The Bulletin - Law Society of South Australia

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 43 – ISSUE 8 – SEPTEMBER 2021

IN THIS ISSUE

Pandemic highlights extent of Executive Power The problem of delegated legislation Compulsory acquisition of land PLUS

How the merged family court will work

EXECUTIVE POWER: HOW DO WE PROTECT DEMOCRACY WHEN THE STATE FLEXES ITS MUSCLE?

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 43 (8) LSB(SA). ISSN 1038-6777

CONTENTS EXECUTIVE POWER

FEATURES & NEWS

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The march of executive authority highlights fragility of democracy

By Morry Bailes AM

10

The problem of delegated legislation in South Australia

By Assoc Prof Lorne Neudorf

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24

Covid-Safe check-in: use beyond contact tracing? – By Raffaele Piccolo The exercise of emergency powers by the executive in COVID-19 times: What recent cases say about constitutional protection of our freedoms – By Sue Milne Compulsory Acquisition of Land: Navigating the intersection between executive powers and individual property rights – By Don Mackintosh

REGULAR COLUMNS

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Harassment in the legal industry: Cultural change requires a movement, not a mandate – By Alexia Bailey & Marissa Mackie

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28

Introduction of the Federal Circuit and Family Court of Australia

By The Hon Chief Justice Will Alstergren

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34

Event report: Country Conference on Kangaroo Island – By Alan Oxenham

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36

The venerable common law forfeiture rule and suggestions for reform

By Dr David Plater & Dr Sylvia Villios

32

Steering statutory unconscionability out of a jam at last: Stubbings v Jams 2 Pty Ltd – By Dr Gabrielle Golding & Dr Mark Giancaspro

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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

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

President’s Message From the Editor From the Conduct Commissioner: Poaching clients from your former firm – By Greg May Wellbeing & Resilience: R U OK? U R are not alone – By Zoe Lewis Young Lawyers: Dancing privileges embraced at pre-lockdown Young Professionals’ Gala Tax Files: Loan accounts: trouble?

By Stephen Heath Members on the Move Bookshelf Risk Watch: Time to tame your inbox

By Mercedes Eyers-White Family Law Case Notes

By Craig Nichol & Keleigh Robinson Gazing in the Gazette

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

Buoyant mood as profession celebrates peers MICHAEL ESPOSITO, EDITOR

I

n a Herculean feat of logistics and planning, the Law Society held its Legal Professional Dinner on Friday 27 August, hosting a buoyant congregation of 300 guests.

While immense credit must go to the organising staff of the Society and SkyCity for putting on such a successful event, especially after the disappointment of last-year’s lockdown-induced cancellation, particular gratitude must go to practitioners who attended the event in such high spirts.

Despite a number of restrictions being imposed on guests, including compulsory mask wearing, a strict no dancing policy, and a ban on that most time-honoured of social custom – vertical consumption – it was so heart-warming to see such an enthusiastic response to the event.

It was also a privilege to honour the nominees and award winners on the night, and particular to hear about their incredible achievements.

The Women’s Domestic Violence Court Assistance Service was the highly deserving winner of the Justice Award. The staff who work at the service help 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. The importance of this cannot be overestimated. One particularly moving note from a client read: “Thank you for giving us our freedom and safety back. My kids are now growing up in a home free of DV abuse because of your help.”

The four Young Lawyer of the Year nominees showed that the future of the law is indeed in good hands. In a hotly contested field, Antonella Rodriguez was named Young Lawyer of the Year. The family lawyer excelled in her first role as Associate to Justice Berman in the Family Court of Australia and has continued to

4 THE BULLETIN September 2021

impress at current firm Tolis & Co. As an associate, Antonella was heavily involved in the Judicial Council on Cultural Diversity’s efforts to improve services to culturally diverse participants in the justice system.

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 volunteers in numerous other environmental organisations, in yet another example of practitioners making time to give back to the community.

The Mary Kitson Award winner, for outstanding contribution to the advancement of women in the profession, was presented to the trailblazing Justice Trish Kelly.

Justice Trish Kelly’s exceptional legal career alone is a source of inspiration for women in the profession. In her roles as prosecutor at both State and Federal level, a senior legal officer at the Equal Opportunity Commission, and of course judicial officer culminating in her appointment as the inaugural President of the Court of Appeal, Justice Kelly has been a purveyor of the law par excellence, and her contribution to protecting the rights of victims of crime has been particularly noteworthy. In addition, Justice Kelly has been a Member of the Intellectually Disabled Services Council of South Australia and a member of the Rape Crisis Centre Board.

It’s pleasing to see gender equity become an important issue for the judiciary, and Justice Sam Doyle’s considered article “The path to gender equality requires removing cultural & structural barriers in the profession” reflects the heightened awareness and commitment to the cause. His article won the “Bulletin Article of the Year - Special Interest Category” on Friday Night. The

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.

Young Lawyer of the Year winner Antonella Rodriguez (second from left) with (from left), Young Lawyers Committee Co-Chair Patrick Kerin, Law Society President Bec Sandford, and Young Lawyers Committee Co-Chair Bianca Geppa.

Bulletin Article of the Year, among a field of exceptional articles, went to Dr Philip Ritson for his article “Supreme Court decision highlights pitfalls of raising money for charitable purposes”.

There are so many members of the profession who may never win awards but are equally deserving of commendation, despite never seeking praise for their outstanding contributions to the community. Let me take this opportunity to thank all of those who serve the profession and broader society in their own way.

A more detailed wrap-up of the Legal Profession Dinner will be published in the October edition of the Bulletin. B

PRESIDENT’S MESSAGE

Emergency powers must not lead to long-term immunity from checks & balances REBECCA SANDFORD, PRESIDENT

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erms like ‘rule of law’ and ‘separation of powers’ are often thrown around, but some of us may not have had cause to think about those concepts in much depth in our day to day lives after finishing law school - at least, not until last year. The pandemic, and the state of emergency it ushered in, resulted in huge changes to the way the law affects our lives, and to executive power being exercised in previously unanticipated ways.

By way of brief reminder for those of us whose attendance at legal theory tutorials may feel like a distant memory, the separation of powers allows us to have confidence that in our system of responsible government, each of the Parliament, Executive and Judiciary will balance the power able to be exercised by each other ‘arm’ of that triad. Our Members of Parliament are elected to represent us and make decisions on our behalf, and if they don’t do that in a way which is appropriate or responsible, the consequences may include court action to strike down invalid laws, or the voting in of a different representative at the next possible opportunity.

Ordinarily, decisions which generally affect the lives and liberties of citizens vest in the Parliament or in the Government.

Those bodies make use of consultative processes which can enable adverse consequences to be identified and addressed, prior to the implementation of any new legal regime. The Law Society plays a role in that process, including through the making of submissions and public comment on legal matters.

The decisions made by Government, and implemented through laws made by Parliament, are the subject of scrutiny in a number of respects, including by way of judicial review.

In emergency situations, it makes sense to consolidate more of the decision making power in a central or singular

location, and to remove for a short time some of the checks and balances that would otherwise exist to prevent improper use of that power, recognizing that an extraordinary situation is at play and that the exercise of those accountability processes may prevent the ability of the Government to deliver support or assistance, or regulate behaviour, as needed to keep things functioning despite unusual circumstances. However, that ordinarily occurs only for a limited time, and a return to ‘normal’ processes occurs as promptly as possible. The pandemic has seen a number of unprecedented approaches to the use of executive power, and potentially demonstrated the need for a refreshed look at how executive power is managed in an emergency situation.

In SA, the Parliament was initially responsible for the creation of the Emergency Management Act, under which a state of emergency can be declared. If that occurs, responsibility for managing that emergency falls to the State Coordinator, a position held by the Commissioner of Police - an unelected position, but perhaps the one best suited to coordinate a rapid response to an emergency. It is via the powers provided for by that Act and in relation to that position that the Commissioner of Police, in the last 18 months, has issued directions which have required us to isolate or quarantine, get covid-tested, check in with QR codes wherever we go, and restrict attendance at businesses, weddings, funerals and other gatherings.

It has become apparent, as a result of the state of emergency declared in SA last March (and refreshed on a monthly basis since then) that the current regime when used in practice actually vests a significant amount of executive power in the State Coordinator. I certainly don’t envy our Commissioner of Police that responsibility, and whilst the consultative

and collaborative approach taken in the exercise of that power to date is commendable, we must still be mindful that consultation is not required, and it is a lot of power for any individual to have - especially one who is appointed, rather than elected.

The situation in SA is a little different from that in some other states, where directions have been issued by Health Ministers under Public Health Acts.

Some of the steps taken by the Federal Government have also been unexpected, including the convening of the ‘National Cabinet’ - a body whose powers, and decisions, have started to come under scrutiny, with the Administrative Appeals Tribunal recently finding that the body is not in fact a committee of federal cabinet.

That decision has consequences not only in the context of the Freedom of Information matter in which it was made, but may have broader ramifications on the impact of decisions made by that body.

Limits on liberties and democratic principles will generally be accepted as a short term measure and where they are reasonable and proportionate, but all around the country, many are now beginning to query whether current approaches to managing public movement in light of the pandemic are, or are still, the right ones. Emergency Management legislation is a useful and necessary tool, but - as is also the case with other legislative regimes - it’s appropriate to regularly check if it is serving its intended purpose, or indeed, whether its current use is in accordance with that aim. The question now being asked by increasingly more people is at what point should we say that the situation has stabilized enough for us move away from a state of ‘emergency’, and return to a system where proper scrutiny and accountability is applied to decisions made by our elected officials, rather than delegated authorities? B September 2021 THE BULLETIN

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EXECUTIVE POWER

THE MARCH OF EXECUTIVE AUTHORITY HIGHLIGHTS FRAGILITY OF DEMOCRACY MORRY BAILES AM, SENIOR LAWYER & BUSINESS ADVISOR, TINDALL GASK BENTLEY

A

s lawyers we spend a lot of time talking up the importance of the independence of the judiciary. It is indeed critically important, so we are not wrong in our obsession with it. An erosion of independence in the judiciary is often the first sign a democracy has lost its way. Take Hong Kong as a current example. How long can eminent foreign judges continue to sit comfortably on its Apex court, when it is now quite clear that there is political interference in the selection of the judiciary at other levels.

However, at times we dwell perhaps too exclusively on this admittedly most vital of building blocks, perhaps at the expense of scrutinising our other arms of government.

Our parliament is fairly easily understood fulfilling its legislative role. However executive government remains shrouded in a bit of mystery. It is opaque in a way the United States of America’s system is not, where executive power is so singularly concentrated in the office of President. Here executive power is wielded by some of the same parliamentarians that pass law, including the Attorney-General.

The parliamentary convention in the British Parliament is that the AttorneyGeneral of England and Wales has no position in Cabinet creating a degree of separation, answerable to the parliament rather than the cabinet. Not so in our country or in our state. The AttorneyGeneral is at the heart of executive power.

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What is not at first apparent in the use of executive power is just how much is delegated through subordinate legislation.

Parliament is responsible for delegating a great deal of its function, by necessity, to ministers who in turn rely on their agencies. The ‘trickle down’ effect is not widely understood nor is the extent of such delegations. All of a sudden, decisions are being made that parliament didn’t know about or hadn’t necessarily contemplated. Enter the era of rule by the executive, and a foreboding sense that the executive arm of government may have spread its tentacles so far that it is difficult to entirely comprehend or reign in.

A current example arises from the Return to Work Act, introduced by the former ALP government and passed by the then parliament. It gave certain powers to the Minister for Industrial Relations, to makes changes to the Act’s impairment assessment guidelines.

Following some judicial decisions involving interpretation of the Act and guidelines, the perception was that things had gone against the interests of Return to Work SA. The Minister for Industrial Relations indicated an intention or interest in changing the guidelines, perhaps to take away the disadvantage for Return to Work SA created by those judicial decisions, although that was not his stated intention.

Instead, his intent was cloaked in more beguiling words: “to deliver greater clarity, consistency,

and transparency, and to reflect relevant clinical developments. There are also corrections and clarifications proposed.”

In spite of a sense of inequity about what the Minister for Industrial Relations may do, and opposition from parts of the legal profession and medical profession, the powers delegated to the Minister were not contained in a disallowable instrument.

When parliamentarians had a look at what they had enacted, they discovered that as the powers were not contained in the disallowable instrument, parliament had no role; it could not move a motion to prevent the minister using his delegated power.

Despite Labor’s attempt to rectify a situation (which it largely created) by introducing a Bill to mandate that such changes be made via Regulation, the Minister recently gazetted the changes with all but the stroke of his pen. All because parliament gave away its power to a member of executive government, and lost control.

Needless to say that example is one of thousands upon thousands of delegations by way of subordinate legalisation to the executive arm.

No example though better illustrates the true power of the executive than what has happened from the start of the COVID pandemic. Parliament has quite literally allowed our freedom of movement, our freedom of association, our liberty, and an accounting of our daily whereabouts to be decided by government agencies.

The Commissioner of Police has certain

EXECUTIVE POWER

Photo: REUTERS / Sandra Sanders - stock.adobe.com.

powers as does the Chief Public Health Officer. Through a matrix of primary and subordinate legislation and instruments we are captured and controlled by unelected largely unaccountable people. None of this should take from their efforts. Additionally, it is parliament that did this and we elected its members. Yet the fact remains that the power delegated to the executive is vast.

Analysing bills before parliament these days is a three part process. What is in the primary bill, what is in the regulations and then the real devil in the detail, what is in the delegations? Often it is there that one realises a minister can do whatever she or he wishes.

Back to COVID, the use of executive power can be argued to be a necessity due to the speed with which decisions need to be made. On the other hand the control over our daily lives by government agencies and their leaders is extraordinary. It goes without saying that the power must be exercised with bona fides and the courts stand by to curtail these uses of power if they are beyond power. Yet it is a very big ask for a private citizen at personal expense to test such pervasive executive decrees.

Odds are that they are lawful anyway.

Moreover, the raison d’être behind an executive use of power may be singular (for instance to quell a disease) and have no regard for any consequential loss of rights. So it was when Western Australians were compelled to use QR codes after receiving assurances from their Premier and Health Minister that the data would

be sacrosanct and used exclusively for health purposes, only to have police unapologetically seize the data as evidence in a murder investigation. So much for the oft employed lines of self justification, ‘if you only knew what we knew’ and ‘trust the system’.

For the executive the ends so often justify the means, whereas the judicial arm of government is much more likely to take exception to that approach. However good faith immunities have made it difficult or impossible to resort to the courts for remedies.

What the growth of executive power has meant for the legal profession has been profound. Administrative law has become a growth area. Administrative tribunals proliferate, and statutory interpretation is what the law is now mostly about.

It has become necessary for superior courts to analyse what species of executive power is being utilised, and its validity.

Traditionally we have had two sources of executive power in our country, by prerogative or by statute. Edmund Barton in Adelaide in 1897 explained executive power as: ‘primarily divided into two classes: those exercised by the prerogative ... and those which are ordinary Executive Acts, where it is prescribed that the Executive shall act in Council.’1 Born from those constitutional conventions was S61 of the Australian

Constitution which seeks to describe the executive powers of the Commonwealth (though not exhaustively as remarked upon

by Sir Anthony Mason), excluding those still held by the states. S61 reads as follows: ‘The executive power of the Commonwealth is vested in the Queen and is exercisable by the GovernorGeneral as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.’

Particularly at the Federal level the development of jurisprudence about executive power has been evolving since Federation. The use of executive power in borders cases has been central to that evolution including the Federal Court in Ruddock v Vadarlis.2 Former Chief Justice Robert French AC summarised the recent state of executive power in Australia in a paper for the University of Western Australia Law Review in this this way: ‘There are, no doubt from an academic perspective, many unanswered questions about the scope of Commonwealth executive power in Australia and perhaps also the scope of the executive power of the States. Some of them may give rise to anxiety about future directions. The judiciary is unlikely to provide a comprehensive answer in any one case. The development of principle will proceed case-by-case.’3 September 2021 THE BULLETIN

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EXECUTIVE POWER

However, for most Australians the evolution of executive power in our country is not likely very well understood.

What is understood are the daily experiences citizens have with the myriad of executive decisions that are made, daily impacting their lives.

If we go back to Hong Kong for a moment, the real problem there has been an executive doing the bidding of Beijing. The Legislative Council there is really wall paper. The power is held by a Beijing appointed executive, and now that Beijing has started to flex muscle it is really the end of a democratic, self-governing territory. It brings meaning to Sir Owen Dixon’s words, ‘History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power.’4 In the case of our close ally the United States, President Obama governed largely by executive decree as did President Trump and President Biden appears to be going down the same route. Executive power is necessary but to what extent is it being used to navigate around the legislature?

In spite of the fears of many the U.S. has managed perfectly well to keep its Presidents acting constitutionally, so the exercise of executive power, however hard

EXPERT FORENSIC REPORTS & LITIGATION SUPPORT

it may be to define at times, must also be seen to operate within the constraints of a society that respects the rule of law and is ring-fenced by the judiciary.

Thus in spite of the awesome power of the executive during COVID it has been utilised with the best intentions in a country that is underpinned by the rule of law. It would create greater comfort for many however if the parliament would not take, at times, such a ‘hands off ’ approach.

That said, executive power is critical to governance of Australia, and of each of its States, and is as ancient in origin as it is illusive to define.

As our populations grow, as governance becomes more complex, and as our parliaments grapple with globalisation in the modern age, one certainty is the growth of the executive arm of government.

It is critically important that this not go unchecked. For much of the opening chapters of COVID, parliaments were in recess. The Biosecurity Act was used to wield far reaching executive power, as was our State’s Emergency Management Act, together with a raft of COVID specific primary and subordinate legislation. In a head nod to these unparalleled powers the Chief Public Health Officer let slip last year that she may wish to retain QR tracking for reasons other than COVID. The infection of unfettered power might be the lasting legacy of COVID long after the virus itself has been quelled.

It is necessary to remind ourselves, the citizenry, and most importantly our parliamentarians, that executive power used at these ‘shock and awe’ levels is extraordinary and not the norm. For parliament to be at times incapable of controlling the power it has delegated does not rest easily with our concept of the separation of powers. Not only do the powers require independence they also require balance. When police and military are in charge and able to detain us and restrain us, the grant of those powers must be temporary or we tempt the creation of a society long rejected by Australians.

The march of executive supremacy, as some have described, has reached an interesting juncture in Australia. It is vital that we vigilantly measure that march and ensure supremacy remains firstly vested with parliaments. As lawyers our understanding of these concepts, central to our stable democracy and grounding the rule of law, mean that we have a responsibility greater than others to protect and guard the fragility of a system that should not be permitted to tilt to far toward rule only by executive order. B Endnotes 1 Official Report of the Australasian Federal Convention Debates, Adelaide, 19 April 1897 2 Vol 43(2) 3 [2001] FCA 1329 4 Australian Communist Party v Commonwealth (1951) 83 CLR 1

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FROM THE CONDUCT COMMISSIONER

Poaching clients from your former firm GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER

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t is of course common for a lawyer to move from one firm to another. The question often arises as to whether it is appropriate for a lawyer to attempt to “poach” a client from his or her former firm – that is, to get the client to terminate the instructions of the former firm and to instead instruct the lawyer’s new firm.

Indeed, that will often be a substantial reason for the new firm employing the lawyer – because of the likelihood that at least some of the lawyer’s clients will follow him or her to the new firm.

So, how proactive can the lawyer be in attempting to induce a client to follow? I think everyone would accept that a client who finds out about the lawyer changing firms from, for example, a promotional advertisement in the paper, and who unilaterally decides to change firms, is entitled to do so and the lawyer cannot be criticised. But what happens when the lawyer starts contacting clients to encourage them to change firms?

This issue was considered many years ago in a Supreme Court decision by Justice Perry1. While the case itself dealt with disciplinary proceedings against a chiropractor, Perry J made the following observations in relation to the legal profession (at [51] to [53]): In the context, for example, of the legal profession, it is unlikely that a charge of unprofessional conduct would these days be sustained simply on the basis that a practitioner had endeavoured to induce customers to engage him or her, rather than remain a client of another practitioner.

There is much movement of practitioners in and out of legal firms, and it is a common occurrence for practitioners who leave a firm to take up practice elsewhere, to draw with them clients of the firm which they have left. This is an unexceptional and everyday experience.

Even the regular monthly Bulletin published by the Law Society of South Australia makes public announcements of movements of practitioners from one practice situation to another. No doubt clients of a former practice

who may read such publications may be induced to follow a practitioner to a new practice.

And that was 17-plus years ago – if Perry J thought then that there was “much movement of practitioners in and out of legal firms”, there can be no doubt that that is the case now!

Having said that, from a conduct point of view there is still a right way and a wrong way to go about attempting to induce a client to move firms. Professor Dal Pont says2 that the following requirements apply to any such contact: • the departing lawyer should first inform the firm of her or his proposed departure, so that it may meet with and/or write to clients informing them of any new arrangements for the conduct of their matters; • any contact by the departing lawyer should not deprecate the firm or its members; • the departing lawyer should in no way suggest or indicate that clients are obliged to instruct the new firm, nor should the departing lawyer undermine existing lawyer-client relationships between the firm and its clients; • if a client expresses a wish to transfer instructions from the firm to the departing lawyer, the departing lawyer should inform the client of his or her responsibility to negotiate the terms of the transfer, including the requirement either to pay all outstanding costs and disbursements or to secure the firm’s entitlements to costs and disbursements.

He goes on to say that the firm should then facilitate the transfer of files, subject to the payment of any such firm’s fees and disbursements.

In my view, particularly if the departing lawyer is a partner at the old firm, he or she should not contact any clients in this way until after having left the firm, unless his or her old firm consents to that contact prior to departure. Until the departing lawyer has left the firm,

he or she has certain duties to the firm that in my view would be breached if the departing lawyer is attempting to induce a client to leave that firm while still at that firm.

Importantly, Professor Dal Pont also says that “any valid contractual restriction on solicitation of a client contained in the departing lawyer’s contract of employment or partnership agreement with her or his former firm must be adhered to”.

The UK Supreme Court has recently ruled3 that a type of non-compete undertaking of a solicitor was not given in the course of practice because it was a business arrangement. The Court made the following observations at [122]: A business arrangement between two law firms is not the sort of work which solicitors undertake as part of their ordinary professional practice. It is a business matter, even if the business in question relates to the provision of professional services.

It was therefore held that the inherent supervisory jurisdiction of the Supreme Court to regulate the conduct of solicitors did not govern its enforceability. The Court was of the view that the contractual law doctrine of restraint of trade would apply to such agreements so that only reasonable restraints could be enforced.

Another interesting aspect of the judgment is the finding that the supervisory jurisdiction does not apply directly to corporate law firms as they are not officers of the court. This creates difficulties in relation to undertakings given on behalf of corporate firms, and the Court expressed the hope that the UK Parliament might address this lacuna. B

Endnotes 1 Judge v Chiropractors Board of South Australia [2004] SASC 214.

2 Dal Pont, Lawyers Professional Responsibility, 7th edition at [20.65] 3 Harcus Sinclair LLP v Your Lawyers Ltd [2021] UKSC 32

September 2021 THE BULLETIN

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FEATURE

Time to take lawmaking seriously: the problem of delegated legislation in South Australia ASSOCIATE PROFESSOR LORNE NEUDORF, ADELAIDE LAW SCHOOL, UNIVERSITY OF ADELAIDE

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he Parliament of South Australia plays a key constitutional role as the state’s lawmaker-in-chief, operating as the forum for the exercise of legislative power in a democratic society founded on the rule of law. Since its establishment in 1857, the South Australian Parliament has been at the cutting edge of some of the most important political and social changes in Australia and indeed the world. It enacted legislation that made South Australia the first colonial government to grant women both the right to vote and stand for election (1895) and the first Australian state to decriminalise sexual activity between consenting males (1975), for which the criminal law had previously prescribed severe punishments including death, life imprisonment in solitary confinement, hard labour and whipping.

Because of the important interests at stake in lawmaking, the parliamentary process is designed to help lawmakers appreciate the implications of proposed legislation. Significant measures of accountability and transparency are part of the legislative process that must be followed before a bill can become law. The process requires public readings, the publication of draft legislative text, open debate by elected members that represent constituencies across the state, committee study where the views of experts and citizens are expressed, and the recorded votes of all members in each of the two Houses. The legislative process not only helps lawmakers better understand their legislative choices, it safeguards the legitimacy of Parliament as lawmaker for a diverse society. It also enhances the quality of legislative outcomes by subjecting policy and legislative text to multiple rounds of scrutiny from diverse perspectives, including those of members of different political parties that collectively represent a cross-section of the community.

Over the past few decades, there has been a shift away from parliamentary lawmaking to an alternative lawmaking process. This trend threatens parliament’s role as lawmaker-in-chief and undermines democratic values and institutions. It

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can be seen throughout Australia and in other Westminster parliaments including those in Canada, the United Kingdom and New Zealand. This alternative form of lawmaking side-steps the parliamentary process by having the executive branch of government make laws directly. Such laws have the same legal force as legislation enacted by parliament. It occurs through the parliamentary delegation of legislative powers. Almost all bills include significant delegations that permit the executive to make delegated legislation directly. These delegations may allow the executive to fill in the details of a statutory scheme, but they can also be drafted in sweeping terms that authorise the executive to make and implement significant policy choices. Bills often allow the executive to make laws that are ‘necessary or expedient for the purposes of this Act’, providing little guidance on the kinds of delegated laws that might later be made and little opportunity for a reviewing court to impose meaningful limits on the scope of the delegated power.

South Australia is no exception to the general trend. Delegated legislation is the principal way that new law is made in the state. Last year, 88% of all new laws made were delegated laws.1 While the pandemic has prompted an even greater reliance on delegated legislation to respond quickly to changing circumstances, the number of delegated laws overshadowed that of primary legislation in South Australia well before COVID-19: over the past three years, 86% of all new laws made in the state were in the form of delegated legislation. In terms of the total number of pages of legislative text, delegated legislation comprised nearly 70% of the statute book over the same period of time.

To be made, delegated laws need to follow only a cursory process set out in the Subordinate Legislation Act 1978. The Act imposes none of the robust accountability and transparency measures found in the ordinary parliamentary process: for delegated legislation, there is no public reading, no publication of draft legislative

text, no open debate, no committee study to hear from experts and citizens, and no recorded vote. In fact, there is no vote at all because lawmaking decisions are made in secret, behind closed doors. Discussions and deliberations by the cabinet relating to delegated legislation are confidential and protected by legal privilege. The Act imposes no requirements for consultation of any kind before new delegated laws are made. Details of any consultation carried out are not published. It is not possible to see what information was relied upon by the executive in making legislative choices or who might have influenced them. Was the information fair and accurate? Which individuals and groups were consulted?

Were any concerns raised? If so, were the concerns addressed? Under the Act, none of these questions need to be answered. In making delegated legislation, the executive is not required to publish a statement to explain the purpose of the new law, or even explain why a change to the law might be desirable. Without this context, it is sometimes difficult to work out whether a delegated law has a rational purpose and whether its text is connected to that purpose. And despite the Act imposing a default rule of four months’ commencement for delegated legislation, almost all new laws invoke an exemption that permits them to come into force immediately, on the very day on which they are made. In South Australia, delegated legislation is made by the government as a fait accompli.

The only parliamentary oversight of delegated legislation takes place in the over-burdened and under-resourced Legislative Review Committee.2 Consisting of six members drawn from both Houses, the Committee scrutinises all ‘rules, regulations and by-laws’ that are required to be tabled in Parliament – a Herculean task if there ever was one. Last year, more than 1,400 pages of delegated legislation were made in 324 different instruments, which does not include all the new bylaws made by the state’s 68 local councils or rules of court that are also scrutinised

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by the Committee. With the support of one secretary in relation to its scrutiny function, the Committee is expected to examine each and every line of this morass of often highly technical legislative text against 38 different considerations, including: whether it infringes the separation of powers; is inconsistent with the rule of law; is in accordance with its enabling legislation and the requirements of any other Act; has certainty of meaning and operation; fails to protect privacy; authorises the use of force, detention or search and seizure; has retrospective effect; imposes strict or absolute liability; reverses the evidential burden of proof; abrogates privileges including the privilege against self-incrimination; interferes with property rights; intends to bring about radical changes in relationships or attitudes of people in an aspect of the life of the community; has unforeseen consequences; is inconsistent with natural justice; has costs that outweigh the benefits; imposes excessive fees and charges; authorises excessive discretionary decisions; provides adequate notice to persons who may be affected; and restricts independent merits review of discretionary decisions affecting rights, interests or obligations.

In effect, the Committee is tasked with carrying out the entire parliamentary process for all delegated legislation subject to scrutiny, giving it one of the most critical roles in upholding democratic values for most laws made in South Australia. Inevitably, it is snowed under by a ceaseless flurry of new delegated legislation. While the Committee does what it can within its situational and operational constraints (including occasionally introducing notices of motion to disallow delegated legislation), it is ultimately hamstrung by the Subordinate Legislation Act 1978’s paper-thin process for making delegated legislation that fails to impose adequate and meaningful controls on executive lawmaking. Under the Act’s framework and with few resources, it is not possible for the Committee to achieve the minimum levels of accountability

and transparency for lawmaking that are expected in a democratic society.

Three changes are urgently needed to address this problem. First, the scheme for making delegated legislation in South Australia under the Subordinate Legislation Act 1978 needs a major overhaul to beef up the standards and requirements for making delegated laws. The delegated lawmaking schemes at the Commonwealth and in other jurisdictions provide useful comparative guidance on these necessary reforms. Second, a specialist bills committee is needed to identify and challenge inappropriate delegations of legislative power. Parliament must reassert itself as the chief lawmaking institution and prevent the continued erosion of its legislative powers and role. If Parliament is not willing to act, courts may have to. In a recent judgment of the Supreme Court of Canada, Justice Côté would have held certain legislative delegations unconstitutional on the basis that they conferred ‘inordinate discretion in the executive with no meaningful checks’ on their use.3 The statute at issue in that case ‘knows no bounds’ as it ‘set forth a wholly-unfettered grant of broad discretion’ to the executive.4 In Justice Côté’s view, the delegations infringed the constitutional principles of parliamentary sovereignty, the separation of powers and the rule of law and were ‘so inconsistent with our system of democracy that they are independently unconstitutional’.5 Third, the Committee is in desperate need of additional staffing resources to allow it to effectively provide parliamentary oversight of the most significant source of law in South Australia.

Again, comparative benchmarking against the Commonwealth and other jurisdictions will indicate the appropriate level of resources that are needed.

The Parliament of South Australia’s traditional role of providing a democratic forum for the contestation of ideas and perspectives is at risk because of an alternative lawmaking process that is used to make the vast majority of laws outside Parliament. While the trend toward delegation may be unstoppable, reforms

can establish an appropriately robust delegated lawmaking process that meets requisite standards of accountability and transparency for lawmaking in a democratic society. Effective parliamentary oversight through an appropriately resourced committee is also essential to maintain the constitutional role of Parliament as lawmaker-in-chief and ultimately the legitimacy of delegated laws. Unfortunately, the Parliament of South Australia has fallen behind other jurisdictions. The erosion of Parliament’s place must be reversed. It must reassert itself and reinvigorate the process by which delegated legislation is made and scrutinised. But why strive for the bare minimum or merely seek to catch-up with others? Parliament should restore its once-proud tradition to lead the way in the promotion of democratic values. Two inquiries presently underway – the inquiry of the Effectiveness of the Current System of Parliamentary Committees parliamentary committee and the South Australian Productivity Commission’s inquiry into the reform of the state’s regulatory framework – have the potential to initiate the process of bringing about positive change. While important, the challenges of delegated legislation are unlikely to be fully addressed by the reform recommendations of any single inquiry. To show leadership, more fundamental change is needed. It will require a wholesale reconceptualisation of how we make laws. B Endnotes 1 See Lorne Neudorf, ‘Strengthening the Scrutiny of Delegated Legislation’ (Presentation to the South Australian Legislative Review Committee, 2 February 2021) slides and Hansard transcript available at https://www.parliament.sa.gov. au/Committees/lrc (located in the sub-folder ‘1 Committee Information’ / ‘Committee Performance’).

2 It should be noted that the Committee is restricted by the Subordinate Legislation Act 1978 to the kinds of instruments that it can scrutinise.

Such instruments must be called a ‘regulation, rule or by-law’: s 4 ‘regulation’.

3 References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at [223].

4 Ibid, [230], [240].

5 Ibid, [241].

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COVID SAFE CHECK-IN: USE BEYOND CONTACT TRACING? RAFFAELE PICCOLO, BARRISTER, ANTHONY MASON CHAMBERS

S

ince December, 2020 the use of COVID SAfe Check-In has been mandatory at most venues in South Australia. Venues are required to display posters with a unique QR code (which links to COVID SAfe Check-In). In turn, patrons are required to register their attendance at such venues using COVID SAfe Check-In (accessible via the QR code displayed).1 Refusal or failure to comply with this requirement constitutes an offence, and if prosecuted, attracts a maximum penalty of a fine or imprisonment.2 The stated purpose for mandating the use of COVID SAfe Check-In is to improve contact tracing efficiency, so that contact tracers, ‘can immediately, 24/7, go straight to that database instead of waiting until the next day to get hold of a business and to get those details’.3 Since the introduction of COVID SAfe Check-In, the State Government has repeatedly given a number of assurances regarding the data collected via COVID SAfe Check-In. These assurances have included the following. First, the data collected is stored in a government secured and encrypted database. Second, the data is only to be retained for a period of 28 days, and will only be released to SA Health for official contact tracing purposes. Third, if the data is used for contact tracing, the data is only to be retained for as long as necessary for those purposes, and no longer than the COVID-19 pandemic remains.4 The mandatory use of COVID SAfe Check-In is a reasonable and proportionate means to facilitating efficient contact tracing. This is not disputed. However, given the potential for the use of the data collected via COVID SAfe Check-In for purposes other than contact tracing (to lessen the transmission of COVID-19), more than simple assurances are required. Legislative safeguards to the same effect are necessary.

The need for legislative safeguards remains, despite the refusal of SA Health to disclose similar information when requested by police in November, 2020.

At this time, police were investigating an allegation that a person had lied during

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an initial interview with SA Health about his employment at Woodville Pizza Bar (the information the subject of this interview was ‘central’ to the decision to impose the ‘circuit breaker’ lockdown in South Australia in November, 2020).5 SA Health reportedly refused to disclose any information regarding the interview on the basis of ‘patient privilege’ (also described as ‘patient-doctor confidentiality’).6 Little comfort can be taken from this example. First, the information collected via COVID SAfe Check-In is stored in a database maintained by the Department of the Premier and Cabinet (not SA Health).

SA Health is only provided access to data as and when necessary to undertake contact tracing.7 Second, the refusal on the part of SA Health was reported to be in response to a request from police, rather than under compulsion of a warrant or subpoena (with which non-compliance might amount to contempt). The basis upon which such a warrant, or subpoena, might be resisted, are discussed further below.

In any event, concerns regarding the lack of legislative safeguards are evermore paramount now, approximately nine months after the introduction of COVID SAfe Check-In, for three reasons. First, recent reports that law enforcement authorities in other jurisdictions have accessed, or attempted to access, similar data for purposes other than contact tracing (using a warrant).8 Second, moves by other jurisdictions to introduce legislative safeguards to better ensure that such data is not used for any purpose other than contact tracing.9 Third, the recent expansion of the use of COVID SAfe Check-In to public transport, with the implication that a greater amount of data will be collected.10

POWER TO ISSUE DIRECTIONS Pursuant to the Emergency Management Act 2004 (SA) (‘Emergency Management Act’), a declaration of a major emergency (‘the declaration’) in relation to the COVID-19 pandemic has been in effect in South Australia since 22 March, 2020.11 The effect of the declaration is to vest in the State

Co-ordinator (the Commissioner of Police) a number of responsibilities and powers, including the power to direct or require persons to do or cause to be done any of a number of things.12 Most relevantly, the State Co-ordinator can require a person to furnish such information as may be reasonably required in the circumstances.13

REQUIREMENT TO REGISTER ATTENDANCE USING COVID SAFE CHECK-IN During the period of the declaration, the State Co-ordinator has issued a number of directions. On 1 December, 2020, the State Co-ordinator issued Emergency Management (Public Activities No 13) (COVID-19) Direction 2020 (‘Public Activities No 13 Direction’). Unlike predecessor directions,14 Public Activities No 13 Direction included a requirement that any person attending at a relevant place had to use their ‘best endeavours in all of the circumstances’ to ensure that their ‘relevant contact details’15 were captured by the approved contact tracing system16 (defined as COVID SAfe Check-In, or ScanTek, or another system approved by the State Coordinator).17 The requirement that a person register their attendance at a venue using COVID SAfe Check-In has remained a component in replacement directions since issued by the State Co-ordinator.18

INADEQUACY OF CURRENT PROTECTIONS When issued, Public Activities No 13 Direction did not include any provision which restricted the use or disclosure of the information collected by COVID SAfe Check-In. It was not until 8 April, 2021, that provisions were implemented regarding the use of data collected via COVID SAfe Check-In. These provisions provide the following. First, any data collected pursuant to any directions issued under the Emergency Management Act is only allowed to be used for the purpose of contact tracing in relation to COVID-19, or managing the COVID-19 pandemic.

Second, any data retrieved from the database and given to SA Health for the purpose of contact tracing is taken to be

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information protected by the Health Care Act 2008 (SA) (‘Health Care Act’).19 It might be inferred that the purpose of these provisions was to purportedly respond to concerns regarding the potential use of the data collected via COVID SAfe Check-In for purposes other than contact tracing.20 In any event, as outlined below, the provisions contained in the directions appear to be ineffectual in meeting any such objective.

DISCLOSURE REQUIRED BY A COURT OR TRIBUNAL OR AUTHORISED BY LAW First, while the State Co-ordinator can issue directions to require a person to furnish information it is not clear that the State Co-ordinator thereafter has a power to restrict the use of that information (such as data collected via COVID SAfe Check-In) by others for other purposes.

Moreover, regardless of the effectiveness of such provisions, any purported restriction is clearly in conflict with the provisions of the Emergency Management Act regarding disclosure of information (with the effect that the provisions of the Act will prevail over the directions to the extent of any inconsistency).

Section 31A of the Emergency Management Act prohibits the disclosure of information relating to the personal affairs of another that was obtained in the course of the administration or enforcement of that Act. Contravention of this prohibition constitutes an offence.

It is this provision (along with the aforementioned assurances) on which the State Government has relied to assert that data collected via COVID SAfe Check-In is adequately protected from disclosure.21 However, reliance on this provision is misplaced; the provision explicitly allows for disclosure of information if required by a court or tribunal constituted by law.22 Thus, for example, the disclosure might be compelled pursuant to a subpoena, or a warrant. Failure to comply with a subpoena without lawful excuse constitutes a contempt of court, and is punishable by a fine or imprisonment (or both).23

A person might attempt to resist a subpoena, by seeking to have the subpoena set aside,24 or asserting a claim to public interest immunity.25 In relation to any claim of public interest immunity, the court is required to consider two conflicting aspects of the public interest: the harm that would be done by the production of data on the one hand, as against a consideration of whether the fair and efficient administration of justice would be frustrated or impaired by the non-disclosure on the other.26 Similarly, in relation to a warrant, public interest immunity might be raised as basis for resisting seizure.27 Moreover, a defendant might seek to convince a court to exercise the discretion to exclude lawfully obtained evidence on the basis of fairness (that admitting the evidence would be unfair to the defendant in the sense that the trial would be unfair).28 Whether a subpoena is set aside, a claim for public interest immunity is upheld, or such data is otherwise excluded as evidence in any trial, will depend on the circumstances of the particular proceeding before a court; it will be decided on a case by case basis.

Second, the inclusion of the reference to the Health Care Act does not appear to take the purported restriction regarding the disclosure of data collected via COVID SAfe Check-In much further.

This Act prohibits the disclosure of personal information which was obtained in connection with the operation of this Act except to the extent a person is authorised or required to disclose that information. Contravention of this prohibition constitutes an offence. Again, however, the provision explicitly allows for disclosure of information as required or authorised by or under law.29 It’s noteworthy that the Western Australia State Government expressed similar concerns regarding the effectiveness of issuing directions to restrict the disclosure of information collected via SafeWA (an analogue of COVID SAfe Check-In).30 These concerns served as a basis for the implementation of further legislative safeguards (as discussed below).

ADMISSIBILITY OF DATA AS EVIDENCE IN ANY CIVIL PROCEEDING, OR CRIMINAL PROSECUTION Moreover, while the Emergency Management Act and the Health Care Act generally prohibit and criminalise the disclosure of information, such as data collected via COVID SAfe Check-In, this legislation does not render the information inadmissible as evidence in any civil proceeding, or criminal prosecution. Thus, even if information is disclosed to a law enforcement authority in contravention of the prohibition, the information remains admissible as evidence in any proceeding before a court notwithstanding that the disclosure might be illegal or unlawful, unless otherwise excluded by a court.

In deciding whether to exercise the discretion to exclude illegally obtained evidence the court has to consider and weigh against each other two competing requirements of public policy. On the one hand there is the public interest in bringing to conviction those who commit criminal offences, and on the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment.31 Whether such information is excluded as evidence will depend on the circumstances of the particular proceeding before a court; it will be decided on a case by case basis.

In summation, this legislative framework makes it difficult for South Australians to have absolute confidence in the assurances provided by the State Government regarding the storage, use and disclosure, of the data collected via COVID SAfe Check-In. Moreover, the potential access by law enforcement authorities to such data for purposes other than contact tracing (for general law enforcement activities) is not merely theoretical. Law enforcement authorities in Queensland, and Western Australia, have accessed such data, and in Victoria have requested access (but were refused, and advised to obtain a warrant).32 Moreover, the Acting Minister for Police in Victoria has publicly expressed his September 2021 THE BULLETIN

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reluctance to implement any legislation to guard against law enforcement authorities obtaining access to such data for use for purposes other than contact tracing.33

FORM OF ANY LEGISLATIVE SAFEGUARDS The legislation adopted by the Commonwealth, and Western Australia, serve as useful examples, of the form of legislative safeguards required in South Australia.

At the Commonwealth level, there is the Privacy Amendment (Public Health Contact Information) Act 2020 (Cth).34 This legislation regulates the collection, storage, use and disclosure of the personal information of persons captured by the use of the application COVIDSafe. The legislation criminalises the unauthorised collection, use or disclosure of data obtained via COVIDSafe. The same legislation provided that the collection, use or disclosure of such data was, relevantly, only permitted for the purpose of, and only to the extent required for the purpose of: (i) investigating possible non-authorised collection, use or disclosure of data obtained via COVIDSafe; or (ii) prosecuting a person for an offence regarding the non-authorised collection, use or disclosure of data obtained via COVIDSafe.35 More recently, Western Australia has enacted the Protection of Information (Entry Registration Information Relating to COVID-19 and Other Infectious Diseases) Act 2021 (WA).

This Act provides protections similar to those outlined above in relation to Privacy Amendment (Public Health Contact Information) Act 2020 (Cth).36 However, further, this Act explicitly provides that ‘entry registration information’37 is not admissible in evidence in any criminal or civil proceedings other than proceedings for an offence relating to compliance with an obligation under the Act, or the recording or disclosure of entry registration information.38 As was explained during the Second Reading Speech: This bill will introduce a strong, clear and comprehensive legislated framework for regulating the use of entry registration information. …This is in recognition of the

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critical importance of this information in our public health response to this pandemic and the need to maintain public confidence in our entry registration arrangements.39 The legislation adopted by the Commonwealth and Western Australia address some of the concerns which remain with the current legislative framework in South Australia. However, the legislation adopted by the Commonwealth and Western Australia is not without issue.

For example, the legislation adopted by the Commonwealth does not explicitly state that data obtained via COVIDSafe is not admissible as evidence in criminal or civil proceedings unrelated to contact tracing (although it can be inferred). Further, the legislation adopted by Western Australia does not address what other use can be made of ‘entry registration information’.

The legislation does not explicitly protect against the use of such information (regardless of how obtained) to uncover other evidence against the individual who provided the information. This is what might be described as a prohibition on ‘indirect use’ or protection from ‘derivative use’.40 An example of such indirect or derivative use is using data collected via COVID SAfe Check-In to obtain a search warrant (which in turn is used to obtain other evidence against the individual in question).41

CONCLUSION Assurances that the data collected via COVID SAfe Check-In will not be used for any purpose other than contact tracing are insufficient given that they are without legislative basis. To the contrary, the Emergency Management Act makes specific provision for the disclosure of information, such as the data collected via COVID SAfe Check-In. As outlined above, this lack of legislative safeguards remains concerning for a number of reasons. To remedy the situation, and consistent with the assurances given, the State Government should introduce legislation which addresses and prohibits disclosure, use (including as

admissible evidence), and derivative use, of data collected via COVID SAfe Check-In (or any other electronic platform), for any purpose beyond contact tracing in relation to COVID-19. Put simply, not only is the data collected via COVID SAfe Check-In of critical importance in our public health response to this pandemic, but so too is the trust and willingness of South Australians to provide such information so long as called upon.

This article is based upon legislation as in effect as at 2 August 2021. B Endnotes 1 Acknowledgements: The author wishes to thank Associate Professor Matthew Stubbs, and others, for valuable feedback regarding earlier drafts of this article. Any errors are the author’s own.

Eugene Boisvert, ‘South Australia coronavirus cluster grows again as pizza bar link confirmed’, ABC (Web Page, 26 November 2020) <https:// www.abc.net.au/news/2020-11-26/new-casesparafield-coronavirus-cluster-as-pizza-linkconfirmed/12923300>; ‘SA to roll out mandatory QR check-ins for venues’, Sky News (Web Page, 27 November 2020) <https://www.skynews. com.au/australia-news/coronavirus/sa-to-rollout-mandatory-qr-checkins-for-venues/video/ fd57a1044e4790e47c6497d66af6e72d>; Emergency Management (Public Activities No 13) (COVID-19) Direction 2020, cl 10.

2 Emergency Management Act 2004 (SA), s 28(1) (‘Emergency Management Act’).

3 Boisvert, ‘South Australia coronavirus cluster grows again as pizza bar link confirmed’ (n 1); ‘SA to roll out mandatory QR check-ins for venues’ (n 1). See, also, Emily Cosenza, ‘South Australia shuts out Victorian travellers from midday on Saturday’, The Australian (online, 17 July 2021) <https://www.theaustralian.com.au/breakingnews/south-australia-shuts-out-victoriantravellers-from-midday-on-saturday/news-story/ f27f82fc90f64992a871f5dcc2e9b4c4>; Steven Marshall MP and Stephen Wade MLC, ‘Operation COVID Shield Begins’ (Media Release, 22 February 2021) <https://www.premier.sa.gov. au/news/media-releases/news/operation-covidshield-begins>.

4 ‘QR codes are being rolled out in venues across South Australia — here’s what you need to know’, ABC (Web Page, 1 December 2020) <https:// www.abc.net.au/news/2020-12-01/what-youneed-to-know-about-covid-qr-codes-in-southaustralia/12937756>; Andrew Hough and Kara Jung, ‘Contact tracing in SA: What you need to know’, The Advertiser (online, 17 November 2020) <https://www.adelaidenow.com.au/coronavirus/ contact-tracing-in-sa-what-you-need-to-know/

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news-story/9aa67e8c9ed436669771cdecc7cdce 3f>; Stephanie Richards, ‘Law Society warning over COVID QR check-in data privacy’, InDaily (Web Page, 6 January 2021) <https://indaily.com. au/news/2021/01/06/law-society-warning-overcovid-qr-check-in-data-privacy/>; ‘COVID SAfe Check-In: Frequently asked questions for the community’, Government of South Australia (Web Page, 7 June 2021) <https://www.covid-19.sa.gov. au/restrictions-and-responsibilities/covid-safecheck-in>.

5 Emily Olle, ‘Woodville Pizza Bar worker’s COVID interview with SA Health officials “privileged”’, 7NEWS (Web Page, 2 December 2020) <https://7news.com.au/lifestyle/ health-wellbeing/woodville-pizza-bar-workerscovid-interview-with-sa-health-officialsprivileged-c-1692789>.

6 Patrick James and Lynton Grace, ‘Prof Spurrier says interview with Woodville Pizza Bar worker came under patient confidentiality’, The Advertiser (online, 4 December 2020) <https://www. adelaidenow.com.au/coronavirus/lawyer-forwoodville-pizza-bar-worker-in-hiding-unable-todeny-man-lied/news-story/8e206ec0b13fa886911 63bf040e5c9b4>.

7 Andrew Hough and Gabriel Polychronis, ‘SA Police Commissioner warns against QR code complacency’, The Advertiser (online, 6 February 2021) <https://www.adelaidenow.com.au/ coronavirus/sa-police-commissioner-warnsagainst-qr-code-complacency/news-story/ dd3aa48c8c21744b90c738d44e385e46>; Andrew Hough, ‘Covid-19: SA Health uses QR code data in state first to trace coronavirus contacts of infectious miner Adam Ryan’, The Advertiser (online, 7 July 2021) <https://www.adelaidenow. com.au/coronavirus/covid19-sa-health-usesqr-code-data-in-state-first-to-trace-coronaviruscontacts-of-infectious-miner-adam-ryan/newsstory/d40651c98a4918363030796056ba84f3>; Emergency Management (Activities – General No 3) (COVID-19) Direction 2021, cl 7.

8 Cam Wilson, ‘Who’s been looking at your check-in data? We asked the states and territories to “fess up”’, Crikey (Web Page, 1 July 2021) <https:// www.crikey.com.au/2021/07/01/which-stateterritory-use-check-in-data/>; Evidence to Public Accounts and Estimates Committee, Parliament of Victoria, Melbourne, 21 June 2021, 3-4 (Shane Patton, Chief Commissioner of Police), 6 (Danny Pearson, MP, Acting Minister for Police and Emergency Services); Eliza Laschon, ‘Check-ins to SafeWA app unaffected after WA Police accessed data as part of criminal investigations’, ABC (Web Page, 19 June 2021) <https://www.abc.net. au/news/2021-06-19/wa-safewa-governmentoversight-analysis/100227928>; Michael Ramsey, ‘Privacy infringement fears after police access data from SafeWA contact tracing app’, 7NEWS (Web Page, 15 June 2021) <https://7news.com.au/ news/western-australia-police/wa-police-accessedcontact-tracing-data-c-3118713>.

9 Protection of Information (Entry Registration Information Relating to COVID-19 and Other Infectious Diseases) Act 2021 (WA); Melissa Coade, ‘WA Police murder investigation using QR contact tracing data prompts law reform’, The Mandarin (Web Page, 16 June 2021) <https://www.themandarin.com. au/160346-wa-police-murder-investigation-usingqr-contact-tracing-data-prompts-law-reform/>.

10 7NEWS Adelaide (Facebook, 20 July 2021, 10:57pm ACST) <https://www.facebook.com/ 7NEWSAdelaide/photos/a.213015848729078/ 4614382401925712/>; Andrew Hough, Brad Crouch, Dixie Sulda, and Paul Starick, ‘Double Jeopardy: High alert as cluster doubles’, The Advertiser (Adelaide, 22 July 2021), 4; see Emergency Management (Activities – General) (COVID-19) Direction 2021, cl 7(6)-(7).

11 Declaration of a Major Emergency, State Coordinator, 22 March 2020; Approval of Extension of a Major Emergency Declaration under section 23, Approval of the Governor, 22 July 2021.

12 Emergency Management Act (n 2) s 25(1).

13 Ibid s 25(2)(ka).

14 See, eg, Emergency Management (Public Activities No 12) (COVID-19) Direction 2020, cl 10(4), 15(1), which required a person to make and retain contact tracing records for persons attending the activity. Such records had to include certain details in relation to each person attending.

15 ‘relevant contact details’ means a person’s name, telephone number and the time at which the person entered at the relevant place. See Emergency Management (Public Activities No 13) (COVID-19) Direction 2020, cl 10(7) (definition ‘relevant contact details’).

16 Emergency Management (Public Activities No 13) (COVID-19) Direction 2020, cl 10(4).

17 Ibid cl 10(7).

18 See, eg, Emergency Management (Activities – General No 3) (COVID-19) Direction 2021, cl 7. The use of ScanTek was later discontinued as means of registering attendance at a venue with effect from 17 February 2021 (see Emergency Management (Public Activities No 19) (COVID-19) Direction 2021, Sch 3, cl 1(5) (definition of ‘approved contact tracing system’)).

19 Emergency Management (Public Activities No 22) (COVID-19) Direction 2021, Sch 3, cl 1(6)-(8).

20 Richards, ‘Law Society warning over COVID QR check-in data privacy’ (n 4); Eugene Boisvert, ‘Privacy concerns about SA Government’s mySA GOV QR code coronavirus contact tracing app’, ABC, (Web Page, 27 November 2020) <https://www.abc.net.au/news/2020-11-27/ concerns-about-mysa-gov-qr-app-and-how-touse-it/12925554>; Bension Siebert, ‘Privacy concerns as South Australia becomes latest state to flag QR code contact tracing’, ABC (Web Page, 3 November 2020) <https://www.abc.net.au/ news/2020-11-03/privacy-concerns-with-qr-codecontact-tracing-in-south-australia/12844050>.

21 South Australia, Parliamentary Debates, House

of Assembly, 2 February 2021, 3705 (Vickie Chapman). The State Government has also cited the Information Privacy Principles Instruction (‘Instruction’) as governing the disclosure of collected via COVID SAfe Check-In. However, the Instruction does not further assist in addressing the concerns raised; the Instruction explicitly provides that personal information can be used by an agency (or disclosed by an agency to a third person) if, relevantly, the use/disclosure is ‘required or authorised by or under law’ or ‘reasonably necessary for the enforcement of the criminal law’.

22 Emergency Management Act (n 2) s 31A(e).

23 See, eg, Supreme Court Criminal Rules 2014 (SA), r 78, Ch 14; Uniform Civil Rules 2020 (SA), r 156.13, Ch 17, Pt 5; Mahaffy v Mahaffy [2013] NSWSC 245, [105].

24 Australian Federal Police v XYZ (2015) 123 SASR 274, 281-2 [40].

25 Milisits v South Australia (2014) 119 SASR 538.

26 Regina (C’Wealth) v Baladjam & Ors [No 29] [2008] NSWSC 1452; Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552.

27 Jacobsen v Rogers (1995) 182 CLR 572, 589.

28 R v Lobban (2000) 77 SASR 24.

29 Health Care Act 2008 (SA), s 93.

30 Western Australia, Parliamentary Debates, Legislative Council, 15 June 2021, 1408a (Matthew Swinbourn).

31 R v Rockford (2015) 122 SASR 391.

32 Wilson, ‘Who’s been looking at your check-in data? We asked the states and territories to “fess up”’ (n 8); Evidence to Public Accounts and Estimates Committee, Parliament of Victoria, Melbourne, 21 June 2021, 3-4 (Shane Patton, Chief Commissioner of Police).

33 Evidence to Public Accounts and Estimates Committee, Parliament of Victoria, Melbourne, 21 June 2021, 6 (Danny Pearson, MP, Acting Minister for Police and Emergency Services).

34 Privacy Amendment (Public Health Contact Information) Act 2020 (Cth) which inserted Part VIIIA (titled ‘Public health contact information’) into the Privacy Act 1998 (Cth).

35 Privacy Act 1998 (Cth), s 94D(2)(e).

36 Protection of Information (Entry Registration Information Relating to COVID-19 and Other Infectious Diseases) Act 2021 (WA), s 6(1), (4)-(5).

37 ‘entry registration information’ is the information collected via SafeWA, the Western Australian equivalent of COVIDSAfe Check-In. 38 Protection of Information (Entry Registration Information Relating to COVID-19 and Other Infectious Diseases) Act 2021 (WA), s 6(2).

39 Western Australia, Parliamentary Debates, Legislative Council, 15 June 2021, 1409a (Matthew Swinbourn).

40 Queensland Law Reform Commission, The Abrogation of the Privilege against Self-Incrimination (Report No 59, December 2004), 19; X7 v Australian Crime Commission (2013) 248 CLR 92, 106 [17].

41 See, eg, Commonwealth Director of Public Prosecutions v Leach (No 3) [2020] QDC 42.

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EXECUTIVE POWER

The exercise of emergency powers by the executive in COVID-19 times: What recent cases say about constitutional protection of our freedoms SUE MILNE, LECTURER, PHD CANDIDATE, JUSTICE AND SOCIETY, UNIVERSITY OF SOUTH AUSTRALIA

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he Covid-19 pandemic has seen both our Commonwealth and state governments respond to restrict the movement of people. The Commonwealth has placed restrictions on leaving or entering our national borders, and there are ongoing state restrictions on movement between and within states. These restrictions are part of the new normal of rapid lockdowns, border closures, capped numbers in public gatherings, contact tracing and social distancing protocols that continue to impact the daily lives of every person in Australia.

Recent legal challenges, on constitutional and administrative grounds, to the restrictions on the international,1 interstate2 and internal3 movement of people have failed. It is not difficult to see why. The precautionary restrictions are considered proportionate and justified measures necessary to reduce the risk of the spread of infection and protect the public health of the community. As Nicola Spurrier has so pictorially observed, the virus does not have legs. But our human legs ably facilitate the spread of the Covid virus rendered ever more potent by its mutating strains.

The measures have relied on Commonwealth and state emergency management, biosecurity and health powers.

These areas of law-making authority have in turn enabled the delegation of extremely broad discretionary powers to our Executive governments, as it is this arm of government that is considered ‘capable and empowered to respond to a crisis’.4

16 THE BULLETIN September 2021

However, these broad executive powers have jurisdictional limits. The magnitude and urgency of the Covid-19 pandemic is determined on technical and medical advice. This provides for the exercise of discretionary authority, in conjunction with the relevant crisis or emergency management plans, at both Commonwealth and state levels. The executive must be satisfied of the existence of a state of emergency and that extraordinary measures are required. The finite period of the declared crisis or emergency provides a further temporal limit.

Upon technical and medical advice, the Commonwealth Government was able to respond quickly to declare a human biosecurity emergency under the Biosecurity Act 2015 (Cth) on 18 March 2020. This rolling declaration has granted the Health Minister special emergency powers to make determinations to address requirements necessary to prevent or control the “emergence, establishment or spread” of Covid-19 within, or in a part of, Australian territory, or to another country.5 Similar declarations at the state level of a “major emergency” or “state of emergency” trigger delegated powers to issue the necessary directions.6 The Victorian lockdown directions issued under the emergency powers of the Public Health and Wellbeing Act 2008 (Vic), and the Western Australian border closure directions issued under the Emergency Management Act 2005 (WA), have been subject to constitutional challenge in

the High Court. Both matters relied on arguments that the executive failed to observe the relevant constitutional limits in their exercise of powers.

These decisions demonstrate that in stark counterpoint to identification of the source and enablement of executive authority, lies the problem of the identification and protection of our rights. including the right to freedom of movement. Without a Bill of Rights this problem is ever present. However, the ACT, Victoria and Queensland have all enacted human rights statutes that, although may not entrench important rights, do operate to provide a standard by which their governments must account to justify any intrusions upon these rights.

The High Court challenge to the Victorian lockdown directions did not engage the right to freedom of movement under s 12 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) but sought the operation of a constitutional right to limit the emergency powers.7 But in Gerner v Victoria the High Court unanimously and comprehensively rejected argument that a new implied constitutional right to freedom of movement operated as a limit on the Victorian lockdown directions.8 No such constitutional freedom existed. It did not arise by implication from the nature of federation; nor was it founded under the implied right to freedom of political communication, as the lockdown directions were not of a political nature.

Nor, being intrastate in operation, was the

EXECUTIVE POWER

The High Court decision in Clive Palmer’s border ban challenge was significant in applying structured proportionality with regards to limiting the constitutional right to travel between borders. AAP Image/Mick Tsikas

lockdown constrained by the constitutional freedom of interstate trade, commerce and intercourse under s 92 of the Constitution.

The challenge to protect our rights and freedoms is even greater when measures are supported by legislative characterisation of executive authority as being necessary to address and prevent “unprecedented” and “catastrophic” outcomes.9 In Palmer v Western Australia, Clive Palmer, who has business and political interests in Western Australia but resides in Queensland and was refused entry into WA, challenged the WA border closure direction as an unjustified infringement of s 92. The High Court did not agree and found that the relevant provisions of the Emergency Management Act 2005 (WA) complied with s 92 and the border closure directions were valid.10 The case is constitutionally significant in its approach to construction of s 92. The majority (Kiefel CJ and Keane J, and Edelman J) respectively found that the “powerful public protective purpose”11 and “extreme circumstances”12 addressed by the WA border closure required a proportionality approach in the application of s 92.

Proportionality is an analytical tool by which the necessity and reasonable justification of measures that breach our constitutional freedoms may be determined.

Our few constitutional freedoms are neither personal nor absolute rights, but instead operate as limits on legislative and executive powers. Cole v Whitfield developed the

modern approach to s 92 that invalidates laws imposing a discriminatory and protectionist burden on activities that engage with interstate trade and commerce.

This approach first enquires into the purpose of the law that if found to be protectionist will offend s 92 and cannot be saved. The purpose of the WA border closure direction was not protectionist of interstate trade and commerce but sought to protect public health. A second then looks to the reasonable necessity of the burdens that flow from the border closure, including that there are no other more obvious and compelling alternatives to address the problem of stopping the Covid-19 virus from spreading into WA. The majority in Palmer have now added a further step in determining if the s 92 freedoms have been unjustifiably breached.

This is through the adoption of structured proportionality, an approach previously only applied to the implied constitutional freedom of political communication.

Structured proportionality considers the extent of the burden affected by the law upon the constitutional freedom, described in the three stages of the inquiry into the law being suitable, necessary and adequate in its balance. While the suitable and necessary steps share some overlap with the usual approach to s 92 outlined above, it is the last step of “adequate in its balance” that is a cause of judicial dissent.

This is because it is a value judgment that seeks to identify if a proportionate balance has been achieved between the importance

of the purpose and the means adopted to achieve it, as measured against the extent of the restriction on the freedom.

Justice Gageler has been critical of the adoption of structured proportionality to constitutional freedoms and with Justice Gordon rejected the adoption of structured proportionality to s 92. In Palmer, he championed instead a more explicit approach to statutory construction of the empowering statute and the application of the constitutional freedom. This approach is that constitutional freedom is only to be applied to limit the statutory power and not to the actual exercise of executive discretion itself – therefore, the s 92 limit does not apply to construction of the border closure direction. That limit is only to be applied to the Act under which the direction was made. This approach was accepted by the court in Palmer in applying Wotton v Queensland.13 As Gageler J observed, Where executive action purporting to be taken pursuant to statute imposes a burden argued to infringe… [a constitutional freedom]… two distinct questions accordingly arise: one constitutional, the other statutory.

The statutory question is whether the executive action is authorised by the statute. The constitutional question is whether the statute complies with the constitutional guarantee if, and insofar as, the statute authorises the executive action.14 September 2021 THE BULLETIN

17

EXECUTIVE POWER

This distinction drawn between the operation of a constitutional limit on the statutory power and not upon the discretionary exercise of statutory authority converges administrative and constitutional approaches to the construction of the exercise of statutory powers. Problematically, the exercise of a statutory power may need to be read down or “disapplied” instead of rendered constitutionally invalid,15 and there is certainly room for further analysis in this area.

But statute itself might pre-empt a determination on the whether the executive measures are a necessary and justified response by requiring that the executive apply a proportionality standard in making determinations. This proportionality standard then operates as a legislatively (rather than constitutionally) “significant limitation”16 on executive powers. This is the case with s 477 of the Biosecurity Act 2015 (Cth) under which the Health Minister, Greg Hunt, made a Determination in 2021 to temporarily ban travellers returning from India entry into Australia. The ban was a response to the reported 300,000 COVID-19 infections per day in India and the magnified risks of travellers carrying the virus on their return to Australia.

The requirements of s 477 include that the Minister must be satisfied the determination is effective and appropriate and adapted to its purpose, and no more restrictive or intrusive than circumstances require, and applies for only as long as necessary. This standard seeks to balance the necessity of the measures taken against the restrictions and intrusions placed on our lives. It also enables the identification of intrusion upon rights – in this instance, the right of Australian citizens to enter Australia.

18 THE BULLETIN September 2021

A legal challenge to the temporary ban being an improper exercise of power that failed to satisfy the legislative proportionality standard was dismissed by the Federal Court in May this year.17 In Newman v Minister for Health and Aged Care Justice Thawley found, inter alia, that the Minister had properly considered the necessity and effectiveness of the ban, and that it was no more intrusive than necessary.

But the case also illustrates the recurring problem of identification and protection of our rights, in this instance the right of Australian citizens to enter and reside in Australia. His Honour found that the common law right of entry to the state (a right that was conceded by the Commonwealth) had been lawfully limited, as it conformed with the broader contextual scope and purpose of the Biosecurity Act 2015 (Cth) that concerned the entry to and exit from Australia, combined with the necessity to enable rather broad powers to deal with emergencies. This interpretation then rebutted the operation of the principle of legality to restrict the power.

What is left unanswered is the extent to which the right is constitutionally protected. A challenge on this ground was stood over but the short timespan of the India travel ban rendered the challenge obsolete. Under Australian law the recognition of admission to the state (often expressed as a right to return and enter) is a common law right thought to operate as a limit on the exercise of public power rather than as a freestanding right. But its boundaries and limits are yet to be properly tested. It is a right also recognised under international law arising as an incident of nationality. On a technical level it would be fascinating to examine the interplay of the right as constitutionally protected in its application to s 477 of the Biosecurity Act

2015 (Cth) and adoption of the structured proportionality test, measured against the statutory construction of the legislative proportionality standard within s 477 itself.

But the imperatives of a human biosecurity emergency may still prevail. B

Endnotes 1 Newman v Minister for Health and Aged Care [2021] FCA 517 (10 May 2021); LibertyWorks Inc v Commonwealth [2021] FCAFC 90 (1 June 2021).

2 Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229.

3 Gerner v Victoria [2020] HCA 48; (2020) 95 ALJR 107.

4 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, [233].

5 Biosecurity Act 2015 (Cth) s 477.

6 In SA authority to then take the ‘necessary action’ and issue directions as required resides with the SA Commissioner of Police: Emergency Management Act 2004 (SA) ss 14 and 25 and the Emergency Management (Public Activities No 6) (COVID-19) Direction 2020 (SA).

7 Section 12 provides, ‘Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.’

8 Gerner v Victoria [2020] HCA 48; (2020) 95 ALJR 107.

9 Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229, [21], [79] and [280].

10 Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229.

11 Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229, [59]-[60] (Kiefel CJ and Keane J).

12 Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229, [291] (Edelman J).

13 Wotton v Queensland (2012) 246 CLR 1.

14 Palmer v Western Australia [2021] HCA 5, [154]; (2021) 95 ALJR 229, [119] (Gageler J).

15 Palmer v Western Australia [2021] HCA 5, [154]; (2021) 95 ALJR 229, [226]-[228] (Edelman J).

16 Palmer v Western Australia [2021] HCA 5, [154]; (2021) 95 ALJR 229, [154] (Gageler J).

17 Newman v Minister for Health and Aged Care [2021] FCA 517 (10 May 2021) and Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements – High Risk Country Travel Pause) Determination 2021 (Cth)

WELLBEING & RESILIENCE

R U Ok? U R not alone and U R not a robot…

ZOE LEWIS, CHAIR, WELLBEING & RESILIENCE COMMITTEE

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his year on “R U Ok? Day” (9 September) you might like to consider that the answer to this question is not a simple “yes” or “no”. Nor is the answer the same across time.

Some days the words of an angry or aggressive client are like water off a duck’s back. Other days they feel like quicksand in which we become stuck.

Working with people who are facing some of the biggest challenges of their lives is a privilege. But we must also recognise that it is a burden too. It can drain you, leave you worried about the welfare of your client, even worried about your own safety when dealing with that person.

We must have individual and workplace strategies for prevention and protection as well as mechanisms which kick in when things R not ok.

We know this is important because nearly 40% of us recently reported that working in the legal profession has a negative impact on our mental wellbeing and the same percentage reported feeling unable to cope at work within the last year.1 Why might the answer be “no”?

It is certainly true that one client may be more distressed or demanding than another. And some content is more confronting than average. But most often I find that if I am struggling to manage something at work, it is more about other circumstances.

Did I sleep poorly the night before? Had I already dealt with several challenging situations that day that left my reserves low? Had I been physically unwell lately and so feeling more fragile? Were there stressors at home?

(Side note: The reality is that 70% of us identify non-work factors which have a significant impact on our mental wellbeing

– family and caring responsibilities top the list followed by perfectionist personality traits and financial stress.)

And of course, things can get into a bit of a vicious cycle: 75% of us experienced disrupted sleep due to work during the last year and poor sleep can reduce our resilience especially if it is a chronic issue.

There is no shame in our humanness.

Rather, it is what enables us to connect with our clients and colleagues. But until we can admit to each other that today is not an ok day, we are left to struggle on our own.

If someone asks you, “R U Ok?” Remember, U R not a robot. This isn’t a “computer says no” auto-pilot moment.

Sometimes the answer to the question is a resounding “no”. When things continue to be not ok day after day, and when we feel alone and as though we are a burden for not being ok… Well, that is when we are most at risk of doing something we cannot bounce back from.

And this is a reality we must get better at talking about since we know that each day eight Australians die by suicide2. Yes, that is more than double the road toll.

Research suggests that lawyers are at even higher risk than the general population. So, if you’re having a hard time U R certainly not alone.

In the recent Law Society Wellbeing Survey, 17 of our peers admitted to having suicidal thoughts and nearly half admitted to having negative or depressed thoughts.

• Could you delegate or reschedule some of your commitments to cut yourself some slack?

If U R not OK, and that feeling has been lingering, it might be time to contact one of the many support services available to you such as: • Law Care – free and confidential counselling available through the Law Society • Your GP or psychologist • Your Employee Assistance Program (if you have one) • Lifeline (13 11 14) or Beyond Blue • The Suicide Call-back Service We must learn that this doesn’t make us weak. It doesn’t make us incapable of being good lawyers. It just means we are humans and not robots.

Unfortunately, these ideas persist.

A huge number of survey respondents reported varying concerns they would have about disclosing any struggles to their employer ranging from not being believed through to fear of it negatively impacting upon their career.

So maybe this year, when we ask each other “R U Ok?” we can start a bigger conversation, one that continues throughout the year as life takes us on its inevitable ups and downs.

If you are interested in hosting an event at your work, or want to learn more about having R U Ok? Day conversations, you can check out the R U Ok? Day website.

If U R not OK today…

• Can you find a colleague, family member or friend to talk to?

• Are there some self-care activities you could step up like getting an early night or making time for a lunchtime walk?

(75% of us picked exercise as one of our most effective coping strategies)

Endnotes 1 Law Society of South Australia Individual Lawyer Wellbeing Survey 2021.

2 https://www.health.gov.au/health-topics/ mental-health-and-suicide-prevention/suicide-inaustralia

September 2021 THE BULLETIN

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YOUNG LAWYERS

Dancing privileges embraced at pre-lockdown Young Professionals’ Gala

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fter months of gathering restrictions, postponed events and dance floor bans, the young lawyers of South Australia were eager to dust off their dancing shoes and light up the dance floor.

The 2021 Young Professionals’ Gala was held on Friday 4 July in the prestigious John Halbert Room at the Adelaide Oval. A group of 220 young lawyers and professionals enjoyed a night of dancing, networking and fine food.

A highlight of the evening was being greeted upon entry with a long train of wait staff offering a vast array of South Australia’s finest beverages; although for some it raised the tough question: “Where do I start?”

The night was accompanied by the smooth tunes of DJ St Patrick, also a young lawyer himself. As the night progressed, he succumbed to the countless requests to play Cardi B’s latest tune - a decision loved by many but hated by some.

The Young Lawyers’ Committee would like to thank our major sponsor, Burgess Paluch Legal Recruitment and supporting sponsor PEXA for their continued support. A special thanks also goes to the Adelaide Oval for their incredible hospitality on the night.

Sarah Wedding (left), Georgina Irving, Ben Clarke, Belinda Alcock, Jason Leonardis, and Russell Jones

Madi McCarthy (left), Libbee Coulter, Rebecca Scarabotti, and Daniel Copley Nathan Smart (left), Maria Harris, Shannon McMenamin, Oktawia Guz, and Diane Delumen

Tom Hendrick (left), Steven Ellis, Bentley Anderson and Alex Hamam

Claudia Boccaccio (left), Libbee Coulter, Katie Walsh, Daniel Copley, Jake Kriticos, Azaara Perakath, Astrid Gillam, and Samuel Leeson

20 THE BULLETIN September 2021

Ondine Baker (left), Marcus Walker, Katie Evans, and Alice Connelly

YOUNG LAWYERS

facebook.com/YLCSA

Caitlin Surman (left) and Bec Sandford

Philippa Ewens and Patrick Kerin

Jim Coffey (left), Audrey Lian, Tom Powell and Sara Dobbyn

Emma Green and Matt Kelly

Ali Gunning and Daniel Bartlett

Meghan Fitzpatrick and Lauren Willgoose

Clare Mingorance (left), Tyson Leung, Kassandra Girolamo, Ciara Fanning-Walsh and Ella Cameron

Lachlan Chuong (left), Jessica Le, Zoe Vaughan, and Nicole Mead

Alicia Labrosciano (left), Georgia Contala, Paula Papastamatis

September 2021 THE BULLETIN

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FEATURE

Harassment in the legal industry: Cultural change requires a movement, not a mandate ALEXIA BAILEY AND MARISSA MACKIE, WOMEN LAWYERS’ COMMITTEE

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exual harassment in the legal profession has been in the media spotlight this year following the Equal Opportunity Commission’s Review into harassment.1 The Review found that some 42 percent of respondents had experienced sexual or discriminatory harassment at work, while 69 percent of respondents did not report the harassment due to fear of the repercussions. The Review suggests that patriarchal culture, lack of cultural diversity and gender bias were some of the drivers of harassment.

The only thing more shocking than the findings of the review is that they do not come as a shock to many in the profession.

CULTURAL CHANGE It is evident that there is a culture of sexual harassment and gender inequality within the legal industry. But how do we actually drive the cultural change needed to address this? Culture is like the wind.

It is invisible, yet its effect can be seen and felt. It is the actions and attitudes of all members of the profession that must unite to change the direction the wind is blowing.

Since the Review, various representative bodies have implemented action plans to tackle the recommendations. The Chief Justice of the Supreme Court convened the Respectful Behaviour Working Group which has met multiple times over the last year. The Law Society of South Australia, South Australian Bar Association and Women Lawyers Association of South Australia have also worked tirelessly to develop strategies to give effect to the recommendations particularly in areas of education and policies. This alone is not enough. The actions of all workplaces within the legal industry will be crucial to changing our culture.

22 THE BULLETIN September 2021

WHAT CAN WORKPLACES DO? The Law Council of Australia has committed to developing a national model policy and guidelines which is currently underway.

In the meantime, firms should take the opportunity to review their current workplace policies.

In September, 2020,2 the Women Lawyers’ Committee provided some guidance for firms in preparing or revising existing policies. The Committee recommended policies should: • be clear and transparent about the consequences for perpetrators; • provide a confidential complaints mechanism for both complainants and bystanders; • have a trauma-informed approach for complaints; • set out grievance resolution processes and steps that the firm will take to investigate and resolve complaints; and • provide internal and external support avenues for complainants and bystanders.

Longer term, the Law Council’s national model policy and guidelines, when finalised, will provide a solid basis upon which firms will be strongly encouraged to model their harassment policies on.

Crucially, the Equal Opportunity Commission’s Review highlighted examples of where clients may be perpetrators of harassment and bullying.

Firm policies and guidelines need to address how they will deal with reports of such conduct, remembering their obligations to their staff to provide safe workplaces, both within the office and when attending work-related events and functions. The LCA national model policy materials will contain guidance in these regards.

Equitable recruitment and briefing Underpinning the findings in the Review was an acknowledgment that gender and cultural bias has been a key driver for harassment in the legal profession.

Firms can work towards removing this bias in numerous ways, including by: • implementing transparent recruitment policies and pay scales • promoting flexible working practices for both men and women • signing up to the Law Council of Australia’s Equitable Briefing Policy3

MANDATORY CPD South Australia is the first jurisdiction to tackle the issue of harassment within the legal profession by introducing mandatory training. Legal practitioners must now complete one mandatory CPD unit on bullying, discrimination and harassment.

A survey conducted as part of the International Bar Association’s (IBA) Report ‘Us Too? Bulling and Sexual Harassment in the Legal Profession’4 illustrated that those who received training in their workplace were ‘significantly less likely to have been bullied or sexually harassed…’. The introduction of this mandatory training will help to drive the cultural change needed, but it is imperative that we get the training right. How many practitioners have slept through an ethics unit just to meet their CPD obligations and walked away without taking anything from the session? It is not enough to simply provide attendees with an overview of the legislation along with obvious and unmistakable examples of harassment.

The Law Society of South Australia has been offering a free and comprehensive workshop called ‘Sexual Harassment – Changing Workplace Culture’ which includes recorded scenes in the workplace using professional actors

FEATURE

to aid learning and understanding of these issues. We encourage all practitioners to attend one of these seminars.

•

What does a good CPD look like?

If firms intend to offer their own in-house training then it is crucial that it achieves the desired outcomes and contributes to changing the culture of our profession.

Any training being offered on bullying, discrimination and harassment should be interactive and provide hypothetical scenarios to assist in identifying inappropriate conduct and harmful workplace culture. Upon completion all attendees should have gained knowledge and understanding in respect of: • what constitutes sexual harassment (and not just the obvious examples); • how individuals’ behaviours impact workplace culture; • the predominant traits and culture in legal workplaces, such as unconscious

• • • •

bias and inequality, that may act as catalysts for harassment and bullying behaviours; the role of bystanders in changing culture; the role of leadership in modelling positive behaviour in legal workplaces; the importance of appropriate sexual harassment and bullying policies and training processes in legal workplaces; the options and appropriate responses to manage an incident experienced or observed; and the options available for further and ongoing support for those dealing with incidents of sexual harassment or bullying.

ACTIONS SPEAK LOUDER THAN WORDS We’ve paid lip service to the issues of bullying, discrimination and harassment in the legal profession for far too long. We have seen some tangible change over the

last twelve months and we need to keep the momentum going.

Whether it’s calling out bad behaviour, supporting those who have experienced bullying or harassment, or walking with our feet from toxic workplaces or clients, we can all play a part, no matter how small, to eliminate harassment from our profession once and for all. B Endnotes 1 https://www.eoc.sa.gov.au/documents/FinalReport-of-the-Review-of-Harassment-in-theSouth-Australian-Legal-Profession.pdf 2 LSB September 2020, Sexual harassment in the workplace: Make it your business to make sure it’s not in your business.

3 https://www.lawcouncil.asn.au/policy-agenda/ advancing-the-profession/equal-opportunitiesin-the-law/national-model-gender-equitablebriefing-policy.

4 International Bar Association, Us Too? Bullying and Sexual Harassment in the Legal Profession (2019) https://www.ibanet.org/bullyingandsexual-harassment.aspx;

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9 Springbank Street, Tullamarine, 3043 September 2021 THE BULLETIN

23

COMPULSORY ACQUISITION

Compulsory Acquisition of Land: Navigating the intersection between executive powers and individual property rights DON MACKINTOSH, SENIOR SOLICITOR, COMMERCIAL, ENVIRONMENT & NATIVE TITLE SECTION, CROWN SOLICITOR’S OFFICE

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he compulsory acquisition of land provides a particularly acute example of the intersection of the powers of the executive arm of government with the rights of property of the citizen. The subject is particularly topical at present, given the substantial number of current government infrastructure projects that require the acquisition of land.1 Most prominent amongst these is the NorthSouth Corridor Project, which, when completed, is intended to provide a continuous 78km non-stop link from Old Noarlunga to Gawler. The acquisition of land for infrastructure projects regularly attracts media attention.2 This paper will sketch a brief outline of the compulsory acquisition process and identify the principal rights and obligations of persons whose interest in land is proposed to be or has been divested or diminished by an acquisition. The paper will focus exclusively upon the relevant South Australian legislation and will not touch upon the acquisition of land by the Commonwealth. It will not discuss the acquisition of native title.

power to acquire land must be authorised by what the LAA describes as a “special Act”.5 The LAA is therefore purely a machinery Act. Its first purpose is to provide a mechanism by which the State can compulsorily acquire land that is required for the purposes of a statutorily authorised purpose in the broader public interest.6 The rights of parties who held an interest in the acquired land are converted into an entitlement (subject to the operation of the Act) to be compensated for certain losses that are suffered by reason of the acquisition.7 Numerous South Australian statutes confer a power for the compulsory acquisition of land. Examples include s 20(1)(a) of the Highways Act 1926, s 23 of the Passenger Transport Act 1994 and s 6 of the Education and Children’s Services Act 2019.

A special Act that authorises the compulsory acquisition of land is taken to authorise the acquisition of “land” as defined by the LAA: s 7(1a) of the LAA. That definition is broad, extending to rights that would not constitute an interest in land for the purposes of the general law.8

particularity, set out the operation of s 26B of the Act (to be referred to shortly) and otherwise be in the form prescribed in the Land Acquisition Regulations 2019. The NOI does not bind the Authority to acquire the Land.

An owner of land (or an interest in land) to whom a NOI is given must, no later than 14 days after receiving the notice, notify the Authority of any person who, to their knowledge, has an interest in the land, and the nature of the person’s interest. A refusal or failure to do so without reasonable excuse commits an offence, with a maximum penalty of $5,000.

POWER TO COMPULSORILY ACQUIRE LAND

THE STATUTORY PROCEDURE

There is no common law power for the Crown to take land compulsorily.3 It follows that the power must be conferred

by Parliament. Compulsory acquisition and the entitlement to compensation are therefore entirely creations of statute.4 The Land Acquisition Act 1969 (SA) (LAA) does not itself confer the power to compulsorily acquire land. It assumes that the power exists and that all conditions precedent to its exercise have been satisfied, and simply furnishes the statutory procedure for the exercise and consequences of that power. The actual

Service of a Notice of Intention to Acquire: ss 10 and 10A The person that is authorised by a special Act to acquire land is referred to in the LAA as the Authority. When an Authority proposes to acquire land (other than native title and underground land), it must serve a Notice of Intention to Acquire (NOI) upon each person whose interest in the land is subject to acquisition.9 The service of the NOI commences the statutory process.

The NOI must define the land that is proposed to be acquired with reasonable

Right to Seek an Explanation of the Reasons for the Acquisition: s 11 The service of an NOI upon a person whose interest in the land is subject to acquisition fulfills several purposes, but relevantly triggers a number of rights in the recipient. First, s 11 of the LAA provides that a person who has been served can, within 30 days after the notice was given to the person, require the Authority to give an explanation of the reasons for the acquisition of the land and provide reasonable details of any statutory scheme in accordance with which the land is to be acquired.

24 THE BULLETIN September 2021

Entry of a Caveat: s 14 When the land that is the subject of the proposed acquisition is under the Real Property Act 1886 (as will usually be the case), the Authority must cause a copy of the NOI to be served upon the RegistrarGeneral.10 The Registrar must then enter a caveat over the certificate of title for the land, forbidding all dealings with the land without the written consent of the Authority.

COMPULSORY ACQUISITION

An artist's impression of the Darlington Upgrade Project. Source: Department for Infrastructure & Transport

Right to Object: s 12 A person who has been served with a NOI can, within 30 days after the NOI was given or, if an explanation had been sought under s 11, within 30 days after the explanation was provided, request: • that the Authority not to proceed with the acquisition; or • that the boundaries of the land the subject of the proposal be altered; or • that a particular part of the subject land not be acquired or that further land be acquired.11 The grounds upon which an objection can be made are specified in s 12(3) of the LAA. They include that the land (or a particular part thereof) is not necessary for the undertaking to which the acquisition relates, or some other ground stated in the request.

The Authority must consider and determine the objection within 14 days of its receipt.

Right of Review by SACAT: s 12A A person who made an unsuccessful objection under s 12 can apply to the South Australian Civil and Administrative Tribunal (SACAT) for a review of the Authority’s decision: see s 12A of the LAA. The application must be made within 7 days of the service on the person of notice of the Authority’s refusal of the objection.12 SACAT must then complete its review within 21 days of the application being made. Importantly, a review cannot call into question the merits of the undertaking to which the proposed acquisition relates.13 Acquisition of Title: ss 15, 16 and 17 At any time after the service of the NOI, and before the land is compulsorily acquired, the Authority can acquire the land by agreement with the owner: see s 15 of the LAA. Typically (but not in all cases)

the Commissioner of Highways will write to the land holder and offer to purchase the land for an amount that has been assessed by an independent expert land valuer. If agreement is reached in this way, a standard contract of sale will be entered into and the transfer will be affected in the same way as an ordinary transfer of land.

Assuming that no agreement is reached for a negotiated acquisition, the Authority can publish a Notice of Acquisition (NOA) in the Government Gazette at least 3 months after the first occasion on which any NOI was given, but before the period of acquisition comes to an end (18 months after the NOI was given, unless a longer period has been agreed by the parties or fixed by the Court14): see s 16 of the LAA. On publication of the NOA: • the land and interest (for example, an unencumbered fee simple) specified within the NOA vests in the Authority; and • a mortgage, charge, encumbrance, trust or other interest affecting the land (except native title) is, to the extent that it affects the land subject to the acquisition, discharged.

The Authority must then serve a copy of the NOA upon the Registrar-General, who will withdraw the caveat that had previously been entered under s 14, cancel the existing certificate of title and issue a new certificate or certificates of title. So, for example, if the acquisition is of the whole of the land in a title, a new title for the entirety will be issued in the name of the Authority. If, however, only portion of an existing title is acquired, the Registrar will issue 2 titles: one for the acquired land in the name of the Authority, the other for the residual (unacquired) land in the name of the proprietor.

Notice of the acquisition must also be given by the Authority to each person who had received the NOI.15 Taking Possession of the Acquired Land: ss 24 and 24A Since 2 July 2020, an Authority gains an entitlement to enter into possession not by agreement, but by the unilateral executive act of issuing a possession notice to the occupier of the land, specifying the date on which it will enter into possession and (subject to minor exceptions) the arrival of that date: ss 24(1) and (10).16 The possession notice must be issued as soon as is reasonably practicable after the publication of the NOA in respect of the land. The date specified in the notice must be not less than 90 days after the date on which the NOA was published, unless the land relates to a “declared acquisition project”, in which case the possession date can be a date on or after the date on which the possession notice is given.17 An occupier can apply to the Authority to fix an earlier or later possession date.

Occupiers that remain in possession after the date the land was compulsorily acquired are taken to occupy the land pursuant to a tenancy, the terms of which are as determined by the Authority from time to time. Mandatory terms and conditions are prescribed by r 8 of the Land Acquisition Regulations 2019. Unless the Authority determines otherwise, rent is payable from 90 days after the date the NOA was published in the Gazette.

Either the Authority or the recipient of a possession notice can (except where the acquisition relates to a declared acquisition project) refer into the Supreme Court a refusal by the Authority to fix a later possession date, a dispute as to the rent September 2021 THE BULLETIN

25

COMPULSORY ACQUISITION

that is payable, or a matter relating to any other term or condition of the deemed tenancy. Importantly, however, a refusal by the Authority to fix a later possession date can only be referred to the Court within 60 days after the NOA is published or the date that the possession notice was given (whichever is the later).

Special provision is made for the taking of possession of land that is vacant as at the date the NOA is published.

If the Authority is entitled to enter into possession under s 24 and the occupier remains on the land, the Authority can apply to the Supreme Court for an order ejecting the person from the land.

COMPENSATION A person (claimant) who has an alienable interest in land as at the date of its acquisition is entitled to compensation if that interest is either divested or diminished by the acquisition, or the enjoyment of the interest is adversely affected by the acquisition: see s 22B of the LAA.18 In effect, each alienable interest in the land is converted into an entitlement to compensation. So, for example, a former owner in fee simple, a mortgagee, a tenant and the holder of an easement over the acquired land will each be entitled to compensation if their interest in the land has been divested, diminished or discharged by the acquisition.

Section 25 sets out the principles by which compensation is determined.

The fundamental principle is that the compensation is to adequately compensate the claimant for any loss that he or she has actually suffered by reason of the acquisition of the land. Compensation can, depending upon the circumstances of the case, encompass the actual (market) value of the acquired land, disturbance and, in the case of the acquisition of portion of a parcel only, any loss occasioned by reason of what is known as severance and injurious affection to any non-acquired land retained by the claimant. A substantial body of case law exists in connection with each of these concepts.

26 THE BULLETIN September 2021

The determination of compensation typically involve matters of statutory construction, the application of case law and the obtaining and assessment of both lay and expert evidence (for example, valuation, accounting, road traffic engineering, planning, horticultural, acoustic and so on). Issues of causation, remoteness and mitigation of loss can be relevant to some heads of compensation.

Although compensation is primarily monetary, the Authority can offer nonmonetary compensation, such as the transfer of land or (in the case of an acquisition of portion of a parcel) the performance of accommodation works to a claimant’s residual land.19 Section 25A provides for the payment of solatium by the Authority. This is a new payment that was introduced on 2 July 2020. It is capped at the lesser of either 10% of the market value of the land or $50,000, and is only payable upon the final resolution of the claim for compensation. Eligibility for the payment is confined to a person who was an owner and occupier of the acquired land as at the date that the NOI was served and whose principal place of residence was acquired as a consequence of the acquisition. The purpose of the payment is to compensate a person for non-financial disadvantage or loss resulting from being compulsorily displaced from his or her home.

OFFER AND PAYMENT OF COMPENSATION When the Authority gives notice of the fact that land has been acquired, it is required to make an offer to the persons whom it believes to be entitled to compensation, stating the amount that it is prepared to pay.20 An offer need not be made if the Authority considers that the amount of compensation is unable to be determined at that time.21 In this latter case, the Authority must make an offer as soon as reasonably practicable after the amount of compensation is able to be determined.22 The amount that is offered must be paid into the Supreme Court Suitors Fund within 7 days.23 The claimant can

then apply for the funds to be paid out, supported by an affidavit and written consents from those parties who held an interest in the land (such as a mortgagee or chargee) as at the date of the acquisition.24 Until paid out, the funds earn interest.25 Provision exists for the Authority to increase or apply (to the Court) to decrease its offer of compensation.26 A claimant must respond to the Authority’s offer of compensation within 6 months of the date of the offer of compensation (or such longer period that the Authority agrees).27 If a response is not made, any compensation paid into the Suitors Fund that has not already been withdrawn by the claimant is to be repaid to the Authority. This does not affect the claimant’s entitlement to compensation, but interest ceases to be payable.

Compensation paid into the Suitors Fund by the Authority reverts to the Authority if it has not been withdrawn by the claimant within 2 years of the date of payment into Court.28 Again, this does not affect the claimant’s entitlement to compensation, but interest ceases to be payable.

NEGOTIATIONS FOR COMPENSATION The LAA places significant emphasis upon negotiations for compensation: • the Authority and the claimant must negotiate in good faith in relation to compensation: s 23(1); • the Authority can (and must, if requested by the claimant) convene a conference of valuers to determine (1) if a land value can be agreed, and (2) those matters of fact and opinion that are agreed and those that are disagreed (with reasons for the disagreement): ss 23(7), (8), (9), and (10); • as already explained, there is a requirement for the making of statutory offers of compensation and responses by the claimant; • the Authority can (and must, if requested by the claimant) convene a formal settlement conference: s 23BA. The holding of such a conference

COMPULSORY ACQUISITION

is an essential prerequisite before a claimant can refer a matter concerning compensation into the Supreme Court for adjudication.29

OTHER PAYMENTS A range of other payments (excluded from the definition of compensation) may be available under the LAA, depending upon the circumstances. These include: • The Authority may make an upfront payment to a fee simple proprietor of land who has been served with an NOI of an amount up to $10,000, towards payment of professional fees (which includes legal and valuation costs): s 26B and r 13; • The Authority may pay to residential tenants an amount up to $10,000 towards payment of relocation costs after service of the notice of intention but before the acquisition of the land: s 26C and r 14; and • The Authority may pay the transfer costs (including stamp duty and Lands Titles Office registration fees) of a registered proprietor of land which has been acquired in relation to the purchase of replacement land.

This payment is only available for acquisitions of the whole of the land in a particular certificate of title and the purchase of the replacement property must satisfy the conditions set out in section 26D and r 15.

DETERMINATION OF COMPENSATION BY THE COURT Either a claimant or the Authority can refer a question arising in the course of negotiations for compensation into the Supreme Court.30 As noted above, a claimant can only take this step after applying for and taking part in a formal settlement conference.

UNDERGROUND LAND Part 4A of the LAA was introduced on 2 July 2020 and contains special provisions for the acquisition of underground

land.31 These modify the application of the standard processes that apply to normal acquisitions. So, for example, the requirement for the service of an NOI, and the provisions for seeking an explanation of the reasons for a proposed acquisition, objecting to it and seeking a review of the disallowance of an objection have all been excluded from the acquisition of underground land.32 Briefly, by s 26F: • The Authority can publish a NOA of underground land in the Gazette; • The publication of the NOA has the effect of vesting the underground land in the Authority and discharging any other interest immediately; • The Authority must then notify the former proprietor of the acquired land as soon as reasonably practicable after the acquisition; and • The Authority enters into possession of the underground land on the date specified in the NOA or (if none is specified) the date of publication of the NOA. Generally, no compensation is payable in relation to the acquisition of underground land under section 26F.33 However, persons who own a lawful well or are entitled to take underground water from a lawful well may have a limited entitlement to compensation pursuant to the process set out in section 26H. A copy of the NOA must be lodged with the Registrar-General, who will issue new certificates of title for the acquired land and for the unaquired land.

Part 4A was specifically enacted to facilitate the acquisition of substratum land to enable the creation of road tunnels for the North-South Corridor Project. B Endnotes 1 The Department for Infrastructure and Transport currently has approximately 28 current infrastructure projects that involve the compulsory acquisition of land.

2 For example: The Advertiser 11 June 2021 p 8, 7 July 2021 p 1, 8 July 2021 p 3, 5 June 2021 p 1, 29 June 2019 p 1, to name but a few.

3 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 at [181]; R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603 at [41] and Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 at [29]. Query the power to requisition property under the “war prerogative”.

4 Mandurah Enterprises Pty Ltd v Western Australian Planning Commission (2010) 240 CLR 409 at [32]; R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603 at [41]; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 at [29]-[30].

5 See s 7 of the LAA. 6 Anderson v Commissioner of Highways [2019] SASCFC 119 at [25], [55], per Stanley J. 7 As above.

8 The definition appears in s 6(1) of the LAA. 9 See s 10 of the LAA. 10 See s 14(2) of the LAA. 11 See s 12 of the LAA. 12 But see s 66 of the South Australian Civil and Administrative Tribunal Act 2013 for the possible extension of this period.

13 See s 12A(4) of the LAA. 14 See s 16(1) and footnote 2 to that section, and ss 15(4) and 15(4a) of the LAA 15 See s 16(5a) of the LAA. 16 Hansard (HA) 25 September 2019 pp 7561-7562 Hon V. Chapman.

17 The expression “declared acquisition project” is defined in s 24(15) of the LAA. 18 The requirement for alienability does not apply to native title: see s 22B(2) of the LAA. 19 See ss 23(4), (5) and (6) of the LAA. 20 See s 23A(1) of the LAA. 21 A typical example would be the case of a commercial tenant carrying on a business, in circumstances where the value of the business is unknown and it is not known if the business can reasonably be reinstated elsewhere.

22 See s 23A(1a) of the LAA. 23 However, if the amount does not exceed $10,000, it can be paid directly to the claimant: see s 26A of the LAA and r 12 of the Land Acquisition Regulations 2019.

24 See s 26 of the LAA, the Land and Valuation Division Rules 2014 and the Uniform Civil Rules 2020.

25 See s 23A(4) of the LAA. 26 See s 23A(5) of the LAA. 27 See s 23AB of the LAA. 28 See s 23AC of the LAA. 29 See s 23C(1a) of the LAA. 30 See s 23C of the LAA. 31 Those provisions do not apply to an acquisition of underground land in which native title exists: see s 26DA of the LAA. 32 See s 26E of the LAA. 33 See s 26F(5) of the LAA.

September 2021 THE BULLETIN

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FAMILY LAW

Introduction of the Federal Circuit and Family Court of Australia THE HON WILL ALSTERGREN, CHIEF JUSTICE OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

I

t is hard to fathom that, approximately 18 months since COVID-19 hit our shores, we are continuing to be impacted by the severe effects of the pandemic on individuals and the Australian community in general. As I write this report, many parts of the country are experiencing Government imposed restrictions of varying levels.

As you would all attest to, the impact on families and individuals has been very stressful and no doubt, as legal practitioners, you would have seen the consequences of that stress in your own workplace and perhaps through your clients, especially in the area of family law.

In respect of family law, now, more than ever, we must do all that we can to continue to identify risk to vulnerable parties and children at the earliest opportunity, and ensure that our processes respond to that risk. The new Court and modern technology can assist us to conduct safer, and earlier, hearings in high-risk cases. We must and will continue to do all that we can as a Court to assist those at risk, and diminish the horrifying level of family violence in our community.

I continue to be in awe of the amazing work lawyers do in this area, especially those working in Women’s legal and support services, Men’s legal and support services, Community Legal Centres, Legal Aid and those working in refuge shelters.

They remain an outstanding example to the community for their hard work and dedication.

At the same time, we must also remind separated or separating couples to focus on what is important, what is in the best interests of the child, and encourage them to engage in dispute resolution opportunities as a preferred way of resolving their disputes, if it is safe and

28 THE BULLETIN September 2021

appropriate to do so. An example of what can be achieved, was the establishment and operation of the COVID-19 List (which was originally the idea of Angela Lynch AM and supported by other experts in my advisory group. If disputes have arisen due to circumstances related to the pandemic, the Court’s national COVID-19 List continues to operate to provide litigants access to urgent family law assistance from anywhere around the country within 72 business hours.

The new Court provides an opportunity to change the conversation about family law litigation in particular.

The architecture of that conversation includes asking litigants if there is a smarter, better way for them to separate without the impact, stress and expense of protracted family law litigation.

It means, however, that we need to do things differently. We now have a system where identifying risk and safety at the very beginning of every case is a priority, where parties will be given ongoing opportunities for dispute resolution where it is safe to so, and if cases cannot be resolved, they will be listed for a trial before a Judge much earlier than previously experienced.

For those cases that do need to proceed to litigation, the new Court provides a modern, transparent and more efficient system of justice which is aimed at getting these parties through the process as safely, quickly and fairly as possible without undue delay.

It has been an extraordinarily busy year for the Court. As well as adapting to deal with much of the workload electronically and adjusting to those challenges, we have been working diligently to establish the new Federal Circuit and Family Court of Australia (FCFCOA) by 1 September

Chief Justice Alstergren

2021. This has included a rejuvenation of all areas of the Court, including areas set out below such as rules, forms, case management, appeals management and resources.

The FCFCOA comprises two divisions, Division 1 (formerly the Family Court of Australia) and Division 2 (formerly the Federal Circuit Court of Australia).

Division 1 deals only with family law matters (including family law appeals), while Division 2 deals with family law, migration and general federal law matters.

The profession and the litigants can have faith that there is no diminution of specialist family law experience and skill in the new Court. Both Divisions of the Court will continue to have judges with specialist knowledge, skill and experience in family law. Division 1 has 35 specialist family law judges hearing both trials and

FAMILY LAW

appeals (the highest number of judges since 2009) and Division 2 now has a total of 76 judges, 55 of which are specialists in family law. Importantly, specialist Judges with expertise in family law will continue to be appointed, with the FCFCOA Act requiring that, by reason of knowledge, skills, experience and aptitude, all Judges exercising family law jurisdiction must be suitable to deal with family law matters, including matters involving family violence.

Members of the profession are encouraged to familiarise themselves with the many changes to Court operations, details of which are accessible from the new Court website, www.fcfcoa.gov.au.

The Court’s new website has been designed to provide users with simplified access to, and navigation of, the Court’s information. Instead of having two separate websites, the single website will make it easier for the profession, litigants and the public to source specific information about family law, migration and general federal law. There are also three professionally created videos published on the new website. One is aimed at assisting parties, before they commence litigation, to consider better ways to separate and encourage the use of dispute resolution. The other two videos provide details about the new FCFCOA, and a step-by-step guide on what parties can expect when they come to court.

What to expect with the commencement of the new Federal Circuit and Family Court of Australia The Federal Circuit and Family Court of Australia provides a new structure that is innovative, fair and efficient and focuses on risk, responsiveness and resolution, by: • Improving early risk identification and safety of children and vulnerable parties

• Encouraging smarter ways to separate with less acrimony, less cost and more dispute resolution, where it is safe to do so • Expecting compliance with court orders • Enhancing national access to justice for vulnerable parties and regional communities through the use of technology, and • Aiming to resolving up to 90 per cent of cases within 12 months.

The legislative changes have enabled the Court to undertake major structural changes which feature: • A single point of entry for all family law matters • A new case management pathway • Specialist lists • Harmonised family law rules • New family law practice directions • Focus on dispute resolution and an increase in internal dispute resolution in parenting and financial matters • Enhanced and effective child expert reporting process • An informative and modernised website • Appellate jurisdiction exercised in Division 1 through a Full Court model rather than an Appeal Division Please note, there will always be cases which, because of their complexity cannot resolve in 12 months. Some of those case will take time and the Court will continue to utilize its supervisory functions to assist parties through these challenging times.

FAMILY LAW JURISDICTION OF THE FCFCOA The overarching purpose (ss 67, 68, 190 and 191) The FCFCOA has a legislative overarching purpose that is resolution focused, and can carry costs consequences

if not complied with. The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible.

All practice and procedure, and any powers or duties imposed, are to be carried out in the way that best promotes the overarching purpose. Parties have a duty to conduct proceedings in a way consistent with the overarching purpose, and lawyers must assist their clients to comply with that duty.

Harmonised Rules and Practice Directions Following extensive consultation with the legal profession and other stakeholders, the harmonised family law Rules commenced 1 September 2021.

A central practice direction, which sets out guidelines for the management of family law proceedings in the FCFCOA, also commenced from 1 September. To accompany the harmonised family law rules, a suite of 14 new practice directions have been developed and are available on the new Court website.

Forms A comprehensive review of all existing forms has been conducted to align with the new FCFCOA. Most form changes involved updating references to legislation, names and terms where required. In addition, where possible, some forms have undergone more substantive changes to improve functionality and usability. It is important for practitioners to note, however, that a 90 day grace period allowing the use of old forms commenced from 1 September 2021, but after this period the old forms will not be accepted.

September 2021 THE BULLETIN

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FAMILY LAW

FIRST COURT EVENT

INTERIM HEARING (if required)

DISPUTE RESOLUTION

COMPLIANCE AND READINESS HEARING

TRIAL MANAGEMENT HEARING

TRIAL

(if required)

New case management pathway in family law In the general course, matters filed in the new Court will follow a nationally consistent case pathway, which is set out in general terms in the above diagram: The First Court Event takes place within 6-8 weeks of filing. Parties should undertake mediation or other dispute resolution within 6 months of filing, before they have spent too much money and have become too entrenched in the system. If they are still unable to settle, they will be sent to trial which is to commence where possible within 12 months.

A diagram and further information on the new case management pathway is available from the new website.

Enhanced Judicial Registrar resources Integral to the new case management model is the increased involvement of Senior Judicial Registrars, Judicial Registrars and Court Child Experts early in the process to undertake the triage and case management of all matters filed. As far as possible, duty lists will be conducted

by Judicial Registrars and interim hearings will be conducted by Senior Judicial Registrars. This will alleviate the front end case management burden on Judges and ensure that they are able to hear and determine trials and deliver judgments in the matters that require judicial attention as quickly and efficiently as possible.

Note that Registrars have different titles. Senior Registrars are now known as Senior Judicial Registrars, Registrars are

30 THE BULLETIN September 2021

Judicial Registrars, and Assistant Registrars are Deputy Registrars. It should be emphasised that these titles do not change the powers or role of Registrars, noting also that the previous Judicial Registrar position, being a statutory appointment, ceased to exist when the new legislation came into effect on 1 September.

Significant government funding, of more than $100 million, has enabled the Court to undertake an extensive recruitment drive to secure the services of experienced family law practitioners to add to the already expansive and highly-skilled team of Judicial Registrars.

Pre-action procedures The pre-action procedures previously contained in Schedule 1 to the Family Law Rules have been retained and enhanced.

They apply across both Divisions of the FCFCOA and will be enforced.

Parties should not file proceedings until they have exhausted the pre-action requirements, including engaging in dispute resolution, exchanging documents and correspondence and making a genuine attempt to settle the dispute, with the usual exceptions for genuine urgency or where it is not safe to undertake these steps.

In addition to the requirement to comply with section 60I of the Family Law Act and file a certificate or seek an exemption when parenting orders are sought, both the Applicant and Respondent to an application for final orders are now required to file a Genuine Steps Certificate, certifying that they have complied with the

pre-action procedures and made a genuine attempt to resolve the dispute.

Dispute resolution in the new case management pathway The FCFCOA’s new case management pathway places significant emphasis on providing dispute resolution opportunities to litigants to assist them in resolving, or better identifying, the issues in dispute.

The Court’s expectation is that, where it is safe to do so, parties will avail themselves of every opportunity to participate in dispute resolution – whether that be a court-based Family Dispute Resolution conference or Conciliation Conference, privately funded dispute resolution, mediation or arbitration (in property cases only), or conferences through the legal aid commissions.

Appeals in family law The FCFCOA Division 1 retains jurisdiction to hear family law appeals.

However, there is no separate Appeal Division. All Division 1 Judges can hear appeals either as a single Judge or as part of a Full Court. All appeals of FCFCOA (Division 2) and Family Law Magistrates of Western Australia decisions will now be heard by a single Judge, unless the Chief Justice considers it appropriate for the appeal to be heard by a Full Court. There are no changes to the rights to appeal as provided for under the Family Law Act 1975. A single national appeals filing registry has been introduced to provide a centralised and nationally consistent method of filing an appeal.

FAMILY LAW

Child Dispute Services and Court Child Experts The Court’s specialist service formerly known as Child Dispute Services is now known as the Court Children’s Service (CCS), and Child Dispute Services staff are now known as Court Child Experts.

This reflects the additional responsibilities that CCS staff conduct in addition to their roles as Family Consultants, including undertaking confidential dispute resolution events with Judicial Registrars and confidential risk screening as part of the Lighthouse Project. There are also changes to assessments and reports provided by the CCS. The section 11F assessment has been replaced by a more fulsome report known as a Child Impact Report which will be designed to assist the parties in parenting matters to reach agreement wherever possible, and to provide expert guidance to the Court for interim hearings. For matters that proceed to the trial preparation phase, the family report model will remain available, with additional options available, including reports in relation to specific issues, and addendum reports building on the original Child Impact Report. Further details on the CCS are available from the new website.

MIGRATION AND GENERAL FEDERAL LAW JURISDICTION OF DIVISION 2 OF THE FCFCOA The migration and general federal law jurisdiction continues to be conducted by Division 2 of the FCFCOA. Other than some minor changes to Court Rules and forms, there are no substantial changes to the previous (FCC) pathway or appeal process involving migration and other general federal law matters.

General Federal Law Rules and Practice Directions for Division 2 The Federal Circuit Court Rules 2001 (FCC Rules) were made pursuant to the Federal Circuit Court of Australia Act 1999 (Cth). As the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 repealed the Federal Circuit Court of Australia Act 1999 (Cth) in its entirety, all rules of court made under that Act lapsed on 1 September 2021. Consequently, the FCC Rules that relate to general federal law proceedings as well as the FCC Bankruptcy Rules have been updated and remade. It should be noted that there will not be a great deal of difference in the new Rules at this stage for general federal law cases.

Two central practice directions have been developed for migration proceedings and general federal law proceedings in the FCFCOA. These, as well as other details, including a cross-reference table comparing the previous Federal Circuit Court rules with the new GFL and Bankruptcy rules, are available on the new FCFCOA website.

being referred to mediation and family dispute resolution. Many of these have been provided by the Court’s in-house experts, and some by retired Judges who volunteered to conduct private settlement conferences on a pro bono or limited cost basis. I thank those former Judges, and also the many barristers and solicitors who made themselves available to parties to provide private mediations.

I appreciate that this initiative may have presented some challenges but I wish to re-iterate the Court’s focus on the benefits to the parties who can resolve their issues without protracted and acrimonious litigation. Whilst the process is continuing, the Winter Callover has already seen many long standing cases settle, others continuing to negotiate towards settlement, and in others, the issues in dispute are being narrowed.

I am, on behalf of the Court, extremely grateful for the support that has been provided by the local Bar Associations, Law Societies, as well as legal aid and other community legal assistance services.

Winter Callovers The information above relates to the new Court and its case management systems. However, there is a legacy of cases that have been in our family law system for some time, often too long and at too much expense and stress to the parties involved. To help reduce the backlog of this legacy of cases, prior to the commencement of the FCFCOA, the Family Court and Federal Circuit Court conducted a Winter Callover in Adelaide, Brisbane, Melbourne, Parramatta, Lismore and Sydney. Approximately 7000 cases were bought before the Courts across all locations (by electronic means) to assist parties to identify, narrow and resolve matters in dispute with appropriate cases

Conclusion I invite the profession to join me, and the Court, in our endeavour to make the most of this opportunity and to improve access to justice for the Australian community. We can achieve this by streamlining the family law system and making it far easier for the public to navigate and engage with. Importantly, we need to focus on safety and minimising acrimonious and expensive litigation by encouraging and providing dispute resolution opportunities. Critically, in family law, we need to change the culture and conversation and work towards providing a world-leading family law system that places children, litigants and their safety at the heart of the process. B September 2021 THE BULLETIN

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TAX FILES

Loan accounts: Trouble?

STEPHEN HEATH, PARTNER, WALLMANS LAWYERS

PRIVATE COMPANIES AND DEBIT LOANS It is common to sight private company balance sheets carrying significant retained

32 THE BULLETIN September 2021

earnings coupled with debit loans to shareholders/associates of shareholders.

Strictly, these loans generally require a seven year loan agreement to be struck on terms meeting strict Tax Act guidelines so as not to result in adverse deemed dividends under Division 7A of the Tax Act. These guidelines are well overdue for legislative overhaul but are nonetheless continuing to attract rigorous enforcement by the Australian Taxation Office.

In that regard, my experience is that many private company proprietors are walking a tightrope between not wanting to pass on the “problem” to the next generation and the incurrence of unwanted tax liabilities.

DIFFERENCES OF OPINION BETWEEN FAMILY MEMBERS Where advisers (legal and accounting) have been accustomed to acting for a family group over a long period of time succession planning gives rise to professional conflict issues since it is not possible to serve the interests of all parties. This is not aided by the lack of understanding by family members of why a conflict arises as well as lack of enthusiasm for the appointment of multiple advisers. Moreover, involvement of multiple legal advisers does have a habit of resulting in points of contention which were not of concern to the parties in the first instance.

A simple factual scenario can demonstrate the point: Land owner owns Farm A and Farm B and wants to implement an inter vivos succession plan to migrate Farm A and Farm B to the control of child A and child B respectively.

In my experience, child A and child B can be prone to remembering all aspects of the plan apart from the vendor finance.

LAND OWNER OWNS FARM A

FARM B

VENDOR FINANCE

s time marches on, the matters across my desk more frequently give rise to difficult commercial and technical issues associated with related party loans and unpaid present entitlements (UPEs). Circumstances not infrequently encountered include: 1. private companies carrying related party debit loans; 2. differences of opinion between family members as to the true character of related party credit loans; 3. lack of clarity in financial statements (trusts in particular) as to the distinction between UPEs and loans; 4. a desire of controllers of companies and trusts to forgive debts.

My suspicion is that there will be increased disputation and litigation relating to such matters in the years to come. The tension points can arise in a number of circumstances: insolvency, matrimonial property disputes, estate disputes and disputes with the Australian Taxation Office, all being examples.

The difference between a loan and a UPE, which usually arises in the context of trust financial statements, often causes confusion. There is no lender / borrower relationship in the context of a UPE which arises when a trust makes a taxable distribution to a beneficiary which remains unpaid.

The prevalence of these issues may be connected with the “baby boomer” generation fast approaching their latter years and with many trust and private company structures being saddled with legacy issues resulting from the adoption of tax optimisation strategies over extended periods.

VENDOR FINANCE

A

TRANSFER AT MARKET VALUE

TRUST A

TRUST B

(controlled by child A)

(controlled by child B)

Nevertheless, there may be good reason to keep the vendor finance on foot: 1. protection of child A and child B from future creditor / matrimonial property claims; 2. landowner is likely to have future financial needs and therefore a bona fide need to call on the debt, at least in part at some future point; 3. there may be other siblings, and to achieve equity in an overall succession plan, Trust A and Trust B may need to pay out some of the purchase price of the land; 4. tax advisers will always say that credit loans are invaluable and should be retained on the balance sheet.

CLARITY IN TRUST FINANCIAL STATEMENTS Clarity and accuracy in financial statements should also not be underestimated. All too often, trust balance sheets are cluttered up with debit and credit loans/UPE entries which can readily be subject of set-off. Another common observation is to sight “related party” items

TAX FILES

in a balance sheet without any reference to who the related party is. Good accounting practice does entail clear description of the true character of all related party dealings.

Where a trust is carrying both beneficiary loans and UPEs, the accounts should carry separate items between each beneficiary and as between the loan and UPE items.

Where there are UPEs with companies, separate items should be recorded as between any pre and post 16 December, 2009 UPEs. This enables tax advisers to best manage any Division 7A deemed dividend risks.

DEBT FORGIVENESS One of the common themes in my formative years as a tax lawyer was to avoid the forgiveness of debts and to be awake to the consequences which follow whenever a debt might be forgiven. This was before the introduction of value shifting and commercial debt forgiveness rules in the tax legislation which only serve to compound the potential complications.

Issues which come to mind include: 1. the forgiveness of a company loan (other than to another company) being a deemed dividend;

2. the forgiveness of a company to company loan resulting in one company carrying the retained earnings and the other company carrying the associated franking credits; 3. the risk of forgiveness of a trust loan resulting in the insolvency of the trust; 4. the non-payment of trust UPEs in consequence of forgiveness or trust insolvency attracting enquiry from the Australian Taxation Office; 5. application of the commercial debt forgiveness rules to any debt forgiveness; the greatest risk arising where the debtor has a “busy” balance sheet coupled with the lender being entitled to claim a capital loss for taxation purposes.

4. whether utilisation of inchoate instruments such as promissory notes make any difference; 5. how are the terms of a loan to be construed when not reduced to writing; 6. is the forgiveness of a loan in a Will or bequest capable of challenge under the Family Inheritance Provision legislation; 7. what constitutes an effective assignment of debt and what are the revenue ramifications; 8. a family member having become legally incapacitated followed by actions of a donee under power of attorney being challenged.

CONCLUSION OTHER MATTERS Matters which are likely to arise in the course of future litigation include: 1. remedies being sought in connection with promises made between family members “around the kitchen table”; 2. questions about loans becoming statute barred; 3. whether mere accounting records substantiate the existence of loans as a primary record;

In my opinion, all legal advisers providing commercial advice are well served to consider the multiplicity of practical and technical issues arising from lending arrangements between family members. Well advised families will benefit from good advice with mitigation of dispute risk. One suspects nevertheless no shortage of the need for good dispute resolution support where and when inevitable hostilities break out. B

MEMBERS ON THE MOVE ERIN FREEBAIRN

A

delaide based Commercial & Legal is pleased to announce the promotion of two staff, Erin Freebairn and Peter Berekally, to Senior Associates.

Commercial & Legal, Principal Partner, Elias Farah was delighted to announce these promotions, a reflection of both Erin and Peter being valued members of the firm

Erin joined the firm in 2019, working in C&L’s property and projects team and as well as being experienced advising on all aspects of transactions relating to property acquisition and development.

Erin specialises in the negotiation and documentation of property acquisitions and disposals and associated due diligence processes.

PETER BEREKALLY

Peter joined the firm in 2019 and practises across commercial property law, contracts and advisory, small and medium sized business advisory and dispute resolutions.

September 2020 2021 THE BULLETIN

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EVENTS

Successful country conference held on Kangaroo Island ALAN OXENHAM, MEMBER OF THE COUNTRY PRACTITIONERS COMMITTEE

T

he disastrous bush fires that occurred on Kangaroo Island in early 2020 are still fresh in the memories of all South Australians.

The bushfires burned over 211,000 hectares; almost the entire western half of the Island.

When the fires were finally contained on 21 January, 2020, two people were dead, as were 59,000 head of livestock.

Many hundreds of thousands of native animals also perished. Over 400 buildings were destroyed along with thousands of kilometres of fencing.

The flow-on effects to the Kangaroo Island economy were equally disastrous.

With that memory to the fore and with a view to doing something to assist with the economic recovery on Kangaroo Island, the Country Practitioners’ Committee of the Law Society decided to hold its 2021 Country Conference on the Island.

The Conference was convened at the Aurora Ozone Hotel, Kingscote from 12 to 14 March, 2021 and was sponsored by Leap, Legalsuper and BankSA. The Conference was attended by about 50 participants from as far afield as Mount Gambier, Port Pirie and the Riverland, together with their accompanying persons such as spouses and children. As always, the Conference was a great social event commencing with welcoming drinks and dinner at the Ozone Hotel from 6.30pm on Friday, 12 March. This was a welcome respite, particularly for those who had travelled long distances to attend.

The Conference was officially opened the following morning by the longtime chair of the Country Practitioners’ Committee, Phil Westover of Tindall Gask Bentley.

34 THE BULLETIN September 2021

The first session was chaired by Phil Westover and presented by the Honourable Justice David Berman of the Family Court of Australia. His Honour gave a paper entitled “Unpaid Present Beneficiary Entitlements and Credit Loan Accounts”, in which he expanded upon some of the issues that the parties to a matrimonial property dispute would need to consider in situations where parts of the matrimonial asset pool are held by a company or a trust.

Those issues include whether or not to bring any post separation income stream into account and the consequences of the transfer out of an asset from a company or trust to one of the parties.

His Honour went on to give a useful summary, by reference to recent case law, on the manner in which the Family Court and the High Court have dealt with unpaid present beneficiary entitlements and credit loan accounts in the context of determining family law property settlement disputes.

The next session was chaired by Alan Oxenham and presented by Rachael Shaw of Shaw Henderson Criminal and Commercial Lawyers. Rachael addressed the Conference on the topic of “Bail – Home Detention”. Rachael’s paper was expansive.; she provided participants with a summary of the types of bail arrangements available and provided some useful tips in relation to contested bail applications and on negotiating bail agreements with the prosecution.

Following a short morning tea, Paul White chaired the next paper, which was presented by Brian Austin of Shell Chambers. Brian spoke to his paper entitled “Unfair Dismissal v Redundancy in the COVID-19 Climate”.

Brian provided a summary of the COVID legislative arrangements (particularly relating to amendments to the Fair Work Act and industrial awards) which were swiftly instituted to deal with the threats that the pandemic posed to employment, health and wellbeing.

Brian reviewed the current legal tests in relation to genuine redundancy as opposed to unfair dismissal disguised as a redundancy, noting that once a case of genuine redundancy has been established, a dismissal cannot be unfair. He also looked at issues relating to the standing down of employees, the jurisdiction of the Fair Work Commission in relation to the high income threshold for the hearing of unfair dismissal claims, and wage theft.

The final session of the day was chaired by Peter Westley. Enzo Belperio of Bar Chambers presented his paper entitled “Minority Interest Holders - Companies and Real Estate”.

Enzo’s paper looked at what the court would consider when adjudicating an application for oppression of a minority shareholder in a company. Oppression is said to be conduct by the majority shareholder consisting of a lack of probity and fair dealing, however such conduct need not be illegal of itself.

Examples of oppressive conduct include withholding information from the minority shareholder and excluding the minority shareholder from involvement in the affairs of the company.

Remedies available to the court include making orders to bring the oppressive conduct to an end and to compensate the minority shareholder. The court could order that the company be wound up, its constitution be amended or that

EVENTS

the majority shareholder be required to purchase the shares of the minority shareholder. In extreme cases, the court could order the winding up of the company or the appointing of a receiver and manager.

In relation to real estate, Enzo reviewed the options of the minority to bring an application to the court for partition and sale of the land concerned.

At the conclusion of Enzo’s paper, participants were addressed by the Society’s President Elect, Justin StewartRattray on the current and foreshadowed activities of the Law Society on behalf of the South Australian legal profession.

Afterwards, lunch was served following which conference participants had the afternoon free to join their spouses and children and explore all that Kangaroo Island has to offer.

Many travelled to the fire ground to the west of the Island to remark at what must have been some superhuman efforts of the fire fighters to combat the fires and to observe that, 12 months on, although the areas burned were still readily discernible, the native vegetation at least is well on the way to a full recovery.

Others took advantage of the fine but breezy weather to have a swim at some of the Island’s lovely beaches, such as Stokes, Pennington, Emu and Vivonne Bays.

Inevitably, the brewery and distillery did a roaring trade, with many conference participants taking the opportunity to sample the offerings available at both places.

On Saturday night the conference dinner was held; again, at the Ozone Hotel, where conference participants had a further opportunity to socialise and relax together.

It has often been remarked that the first session at 9.15am on a Sunday morning, following the dinner the night before, is a particularly difficult gig, both for the presenter and the audience.

Unfazed by that difficulty, Maria Demosthenous presented her paper entitled “Loss of Life – Legal Entitlements and Consequences, Rural Accidents and Other”. John Kyrimis chaired the session.

Maria’s paper focussed on fatal motor vehicle accidents; many of which occur in country and regional areas, and the legal consequences which flow from those accidents, with particular emphasis on nervous shock and loss of dependency claims.

Maria expanded on the subject to note that nervous shock (defined as a recognised psychiatric illness) is only available where a person suffers a physical injury in the accident, was present at the scene at the time that the accident occurred, or is a parent, partner or child of the person killed, injured or endangered in some way in the accident.

Maria indicated that a loss of dependency claim was available only to a spouse, parent sibling or child of the deceased, with the action to be brought usually by the estate of the deceased as a single action for all claimants.

The next paper was presented by Graham Edmonds-Wilson QC on the topic “The Conflicted Legal Personal Representative – Acting in Different Capacities – What you Can and Cannot Do”. Paul Boylan of Boylan Lawyers chaired the session.

In his paper, Graham reviewed some of the problems that can arise where there are conflicts of interest and duty in the

case of legal personal representatives of deceased persons.

Graham noted that conflicts or potential conflicts generally arise as a result of the legal personal representatives’ personal interests as opposed to their duties to beneficiaries or from their dual role as both legal personal representative and beneficiary.

Graham identified some of the situations that can arise and discussed a number of options for dealing with them, by reference to case law.

The final paper of the conference was presented by David Hopkins of Brown and Associates on the topic “Commercial Leases – An Update”. The session was chaired by Peter Ryan of Rudall and Rudall.

David reviewed the changes to landlord and tenant law that had been put in place in response to the pandemic as well as the changes to the Retail and Commercial Leases Act, which amendments came into force on 1 July last year.

The Conference then closed with concluding remarks from Phil Westover.

The Conference was considered a success overall. It was apparent to all that the Country Practitioners’ Committee had worked hard to ensure the variety of papers and their relevance to country practitioners. Our thanks go to all who presented papers.

The Committee also wishes to acknowledge the efforts of Rebekah Cole and other staff members of the Law Society for undertaking the considerable logistical exercise to ensure the success of the Conference. Our sincere thanks.

We also thank the conference sponsors, Leap, Legalsuper and BankSA for their continued support. B September 2021 THE BULLETIN

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Thou Shall Not Kill and Inherit: The venerable common law forfeiture rule and suggestions for reform DR DAVID PLATER, DEPUTY DIRECTOR, SOUTH AUSTRALIAN LAW REFORM INSTITUTE, DR SYLVIA VILLIOS, SENIOR LECTURER, ADELAIDE UNIVERSITY LAW SCHOOL

T

he Attorney-General, the Hon Vickie Chapman, has recently foreshadowed her intention to introduce a standalone Forfeiture Act in South Australia to reform the vexed common law forfeiture rule in unlawful homicide in response to the major 2020 Report1 of the independent South Australian Law Reform Institute (SALRI) based at the Adelaide University Law School. The forfeiture rule stems from a longstanding premise of public policy — that no person should benefit from his or her wrongdoing. As Evans P observed in the famous case of Crippen: ‘It is clear law that no person can obtain or enforce any rights resulting to him from his own crime…The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence.’2 SALRI concluded that, whilst the premise of the rule remains sound, its scope and operation are uncertain and problematic in various respects and the rule is in need of statutory clarity and reform. The famed words of Winston Churchill have been used to characterise the current extent and application of the common law forfeiture rule in unlawful homicide as ‘a riddle wrapped in a mystery inside an enigma’.3 The forfeiture rule dates back to Jewish and Roman law and various medieval English doctrines that were only formally abolished in 1870.4 However, the modern rule can be traced to the celebrated English case of Florence Maybrick5 in the late 1800s. Mrs Maybrick was an American woman convicted of the murder of her older husband, James Maybrick, through the administration of poison. This controversial6 case was to become the modern source of the common law forfeiture rule. The Court of Queen’s Bench held that Mrs Maybrick was precluded by public policy from receiving any benefit arising from her husband’s untimely death.7 Lord Esher

36 THE BULLETIN September 2021

held that it is contrary to public policy for a person who commits murder to benefit from their crime. Fry LJ elaborated that as a principle of public policy ‘no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.’8 The forfeiture rule was extended in 1914 to both murder and manslaughter in Re Hall.9 This principle was approved and the forfeiture rule effectively endorsed by the joint judgment of the High Court of Australia in Helton v Allen10 of Dixon, Evatt and McTiernan JJ (though the status and effect of this decision is still debated and unresolved).11 The forfeiture rule has no statutory force,12 but has drastic effect and provides that any person who has unlawfully caused the death of another is precluded from taking any benefit that arises as a result of the victim’s death. The rule arises regardless of the degree of moral culpability or the punishment imposed by the criminal court.13 It also arises regardless of any hardship to the killer.14 It has been held to preclude a killer from acquiring a benefit via a will15 or distribution on intestacy,16 other benefits such as insurance policies17 or even a statutory pension.18 The killer is also barred from making a claim under family provision laws.19 Where the killer and deceased held property as joint tenants, the rule will prevent the killer from acquiring the deceased’s interest, either by severing the joint tenancy,20 or through a constructive trust.21 The rule has application to murder,22 manslaughter,23 manslaughter by unlawful and dangerous act,24 manslaughter on the basis of provocation25 or diminished responsibility26 (even in the context of a victim of family violence),27 defensive homicide or manslaughter on the basis of excessive self-defence,28 manslaughter by

gross negligence29 (including the use of a motor vehicle),30 assisted suicide31 and the subject of a failed suicide pact.32 The forfeiture rule has apparent absolute operation in South Australia to any example of murder and manslaughter.33 South Australia has followed the majority approach of the NSW Court of Appeal in Troja v Troja34 (though note Kirby P’s spirited dissent) and there is no discretion to modify the operation of the rule, notwithstanding the harshness or unfairness that might result.35 However, even post Troja, it is ‘unsettled’36 what offences or situations of unlawful homicide fall within the forfeiture rule or not. The continuing confusion and uncertainty of the scope of the forfeiture rule, even post Troja, is illustrated by the Victorian case of Edwards.37 Jemma Edwards had pleaded guilty to defensive homicide on the basis of excessive selfdefence in relation to the death of her abusive husband after a prolonged mutual history of family violence. All four judges who heard her civil case acknowledged that there were mitigating circumstances (notably the context of family violence), but Mrs Edwards’ deliberate use of violence with lethal intent to cause death or serious harm precluded any relaxation of the modification rule in her case. However, three very different views as to the scope of the forfeiture rule were advanced and what types of manslaughter it covered or did not cover and whether there is any discretion to modify the operation of the rule. There was no consensus.

The forfeiture rule may also operate unfairly because of its apparent inflexible or ‘too rigid’38 application to unlawful killings which involve a lesser degree of culpability. The rule’s strict application may well produce unjust outcomes. For example, the callous premeditated murder of a close relative carried out to obtain a

SUCCESSION LAW

financial benefit is treated the same as a suicide pact in which one party survives or where a victim of prolonged family violence responds and kills an abusive spouse and is convicted of manslaughter.

The prevailing view is that these situations will still attract the strict application of the forfeiture rule and produce the same consequences in terms of an offender’s succession rights. The rule may produce particularly unfair implications in the context of domestic violence, where the typically (though not inevitably) female victim of family violence kills an abusive spouse and is convicted of manslaughter.39 The strict application of the rule in such circumstances has been described as ‘unnecessarily harsh, inconsistent and … irrational’40 and ‘injudicious and incongruous’41 with its public policy foundations. The automatic and inflexible application of the rule is at odds with modern attitudes, which is ‘reflected in the greater range of offences and sentence options today compared to when the rule was first articulated.’42 SALRI, drawing on the extensive research and consultation that it undertook during its reference, concluded that, although the underlying rationale of the forfeiture rule remains sound, reform is necessary for two reasons: clarity and fairness.43 The rule in its present form is inflexible, potentially unfair, unclear and uncertain in scope and operation and is in need of legislative reform. It is preferable for Parliament to reform the forfeiture rule, rather than relying on judicial reformulation.44 SALRI recommended that South Australia should introduce a standalone Forfeiture Act for clarity and certainty.45 SALRI made a total of 67 recommendations for inclusion in any Forfeiture Act relating to the scope, operation and effect of the forfeiture rule.

SALRI was of the view that the forfeiture rule should apply in South Australia to murder, all forms of manslaughter, assisting suicide, causing the death of a child or vulnerable adult by criminal neglect under s 14 of the CLCA and the offence of causing death by culpable or dangerous driving. These are all offences of unlawful homicide within the CLCA.46 Any other offences of unlawful homicide outside the CLCA should fall outside the forfeiture rule.

SALRI considered that it is

impracticable and inappropriate to distinguish (as the court sought to do in Edwards) between the different categories of manslaughter as to the application of the forfeiture rule and it should apply to both voluntary manslaughter (where murder is reduced to manslaughter for whatever reason) and involuntary manslaughter (manslaughter by an unlawful and dangerous act or manslaughter by gross negligence) as well as the survivor of a suicide pact.47 The question of whether the forfeiture rule should apply to the offence of causing death by culpable or dangerous driving was a prominent theme in SALRI’s consultation.48 There was strong support for the application of the rule in such cases. SALRI agreed that it is illogical to treat death by culpable or dangerous driving differently from manslaughter by gross negligence and noted the gravity of many examples of causing death by culpable or dangerous driving and that it is very rare for manslaughter to be charged in such circumstances.

Both murder49 and manslaughter50 vary infinitely in gravity and the offender’s culpability. SALRI recommended that any Forfeiture Act should provide a court with the discretion to modify the rule’s application where a court finds that it is in the interests of justice to do so and crucially there are ‘exceptional circumstances’. The concept of ‘exceptional circumstances’ is a familiar statutory and judicial expression.51 SALRI accepted that there are unlawful killings, even very rarely murder, where it will be unduly harsh to apply the forfeiture rule. Whilst SALRI accepted that the introduction of a judicial discretion to modify the rule will result in uncertainty in some cases,52 it is unavoidable in practice and will mean that justice can be achieved by providing courts with the power and crucial flexibility to deal with each case on its individual merits rather than by the application of a rigid rule. In order to address the uncertainty that may arise in the exercise of judicial discretion in some cases, SALRI recommended that any proposed Forfeiture Act should contain a list of statutory considerations for a court to have regard to and the primary factor should be the culpability of the unlawful killer.

SALRI found that the technical application of the modern forfeiture rule in various property, succession and

inheritance situations is unclear and problematic. The practical implications and consequences of the potential operation of the rule arise in a wide variety of succession situations such as when the victim dies with a will or intestate, holds property as a joint tenant, holds trust assets, holds life insurance, is a member of a superannuation fund or is in receipt of other benefits. The practical implications and consequences that arise from the potential operation of the rule are significant but have been often overlooked.53 In particular, in various property, succession and inheritance situations the present rule may result in the ‘sins of the unlawful killer been visited upon their blameless children’.54 SALRI proposed various suggestions to improve the rule’s technical operation.

The common law forfeiture rule presently does not apply to a person found not guilty of murder by reason of mental incompetence (previously termed insanity).55 SALRI supported the retention of this approach and disagreed with the NSW Forfeiture Act which allows a court the discretion to invoke the forfeiture rule in these cases.56 Legitimate concerns arise over the prevalence of drug induced psychosis in relation to serious crimes of violence and the potential successful use of the mental impairment defence by persons whose mental impairment has been caused, or at least contributed to, by the use of illicit drugs or alcohol.57 The solution to such concerns lies with the scope of the defence of mental impairment and not the role and scope of the forfeiture rule.58 The forfeiture rule does not require a criminal conviction to attract its operation and may still apply if the unlawful killing can be established in civil proceedings on the civil standard of proof (even if the apparent killer was acquitted in a criminal trial).59 SALRI described this as the OJ Simpson situation and recommended the retention of this proposition.60 The famous case of Florence Maybrick and the venerable common law forfeiture rule should not be discarded. An unlawful killer should ordinarily not be allowed to benefit from their crime. However, the forfeiture rule requires significant reform for clarity and fairness.61 Statutory clarification is therefore timely.

SALRI thanks the many parties who contributed to this important reference.62 B September 2021 THE BULLETIN

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Endnotes 1 Sylvia Villios, David Plater, Olivia Jay, Terry Evans and Emily Ireland, Riddles, Mysteries and Enigmas: The Common Law Forfeiture Rule (South Australian Law Reform Institute, 2020).

2 Re Estate of Crippen [1911] P 108.

3 Darryl Brown and Ruth Pollard, ‘Where From and Where to With the Forfeiture Rule’ (2018) 148 Precedent 14.

4 See Re Tucker (1920) 21 SR (NSW) 175, 177–178; Arie Freiberg and Richard Fox, ‘Fighting Crime with Forfeiture: Lessons from History’ (2000) 6(1–2) Australian Journal of Legal History 1. See further Sylvia Villios, David Plater, Olivia Jay, Terry Evans and Emily Ireland, Riddles, Mysteries and Enigmas: The Common Law Forfeiture Rule (South Australian Law Reform Institute, 2020) 17-39. The contribution in this historical context of Dr Emily Ireland was notable.

5 See Alexander MacDougall, The Facts of the Case, and of the Proceedings in Connection with the Charge, Trial, Conviction, and Present Imprisonment of Florence Elizabeth Maybrick (Baillière, Tindall and Cox, 1891); Helen Densmore, The Maybrick Case: English Criminal Law (Sonnenschein, 1892); HB Irving (ed), Trial of Mrs Maybrick (William Hodge, 1912); Bernard Ryan, The Poisoned Life of Mrs Maybrick (Excel Press, 1977); George Robb, ‘The English Dreyfus Case: Florence Maybrick and the Sexual Double-Standard’ in George Robb and Nancy Erber (eds), Disorder in Court (Palgrave MacMillan, 1999) 57; Kate Colquhoun, Did She Kill Him?: A Victorian Tale of Deception, Adultery and Arsenic (Harry Abrams, 2014); Richard Hutto, A Poisoned Life: Florence Maybrick, The First American Woman to be Sentenced to Death in England (Blackstone Publishing, 2018).

6 Mrs Maybrick’s conviction was highly contentious. She seems to have been convicted as much on moral grounds (an extra-marital affair) as the strength of the prosecution case.

See Dinah Birch, ‘Did She Kill Him? Review: A Victorian Scandal of Sex and Poisoning’, The Guardian (online, 26 February 2014); Richard Hutto, A Poisoned Life: Florence Maybrick, The First American Woman to be Sentenced to Death in England (Blackstone Publishing, 2018). Hutto even notes that Florence’s husband is suspected (amongst many others over the years) of being Jack the Ripper.

7 Cleaver v Mutual Reserve Life Fund Association [1892] 1 QB 147.

8 [1892] 1 QB 147, 156.

9 [1914] P 1.

10 (1940) 63 CLR 69.

11 State Trustees Ltd v Edwards [2014] VSC 392; Edwards v State Trustees Limited (2016) 257 A Crim R 529.

12 The forfeiture rule was designed to operate independently of any statutory scheme for the confiscation of the proceeds of crime to the State and it operates independently of the Criminal Assets Confiscation Act 2005 (SA). See Rivers v Rivers (2002) 84 SASR 426.

13 Re Giles (dec’d) [1972] Ch 544; Troja v Troja (1994) 33 NSWLR 269, 283, 299.

14 State Trustees Ltd v Edwards [2014] VSC 392, [94].

15 Re Dellow’s Will Trusts [1964] 1 All ER 771.

16 Re Tucker (1920) 21 SR (NSW) 175; Re Estate of Soukup (1997) 97 A Crim R 103; Rivers v Rivers (2002) 84 SASR 426, [42]–[43].

17 Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147; Gray v Barr [1971] 2 QB 554.

18 R v Chief National Insurance Commissioner, Ex Parte Connor [1981] QB 758.

38 THE BULLETIN September 2021

19 Re Royse (dec’d) [1985] Ch 22; Troja v Troja (1994) 35 NSWLR 182.

20 Re Barrowcliff [1927] SASR 147.

21 Re Thorp and Real Property Act (1961) 80 WN (NSW) 61.

22 Re Crippen [1911] P 108; Re Rattle [2018] VSC 249.

23 Re Hall [1914] P 1; Re Stone [1989] 1 Qd R 351.

24 Gray v Barr [1971] 2 QB 554; Henderson v Wilcox [2016] 4 WLR 14.

25 Mack v Lockwood [2009] EWHC 1524 (Ch).

26 Re Giles (dec’d) [1972] Ch 544; Jones v Roberts [1995] 2 FLR 422.

27 Troja v Troja (1994) 33 NSWLR 269; Re K (dec’d) [1985] 3 WLR 234.

28 State Trustees Ltd v Edwards [2014] VSC 392.

29 Land v Land [2007] 1 WLR 1009; Nay v Iskov [2012] NSWSC 598.

30 Nay v Iskov [2012] NSWSC 598.

31 Dunbar v Plant [1998] Ch 412, Public Trustee of Queensland v Public Trustee of Queensland [2014] QSC 47.

32 Dunbar v Plant [1998] Ch 412.

33 Rivers v Rivers (2002) 84 SASR 326; Re Luxton (2006) 98 SASR 218.

34 (1994) 33 NSWLR 269.

35 See also Batey v Potts (2004) 61 NSWLR 274; Permanent Trustee Co Ltd v Gillett (2004) 145 A Crim R 220, 224; Pike v Pike [2015] QSC 134, [22].

36 Re Rattle [2018] VSC 249, [42] (McMillan J).

37 State Trustees Ltd v Edwards [2014] VSC 392; Edwards v State Trustees Limited (2016) 257 A Crim R 529.

38 J Chadwick, ‘A Testator’s Bounty to His Slayer’ (1914) 30(2) Law Quarterly Review 211, 211.

39 Barbara Hamilton and Elizabeth Sheehy, ‘Thrice Punished: Battered Women, Criminal Law and Disinheritance’ (2004) 8 Southern Cross University Law Review 96. See, for example, Troja v Troja (1994) 33 NSWLR 269.

40 Nicola Peart, ‘Reforming the Forfeiture Rule: Comparing New Zealand, England and Australia’ (2002) 31(1) Common Law World Review 1, 20.

2 41 Anthony Dillon, ‘When Beneficiary Slays Benefactor: The Forfeiture “Rule” Should Operates as a Principle of the General Law’ (1998) 6(3) Australian Property Law Journal 1.

42 Victorian Law Reform Commission, The Forfeiture Rule (Report No 20, September 2014) ix.

43 Ibid.

44 State Government Insurance Commission v Trigwell (1979) 142 CLR 617, 633–4 (Mason J). See also at 628–9 (Stephen J).

45 England, New South Wales and the ACT have introduced Forfeiture Acts to modify the operation of the rule.

46 Victorian Law Reform Commission, The Forfeiture Rule (Report No 20, September 2014) 22 [3.33].

The forfeiture rule should also apply to aiding or abetting any of these offences under s 267 of the CLCA. 47 See s 13A(3) of the CLCA. 48 Straede v Eastwood [2003] NSWSC 280.

49 Murder can encompass a single ‘mercy’ killing (such as of as terminally ill spouse), or extremely violent, cruel, pre-meditated, multiple and contract killings. See Reyes v The Queen [2002] 2 AC 235, 241–2 [11]. There is also a large spectrum of subjective blameworthiness and culpability of the person or persons responsible for the killing(s), which ranges from recklessness and intentional motives of compassion to intentional killings for financial gain or callous

and calculating offenders. See R v Howe [1987] AC 417, 433 (Lord Hailsham).

50 ‘Manslaughter is a crime which varies infinitely in its seriousness’ which may range from ‘mere inadvertence’ to just short of murder: Gray v Barr [1971] 2 QB 554, 581. See also R v Lavender (2005) 222 CLR 67, 77.

51 See R v Kelly [2000] 1 QB 198, 208; R v Skinner (2016) 126 SASR 120; Knight v R [2021] SASCFC 12.

52 This is not without concern. ‘The law as laid down in Cleaver’s case is that all felonious killings are contrary to public policy and hence, one would assume, unconscionable. Indeed, there is something a trifle comic in the spectacle of Equity judges sorting felonious killings into conscionable and unconscionable piles’: Troja v Troja (1994) 33 NSWLR 269, 299 (Meagher JA).

53 Cf Law Commission of England and Wales, The Forfeiture Rule and the Law of Succession (Consultation Paper No 172, 30 September 2003).

54 See, for example, Re DWS (dec’d) [2001] Ch 568.

See also Roger Kerridge, ‘Visiting the Sins of the Fathers on their Children’ (2001) 117 (July) Law Quarterly Review 371.

55 Re Houghton [1915] 2 Ch 173; Re Pitts [1931] 1 Ch 546; Re Estate of Soukup (1997) 97 A Crim R 103.

56 See, for example Re Settree Estates; Robinson v Settree [2018] NSWSC 1413.

57 One reason for extending the forfeiture rule to persons found not guilty of murder on the basis of insanity may be perceived disquiet over the prevalence of drug induced psychosis and the successful use of the mental impairment defence by persons whose mental impairment has been caused, or at least contributed, by the use of drugs or alcohol. ‘Statistics collected from a case file review undertaken by the Attorney-General’s Department indicated that almost a quarter of offenders who successfully used the mental incompetence defence were suffering from an impairment caused by drug induced psychosis or from substance abuse and dependence’: at South Australia, Parliamentary Debates, House of Assembly, 4 August 2016, 6642 (Hon John Rau, Attorney-General). See also Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA); South Australia, Parliamentary Debates, House of Assembly, 4 August 2016, 6640–6646; South Australia, Parliamentary Debates, House of Assembly, 30 May 2017, 9882–9883.

58 See also Victorian Law Reform Commission, The Forfeiture Rule (Report No 20, September 2014) 30–34 [3.74]–[3.102].

59 Helton v Allen (1940) 63 CLR 69; Rivers v Rivers (2002) 84 SASR 426.

60 Sylvia Villios, David Plater, Olivia Jay, Terry Evans and Emily Ireland, Riddles, Mysteries and Enigmas: The Common Law Forfeiture Rule (South Australian Law Reform Institute, Adelaide, 2020) 113-120.

61 Victorian Law Reform Commission, The Forfeiture Rule (Report No 20, September 2014) ix.

62 SALRI’s reference was ably assisted by Professor John Williams, the Hon David Bleby QC, the late Helen Wighton (the founding Deputy Director of SALRI), Louise Scarman, Holly Nicholls, Joshua Aikens Professor Gino Dal Pont of the University of Tasmania, Dr Xianlu Zeng, Emily Sims, Anita Brunacci, Dr Mark ‘Matt’ Giancaspro, SALRI’s Advisory Board and especially the students of the Law Reform class at the University of Adelaide.

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Abstract from Federation Press The fourth edition of Uniform Evidence Law: Text and Essential Cases continues the traditions of earlier edition with a detailed, comprehensive and integrated discussion of all concepts and rules of evidence law. The latest judicial decisions and legislative amendments have been included, accompanied by insightful commentary and analysis to explain and evaluate these developments in the law. This includes the evolution in the judicial interpretation of the meaning of ‘significant probative value’ in cases involving tendency evidence, such as the

High Court decisions in Hughes v R, Bauer v R, and McPhillamy v R. The most recent legislative changes to the admissibility thresholds for tendency and coincidence evidence have been incorporated with reflective commentary on the parliamentary intent and recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. Important developments in weighing factors under s 138 (Kadir v R; Grech v R) and determining the competence and proper questioning of child witnesses (A2 v R) have been thoughtfully examined.

THE TRIAL: PRINCIPLES, PROCESS AND EVIDENCE Abstract from Federation Press Criminal jury trials occur in an increasingly complex justice environment. The Trial distils and explains the criminal trial’s complexities in terms of the daily pre-trial and trial challenges facing courts and practitioners. It draws links to the potential impact of lawyers’ advocacy

on courts’ decision-making and the important context of juries, and explicitly recognises that courts’ processes and decisions require not only an appreciation of the uniform Evidence Acts, but also an understanding of human emotion and psychology.

J Hunter et al 2nd ed Federation Press 2021 PB $135.00

PUBLIC LAW AND STATUTORY INTERPRETATION: PRINCIPLES AND PRACTICE

L Burton et al 2nd ed Federation Press 2021 PB $120

Abstract from Federation Press This book provides an engaging, comprehensive and reader-friendly overview of Australian public law institutions and principles, together with the principles and process of statutory interpretation.

The former inform the fundamental nature of the Australian legal system; the latter is vital

knowledge in a legal system in which statute law is so pervasive. This book is the first text to draw these two topics together to clearly explain how the principles of statutory interpretation reflect the constitutional relationship between the legislative, executive and judicial branches of government.

September 2021 THE BULLETIN

39

RISK WATCH

Stop: Take two. Time to tame your inbox.

MERCEDES EYERS-WHITE, PII RISK MANAGEMENT COORDINATOR

O

ne of the statistics arising out of the claims made on the South Australian Professional Indemnity Insurance Scheme that I find endlessly fascinating is that only around 10 percent of all claims in any given year relate to ‘not knowing the law’.

To what, then, do most claims relate?

Failures of practice management or of file management. And the bread and butter of lawyering: details, details, details.

As hard as we might try to be “perfect”, we are going to make mistakes. I’m sorry if that shocks you but it is inevitable. It is because, despite our best endeavours to do away with anything resembling humanity, we are, after all, human. We need ways to help us to stay on track and to be across all the details because relying on experience or remembering alone, does not work. It’s not our fault; it’s the way our annoyinglyhuman brains work.

Just as oversights are small things, so too are the mitigation strategies that can be used to avoid them.

BUT I SENT IT! Time limits can sometimes be missed because practitioners aren’t aware of the relevant limitation (hint – see the Limitation Schedule, updated annually, on the Society website as a starting point) but most of the time they are missed because of a practical difficulty or technical hitch, which leads to the critical deadline not being met.

Use of an incorrect email address can result in the failure to meet deadlines. An email address may have the wrong suffix yet be a valid address - but not the correct address. As a result, the corresponding server does not bounce the email back and a deadline sails past.

In other examples, the AutoComplete function has seen emails sent to an incorrect address, with deadlines passing before the mistake was realised.

The most obvious way to mitigate against such oversights is to always doublecheck your email address fields. Consider also not addressing an email until it is ready to send, so that your mind is not full of what you want to say and you do not send

40 THE BULLETIN September 2021

it before you intend to. Consider turning off auto-complete altogether [in Outlook: File – Options – Mail – Send Messages – De-select “Use AutoComplete…” and click on Empty AutoComplete List] or remove individual addresses as they come up in the ‘To’ field [by clicking on the “x” in the drop down list].

Consider also the use of delivery and read receipts [in a new Outlook email: Options – check the box ‘Request a delivery receipt’ or ‘Request a read receipt’].

Delivery receipts confirm that the item has been delivered to the recipient’s mail server while read receipts show the item has been opened. The receipts come to your inbox as an email when the action has been fulfilled. Check the receipts, follow up where a receipt is not received (particularly delivery) and keep the record with the file.

If dealing with critical deadlines or other particularly time sensitive matters or crucial documents, pick up the phone and confirm receipt; don’t rely on ‘no response’ as confirmation of receipt.

It is also useful to remember that a deadline is not a date to aim for but rather it is the last possible moment to do something. Options should be exercised at the beginning of a three month window, not at the end. Best practice is always to leave yourself enough time to deal with any unforeseen issues so that what needs to be done by the deadline, can still be done if something goes awry.

Practitioners are reminded that use of the Moratorium on steps under R64.5 is encouraged in circumstances where the action is to be delayed, for example, for reasons of the settlement of medical issues or for negotiation with the respondent. Use of the moratorium procedure, rather than delaying service, can keep costs down as well as avoiding unnecessary angst.

Whilst reinstatement of a dismissed action is possible under R64.4, the Court needs to be satisfied, amongst other things, that the applicant has a reasonable explanation for having allowed the claim to be dismissed.

It is also clear that email management and practice management are another factor in these errors. Before entering a claim in the list of inactive cases, an email notice is sent by the Registrar of their intention to do so; failure to act on this notice will result in the claim being entered on the inactive list and, if still inactive, be dismissed for want of prosecution two months later. If these notices are not acted upon – missed, deleted or delegated without further supervision –the problem of the missed time limit will be compounded.

Physical mail still has a role to play and having systems in place to avoid oversights here is also important, particularly where the firm is an address for service. Ensuring that mail is delivered to the correct person, and that mail is opened in a timely manner, may be an obvious thing to do but it is important.

I’M LATE, I’M LATE, FOR A VERY IMPORTANT DATE!

TAMING THE EMAIL BEAST

Knowing a time limit is also obviously critical; and there have been some examples recently of practitioners not being aware of time limits to file and serve.

One of the changes missed is to limits for minor civil actions in the Magistrates Court, which has caught practitioners out.

Under R 64.1 of the Uniform Civil Rules 2020, claim documents must be served within six months after being filed. This was previously the case for the District and Supreme Courts but now applies to the Magistrates Court (where it was previously 12 months).

There are a multitude of tips for email management readily available on the internet that you can consider to reduce the likelihood of missing or deleting important emails. For example, reduce clutter in your inbox by setting up Rules to automatically divert newsletters or other regular emails into a folder to read later or consider unsubscribing if you never get around to reading them. Avoid using your work email for personal subscriptions. If an email will take less than three minutes to deal with, do it immediately, even if it’s not urgent.

Create ‘To Do’ folders (for non-urgent or

RISK WATCH

more complex emails) and ‘Follow Up’ folders (for tasks you’ve delegated) - and drag emails into these. This leaves urgent or simple (less than three minutes) emails left in your inbox to deal with. Alternatively make use of the Task function to action emails or set reminders. File (carefully!) at

the end of a task. Consider scheduling time throughout the day to check, prioritise and reply to emails, rather than having them constantly interrupt.

If your inbox is overwhelming you, making some time to plan how to tame the email beast is not wasted time. Indeed,

email management is one of the bigger challenges we face in the workplace; the good news is that with a little planning and a little discipline, stress is reduced and productivity is improved. Find what works for you - and hopefully stay out of the statistics altogether.

Superannuation Guarantee Contributions Increased ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER

U

nder Australia’s Superannuation Guarantee (SG) laws, employers are required to pay a set percentage of superannuation into each eligible employee’s super fund, on top of their standard wages or salaries.

From 1 July, 2021, SG rates increased from 9.5 percent of ordinary time earnings to 10 percent. The SG rate is scheduled to continue to increase until it reaches 12 percent from 1 July, 2025 onwards.

WHY THE INCREASE? SG is increasing to further help Australians save for their life in retirement.

The SG rate has increased since its introduction in 1991, from 3 percent to 9 percent, and then 9.5 percent in 2014.1 Out of concern that many retirees would be too reliant on the age pension, and to increase the extent to which Australians have sufficient savings to self-fund a comfortable income by the time they retire, Parliament legislated a gradual increase of the percentage to 12 percent by 1 July, 2025.

The 2014 federal budget deferred the 2018 SG rate increase by three years, such that the 9.5 percent rate remained until 30 June, 2021. Five annual increases of 0.5 percent are now due until SG reaches 12 percent from 1 July, 2025.

WHY ONLY 0.5 PER CENT? This stepped increase gives businesses time to plan ahead and manage small increases each year rather than cope with a 2.5 percent increase all at once.

If you’re an employer and need some assistance to navigate the changes and understand your obligations, you’re welcome to contact legalsuper – the industry super fund for Australia’s legal community – for comprehensive, personalised support.

WHAT DOES THIS MEAN FOR EMPLOYEES? As a result of this change, most employees will receive more super from their employer, but the overall impact of the SG increase will depend on people’s employment arrangements.

There may be a potential ‘sting in the tail’ for people whose wages or salaries are packaged in a certain way and they may find they actually take home less pay each pay cycle.

People covered under enterprise agreements, or minimum pay standards, are unlikely to be affected. However, those under an employment contract specifying their total remuneration, inclusive of superannuation, may take home less pay from July 1.

I would encourage you to check if the SG increase has any implications for your remuneration package, including any salary sacrifice or after-tax contributions arrangements you may have in place. Your super fund and your employer will be able to help you with this.

LOOKING LONG TERM A 0.5 per cent increase to your super may not seem like much, but over the

long-term, with the wonders of compound interest and the lower tax rates applying to superannuation, a small increase in super could make a huge impact on your life in retirement.

To help you see what the latest SG increase could mean for you over the long-term, Industry Super Australia2 has an easy-to-use online Superannuation Calculator at https://www.industrysuper. com/retirement-info/retirementcalculators/retirement-balanceprojection/. Take a look and find out how much extra you may have in retirement.

Legal Super Pty Ltd ABN 37 004 455 789 is the Trustee of legalsuper ABN 60 346 078 879 and holds Australian Financial Services Licence No. 246315 under the Corporations Act 2001. The information contained in this document is of a general nature only and does not take into account your objectives, financial situation or needs. Past performance is not a guide to future performance.

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

Endnotes 1 https://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_ Library/pubs/BN/0910/ChronSuperannuation 2 Industry Super Australia (ISA) was established in 2006 and manages collective programs on behalf of the 15 Industry SuperFunds, with the objective of maximising the retirement savings of five million industry super members.

September 2021 THE BULLETIN

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UNCONSCIONABLE CONDUCT

STEERING STATUTORY UNCONSCIONABILITY OUT OF A JAM AT LAST: STUBBINGS V JAMS 2 PTY LTD DR GABRIELLE GOLDING AND DR MARK GIANCASPRO, ADELAIDE LAW SCHOOL, THE UNIVERSITY OF ADELAIDE

F

ollowing its decision in Australian Securities and Investments Commission v Kobelt,1 the High Court left the doctrine of statutory unconscionable conduct in a considerable jam. In that decision, the Court had the opportunity to clarify the principles relevant to establishing unconscionability under s 12CB(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and, by extension, the equivalent provision under s 21(1) of the Australian Consumer Law (ACL).2 While the legal profession anticipated further clarity from Kobelt, they were instead left none the wiser.

Section 12CB(1) of the ASIC Act is well-known to commercial lawyers. It prohibits persons, in trade or commerce, from engaging in conduct, in connection with the supply or acquisition of financial goods or services, that is unconscionable.3 Breach of that provision is determined by reference to the factors outlined in s 12CC (ACL s 22). Section 12CA(1) of the ASIC Act (ACL s 20(1)) also prohibits unconscionable conduct but within the meaning of the ‘unwritten law’, a breach of which is instead determined by reference to the various common law and equitable principles developed by the courts from time to time. Truly understanding what constitutes unconscionable conduct for the purpose of ASIC Act s 12CB(1) (and ACL s 21(1))

42 THE BULLETIN September 2021

has resulted in substantial confusion for some time.4 Thankfully, the High Court has again been presented with a further opportunity to clarify these principles when it hears the forthcoming appeal from the Victorian Court of Appeal’s decision in Jams 2 Pty Ltd v Stubbings [2020] VSCA 200 (Stubbings).

GETTING STUCK IN A JAM The applicants in Stubbings (the Lenders) were three companies who loaned $1,059,000 to the Victorian Boat Clinic Pty Ltd—a shell company with no assets, owned and controlled by the respondent, Mr Jeffrey Stubbings. The loan was procured to purchase a $900,000 residential property in Fingal, Victoria and had interest and default rates of 10% and 17% per annum, respectively. The loan was secured by a guarantee given by Stubbings and supported by mortgages over the Fingal property as well as two others owned by Stubbings, located in Narre Warren. The lawyers acting for the Lenders, Ajzensztat Jeruzalski & Co (AJ), acquired signed certificates from a solicitor and accountant that Stubbings had received legal and accounting advice about the transaction, and the funds were advanced. This is despite the fact that Stubbings had: no job; nominal income; no assets (other than the Narre Warren

properties); and insufficient funds to pay the deposit for the Fingal property, or to service the loan. After paying the first two monthly instalments on the property, Stubbings defaulted.

The Lenders commenced proceedings to recover the guaranteed debt and possession of the three secured properties.

The trial judge upheld Stubbings’ claim that the loan, mortgage and guarantees were procured by unconscionable conduct and ordered that they be set aside (subject to offsets to prevent unjust enrichment).

AJ was said to have been ‘wilfully blind’ to Stubbings’ personal and financial circumstances and that its asset-based lending scheme involved ‘a high level of moral obloquy’5—a phrase that, prior to Kobelt, had plagued decisions concerning whether conduct was unconscionable.6 Stubbings was ‘unsophisticated, naïve and had little financial nous’, as well as ‘unrealistic in the management of his financial affairs’ and lacking entirely in ‘business understanding’.7

THE CASE BEFORE THE VICTORIAN COURT OF APPEAL (‘VCA’) The VCA disagreed with the trial judge’s classification of AJ’s asset-based lending scheme as unconscionable, as well as his Honour’s conclusion that AJ had, in totality, acted unconscionably towards Stubbings. AJ ‘did not wilfully

UNCONSCIONABLE CONDUCT

and recklessly fail to make such inquiries as an honest and reasonable lender would make in the circumstances, or at least have knowledge of circumstances which would put an honest and reasonable lender on inquiry’.8 AJ therefore could not be treated as having ‘actual’ or ‘constructive’ knowledge of Stubbings’ circumstances.9 While AJ was broadly aware of Stubbings’ lack of income and payment of a token deposit for his Fingal property, it was entitled to rely upon the signed and returned certificates of advice provided by Stubbings as evidence that he fully understood the legal and financial consequences of the agreement. AJ was therefore entitled to refrain from more forensically enquiring as to his personal circumstances and capacity to service the loans and could not be deemed to have unconscientiously exploited Stubbings.10 The VCA consequently allowed the appeal against the trial judge’s findings on unconscionability.

THE VCA’S RECONSTRUCTION OF KOBELT The VCA considered the High Court’s approach in Kobelt when determining the content of the standard of statutory unconscionability expressed in ASIC Act s 12CB(1). Kobelt concerned ASIC’s investigation into a controversial ‘book-up’ credit system utilised by some storekeepers in many of Australia’s remote Aboriginal

communities. Mr Lindsay Kobelt was one such storekeeper. ASIC’s argument was that this system of supplying credit to residents from remote Aboriginal communities was unconscionable under s 12CB(1). A High Court majority (Kiefel CJ, Bell, Gageler and Keane JJ; Nettle, Gordon and Edelman JJ dissenting) rejected this argument, holding that Kobelt had not unconscientiously exploited his customers, but rather fulfilled local demand and acted on the need for the book-up system.11 Chief Justice Kiefel and Bell J described s 12CB(1) as requiring ‘an evaluative judgment’,12 noting that the pivotal inquiry was whether the impugned conduct was against conscience, by reference to the factors outlined in s 12CC(1) and the totality of the circumstances.13 Justice Gageler’s judgment echoed similar sentiments,14 noting that the normative standard of conduct prescribed by s 12CB(1) would not be met where a person engaged in conduct ‘so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience’.15 Justice Keane emphasised the moral underpinnings of the evaluative assessment mandated by s 12CB(1)16 and regarded ‘moral obloquy’ as the yardstick (despite its express retraction by Gageler J in the same case).17

The minority judgments aligned more closely with Gageler J’s analysis.

Justices Nettle and Gordon recognised that the equitable principles underpinning unconscionability at common law (and captured by s 12CA(1)) helped ascribe meaning to s 12CB(1), but that the s 12CC factors would be determinative.18 Justice Edelman concurred with Nettle and Gordon JJ,19 adding that the meaning of s 12CB(1) could not be understood ‘other than against its background in equitable doctrine and the repeated responses by parliaments to that equitable doctrine’.20 Whereas unconscionability under s 12CB(1) was not defined exclusively by reference to the unwritten law (like s 12CA(1)), it was still informed by the values and norms recognised by the statute, as well as the broader community standards and values that underpin it.21 The minority concluded that the indicia of unconscionability in s 12CC and, more broadly, equitable notions of unreasonableness and unfairness, pointed to Kobelt’s conduct as being unconscionable.

The VCA in Stubbings favoured the Kobelt minority’s view that the equitable principles of unconscionability remained relevant to the interpretation of s 12CB(1).22 The court analogised equity’s broad analysis of unconscionable conduct with the statement in s 12CB(1) that ‘all September 2021 THE BULLETIN

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UNCONSCIONABLE CONDUCT

the circumstances’ be considered when evaluating impugned conduct.23 And yet, despite recognising the consistent statements of the minority and Gageler J in Kobelt as obiter dicta,24 the VCA stated that it was compelled to follow the same approach, as a consequence of Farah Constructions Pty Ltd v Say-Dee Pty Ltd;25 specifically, intermediate appellate courts should not depart from ‘long-established authority and seriously considered dicta’ found in High Court judgments, nor from the decisions of other intermediate appellate courts (unless convinced they are plainly wrong). The court appeared to merely ‘rebadge’ Gageler J’s rejected litmus test of ‘moral obloquy’ in terms of the normative standard described by his Honour and the minority in Kobelt.26

WHAT WE CAN ANTICIPATE FROM THE HIGH COURT APPEAL It is hoped that the High Court in the forthcoming appeal clarifies three particular matters.

First, the High Court should conclusively delineate the correct approach to applying both ASIC Act ss 12CA(1) and 12CB(1) (ACL ss 20(1) and 21(1)). In particular, the relevance of the body of broader equitable principles captured by s 12CA(1) to the application of s 12CB(1) must be unambiguously articulated.

Respectfully, the High Court in Kobelt and the VCA in Stubbings confused matters when stating that equity’s notions of unfairness and unreasonableness still informed the more prescriptive statutory form of unconscionability in s 12CB(1).

Parliament appeared to purposely distance these equitable and statutory standards through the stipulation that s 12CA(1) did not apply to conduct captured by s 12CB(1),27 and in the limitation of the latter to the specific context of the supply or acquisition of goods or services.

44 THE BULLETIN September 2021

Secondly, the ongoing relevance, if any, of the concept of ‘moral obloquy’ should be conclusively removed. This nomenclature is too vague and lacks clarity.28 While the VCA appeared to accept its demise as a consequence of Kobelt,29 it still favoured ‘an evaluative judgment as to the morality of the allegedly unconscionable behaviour’,30 which is informed by reference to related earlier cases and the normative standard expressed in Kobelt.31 This approach could be interpreted as reopening the door to moral obloquy, particularly given Keane J’s approval of the concept in Kobelt. 32 Finally, precisely when solicitors’ certificates can be relied upon to demonstrate both attempts to ensure a client is properly informed as to the nature of a transaction and a lack of unconscientious exploitation of that client, should be properly explained. The VCA in Stubbings held that AJ’s solicitation of signed certificates confirming that Stubbings had consulted a lawyer and accountant for advice and that he had read, been explained, and understood the relevant loan documents meant that they were entitled to believe that he was able to meet his obligations under the loan agreement and could not be held to have unconscientiously exploited him.33 The VCA’s comment that the certificates permitted the respondent to refrain from making further inquiries as to Stubbings’ finances34 is intriguing. It enlivens a long-running debate as to the function and value of solicitors’ certificates—a topic that been discussed extensively elsewhere,35 with commentators noting that the certified provision of independent advice often provides an answer to a claim.36 It is hoped the High Court elaborates as to when such certificates can capably be relied upon to ward off claims of unconscionability. B

Endnotes 1 (2019) 267 CLR 1 (‘Kobelt’).

2 Contained under Schedule 2 of the Competition and Consumer Act 2010 (Cth).

3 ACL s 21(1) applies in the context of nonfinancial goods or services.

4 See generally, T F Bathurst, Law as a Reflection of the ‘Moral Conscience’ of Society (Opening of Law Term Address, 5 February 2020).

5 Jams 2 Pty Ltd v Stubbings (No 3) [2019] VSC 150 [313].

6 See, eg, Gabrielle Golding and Mark Giancaspro, ‘To Moral Obloquy or Not to Moral Obloquy?

That is the Judicial Confusion Surrounding Statutory Unconscionable Conduct’ (2020) 34 Commercial Law Quarterly 3.

7 Jams 2 Pty Ltd v Stubbings (No 3) [2019] VSC 150 [264].

8 Ibid [130].

9 Ibid.

10 Ibid [132]-[133].

11 Kobelt [64]-[66], [77]-[79].

12 Ibid [47].

13 Ibid [72]-[79].

14 Ibid [101].

15 Ibid [92].

16 Ibid [118]-[120].

17 Ibid.

18 Ibid [144], [154].

19 Ibid [273]-[278].

20 Ibid [279].

21 Kobelt [234], [267].

22 Stubbings [78].

23 Ibid [79].

24 Ibid [90].

25 (2007) 230 CLR 89, 150–2.

26 Stubbings [91]-[92].

27 ASIC Act s 12CA(2); ACL s 20(2).

28 See generally, Golding and Giancaspro (n 6).

29 Stubbings [85].

30 Ibid [91].

31 Ibid [92].

32 Kobelt [118]-[120].

33 Ibid [132]-[133].

34 Ibid [133].

35 See, eg, Charles YC Chew, ‘Another Look at the Giving of Independent Advice to Sureties: Some Uncertainties and Evolving Concerns’ (2006) 18(1) Bond Law Review 45.

36 See, eg, Felicity Maher and Stephen Puttick, ‘Reconsidering Independent Advice: A Framework for Analysing Two-Party and ThreeParty Cases’ (2020) 43(1) University of New South Wales Law Journal 218, 218.

FAMILY LAW CASE NOTES

Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK

PROPERTY – EQUAL ASSESSMENT OF CONTRIBUTIONS FAILED TO GIVE RECOGNITION TO HUSBAND’S INHERITANCE WHICH MADE UP 30 PER CENT OF THE POOL

I

n Roverati [2021] FamCAFC 89 (11 June, 2021) the Full Court (Strickland, Ryan and Austin JJ) considered a 33 year marriage that produced two children.

In 2003, the wife received an inheritance of about $50,000 ([18]), which was put in a trust and had not generated income. In 2006, the husband received an inheritance, worth at least $404,619, that generated rental income.

The net pool was $1,317,405 ([60]).

Allowing the appeal, Strickland and Ryan JJ said (from [27]): “The … husband’s complaint …[is] that ... his Honour implicitly concluded that both inheritances were similar in nature, and … his Honour erred by giving no or insufficient weight to the [husband’s] inheritance ( ... ) [32] … [T]he husband’s inheritance was … at least … $404,619.64, whereas the wife’s … approximately $50,000. …

[T]he husband’s financial contribution … was significantly more than the wife’s, … without taking into account the income subsequently derived therefrom, and the increases in the value of the assets …

[33] … [T]he assessment of contributions is not a mathematical or accounting exercise, … it is an holistic undertaking with all … contributions … being taken into account (Dickons & Dickons [2012] FamCAFC 154 ... ) …

[34] … [I]t is not apparent from his Honour’s treatment of the respective contributions … culminating in a finding of equality, how the contributions of the wife informed that outcome, such that the … financial contributions of the husband … did not result in a weighting in his favour. ( ... ) [39] ... There is no recognition that approximately 30 per centum of the asset pool … was derived from the husband’s

inheritance, and his Honour’s failure … cannot be masked by suggesting that his Honour … applied the requisite holistic approach in assessing contributions ( … ) [58] … [G]iven the significant financial contribution by the husband of his inheritance, … the respective contributions of the parties should be assessed at 55 per centum/45 per centum in the husband’s favour.”

PROPERTY – INTERIM ORDER FOR CONDITIONAL SALE OF PROPERTY IN WHICH HUSBAND ONLY OWNED A 5 PER CENT INTEREST IN ERROR In Lin & Ruan [2021] FamCAFC 90 (9 June, 2021) the Full Court (AinslieWallace, Watts & Austin JJ) allowed an appeal from a series of interim orders, the first requiring the husband to pay mortgage outgoings for a property he owned with the wife (suburb “B”), and subsequent interim orders that in the absence of his rectifying mortgage arrears, another property, (suburb “C”) be sold.

The husband owned a 5 per cent interest in the suburb C property; while his mother owned a 95 per cent share.

The wife joined the husband’s mother as a party, as she argued that the husband’s mother owned her interest in the property upon trust for the husband.

The Full Court said (from [25]): “… [S]ince the husband had failed to … comply with the order and the mortgage repayments on the Suburb B property were in arrears, his Honour turned to consider what ‘machinery provisions’ were necessary to ensure the mortgage repayments were met …

[26] … [W]ithout any further … explanation …, the primary judge concluded: 35 ... [I]t would be appropriate to make … orders for the sale of the [Suburb C property] to use at least [the husband’s] 5% legal entitlement in that property, to pay the outstanding mortgage costs. ( … ) [28] … [T]he [husband’s mother] bore

no separate obligation to financially support the wife … and so, if the orders for the conditional sale of the Suburb C property were only being made to ensure rectification of the husband’s personal default … then no more than his own five per cent stake in the Suburb C property should have been the subject of such garnishment. …

[29] Even if the primary judge concluded that the appropriation of the appellant’s property to cover the husband’s individual liability was justified, it was obligatory to identify the source of power to make the orders and to satisfy himself that the pre-conditions for its exercise were fulfilled. That was not done. ( … )”

CHILDREN – PARTIES’ CONTRAVENTION APPLICATIONS SHOULD NOT HAVE BEEN HEARD TOGETHER In Dobbs [2021] FamCAFC 78 (21 May, 2021) the Full Court (Alstergren CJ, Strickland & Austin JJ) allowed a husband’s appeal from an order made pursuant to s 70NEB(1)(d) made after each party had brought contravention applications, alleging that both property and parenting orders had been contravened.

The Full Court said (from [23]): “ … [I]t was quite unclear what particular applications were the subject of attention by the … judge at any one point in time. … [T]he conduct of the proceedings in that way was procedurally unfair for two fundamental reasons.

[24] … [T]he … procedure prescribed for hearing contravention applications (r 21.08 … Family Law Rules 2004 (Cth) (‘the Rules’)) is … different from the usual procedure for hearing other forms of civil application. If there is to be a departure from that procedure, it must be done so as not to cause injustice or prejudice to the respondent (Caballes & Tallant [2014] FamCAFC 112 …). … [T]he husband was defending the wife’s contravention applications and, … he enjoyed an entitlement to remain mute until the closure of the evidence offered in support of the September 2021 THE BULLETIN

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FAMILY LAW CASE NOTES

alleged contraventions, which right he could not be forced to relinquish. He could not be expected to lead evidence about the need for further orders to facilitate implementation of the final property orders when he was … defending an allegation of his contravention of those … orders.

[25] … An applicant who prosecutes a contravention application carries the burden of adducing evidence to prove the alleged contravention. … [N]either party could concurrently carry the burden of proof and reserve their right to silence.

[26] The procedure adopted by the primary judge for hearing and determining the wife’s contravention applications bore no similarity at all to that prescribed by r 21.08 of the Rules ( … ) [29] ( … ) [T]he husband was improperly converted from applicant to respondent when the evidence filed in support of the contraventions alleged by the wife had not yet been either formally adduced or tested in cross-examination. ( … ) [33] Given the denial of procedural fairness, … the … judge fell into appealable error.”

CHILDREN – ORDER THAT ROUTINE NOTIONALLY CONTINUE THROUGH HOLIDAYS INTERPRETED SO THAT FIRST WEEK OF SCHOOL WAS ‘WEEK 2’ OF CYCLE

In Nagel & Clay [2021] FamCA 358 (2 June, 2021) Harper J heard two parents’ opposing views as to the interpretation of a parenting order made by consent.

The order related to the resumption of time following school holidays, specifically that at the commencement of school term, the fortnightly routine resume “as if the children had been living with the parties” in accordance with the fortnightly routine “during the duration of the school holidays”.

After citing Langford & Coleman [1992] FamCA 68, the Court said (from [7]): “The decision in Langford is consistent with authority … to the extent that it denies interpretation of court orders by reference to the parties› subjective intentions. ( …)

[9] In Apoda & Apoda [2013] FamCA 265 at [35] - [41] Le Poer Trench J concluded that in construing final consent orders the Court should undertake a three step process, namely, determining whether there is ambiguity, identify surrounding circumstances, other than the subjective intentions of the parties … and reach a conclusion in relation to construction. ( … ) [15] … [T]he father construed Order 10 to mean that the question of which week in the two cycle is applicable at the commencement of Term 2, 2021 is determined by reference to the

3 JULY 2021 – 2 AUG 2021 ACTS PROCLAIMED Statutes Amendment (Recommendations of Independent Inquiry into Child Protection) Act 2021 (No 14 of 2021) Commencement: 2 August 2021 Gazetted: 22 July 2021, Gazette No. 49 of 2021 Fire and Emergency Services (Governance) Amendment Act 2021 (No 15 of 2021)

alternating weeks which would have been notionally applicable as if Order 10(a) and (b) had been operating during the … school holidays, and, for the purposes of calculating the relevant dates, as a continuation of the fortnightly cycle initiated by Order 9 on the specified dates in October 2020.( … ) [23] It is clear … that the opening words of Order 10 ‘From the commencement of school in Term 2 ...’ mean only that there will be inserted into the existing fortnightly cycle from the commencement of Term 2 … the additional Tuesday night with the father.

They do not mean the fortnightly cycle is reset to commence with Week 1 to coincide with the commencement of Term 2 ( … ) [30] The mother also argued that the parties could not have intended that Order 10 would operate so that in the week commencing Term 2, 2021 the children would have spent the second half of the immediately preceding school holidays with the father, then return for only one night with the mother before returning again to the father’s care …. Even on the mother’s construction, such an outcome would be possible [and] would be entirely contingent on the dates on which the school holidays fell. … ” B

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

Commencement: 2 August 2021 Gazetted: 29 of 2021, Gazette No. 50 of 2021

ACTS ASSENTED TO

Health Care (Governance) Amendment Act 2021 (No 21 of 2021) Commencement: 23 August 2021 Gazetted: 29 of 2021, Gazette No. 50 of 2021

APPOINTMENTS

Nil Nil

RULES Nil

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

REG NO.

DATE GAZETTED

Adelaide Park Lands Regulations 2021

108 of 2021

8 July 2021, Gazette No. 46 of 2021

Firearms (Miscellaneous) Variation Regulations 2021 Mining (Rules of Warden’s Court) Variation Regulations 2021 Planning, Development and Infrastructure (General) (Application of Act) Variation Regulations 2021

109 of 2021 110 of 2021 111 of 2021

8 July 2021, Gazette No. 46 of 2021 15 July 2021, Gazette No. 48 of 2021 22 July 2021, Gazette No. 49 of 2021

46 THE BULLETIN September 2021

CLASSIFIEDS

VALUATIONS MATRIMONIAL DECEASED ESTATES INSURANCE TAX REALIGNMENT INSOLVENCY FURNITURE ANTIQUES, COLLECTIONS BUSINESS ASSETS MACHINERY MOTOR VEHICLES CARS, BOATS, PLANES

Seeking Resolution

Ph: 08 8342 4445 FAX: 08 8342 4446 MOB: 0418 821 250 E: auctions@senet.com.au Certified Practising Valuer NO.346 Auctioneers & Valuers Association of Australia

Simple, clear, unbiased advice, without fear or favour.

Family law Business valuations Economic loss Investigations Owners disputes

Suite 103 / L1 448 St Kilda Road . Melbourne 3004

03 9867 7332

www.forensicaccts.com.au

t. +61 8 431 80 82 Hugh McPharlin FCA

d m e w

Andrew Hill Investigations

ABN 68 573 745 238 Investigating: • workplace conduct • fraud • unprofessional conduct • probity Support services: Andrew Hill • forensic computing analysis • transcription services • information sessions, particularly for HR practitioners on the investigative process • policy development.

PO Box 3626

m.

401 712 908 +61+61 8 8139 1130

+61 419 841 780 e. ahi@andrewhillinvestigations.com.au hmcpharlin@nexiaem.com.au nexiaem.com.au

NORWOOD SA t.

5067 +61

8 431 80 82 m. +61 401 712 908 e. ahi@andrewhillinvestigations.com.au Fellow AIPI

Consulting Engineers Australian Technology Pty Ltd for expert opinion on:

CITY & COUNTRY ROGER KEARNS

Business valuations

Andrew Hill Investigations

Take Your Business Mobile boylen.com.au

• 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

8271 4573 0412 217 360

P (08) 8233 9433

wdrpotts@gmail.com

Licensed Investigation Agents & Process Servers Servicing the Mid North, Yorke & Eyre Peninsula`s and Outback of South Australia with: • Process Serving • Property Lockouts • Investigations • Missing Persons

OUTBACK BUSINESS SERVICES

P.O. Box 591, PORT AUGUSTA. 5700 P: 0418 838 807 info@outbackbusinessservices.com.au

Family Law - Melbourne

CONSULTING ACTUARIES

LawCare

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.

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

Marita Bajinskis

formerly of Howe Martin & Associates is a Principal at Blackwood Family Lawyers in Melbourne Marita is an Accredited Family Law Specialist and can assist with all family law matters including: • • • •

matrimonial and de facto property settlements superannuation children’s issues

3/224 Queen Street Melbourne VIC 3000 T: 03 8672 5222

Marita.Bajinskis@ blackwoodfamilylawyers.com.au www.blackwoodfamilylawyers.com.au

FOR PROFESSIONAL ACTUARIAL ADVICE ON - Personal Injury - Workers Compensation - Value Of Superannuation Contact

Deborah Jones, Geoff Keen or Victor Tien 08 8232 1333 contact@brettandwatson.com.au www.brettandwatson.com.au

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

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