act 1936 and repeals Evidence (Affidavits) Act 1928) Gazetted: 2 September 2021, Gazette No. 59 of 2021

Gazetted: 5 August 2021, Gazette No. 51 of 2021 Correction of date of appointment Judge Court of Appeal of South Australia effective from 6 September 2021 The Honourable Sophie David Gazetted: 19 August 2021, Gazette No. 55 of 2021 Administrator of the State of South Australia From 1 September until the taking of the oath of office by Ms Adamson as Governor Professor Brenda Wilson, Lieutenant Governor Gazetted: 30 August 2021, Gazette No. 58 of 2021

Police Disciplinary Tribunal Panel Member: Protective Security Officers Disciplinary Tribunal Panel Member: from 6 August 2021 until 28 April 2023 Todd Matthew Grant from 12 August 2021 until 28 April 2023 Kathryn Ann White

Puisne Judge of the Supreme Court of South Australia effective from 6 September 2021 Laura Grace Stein Gazetted: 2 September 2021, Gazette No. 59 of 2021

RULES Nil

REGULATIONS PROMULGATED (3 AUGUST 2021 – 2 SEPTEMBER 2021) REGULATION NAME

REG NO.

DATE GAZETTED

Wilderness Protection Regulations 2021

112 of 2021

5 August 2021 Gazette No 51 of 2021

Construction Industry Training Fund Regulations 2021 Electricity (Principles of Vegetation Clearance) Regulations 2021 COVID-19 Emergency Response (Savings and Transitional Matters) Regulations 2021 Criminal Law Consolidation (General) Regulations 2021 Professional Standards Regulations 2021 Subordinate Legislation (Postponement of Expiry) Regulations 2021 Acts Interpretation (Audiovisual Meetings) Regulations 2021 COVID-19 Emergency Response (Section 16) (Real Property Act) Variation Regulations 2021 Planning, Development and Infrastructure (General) (Electricity Infrastructure) Variation Regulations 2021 Justices of the Peace Regulations 2021 Planning, Development and Infrastructure (General) (Time Periods) Variation Regulations 2021 Disability Inclusion (Restrictive Practices—NDIS) Regulations 2021 Superannuation Funds Management Corporation of South Australia (Prescribed Public Authorities) Variation Regulations 2021 Primary Industry Funding Schemes (Barossa Wine Industry Fund) Regulations 2021 Primary Industry Funding Schemes (Clare Valley Wine Industry Fund) Regulations 2021 Primary Industry Funding Schemes (SA Grape Growers Industry Fund) Regulations 2021 Primary Industry Funding Schemes (Adelaide Hills Wine Industry Fund) (Miscellaneous) Variation Regulations 2021 Primary Industry Funding Schemes (Langhorne Creek Wine Industry Fund) (Miscellaneous) Variation Regulations 2021 Primary Industry Funding Schemes (McLaren Vale Wine Industry Fund) (Miscellaneous) Variation Regulations 2021 Primary Industry Funding Schemes (Riverland Wine Industry Fund) (Miscellaneous) Variation Regulations 2021 Primary Industry Funding Schemes (Apiary Industry Fund) (Contributions to Fund) Variation Regulations 2021 Return to Work (Self-Insured Employers) Variation Regulations 2021 Botanic Gardens and State Herbarium Regulations 2021

113 of 114 of 115 of 116 of 117 of 118 of 119 of 120 of 121 of 122 of 123 of 124 of

2021 2021 2021 2021 2021 2021 2021 2021 2021 2021 2021 2021

5 August 2021 Gazette No 51 of 2021 12 August 2021 Gazette No. 53 of 2021 12 August 2021 Gazette No. 53 of 2021 12 August 2021 Gazette No. 53 of 2021 12 August 2021 Gazette No. 53 of 2021 12 August 2021 Gazette No. 53 of 2021 18 August 2021 Gazette No. 54 of 2021 18 August 2021 Gazette No. 54 of 2021 18 August 2021 Gazette No. 54 of 2021 18 August 2021 Gazette No. 54 of 2021 26 August 2021 Gazette No. 57 of 2021 2 September 2021 Gazette No. 59 of 2021

125 of 2021

2 September 2021 Gazette No. 59 of 2021

126 of 2021 127 of 2021 128 of 2021

2 September 2021 Gazette No. 59 of 2021 2 September 2021 Gazette No. 59 of 2021 2 September 2021 Gazette No. 59 of 2021

129 of 2021

2 September 2021 Gazette No. 59 of 2021

130 of 2021

2 September 2021 Gazette No. 59 of 2021

131 of 2021

2 September 2021 Gazette No. 59 of 2021

132 of 133 of 134 of 135 of

2 September 2021 Gazette No. 59 of 2 September 2021 Gazette No. 59 of 2 September 2021 Gazette No. 59 of 2 September 2021 Gazette No. 59 of

2021 2021 2021 2021

2021 2021 2021 2021

October 2021 THE BULLETIN

45

FAMILY LAW

Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK Property – Mutual assumptions and consensual agreements may inform whether it is just and equitable to make a property order n Oamra & Williams [2021] FamCAFC 117 (13 July 2021) the Full Court (Strickland, Watts & Sutherland JJ) dismissed with costs an appeal from a decision of O’Brien J in the Family Court of Western Australia.

The wife argued that the parties “had voluntarily arranged their financial circumstances on the basis that they neither owned property in their joint names, nor operated a joint bank account, and that they contributed to household expenses in a very structured way based upon an agreed, predetermined budget” ([2]).

Relying on Stanford [2012] HCA 52 (“Stanford”), she argued that the Court could not find that it was just and equitable to make a property order.

The Full Court said (from [29]): “ … [T]he wife’s … position was both parties operated on … assumptions that each would keep their own property separate …, that the assumptions were both expressed and implied, but primarily implied because any knowledge either party had about what the other one was doing was incidental and not the subject of any discussion ( … ) [31] … [T]he wife … argue[d] that despite the finding … that there were no mutual expressed or implied assumptions to keep the parties’ finances … separate, the wife could rely upon her own unilateral assumptions ( … ) [34] The wife asserts that the primary judge … erroneously required that the assumptions be ‘mutual’ and that error contaminated his Honour’s conclusion as to whether it was ‘just and equitable’ to make an order. The wife argues that there is no warrant to read into the obiter dicta of the High Court in Stanford any requirement for mutuality in any stated or unstated

I

46 THE BULLETIN October 2021

assumptions that the parties would keep their finances entirely separate ( … ) [36] We do not accept the wife’s submission … [I]t [is] clear that the High Court was talking about mutual assumptions and mutual agreements. Axiomatically any agreement must be mutual. ( … )” Child support – Section 106A application could be heard despite mother not living in reciprocating jurisdiction In Secretary, Commonwealth Attorney General’s Department & Bashir [2021] FamCAFC 137 (30 July 2021) the Full Court (Strickland, Aldridge & Tree JJ) allowed an appeal from Judge Boyle’s dismissal of an application by the Attorney General’s Department for a declaration of parentage pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) (“CSA Act”) brought on behalf of a USA based mother.

The Full Court said (from [16]): “Pursuant to s 99(1) of the CSA Act, ‘[j]urisdiction is conferred on the... Federal Circuit Court of Australia [FCCA] ... in relation to matters arising under this Act’. (…)

[17] … [T]he … relief sought under s 106A was a matter under the CSA Act, and thus the … judge did have jurisdiction ( … ) [22] … [W]hether the FCCA has power to make a declaration under s 106A(5) of the CSA Act turns on whether four requirements are met.

[23] … [Section] 106A(1) must be engaged; namely … the Registrar refused to accept an application for administrative assessment … under s 30(2) …

[24] … [T]he application must be for a declaration that a person be assessed in respect of the costs of the child … (s 106A(2)(a)) …

[25] … [T]he application must be made within ‘the time prescribed … ’ (s 106A(3)). …

[26] … [E]ither that the person should be assessed in respect of the costs of the

child because the person is a parent of the child (s 106A(5)(a)), or … the Registrar should reconsider the application … because the person who was to be assessed … is a parent of the child (s 106A(5)(b)). ( … ) [32] … [T]he appellant contended … that the … judge misconstrued s 106A in finding that in … the requirements in s 25(d) had to be met; namely, that the [mother] be a resident of a reciprocating jurisdiction.

[34] … [H]er Honour did wrongly determine that, before an order under s 106A could be made, the appellant had to establish that the requirements of s 25(d) were met. …” B

LawCare

The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems.

If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you.

Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse.

The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year.

All information divulged to the LawCare counsellor is totally confidential.

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

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VALUER

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

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

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

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

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

Liability limited by a scheme approved under Professional Standards Legislation

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Australian Technology Pty Ltd for expert opinion on: • Vehicle failure and accidents • Vehicle design • Industrial accidents • Slips and falls • Occupational health and safety • Statistical analysis W. Douglass R. Potts MAOQ, FRAI, FSAE-A, FIEAust, CPEng, CEng, FIMechE

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Ground Floor 157 Grenfell Street Adelaide SA 5000 October 2021 THE BULLETIN

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