BULLETINTHEVOLUME44ISSUE8SEPTEMBER2022THELAWSOCIETYOFSAJOURNALAGEING&THELAW Reforming laws to address elder abuse Aged care ageingNavigatingcommissionroyalanclientbase IN THIS ISSUE
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Director (Ethics and Practice) Rosalind rosalind.burke@lawsocietysa.asn.auBurke Director (Law Claims) Kiley krogers@lawguard.com.auRogers Manager (LAF) Annie annie.macrae@lawsocietysa.asn.auMacRae Programme Manager (CPD) Natalie Natalie.Mackay@lawsocietysa.asn.auMackay Programme Manager (GDLP) Desiree Desiree.Holland@lawsocietysa.asn.auHolland
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10 The overlooked role of intervention orders in addressing elder abuse By Jemma Holt & Dr David Plater
16 Aged care law reform since the Royal Commission – By Helena Errey-White 18 Opinion: Youth in detention: A failing system – By Katja Daly 19 Event wrap-up: Margaret Nyland Long Lunch 22 An interview with former District Court Judge David Smith QC Interviewed by Richard Hoang 26 Financial wellbeing top of the agenda By David Brownie 27 Stays of civil proceedings in the case of civil defendants with criminal proceedings pending– By Alexander Lazarevich & Margaret Castles 4 From the Editor 5
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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.
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President’s Message 20 Risk Watch: Don’t trust emails: Always verify payment details By Kate Marcus 24 Tax Files: Payroll tax for medical practices – By Paul Ingram 35 Wellbeing & Resilience: Ageing well in the law – a professional perspective By Colin Brown 32 Family Law Case Notes By Craig Nichol & Keleigh Robinson 34 Gazing in the Gazette Compiled by Master Elizabeth Olsson
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MICHAEL ESPOSITO, EDITOR
B IN THIS ISSUE ELDER ABUSE The need for reform 6 YOUTH JUSTICE Why youth detention is failing 18 SEEKING A STAY Representing civil client charged with criminal offences 27
FROM THE EDITOR THE BULLETIN September 20224
One of the many takeaways from the Law Society’s recent half day CPD on disability access in profession was that disability is not binary. Barrister Mark Douglas, one of the presenters at this session, noted that as a person who was born almost entirely blind, he was actually among the minority of people in the disability community who had their disability from birth. Most people who have a disability acquire one at a later stage in their lives. And the major predictor of disability? Age. The most recent Australian Bureau of Statistics report indicates that 7.6% of Australians aged between birth to 14 have a disability. Between the ages of 15-24, 9.3% of Australians have a disability. This climbs to 13% of the population with a disability for Australians ages 25-65. But among the over 65s, about 50% of people report having a disability. And 42% per cent of people with disability would describe their disability as profound. So, you have a one in two chance of having a disability after your 65th birthday. While progress has been made with regard to disability access and services, it is remarkable how lacking our society is in disability access infrastructure when you consider that almost 20% of Australians have a disability, and almost half of Australians over 65 have a disability. And this does not include “hidden” disabilities.
Removing barriers relating to age and disability
At the Law Society’s CPD session, Mark remarked that the session marked the first time in his 25 years as a lawyer that the profession was seriously grappling with the issue of disability access in the legalDisabilitysector. access is an issue that should concern all practitioners. Many clients of legal services are in the older age bracket. It is therefore almost certain that most practitioners have served a number of clients with a disability, quite likely in many cases without even knowing it. And lawyers themselves are, on average, working until they are older. This means more working lawyers with disabilities. When you have two Supreme Court rooms that do not provide access for people with mobility issues, it is a clear sign that much more needs to be done in the profession to ensure lawyers, judges, clients, litigants, witnesses and all other participants in the justice sector do not face these barriers to access. How much better would it be for both clients and practitioners if there was some practice whereby the practitioner would be availed of any particular access requirements that the client had, and the practitioner could accommodate them, or at least have a greater understanding of their particular circumstances? The Society is working on a project to address this very issue, and more details on this will be revealed in the coming months, but in the meantime, I think that a healthy approach to interacting with others is to be aware that not everyone navigates the world the same way, and we should all be prepared to make some adjustments in order to live in an inclusive society, rather than expecting one section of the community to adapt.
The law is serious business, but great to see so many people having fun
Of all the issues that Members raise with the Society, the requirement that the substitute decision maker signs before the appointee of an Advance Care Directive (ACD) is by far the issue that is raised the most. This is because the mandated order of singing causes a number of problems for clients, such as unnecessary delays in finalising documents, extra costs for clients, and the increased risk of people losing capacity before finalising their ACD.
JUSTIN STEWART-RATTRAY, PRESIDENT
The Society notes in its letter to the Minister that the prescribed order of signing could easily be revoked via an amendment to Regulation 8 of the Advance Care Directives Regulations 2014 (SA). This would permit ACDs to be signed in any order, and thus resolve a number of difficulties with the current regime.The Society has campaigned on this issue for several years, and we will continue to update the profession as to the progress of this campaign. Enjoy Spring! B
PRESIDENT’S MESSAGE September 2022 THE BULLETIN 5
It was a thrill to interview former elite tennis coach Roger Rasheed and hear stories about his childhood and fascinating journey from Lebanese migrant to the top of his field in sports performance coaching.Ahuge vote to thanks goes to the Law Society staff who organised the event. What a great job they did! The venue looked stunning and the night was a success. And of course I am deeply grateful to the sponsors – without whose support this special event could not have happened.Butthe biggest thanks goes to everyone who attended the dinner. To all those who came, thank you for your support of the event. I hope you had a great time and you all looked fabulous! I encourage you to check out our social media (Facebook, Instagram and LinkedIn) to see the many photos from the night. A full wrap-up of the event will be published in next month’s Bulletin. At the dinner, I gave a brief snapshot of some of the some of the issues we have advocated for on behalf of the profession. One of these issues, which is very relevant to this “Ageing and the Law” edition of the Bulletin, concerns the order of signing of Advance Care Directives. The Law Society started a petition to remove the prescribed order of signing requirements of Advance Care Directives. The petition was circulated among members of the legal profession and received 878 signatures. The Society presented the petition to the Hon Chris Picton, Minister for Health and Wellbeing.
After a cold, wet, winter, I hope spirits are being lifted by the extra sunshine and daylight that now appear more regularly. Spirits were definitely high at the Legal Profession Dinner at Adelaide Oval on 19 August. After the strict mask and seating restrictions of last year’s dinner, and the unfortunate cancellation of the 2020 dinner due to Covid, it was amazing to see members of the profession mingle, dance and just enjoy themselves at this year’s event. I was so pleased that the Attorney General was able to attend and present the awards. The Honourable Kyam Maher also stayed on after the formalities to talk to guests, and I thank him for being so generous with his time with the many practitioners who were keen to meet and speak to Congratulationshim. to all award winners –Mark Douglas, Ruth Beach, David Kelly, Amy Nikolovski, Madi McCarthy and Professor Tania Leiman. All winners were highly deserving and I thank them for their contributions to the legal profession.
Therefore, the Law Council welcomed the decision by the Meeting of Attorneys-General in late 2021 to develop recommendations and a timetable for developing more nationally consistent enduring power of laws, to effectively reduce financial elder abuse, for consideration by Attorneys-General by the end of The2022.Law Council is seeking changes to ensure a person making an enduring document makes an informed decision about its content and the identity of the appointed decision-maker, and that the decision-maker understands and makes a commitment to comply with their duties and Withobligations.Australia’s population ageing and one in every six Australians already over the age of 65, stamping out elder abuse must be a However,priority.theLaw Council remains concerned that funding of specialist legal assistance and aged care advocacy services is inadequate in light of the acute and widespread nature of elder abuse within the community and has called for substantial additional funds for legal assistance services to provide specialist advice, representation and education for olderThesepersons.services play a fundamental, often unrecognised role in ensuring transparency and scrutiny of aged care. The underfunding of legal assistance services means that, for example, in the 2020-21 financial year, just over one per cent of approved legal aid grants were provided to assist persons aged 65 years and over, despite this group constituting 16 per cent of the population. Funding for civil legal assistance is further limited with less than a quarter of the approved grants for this group being granted to civil law matters.
Given that effective implementation of the National Plan to Respond to the Abuse of Older Australians 2019-2023 requires a coordinated approach across all service providers, it is important appropriate and sustained funding is provided to ensure government agencies, tribunals and publicly funded services are properly resourced.
OF AUSTRALIA
Reforms mut be made to address elder abuse
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Outstanding issues identified in the Australian Law Reform Commission and Royal Commission into Aged Care Quality and Safety (Royal Commission) reports and the National Plan to Respond must also be addressed. This includes developing a new Aged Care Act which is consistent with the recommendations of the Royal Commission report by 1 July, 2023; and ensuring that those in residential aged care facilities have legal redress to protect them from abuse, whether perpetrated by care providers (including in the use of restrictive practices) or fellow residents.
In 2020, the Law Council released a Best Practice Guide for Legal Practitioners in Relation to Elder Abuse. The Guide is intended to assist legal practitioners identify and address potential issues regarding elder financial abuse in the preparation and execution of wills and other advance planning documents. The Guide was developed by the Law Council’s specialist National Elder Law and Succession Law Committee in consultation with Constituent Bodies in response to a recommendation from the Australian Law Reform Commission’s report into elder abuse. The Guide includes topics such as setting up meetings effectively, taking instructions, ensuring appropriate support, communicating effectively with the client, checking for decision making capacity, being alert to the warning signs of potential abuse, and keeping records. While much of the lawmaking in the area is made at the state and territory level, the Guide provides overarching principles to complement more detailed guidance provided by the Law Council’s Constituent Bodies.
THE BULLETIN September 2022AGEING6 & THE LAW
The Law Council has also advocated for the creation of nationally consistent laws relating to the use of enduring power of attorney instruments (EPOAs). EPOA arrangements are intended to ensure a person’s interests are protected when they lose capacity to make decisions for themselves. However, in the absence of adequate legal safeguards, financial elder abuse by appointed decision-makers may be facilitated by such arrangements.
According to the National Elder Abuse Prevalence Study, published by the Australian Institute of Family Studies in December, 2021, almost one in six older Australians reported experiencing some form of elder abuse in the past 12 months. What make elder abuse most devastating is that the perpetrator is usually someone the older person trusts and relies on, such as a family member, friend or carer and almost two-thirds of older people don’t seek help when they are abused. Incidents of abuse may be physical, social, financial, psychological or sexual and can include mistreatment and neglect. Elder abuse in any form is unacceptable. Financial abuse is the most prevalent type of elder abuse and the Law Council of Australia has focused resources on addressing it. Legal practitioners are in a key position to recognise and prevent the abuse of older persons, including financial abuse.
TASS LIVERIS, PRESIDENT, LAW COUNCIL
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If your client attends with a family member/s, politely ask them to wait in another meeting room for the duration of the appointment. In the writers’ experience, most family members will understand and respect the request. However, if we are met with resistance, we explain that it is our firm’s policy and that we will not take instructions from the client with others present. The presence of others in the meeting can obviously affect the client’s freedom to discuss their true wishes and intentions and may also lend to an inability to properly assess your client’s capacity (i.e., if the family member is answering questions about the client’s
TIP 1: BE ALERT TO CAPACITY ISSUES
As practitioners in the area of wills and estates, many of our clients engage our services as they approach their later years in life. In our experience, ageing clients can be more susceptible and vulnerable to influence, commonly from their own friends and relatives. Accordingly, when we are preparing documents for ageing clients, it is necessary to keep issues such as capacity, undue influence and coercive control, in the front of our minds. In our view, the older population now have noticeably more wealth than in the past, partly due to increasing property prices and superannuation, therefore these issues are unfortunately becoming more common in the context of Australia’s ageingWhilstpopulation.experienced practitioners in this area are well versed in identifying and navigating these issues in the course of practice, we know from experience that these issues can often be subtle and require some gentle investigating by the solicitor. As two young practitioners who have the benefit of being guided by very experienced solicitors in this area, this article will endeavour to provide some useful tips and tricks that we have learnt so far, to assist emerging practitioners in the field of succession law with advising ageing and/or elderly clients.
It is widely known that people become more susceptible to cognitive issues as they age. In 2016, almost 1 in 10 people aged 65 and over were suffering from Dementia.1 Dementia can cause memory loss and cognitive impairment which affects a person’s ability to reason and rationalise complex matters, which may affect their ability to understand their estate planning documents. Accordingly, it is important to carefully assess each client’s capacity in the course of taking their instructions.Whilethe test for assessing capacity may be obvious to experienced practitioners, the writers are aware that not all graduates are familiar with the principles found in Banks v Goodfellow.2 Despite being a case from 1870, it continues to be the leading authority on assessing testamentary capacity in Australia. In Banks v Goodfellow, the Court determined that in order to have testamentary capacity, the testator must:• understand the significance of making a will; • be aware in general terms of the assets comprising their estate; • be able to retain the ability to evaluate and discriminate between the respective strengths of competing claims demonstrating appreciation of the consequence of their decision; and • be free from delusional thought or other disorders of the mind which may influence decision making as to who should (or should not) benefit from the will. It is not necessary to perform a mini mental or have your client answer a myriad of questions about current affairs of the last decade to assess whether your client has testamentary capacity. You could simply start by asking your client about the weather, asking how they travelled to your office, or what they have been up to earlier in the day. Often you will be satisfied of the four fundamental requirements in Banks v Goodfellow by asking your client the usual will instruction questions i.e., asking about their family situation, relationship status, assets and liabilities and how they wish to distribute their estate. However, if any concerns do arise, make notes regarding the same and discuss them with a senior practitioner. If capacity is in question, you should consider whether it is necessary to request a letter of capacity from a medical practitioner prior to preparing or executing any documents.
THE BULLETIN September 2022AGEING8 & THE LAW
MIKAYLA WILSON AND JULIA WELTNER, SOLICITORS, SEDSMAN LEGAL
TIP 2: TAKE YOUR CLIENT’S INSTRUCTIONS ONLY Often ageing clients need assistance with arranging and travelling to and from appointments and accordingly, clients are regularly accompanied to our office by their family members or friends. In many instances, those in attendance may be potential beneficiaries of their Will or appointees on their other estate planning documents. It is important to see your client alone to take instructions.
Advice for young practitioners in succession law navigating issues in an ageing population
Accordingly, the writers endeavour to keep detailed notes on anything that may be relevant, including: • Who made the appointment? Was it the client or someone on their behalf?
• Did someone bring the client to the appointment? If so, who? If you follow our advice in tip 2, make sure you note that they were not in the appointment room when you took your client’s instructions.
TIP 3: WATCH FOR SUBSTANTIAL DEPARTURES FROM PAST DOCUMENTS
• Make notes of any advice given pursuant to the Inheritance Family Provision Act 5
Finally, our last tip for other young practitioners is to always seek the advice of a senior practitioner when necessary – do not hesitate to take advantage of their years of experience. On that note, the writers would like to thank Michael Rizzuto of our office for settling our above advice. B
TIP 4: KEEP THOROUGH FILE NOTES!
When clients are making drastic changes to their existing estate planning documents, practitioners should take note of the reason for the changes. For example, if a client’s current will leaves everything equally between their children and they now want to entirely remove one child, question why the client is making that decision. If the client is unable to give an objectively rational explanation for the changes, this may indicate that there is an issue with capacity, or that they are being influenced by a third party. However, we accept that unreasonableness does not always equal incapacity or third-party influence – some clients can just be unreasonable! You may think it is irrational for them to write their child out of the will because, say, they do not like their child’s new partner. However, you can only act in accordance with your client’s instructions so ensure you advise them accordingly (Hello Inheritance Family Provision Act3) and keep proper notes about their instructions (more on that below).
Overall, while these issues can apply to any clients in this field, it is important to be particularly vigilant with ageing clients, especially where they have become more reliant on others for support and assistance. In addition, we note that whilst the above matters are most relevant in taking instructions for Wills, they are also broadly relevant with respect to documents such as Enduring Powers of Attorney and Advance Care Directives and to other transactions such as transfers of assets to family members for less than market value.
It is crucial to keep thorough file notes, especially when capacity or undue influence may be in issue. Keep in mind that it can often be years or even decades after a document is executed that the testator’s capacity or undue influence is called into question. In those circumstances, your file notes may be heavily relied on to provide context of the client’s state of mind at the relevant time, and your advice to them.
September 2022 THE BULLETIN 9
1EndnotesAustralian Institute of Health and Welfare, Australia’s Health 2016 (Web Report, 13 September 2016) Ch 3. 2 (1870) LR 5 QB 549. 3 1972 (SA). 4 Royal Commission into Aged Care Quality and Safety, Research Paper 8 - International and National Quality and Safety Indicators for Aged Care (Report, 24 August 2020) p161. 5 1972 (SA). family or assets on their behalf). In that regard, if you are taking instructions from a couple, ensure both clients are answering your questions and consider whether one is relying on the other to provide key details such as details of family or assets.
• Where are you attending on the client? In the office, in their home? In 2020, it was reported that more than two-thirds of aged care residents have moderate to severe cognitive impairment.4 When attending on a client in an aged care facility, pay particular attention to capacity concerns, and keep a detailed file note.
AGEING & THE LAW
• If there are significant departures from previous documents, note your client’s reasons.
In some circumstances, the client themselves may insist on their child or other relative sitting in the appointment, as they are uncomfortable answering questions by themselves. We would recommend re-assuring the client that their family member will be nearby and can re-join them at the conclusion of the meeting, if necessary. In those circumstances, make an extra effort to build rapport with the client so they feel comfortable and open in their discussions with you.
• If there are concerns regarding capacity, make notes accordingly –what were your concerns, were they dispelled? If so, how?
All of the above tips bring us to our most important tip (for the practitioner anyway) – keep thorough file notes!
JEMMA HOLT, RESEARCHER, AND DR DAVID PLATER, DEPUTY DIRECTOR, SOUTH AUSTRALIAN
Five elder abuse subtypes are commonly recognised:4 • financial;5 • physical; • sexual; • psychological (emotional); and • Elderneglect.abuse is typically carried out by a close family member, often an adult child,6 and can have a ‘devastating effect’7 on older persons. The fact that such abuse may also amount to domestic or family violence has also been highlighted.8 The suggestion of intervention orders9 (“IOs”) to address such abuse, though largely overlooked, has been raised.10 It is argued that the option of an IO under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the IO Act”), though not a universal remedy, may be of utility to address elder abuse and is worthy of closer consideration by lawyers, police and relevant agencies. The Intersection of Psychological and Financial Abuse Financial abuse is often said to be the most common form of elder abuse.11 Such abuse has been noted as increasing and described as ‘significant, insidious and frightening’; victims can lose their home or the entire resources that they’ve set up for their later life.12 There is also mounting disquiet over the significant incidence and implications of psychological abuse (including ‘gaslighting’)13 in relation to older persons.14 Indeed, this may extend to ‘coercive control’15 by family members and others close to the victim in the context of elder abuse.16 There has been considerable recent discussion of coercive control,17 typically in an intimate or domestic partner context.18 However, the application of coercive control beyond domestic partners and its application to both older persons and persons with disability in a family situation been noted.19
INTERVENING IN ELDER ABUSE: THE OVERLOOKED ROLE OF INTERVENTION ORDERS IN ADDRESSING ELDER ABUSE
Psychological abuse ‘seems to frequently co-occur with financial abuse, suggesting a pattern of behaviour analogous to grooming in the sexual abuse context.’22
The psychological and financial abuse of older persons is often interrelated. The close intersection between financial and psychological abuse or coercive control in relation to older persons has emerged in recent research.20 One study observed the link between psychological and financial abuse, noting that the former is a grooming behaviour for the latter.21
The criminal remedy is similarly problematic. Even if reported to the police, the police may be reluctant to become involved32 and regard any complaint of wrongdoing as a civil or ‘private’ issue that is outside their role.33 The victim is likely to either have died before the abuse comes to light or be unable or unwilling to make a complaint and/or testify.34 There are particular difficulties for the police in responding to claims of financial elder abuse;35 with a number of particular ‘significant’ practical and evidential challenges arising.36
In a civil context, any legal action in the higher courts would undoubtedly prove a costly30 and time-consuming process and victims may be unwilling or unable to bring such an action.31
THE BULLETIN September 2022AGEING10 & THE LAW
Current Issues with Intervention Formal redress where abuse does occur both protects the victim and deters potential wrongdoing.23 However, despite the availability of existing civil and criminal remedies, there are a multitude of legal, social and practical reasons why these remedies are inadequate to address elder abuse, and, in particular, the psychological and financial abuse of older persons.24 A NSW Parliamentary Report noted the individual and external barriers to victims of elder abuse reporting such abuse and seeking help are ‘substantial and numerous’.25Victimsare often reluctant to report abuse as they do not want to risk their relationship with the abuser.26 The victim may well have a disability or a lack of capacity that prevents them from seeking legal advice27 and/or may make it impossible to satisfy the onerous evidentiary requirements in any court proceedings.28 The abuse may involve a close family member such as an adult child and the victim and/or the family may be unwilling to seek redress for this reason.29
LAW REFORM INSTITUTE
Further, there remains the more subtle, yet equally harmful, ‘grooming’ conduct that precipitates overt acts of abuse and which presents a unique challenge that is largely unmet by existing civil and criminal remedies. Namely, in cases involving coercive control and/or gaslighting, when to intervene and how? Intervention Orders Arguably, a widespread misconception about the current IO framework of the IO Act is that ‘domestic abuse’ is confined to domestic partner abuse.37 Whilst domestic
The significant incidence of the abuse of older persons1 in Australia and the acute problems posed by the apparent inability of the civil and criminal law to effectively respond has been the subject of extensive concern and commentary,2 including in South Australia.3
The Case for Intervention Orders
Traditionally, IOs are overlooked in this context. However, in some cases of the psychological abuse of older persons, IOs present as an appropriate means of early and effective intervention to either cease and/or prevent such abuse. In cases involving psychological abuse, there are likely to be evidentiary issues, that is, an absence of evidence of any overt act of abuse. The grounds required for the issuing of an IO are flexible in this respect. The grounds are anticipatory; there is no requirement to prove an act of abuse before an IO is issued. Grounds exist if it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person, and the issuing of the order is appropriate in the circumstances.49 Moreover, in dealing with applications under the IO Act, the court need only be satisfied of factual matters to the lesser civil standard of proof, on the balance of probabilities.50
° sign a contract for the purchase of goods or services;
• denying the person the financial autonomy that the person would have had but for the act of abuse;45
• withholding the financial support necessary for meeting the reasonable living expenses of the person…in circumstances in which the person is dependent on the financial support to meet those living expenses;46
There is also a broad discretion as to the terms that may be included in an IO. Whilst the IO Act provides for some mandatory terms (i.e. regarding firearms51) and a range of other suggested terms,52 it otherwise states that an IO may impose any requirement for a person to take, or to refrain from taking, specified action.53 It further provides that an IO may specify conditions under which a prohibition imposed by the order does not apply, and conditions that must be complied with in relation to a requirement imposed by the order.54 The court has much latitude when it comes to the terms of an IO, including
It is imperative to respect an older person’s autonomy, but ‘autonomy and safeguarding are not mutually inconsistent; safeguarding responses also act to support and promote the autonomy of older people’.48Thevarious legal mechanisms and frameworks which seek to protect vulnerable adults through a range of powers, duties and/or obligations such as Powers of Attorney, or Guardianship and/or Administration orders are largely ineffective when it comes to restraining the conduct of another person who is actively undermining these efforts.
The IO Act provides a range of ‘examples’ of acts of abuse against a person, many of which are directly applicable to older persons:
September 2022 THE BULLETIN 11 partner abuse represents the majority of IOs in practice, the definition of ‘domestic abuse’ under the IO Act is far broader. It requires there to be a relationship or former relationship. However, whilst ‘relationship’ includes marriage or a domestic partnership,38 it also includes:39 • two people related to each other by or through blood, marriage, a domestic partnership or adoption; and • where one is the carer40 of the other.
• threatening to withhold a person’s medication or preventing the person accessing necessary medical equipment of treatment;42 • threatening to institutionalise the person;43 • threatening to withdraw care on which the person is dependent.44
AGEING & THE LAW
• causing the person through coercion or deception to: ° relinquish control over assets or income; ° claim social security payments; ° sign a power of attorney enabling the person’s finances to be managed by another person;
The definition of ‘domestic abuse’ under the IO Act encompasses the relationships within which many older persons suffer, or are at risk of suffering, abuse. Older persons may be particularly vulnerable to abuse by relatives and/or those who provide them with care.
Even in circumstances where the abuse of older persons does not fall within the definition of ‘domestic abuse’, the IO Act extends to protect against ‘non-domestic abuse’.41
° sign a contract of guarantee; ° sign any legal document for the establishment or operation of a business.47
Psychological Abuse: Coercive control and ‘gaslighting’ Coercive control and ‘gaslighting’ are recognised forms of abuse under the IO Act. Section 8 of the IO Act provides that ‘abuse’ may take many forms including emotional and psychological abuse. An act is an ‘act of abuse’ if it results or is intended to result in emotional or psychological harm, or an unreasonable and non-consensual denial of financial, social or personal autonomy. Further, emotional or psychological harm includes: mental illness, nervous shock, and distress, anxiety, or fear, that is more than trivial.
There is a need not to ‘abuse’61 the broad jurisdiction of the IO Act, nor unnecessarily add to the already lengthy lists of the Magistrates Court. However, the prevalence and nature of abuse which falls within the ambit of the IO Act should not deter the pursuit of intervention where it is appropriate.
There seems little, if any, material in the public domain which addresses the use of IOs in the context of elder abuse in South Australia. However, the role of IOs to address elder abuse has been discussed elsewhere. The consensus is that it is ‘not common’,62 subject to ‘limitations’,63 is of varied effectiveness64 and there is a general reluctance to use IOs in this context for a variety of Althoughreasons.65anIO may not be a solution in the majority of cases of elder abuse, their use and utility should not be discounted. They may offer an accessible means of intervention when other existing remedies are not available or not suitable. They may provide for a flexible and casespecific intervention in cases where there is a complex and multifaceted relationship not only between the relevant parties, but also between the actual and potential psychological and financial abuse at play. The application for an IO may be within the expertise and established role of the police. However, the ability of other agencies to become involved and seek or support such orders should not be overlooked. The option of an IO to address at least some forms of elder abuse, namely psychological and financial abuse, is worthy of closer consideration by lawyers, police and relevant agencies. This article arises from the context of the present independent review by the South Australian Law Reform Institute (SALRI) of the operation of the Ageing and Adult Safeguarding Act 1995 (SA). Any views of the authors are expressed in a purely personal capacity. The authors acknowledge the erudite input of Dr Mark ‘Matt’ Gianacaspro, Holly Nicholls, Divya Narayan, Associate Professor Beth Nosworthy, Olga Pandos, Rachel Portelli and Dr Sylvia Villios. Jemma Holt is currently working as a Researcher for SALRI. She also works as a Researcher for the Tasmania Law Reform Institute and in the role of Clinic Supervisor for two of the free legal advice clinics based at the University of Adelaide Law School: the Adelaide Legal Outreach Service (ALOS) and the Equal Opportunity Legal Advice Service (EOLAS). She has been involved in teaching undergraduate Criminal Law and Evidence and Advocacy at the University of Adelaide since 2020. She has worked as a Prosecutor with the Office for the Director of Public Prosecutions since 2013. She has previously worked for the Crown Solicitor’s Office (2018), the Independent Commissioner Against Corruption (2020-1), and the Office for Public Integrity (2022). She has also worked as a Prosecutor with Tasmania Police (2019) and the Office for the Director of Public Prosecutions in Hobart (2019-20). Dr David Plater is an Associate Professor at the Adelaide University Law School and is the Deputy Director of SALRI. He is an Adjunct Senior Lecturer at the University of Tasmania Law School.
THE BULLETIN September 2022AGEING12 & THE LAW making orders with in-built flexibility by way of imposing conditions in relation to general terms. It is often the case that the relationships in which elder abuse arises are multifaceted. For example, an individual may need to be restrained from interfering with an older person’s finances, whilst being permitted to remain in contact with the older person to provide them with company, care and/ or assistance; or being permitted to assist the older person with the weekly grocery shop. Conceivably, the flexibility and discretion afforded by the IO Act could allow for an IO to be tailored with specific terms and conditions to accommodate such circumstances. The clear objective would be to preserve and encourage the positive aspects of such a relationship with the older person, whilst ensuring necessary intervention is made to safeguard the older person.The use of IOs in elder abuse cases may also present as an avenue for court ordered programs of rehabilitation and/ or community education in the area of elder abuse, should such referral pathways be established between the courts and relevant support service providers.55 However, given the subtle nature of psychological abuse it is unlikely that the police would become involved in these matters in the way that they would by responding to an ‘incident’ of physical abuse. Any application for an IO in such cases is therefore likely to be a private application to the court (that is, not a police order or an application to the court by police56). This means that any application for an IO would need to be made to the court by the older person themselves or a ‘suitable representative of such a person given the permission to apply to the court’.57 A potential difficulty in the context of older persons is the implicit requirement that any application made by a suitable representative is made with the consent of the older person.58 Issues of consent and capacity are not only complex issues when dealing with vulnerable adults,59 but they are also matters that may be impacted by the very psychological abuse which is sought to be addressed by intervention. However, a query is whether older person support/advocacy services may potentially play a role in assisting to bring private applications on behalf of older persons, whether as representatives themselves or assisting others to represent the interests of the older person. The role of older person support/advocacy services might also extend to referring matters to police in appropriate cases for police to make applications to the court in the absence of an older person’s consent or capacity.60
SALRI is an independent law reform body based at the Adelaide University Law School. B
Closing remarks
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4 Lixia Qu et al, Australian Institute of Family Studies, National Elder Abuse Prevalence Study (Research Report, December 2021) 1.
6 Jo Wainer, Peter Darzins and Kei Owada, Prevalence of Financial Elder Abuse in Victoria: Protecting Elders’ Assets Study (Report, Monash University, 10 May 2010) 15; Kelly Purser, Tina Cockburn and Elizabeth Ulrick, ‘Examining Access to Formal Mechanisms for Vulnerable Older People in the Context of Enduring Powers of Attorney’ [2019] 12 Elder Law Review 1–32, 21. A recent study found 90% of elder abuse was carried out by a family member, most often an adult son or daughter. See Melanie Joosten et al, Senior Rights Victoria, Seven Year of Elder Abuse Data in Victoria (Report, August 2020).
7 Adam Graycar and Marianne James, ‘Crime and Older Australians: Understanding and Responding to Crime and Older People’ (Conference Paper, Family Futures: Issues in Research and Policy, Australian Institute of Family Studies Conference, Sydney, 24–26 July 2000), 7. See also Georgia Lowndes et al, Financial Abuse of Elders: A Review of the Evidence (Report, Monash University, June 2009) 5, 12.
8 John Chesterman, ‘Taking Control: Putting
Endnotes
3 See Wendy Lacey et al, University of South Australia, Prevalence of Elder Abuse in South Australia: Current Data Collection Practices of Agencies (Report, February 2017); Parliament of South Australia, Joint Committee on Matters Relating to Elder Abuse, ‘Final Report of the Joint Committee on Matters Relating to Elder Abuse’ (Report, October 2017).
1 There are conflicting figures as to the prevalence of elder abuse, but the most recent study found 15% of older persons in Australia experienced some form of abuse. See Lixia Qu et al, Australian Institute of Family Studies, National Elder Abuse Prevalence Study (Research Report, December 2021) 30–35. The abuse of persons with disability has also gained much concern.
Jack Ruby’s Bar Basement, 89 King William Street, Adelaide SA
5 See also Dale Bagshaw et al. ‘Financial Abuse of Older People by Family Members: Views and Experiences of Older Australians and their Family Members’ (2013) 66(1) Australian Social Work 86.
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See Disability Royal Commission (Interim Report, October 2020).
2 See generally Wendy Lacey, ‘Neglectful to the Point of Cruelty? Elder Abuse and the Rights of Older Persons in Australia’ (2014) 36(1) Sydney Law Review 99; Australian Law Reform Commission, Elder Abuse: A National Legal Response (Report No 131, May 2017); Select Committee into Elder Abuse, Legislative Council of Western Australia, ‘“I Never Thought It Would Happen To Me”: When Trust is Broken’ (Final Report, September 2018); 44 [2.42]–[2.60].
18 Evidence to Parliament of New South Wales, Joint Select Committee on Coercive Control, Sydney, 23 February 2021, 47–8 (Margaret Duckett).
15 See generally Parliament of New South Wales, Joint Select Committee on Coercive Control, Coercive Control in Domestic Relationships (Report, 2021).
19 Queensland Law Society and Queensland Public Advocate, Elder Abuse (Joint Issues Paper, 2022) 86-–87; Parliament of New South Wales, Joint Select Committee on Coercive Control, ‘Coercive Control in Domestic Relationships’ (Report, 2021) 95–96 [5.75]–[5.81]. Of the 156 submissions to the NSW review, only a handful raised the situation of persons with disability and older persons beyond domestic partners.
25 Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (Report No 44, June 2016) 121 [8.1]; 121–2 [8.2]–[8.4].
30 Cassandra Cross et al, Examining Access to Justice for Those With an Enduring Power of Attorney (EPA) Who are Suffering Financial Abuse (Report, Crime and Justice Research Centre, Queensland University of Technology, 2017) 44. 31 Natalia Wuth, ‘Enduring Powers of Attorney: With Limited Remedies: It’s Time to Face the Facts,’ [2013] 7 Elder Law Review 1–30, 14; Rosslyn Monro, ‘Elder Abuse and Legal Remedies: Practical Realities?’ (2002) 81 (Spring) Reform 42, 45; Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (Report No 44, June 2016) 87 [6.31]; Kelly Purser, Tina Cockburn and Elizabeth Ulrick, ‘Examining Access to Formal Justice Mechanisms for Vulnerable Older People in the Context of Enduring Powers of Attorney’ [2019] 12 Elder Law Review 1–29, 25–6.
Parliament of New South Wales, Joint Select Committee on Coercive Control, Coercive Control in Domestic Relationships (Report, 2021) 95–96 [5.75]–[5.81]. This theme has regularly emerged in SALRI’s present reference.
Older People at the Centre of Elder Abuse Response Strategies’ (2016) 69 (1) Australian Social Work 115, 117; Rosemary Croucher and Julie MacKenzie, ‘Framing Law Reform to Address Elder Abuse’ (2018) 18 Macquarie Law Journal 5, 8–9. 9 Or their interstate equivalent.
10 Barbara Hamilton, ‘Be Nice to Your Parents: or Else!’ (2006) 4 Elder Law Review 8, 10.
11 Rae Kaspiew, Rachel Carson and Helen Rhoades, Australian Institute of Family Studies, Elder Abuse: Understanding Issues, Frameworks and Responses (Research Report No 35, 2016) 5–7, 46–7.
14
12 Norman Hermant, ‘“Significant, Insidious” and Often Unreported, Financial Elder Abuse is Increasing, Lawyers say’, ABC News (online, 5 August 2022), https://www.abc.net.au/ abuse-in-families-significant/101300242news/2022-08-05/lawyers-say-financial-elder-
Among the ways in which financial abuse was carried out were misuse of powers of attorney, coerced changes to wills, unethical trading in title to property, and the coercion of people without capacity into signing documents in relation to assets that would result in financial gain for the perpetrator. See Jo Wainer, Peter Darzins and Kei Owada, Monash University, Prevalence of Financial Elder Abuse in Victoria: Protecting Elders’ Assets Study (Report, 10 May 2010).
26 Kelly Purser et al, ‘Alleged Financial Abuse of Those Under an Enduring Power of Attorney: An Exploratory Study’ (2018) 48(4) British Journal of Social Work 887, 895; Rae Kaspiew et al, Elder Abuse in Australia (Report No 98, Australian Institute of Family Studies, 2016) 71. 27 Rosslyn Monro, ‘Elder Abuse and Legal Remedies: Practical Realities?’ (2002) 81 (Spring) Reform 42, 46. 28 Carolyn Dessin, ‘Financial Abuse of the Elderly’ (2000) 36(2) Idaho Law Review 203, 212–13; Natalia Wuth, ‘Enduring Powers of Attorney: With Limited Remedies: It’s Time to Face the Facts’ [2013] 7 Elder Law Review 1–30, 14; Rosslyn Monro, ‘Elder Abuse and Legal Remedies: Practical Realities?’ (2002) 81 (Spring) Reform 42. 29 Rosslyn Monro, ‘Elder Abuse and Legal Remedies: Practical Realities?’ (2002) 81 (Spring) Reform 42; Natalia Wuth, ‘Enduring Powers of Attorney: With Limited Remedies: It’s Time to Face the Facts’ [2013] 7 Elder Law Review 1–30;
THE BULLETIN September 2022DISABILITY14
17 See, for example, Heather Douglas, ‘Do We Need a Specific Domestic Violence Offence?’ (2015) 39(2) Melbourne University Law Review 434; Parliament of New South Wales, Joint Select Committee on Coercive Control, Coercive Control in Domestic Relationships (Report, 2021); House Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into Family, Domestic and Sexual Violence (Report, September 2021). Various Bills have been introduced in South Australia to introduce such a crime in relation to domestic partners. See, for example, Criminal Law Consolidation (Coercive Control Amendment) Bill (SA) (see further South Australia, Parliamentary Debates, House of Assembly, 2 December 2020, 3601–3603 (Katrine Hildyard)); Criminal Law Consolidation (Abusive Behaviour) Amendment Bill 2021 (see further South Australia, Parliamentary Debates, House of Assembly, 27 October 2021, 8379–81 (Vickie Chapman, Attorney-General). These Bills did not proceed and lapsed with the 2022 State election.
16 NSW Ageing and Disability Commission, Submission to Parliament of New South Wales, Joint Select Committee on Coercive Control (2 February 2021) 7–8, -%20108.pdfau/ladocs/submissions/70505/Submission%20<https://www.parliament.nsw.gov.>.
21 Kylie Miskovski, Alzheimers Australia NSW, ‘Preventing Financial Abuse of People with Dementia (Report, 2010), See also, for example, Rae Kaspiew, Rachel Carson and Helen Rhoades, Australian Institute of Family Studies, Elder Abuse: Understanding Issues, Frameworks and Responses (Research Report No 35, February 2016) 8, 10, 47.
32 Legislative Council Select Committee into Elder Abuse, Parliament of Western Australia, ‘I Never Thought It Would Happen to Me’: When Trust is Broken (Final Report, September 2018) vii finding 25, 50 Rec 10, 51 Rec 11, 61 Rec 55, 70 Rec 17. One party told the NSW Parliamentary
13 Paige Sweet, ‘The Sociology of Gaslighting’ (2019) 84(5) American Sociological Review 851. Coercive control against an older person is also described as ‘gaslighting’. Gaslighting is a form of psychological abuse that regularly takes place over a prolonged period of time and consists of small, seemingly insignificant actions or conversations that lead to a reduced sense of autonomy in a person causing them to question their beliefs and actions. Gaslighting can be seen as a form of coercive control. It is designed to make a person doubt their self-worth and/ or cognitive ability and aims to dominate and degrade a person and deprive them of their freedom and sense of autonomy.
20 A 2010 study based on an analysis of data from a range of agencies with close contact with elder financial abuse in Victoria found similar themes. The study confirmed that financial abuse was accompanied by psychological abuse that was intimidating, controlling and fear inducing.
22 Rae Kaspiew, Rachel Carson and Helen Rhoades, Australian Institute of Family Studies, Elder Abuse: Understanding Issues, Frameworks and Responses (Research Report No 35, February 2016) 47. 23 Kelly Purser, Tina Cockburn and Elizabeth Ulrick, ‘Examining Access to Formal Mechanisms for Vulnerable Older People in the Context of Enduring Powers of Attorney’ (2019) 12 Elder Law Review 1–29, 11. 24 Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (Report No 44, June 2016) xiv, 84 [6.22]–[6.23], 86–88 [6.28]–[6.37], 99–101 [6.94]–[6.102]. See also Kelly Purser, Tina Cockburn and Elizabeth Ulrick, ‘Examining Access to Formal Mechanisms for Vulnerable Older People in the Context of Enduring Powers of Attorney’ [2019] 12 Elder Law Review 1–29 and Cassandra Cross, Kelly Purser and Tina Cockburn, Examining Access to Justice for Those With an Enduring Power of Attorney (EPA) Who are Suffering Financial Abuse (Report, Crime and Justice Research Centre, Queensland University of Technology, 2017).
Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (Report No 44, June 2016) 121–2 [8.1]–[8.4].
45 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 8(5)(a). 46 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 8(5)(b). 47 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 8(5)(e). 48 Australian Law Reform Commission, Elder Abuse: A National Legal Response (Report No 131, May 2017) [1.17]. 49 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 6. 50 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 28. 51 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 14. 52 Intervention Orders (Prevention of Abuse) Act 2009 (SA), ss 12 and 13. 53 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 12(1)(l). 54 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 12(2)(a), (b). 55 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 13. 56 Intervention Orders (Prevention of Abuse) Act 2009 (SA), div 2 and s 20. 57 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 20(1)(b).
Notably, it does not include a person who is contracted to provide care or assistance, nor a person who provides care or assistance in the course of community work organised by a community organisation. 41 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 8(9). 42 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 8(4)(m). 43 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 8(4)(n). 44 Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 8(4)(o).
Report that police may be unwilling to become involved in an allegation without clear evidence of physical mistreatment: Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (Report No 44, 2016) 126 [8.20].
58 See, for example, Department of Human Services (Cth) v Fitzpatrick [2018] SASC 180, [32] (Kourakis CJ). 59 David Lock, ‘Decision-making, Mental Capacity and Undue Influence: Action by Public Bodies to Explore the Grey Areas between Capacity and Incapacity’ (2015) 20(1) Judicial Review 42. 60 Intervention Orders (Prevention of Abuse) Act 2009 (SA), ss 7(2), 20(1)(a). 61 See Rana v Gregurev [2015] SASC 37, [15] (Peek J): ‘…because the concept of abuse is so broadly defined, it is…necessary for the courts to ensure that this broad jurisdiction is not itself abused by specious or unwarranted claims with their associated detrimental consequences to both the limited resources of the courts and to persons the subject of unmeritorious applications. The necessary balance is achieved by investing the Magistrates with a great deal of discretion in the course they may take in any given case.’ 62 The 2021 AIFS study found that a ‘personal protection order’ (what in South Australia would be called an ‘intervention order’) was obtained against the perpetrator in 3.8% of cases of elder abuse, breaking down as in cases of financial abuse (4.4%), physical abuse (9.3%), sexual abuse (0.7%), psychological abuse (3.8%) and neglect (0.9%).
40 Carers Recognition Act 2005 (SA), s 5. Relevantly, ‘carer’ is defined in general terms as a person who provides ongoing care or assistance to: a person who has a disability (within the meaning of the Disability Inclusion Act 2018), a chronic illness (including a mental health illness, within the meaning of the Mental Health Act 1993); or a person who, because of frailty, requires assistance with the carrying out of tasks.
37 When the current IO framework of the IO Act was introduced, despite the broad potential ambit of the scheme, it was conceded that ‘there is a strong emphasis on domestic abuse and there is no doubt that these laws will mostly be used by people seeking to protect themselves and their children from domestic abuse’: South Australia, Parliamentary Debates, Legislative Council, 28 October 2009, 3793 (Hon GE Gago).
See Lixia Qu et al, National Elder Abuse Prevalence Study: Final Report (Research Report) (Australian Institute of Family Studies, 2021) 86. It also to be noted that the West Australian Police conceded in evidence before the Parliamentary Committee that police only very rarely sought an intervention order in cases of elder abuse and identified that such orders had been sought by police in Western Australia in only three instances during 2017/2018 on behalf of parties aged over 65: See Legislative Council Select Committee into Elder Abuse, Parliament of Western Australia, ‘I Never Thought It Would Happen to Me’: When Trust is Broken (Final Report, September 2018) 64. Indeed, the Western Australian Police Commissioner had doubted such orders were even available in respect of financial elder abuse or without the victim’s consent: See Transcript, Evidence, Legislative Council Select Committee into Elder Abuse, Parliament of Western Australia, ‘I Never Thought It Would Happen to Me’: When Trust is Broken, 7 May 2018, 2-5 (Mr Dawson).
33 Select Committee into Elder Abuse, Parliament of Western Australia, ‘I Never Thought It Would Happen to Me’: When Trust is Broken’ (Final Report, September 2018) 61 [6.25], 67 [6.51]; Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (Report No 44, June 2016) 85–86 [6.25].
Select Committee into Elder Abuse, Parliament of Western Australia, ‘I Never Thought It Would Happen to Me’: When Trust is Broken’ (Final Report, September 2018) 65 [6.42]. 35 Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (Report No 44, June 2016) 126–7 [8.19]–[8.23].
See Lixia Qu et al, National Elder Abuse Prevalence Study: Final Report (Research Report) (Australian Institute of Family Studies, 2021) 3, 88 and 89.
38 Intervention Orders (Prevention of Abuse) Act 2009 (SA), sub-s 8(8)(a), (b).
36 Ibid 126 [8.19]. See also at: 124–8 [8.12]–[8.28].
65 Legislative Council Select Committee into Elder Abuse, Parliament of Western Australia, ‘I Never Thought It Would Happen to Me’: When Trust is Broken (Final Report, September 2018) 63 [6.312], 64 [6.38], 65 [6.43]. The Committee noted that, despite the broad statutory powers, it had heard of a ‘distinct reluctance’ by the Western Australia Police to exercise these powers either where the older person in question did not consent to the order or did not want the orders in place. The Committee observed that the tension between the police duty to protect vulnerable older people in the community and the duty to respect the inherent dignity and autonomy of adults in terms of the decision to apply for orders under the Restraining Orders Act 1997 may ‘sometimes result in a lack of appropriate action being taken to protect an older person from continued or greater harm’.
The Committee, whilst the appreciating the difficult position that this tension may create, was of the view ‘that Western Australia Police’s duty to protect vulnerable older people in the community should take precedence where to take no action could result in continued or greater harm.’
September 2022 THE BULLETIN DISABILITY15
39 Intervention Orders (Prevention of Abuse) Act 2009 (SA), sub-s 8(8)(i) and (k). Sub-s 8(8)(j) also includes: two people related according to Aboriginal or Torres Strait Islander kinship rules or are both members of some other culturally recognised family group.
34
63 Queensland Law Society and Queensland Public Advocate, Elder Abuse: Joint Issues Paper (2022) 54-55, 53-54 [6.2.4]. The 2022 Queensland study identified an apparent police reluctance to utilise such orders in relation to elder abuse and noted their ‘limitations’ in the context of elder abuse.
64 On the one hand, in the 2021 AIFS study, they were seen in some instances as putting a stop to the abuse and also providing a deterrent going forward. But it was also noted in the 2021 AIFS study that ‘in some cases legal action was ignored or not understood by the perpetrator or restraining orders were flouted and did not prevent the perpetrator from reoffending.’ Substantial minorities of the victims in the 2021 AIFS study considered such actions were ineffective.
HELENA ERREY-WHITE, HUMAN RIGHTS COMMITTEE MEMBER AND ASSOCIATE AT O’LOUGHLINS LAWYERS
The Aged Care and Other Legislation Amendment (Royal Commission Response No 1) Act 2021 introduced the first stage of law reform formally in response to the Final Report. The most significant reform arising from this Act for persons receiving aged care was the enhancement of requirements around the use of restrictive practices in residential aged care.2 Again looking to the NDIS for inspiration and alignment, the definition of restrictive practice was reformed to largely align with that used in the NDIS. The previous brief definition of ‘physical restraint’ was replaced with the more detailed definitions of ‘environmental restraint’, ‘mechanical restraint’, ‘physical restraint’ and ‘seclusion’, which give greater guidance to providers and persons receiving aged care as to what is a restrictive practice. The definition of ‘chemical restraint’ was largely unchanged but already substantially aligned with the definition used in the NDIS.
The reform also put in place stricter and more detailed requirements for the use of restrictive practices. These requirements address the criteria that must be satisfied before a restrictive practice can be used, with the exception of emergency use, and what providers must do during the use of a restrictive practice such as monitoring the effects, necessity and effectiveness of the restrictive practice. The Act also introduced detailed requirements for behaviour support plans to be developed where restrictive practices are used. However, the Act did not implement the recommendation of the Royal Commission that ‘the use of restrictive practices must be based on an independent expert assessment’. This is an approach more closely used in the NDIS, which requires behaviour support plans to be developed by an approved NDIS behaviour support practitioner. A less direct approach has been taken in aged care where there is an obligation on providers to consult with health practitioners with expertise relevant to the person’s behaviour when preparing, reviewing or revising the behaviour support plan.
The Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Act 2021 sought to address issues identified in the final submissions of Counsel Assisting the Royal Commission and commenced on the day the Final Report was tabled.1 This Act introduced to residential aged care the Serious Incident Response Scheme (SIRS). As is becoming a common theme of law reform in aged care, SIRS took inspiration from the National Disability Insurance Scheme (NDISSIRS). has two key components: incident management and reporting ‘reportable incidents’. For incident management, SIRS put in place detailed requirements on recording and responding to incidents and continuous improvement to prevent further such incidents. For reporting, SIRS replaced the concepts of ‘reportable assault’, being unlawful sexual contact and unreasonable use of force, and ‘unexplained absences’ with ‘reportable incident’. The concept of a reportable incident has been defined broadly to include eight different categories of serious incidents ranging from physical and sexual abuse and unexplained absences to psychological and financial abuse and neglect. Reportable incidents are required to be reported to the Aged Care Quality and Safety Commission (Aged Care Commission) within a certain timeframe. The Aged Care Commission then assesses the incident and engages with the provider to take further action if required. In addition to reporting reportable incidents to the Aged Care Commission, within the incident management requirements there is also a requirement to report incidents to the police where there are reasonable grounds to do so (ie the incident is of a criminal nature).
At the end of the Royal Commission into Aged Care Quality and Safety (Aged Care Royal Commission) in early 2021, the Final Report: Care, Dignity and Respect (Final Report) handed down by the Royal Commissioners the Honourable Gaetano (Tony) Pagone and Ms Lynelle Briggs AO contained 146 recommendations. Since the handing down of the Final Report three key Acts have commenced that have sought to reform aged care law, with a particular focus on protecting the human rights of the most vulnerable in our community receiving aged care.
Aged care law reform since the Royal Commission
Serious Incident Response Scheme
Addressing restrictive practices
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4 See Schedule 4 of the Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth). This reform responds to Recommendation 100.
The introduction of SIRS and the reform of the restrictive practices requirements as a priority addressed two important areas where the human rights of persons receiving aged care could be better protected. The second stage of law reform recently passed in August this year makes the most substantial reforms to aged care law since the Final Report. In addition to the law reform arising from the Final Report of the Royal Commission, there is also another Bill currently before Parliament that seeks to implement the
September 2022 THE BULLETIN 17
5 See Schedule 3 of the Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth). This reform responds to Recommendation 77 in the Final Report.
Aged care will continue to be an area subject to significant and fast paced law reform in the coming years. B
2 See Schedule 1 of the Aged Care and Other Legislation Amendment (Royal Commission Response No 1) Act 2021 (Cth). The requirements for restrictive practices are detailed in Part 4A of the Quality of Care Principles 2014 (Cth), implemented by the Aged Care Legislation Amendment (Royal Commission Response No 1) Principles 2021 (Cth). These reforms arose from Recommendation 17 of the Final Report and the Independent review of legislative provisions governing the use of restraint in residential aged care 3 The Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth) was passed by both Houses of Parliament on 2 August 2022 and received Royal Assent on 5 August 2022.
new Federal Labor Government’s election promises of a registered nurse onsite in residential aged care 24/7 and capping administration charges in home care.9
7 The Charter of Aged Care Rights is set out in Schedule 1 of the User Rights Principles 2014 (Cth).
SIRS will be expanded to apply to aged care provided in the home (eg persons receiving home care packages) from 1 December 2022. The details of how it will apply in this different environment have not been released at the time of writing but it is reasonable to expect that there will need to be some variation to account for the different nature of home care compared to residential care.4 From 1 December 2022 there will also be a Code of Conduct in aged care that providers and their workers must comply with when delivering aged care to persons.5 Again drawing inspiration from the NDIS,
8 This reform is discussed in Recommendation 86.
Summary
The most substantial law reform yet The recent Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 implements the second stage of law reform formally in response to the Final Report.3 The Act introduces the most substantial law reform yet arising from the Royal Commission. It addresses a range of areas in aged care law from the funding model for residential aged care, star ratings of providers, governance standards for providers, banning orders for workers, information sharing between relevant government bodies and departments to the direct protections of the human rights of persons receiving aged care. While much of this reform will be behind the scenes changes within providers or within the Government, two areas of reform that will directly impact persons receiving aged care are the expansion of SIRS into home care and the introduction of a Code of Conduct.
6 The NDIS Code of Conduct is set out in the National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth).
9 See Schedules 1 and 2 of the Aged Care Amendment (Implementing Care Reform) Bill 2022 (Cth).
AGEING & THE LAW
1EndnotesThedetails of the Serious Incident Response Scheme are set out in Part 4B of the Quality of Care Principles 2014 (Cth), implemented by the Aged Care Legislation Amendment (Serious Incident Response Scheme) Instrument 2021 (Cth).
the Government has indicated that the aged care Code of Conduct will be based on the NDIS Code of Conduct.6 The NDIS Code of Conduct is not dissimilar to the current Charter of Aged Care Rights, which forms part of a person’s contract for aged care. Both documents seek to explicitly recognise and protect the human rights of persons receiving care by setting out broad obligations on providers and those they engage to deliver care and services.7 Despite the obligations being broad in nature, there are significant financial penalties for providers if the Code of Conduct is breached. Other reforms being implemented by the Act also aim to improve the aged care persons receive. For example, the reform to the funding model for residential aged care will include additional funding for minimum care minutes for residential aged care residents, including minimum minutes of registered nurse time, and a focus on incentivising rehabilitation.8
Youth in detention – a failing system
2 see Outcome 11 - Aboriginal children and young people should not be overrepresented in the criminal justice system Australian Government (Department of the Prime Minister and Cabinet, 2018, ‘Closing the Gap – Prime Minister’s Report 2018’, <https:// www.niaa.gov.au/sites/default/files/reports/ leadership-role-community-safety.htmlclosing-the-gap-2018/lajamanu-group-taking->
7 Jorgensen, Miriam (2007). Rebuilding Native Nations. Tucson: University of Arizona Press. 8 Ibid, North Australia Aboriginal Justice Agency, 2017, pages 3-4 9 M Rampersaud and L Mussell: ‘Ontario closes half of its youth detention centres’, The Conversation, (6 May 2021) people-in-limbo-159116youth-detention-centres-leaving-some-young-theconversation.com/ontario-closes-half-of-its-<https://>
THE BULLETIN September 2022KATJAOPINION18DALY,
MEMBER, ABORIGINAL ISSUES COMMITTEE, & SOLICITOR, ABORIGINAL LEGAL RIGHTS MOVEMENT
3 Ibid, Office of the Guardian for Children and Young People, May 2021, page 1. 4 Ibid, page 1 5 Ibid, page 25. 6 North Australian Aboriginal Justice Agency, 2017, ‘Submissions of Pre and Post DetentionRoyal Commission into the Protection and Detention of Children in the Northern Territory’, page 2 < Justice-Agency-Pre-Post-Detention.pdfuploads/2020/03/North-Australian-Aboriginal-https://www.naaja.org.au/wp-content/>
B Endnotes 1 Office of the Guardian for Children and Young People, May 2021, ‘Snapshot of South Australian Aboriginal Children and Young People in Care and/ or Detention from the Report on Government Services 2021’, page 25 Detention-2021.pdfROGS-Report-Aboriginal-CYP-in-Care-and-YJ-wordpress/wp-content/uploads/2021/05/<https://gcyp.sa.gov.au/>
The overuse of pre-trial detention in the youth criminal justice system is a critical issue across Australia. In South Australia, almost all children held in detention are on remand and have therefore not been found guilty of any crime1. Aboriginal children are severely overrepresented in the criminal justice system, and therefore also in the remand population2. Although Aboriginal children comprise only around 5% of the South Australian population, 50% of the total admissions into Kurlana Tapa Youth detention centre identified as Aboriginal during 2018-193. Aboriginal children are overrepresented in other aspects of the criminal justice system too. According to data recorded in the Guardian for Children and Young People and Training Centre Visitor’s Report 2021, Aboriginal children are significantly more than likely than their non-Aboriginal peers to be referred to court rather than receive a caution or diversion. This means only 25.3% of Aboriginal offenders are being diverted away from court compared to 55.6% of non-Aboriginal youth being diverted away4. These figures are cause for concern because it shows that Aboriginal children are more likely to be arrested; spend time in police custody; enter bail agreements; and be remanded in detention. Consequently, they have a greater risk of becoming institutionalised into the criminal justice system. The cost per day for holding a child in detention far exceeds the cost of community based rehabilitative focused Youth Justice supervision. In South Australia, detention costs 32.3 times more per day per child than community supervision. 2021 data shows holding a child in detention costs $3,121.25 per day compared to community supervision at $96.59 per day5 It is clear the current model of youth detention does not work. However State and Federal governments are not prioritising a focus on this issue; and nor are they pursuing beneficial reform. In fact, rather than adopt community-led initiatives recommended by the Royal Commission into the Protection and Detention of Children in the Northern Territory Report 2017, State governments have toughened youth bail legislation and expanded detention centres. Detention is not a good solution. The Australian government must instead prioritise funding and legislative change to integrate recommendations by law and justice groups working across youth justice and child protection systems6 Australia could benefit from initiatives that have been developed and tried in other jurisdictions. Native Nation Rebuilding for self-determined self-governance is emerging in the United States of America and Canada as a distinctive field of enquiry which holds tremendous potential to contribute valuable and timely legal reform in Australia7. Indigenous-led initiatives in jurisprudence have demonstrated capacities for improving equitable access to justice8 The ‘Ontario Model’ of youth detention is a model Australia could adopt. Ontario has transformed its youth justice system “from a custody-focused system to one that offers a broad range of communitybased options”9. The Ontario model is a realistic and proven effective pathway to promote community control and legal reform towards self-governance, enabling increased jurisdictional powers that better guarantee Indigenous people the enjoyment of their human rights. Due to diverse and preventative measures introduced across the province of Ontario, there has been an 81% decrease in custody admissions for youth detention. This has also resulted in $39.9 million annual cost savings. South Australia’s current regime of youth detention fails to uphold international standards of human rights - including Australia’s obligations as a signatory of the United Nations Convention on the Rights of the Childand further fails to prioritise the objectives of the Young Offenders Act 1993 (SA). State and Federal governments must prioritise reform of the youth justice system to fulfil legislated responsibilities and uphold internationally agreed legal commitments. Further, from an economic viewpoint, such reform has the potential to significantly reduce the current high cost of youth detention.
September 2022 THE BULLETINEVENTS19
About 315 guests packed the Adelaide Convention Centre on 1 July for the annual Margaret Nyland AM Long Lunch, which celebrated the achievements of women in the law and the trailblazing legacy of the Hon Margaret Nyland AM, who was in attendance.Guestswere honoured to hear from guest speaker, AFL’s General Manager of Inclusion and Social Policy, Tanya Hosch who is a trailblazer in her own right as the first Indigenous person on an AFL ExecutiveTanya’sBoard.speech was equal parts hilarious and poignant, as she spoke not just of her role in a traditionally male dominated area and the importance of using power responsibly, but also spoke passionately about the need to engage in meaningful law reform to address the appalling rates of Indigenous incarceration.
B Brooke Hall-Carney (left), Tanya Hosch, The Hon Margaret Nyland, Marissa Mackie and Nick Gormley Jessica McNamara (left), Kylie Dunn, Shelley O’Connell, Adeline Lim, Thea Birss and Fiona Trethewey
Law Society Members are advised that the Annual General Meeting of the Society will be held at the Law Society, Level 10, 178 North Terrace, Adelaide on Information about the AGM (including how to participate via videoconference), nominating for positions on the Council and any required election/s will be forwarded to Members in due course.
Nominations for Office-bearers and designated positions on Council close on Thursday 1 September 2022 at 5.00pm. Notice of any business to be brought forward at the Annual General Meeting must be delivered to the Chief Executive by Thursday 1 September 2022 at 5.00pm.
Annual General Meeting
The Law Society extends its thanks to Marissa Mackie, Chair of the Women Lawyers’ Association (SA) and Chair of the Society’s Women Lawyers’ Committee, for expertly MC’ing the event, and Adeline Lim, also a member of the WLC and WLA (SA) for her help in organising the event.
Monday, 24 October 2022 at 5.15pm CDT
The Society also thanks major sponsors Notable Imprint and LK Law for their generous support of the event.
Nyland lunch celebrates power of women in law & leadership
NOTICE TO MEMBERS
In particular, Tanya powerfully advocated for raising the age of criminal responsibility.
WHAT SHOULD YOU DO?
1. On opening the file, provide your trust account details to the client. If you cannot provide this in person, use a secure, verified method;
4. All letters and emails should contain a simple reminder to clients that the law practice will never ask for bank account details by email and that clients should not: a. act on any emails that request their bank account details; or b. act on any demands for payment without verifying details.
RECEIVING PAYMENTS
WHAT SHOULD YOU DO IF YOU HAVE A CYBER INCIDENT?
If you do experience a cyber incident: 1. Call the bank immediately – some funds may be recovered if you act quickly; 2. Report the incident to the Australian Cyber Security Number.andinformswww.cyber.gov.au/report.Centre:ThisSAPOLoftheincidentgivesyouaReportReferenceYoucanprovidethisnumber to financial institutions or other organisations as proof that a report has been submitted to the police;
If you are making payments to clients or third parties:
3. Always advise your client to independently confirm bank account details and provide instructions to you in person or via a telephone call to a trusted and verified phone number;
2. Provide your trust account details in your retainer letter and advise that your bank account details will not change during the course of a transaction, and you will never notify of any changes to your bank details via email;
WHAT ABOUT INTERNAL EMAILS? Even after verifying details with a client do not email bank account details within the firm. Emails forwarded within a firm have proved to be just as susceptible as those coming from outside a firm. If you are working remotely, do not send/ rely on emails with bank account details. These must be checked again with the practitioner or support staff who sent the Again,email. instruct all of your staff that they must not follow any email instructions for payment. This includes internal emails.
6. Check any phone numbers with the original file and written instructions provided directly by the client.
Cyber criminals are targeting small to medium businesses and legal practitioners.Cyberfrauds pose a major risk to the profession and to your clients. Email accounts and attachments have been targeted and bank account details changed. This risk is real and a number of claims have been notified to Law Claims in the past two months. The claims are alarming both in terms of the number of claims notified and also in terms of the quantum. Simply put, emails are an easy target. Emails and email attachments should never be trusted. Practitioner emails and client emails are being intercepted. The details are changed and the emails arrive at the recipient with new bank account details, with the recipient being none the wiser.Likewise, email attachments such as PDFs are being altered and account details provided in any attachments should not be Don’ttrusted.befooled by something which looks legitimate. If it involves a payment it must be checked. This is not an IT issue, but it is a user issue Recent instances where moneys have been transferred to a fraudster could have been avoided entirely if the practitioner and staff members had performed the simple task of verifying the BSB and account number directly with the clients. All staff need to be alert to the risks of email/email attachments.
If you anticipate receiving moneys from clients:
7. Train all of your staff not to trust any email instructions for payments - this includes emails from within the firm.
1. On opening the file get the client’s BSB and account number. If you cannot obtain this in person use a secure, verified method; 2. If payment is not anticipated for some time or payment will be made to other parties whose details may be unknown (e.g. beneficiaries) make it clear than you will never ask for BSB and account details by email; 3. If you need to get details later – ring or write, using a secure, verified method;
4. If you receive any details by email you must ring and verify the details with the client or the intended party; 5. Do not ring the phone number on the email –the number on the email is likely to be the fraudster’s number;
RISKTHEWATCHBULLETIN September 2022KATE20 MARCUS, RISK & CLAIMS SOLICITOR, LAW CLAIMS
Don’t trust emails - even internal emails: Always verify payment details
- By Mercedes Eyers-White, PII Risk Management Coordinator ON THE RADAR — PHISHING GETS EASIER RISK WATCH YOUNG LAWYERS
The annual Young Lawyers’ Premium Dinner was held on Thursday, 28 July 2022 at Pizza e Mozzarella Bar on Pirie Street. This year’s attendees had the privilege of hearing from The Honourable Kyam Maher MLC (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector). The Attorney provided attendees with valuable insight into his involvement and experience in the legal profession as well as Parliament, and his views on fostering an inclusive community within and beyond legal profession. The Young Lawyers’ Committee would like to thank Pizza e Mozzarella Bar for their hospitality and generous portions of porchetta, our major sponsor Burgess Paluch Legal Recruitment, who continues to make our events possible, as well as all those who attended and continue to support the events held by the Committee. Most of all, the Committee wishes to thank The Attorney for taking the time out of his undoubtedly busy schedule to speak at the Premium Dinner. We look forward to seeing you all at the 2022 Christmas Drinks!
21September 2022 THE BULLETIN
One of the easiest ways for cybercriminals to gain access to your systems is to go phishing. Phishing emails appear to be from legitimate senders but will usually involve an email or website address which is ever-so-slightly different. They look legitimate and even the savvy can be tricked. Up to 70% of email attacks are by phishing. Hovering over hyperlinks and email addresses and checking them for authenticity before clicking is a good practice to avoid unintentional breach of your systems. All staff should be trained to do so. Be aware though that in the coming months, there may be increased phishing activity with the release of a new category of domain name registrations. The new category allows registration of .au domain names for any business with an Australian presence. For example, where a business currently holds a registration for mybusiness.com.au, they can also register mybusiness.au. Existing domain name licence holders have until September 20 to obtain priority registration of the equivalent .au domain name, after which the domain names will become available to the public. There is potential for uncertainty and confusion in the domain name space, as businesses could be susceptible to impersonation or be phished or scammed for domain name registration fees. Increased vigilance and caution should be exercised in relation to email, particularly unsolicited email. Further information in relation to the new domain name registrations can be found on the auDA website
Young Lawyers host premium dinner with Attorney General
3. If it involves trust account moneys, report the defalcation to Ethics & Practice on 8229 0229; 4. If it involves a claim or potential claim, notify Law Claims on 8410 7677; 5. Contact your IT providers – your IT system is vulnerable; 6. Obtain a report from your IT provider or a cyber investigator with confirmation as to the fraud or malware etc.; 7. If you have cyber insurance – notify your cyber insurer. Trust account obligations: If moneys have been sent in error to any third party – remember you are under an obligation to replenish your trust information and resources on cybersecurity, see the cyber document package available free to practitioners insured under the SA PII Scheme.
Foraccount.further
facebook.com/YLCSA
For a while I did think it was not a bad disguise. On one occasion when I was out looking for some lunch in the Market, a large threatening guy walked up to my side and said, “Good afternoon, Judge Smith”.
RH: Speaking of English Traditions, what are your thoughts on phasing our wigs and gowns?
RH: Right. So, the jurisdiction wouldn’t matter too much as well, do you think? For example, in a Magistrate’s Court or Supreme Court of Appeal setting? DS: The jurisdiction doesn’t make a difference. The problem is that such a greeting has a familiarity about it which can raise a perception of personal connection in the mind of a reasonable bystander, and perhaps therefore, a perception of bias.
Richard Hoang: Perhaps I might start with “Good morning Your Honour”. Say I am appearing before you, thirty years ago, and began by saying “Good morning Your Honour”. What are your thoughts?
Law Society Advocacy Committee Member Richard Hoang interviews former District Court Judge David Smith QC, who is currently pracitising as a mediator, about courtroom etiquette, antiquated conventions, and the increasing unaffordability of legal action.
DS: I would approve of phasing out wigs.
THE BULLETIN September 2022INTERVIEW22 Skip the pleasantries and get on with it: An interview with former judge David Smith QC
Let me give you an example – a Supreme Court Case. In 1975, there was a case of Garrihy,1 which concerned a traffic light offence which was being prosecuted in a suburban court. The two Justices of the Peace, who were hearing the case, adjourned to view the intersection. They travelled to and from the intersection in a Police Car with the Prosecutor and a Prosecution Witness. The Defendant travelled to and from the view, by himself, in his own car. He was convicted of the offence. On Appeal, his conviction was set aside on grounds that it would not be unreasonable for a right-minded person to think that there was a possibility of bias on the part of the Justices. The Appeal Court made it clear that the principle applied to all persons who sit in a judicial capacity.
RH: What about the practice where instead of the usual “Your Honour” practitioners use “Sir” or “Madam”? What are your thoughts on that? DS: I welcome the shedding of the archaic and sycophantic court language we inherited from the English Courts. “Sir” and “Madam” would suffice. In particular, I would like to see the end of
David Smith: I have no memory of being greeted like that when I was on the Bench. It is trivial but Counsel should be deflected from doing that in the interests of ensuring that the courts remain free from any hint of favouritism. However, as Counsel, I have a memory of instances of overly familiar and even cringeworthy exchanges between the Judge andInCounsel.oneinstance, my opponent wished the Judge “a happy birthday”. In another, the Judge embarked upon a long personal discussion with Counsel about that Counsel’s recent attempt at some long-distance swimming feat. This continued for a number of minutes in the courtroom in front of other barristers, solicitors and members of the public. At best it was rude, at worst it raised a perception of favouritism and bias. Accordingly, although the greeting “Good Morning Your Honour” is a small and common place pleasantry, it has a ring of some personal connection. Lawyers, and the Judge for that matter, should avoid such salutations and get on with the matter in hand.
I replied, “Do I know you?” He replied “Yes, you do. You refused me bail two days ago but I had your decision overturned in the Supreme Court.” My wig and gown were not a great disguise. I still think the wig should be abandoned. Some years ago, that proposal was rejected by the profession – that was a shame.Some people like to dress up. A plain gown would be good for identification purposes. RH: What first drew you to the Bar? DS: When I first started work as a lawyer in Adelaide, there was no formalised division between barristers and solicitors. some people called it an amalgam practice. By 1974, two or three small sets of chambers had started up. In 1981, after seven years of enjoyable practice at Wallman and Partners, I joined eleven others to form Jeffcott Chambers. The original members were engaging personalities. It wasn’t a difficult decision. We opened at 7 Gouger Street, in 1982. The Chambers thrived as the legal profession embraced the notion of the separate Bar. The separate Bar had the support of Chief Justice King. Like other chambers, we rode a wave of success, for the better part of twenty years.
“My Learned Friend,” “With respect”, and “With the Greatest Respect”, and the rest. Indeed “Your Honour” is sometimes repellent.
RH: What are your overall reflections of your time in the law?
RH: Over the years you spent at the Bar and on the Bench, have you noticed any change in the “skill set” of legal practitioners?
1EndnotesGarrihy v Wyatt (1975) 10 SASR 476 INTERVIEW
September 2022 THE BULLETIN 23
To get back to your question about “skill sets”, I think not much has changed in the course of my time in the law. There were good and bad advocates in practice, and good and bad judges on the Bench.
DS: At the time of the presentation of my Commission in September, 1999, I spoke about the importance of the Rule of Law. That is still my position in that respect. In many countries around the world, the courts do the bidding of those in power, that is the Government. In the result, those countries can be fearful places to be. Of allied importance is the independence of the judiciary. The judiciary in Australia is independent however, I think that the appointment process could be more transparent. Though judicial appointments will remain the prerogative of the Executive Government, I think they should not be wholly within the benefit of the sitting Government. Rather, I think that the judicial appointments should be made on the recommendation of an independent and impartial body with some expertise and broad community representation. In this respect, the Law Society’s Advocacy Committee, (of which you and I Richard are both Members), made a recommendation along those lines to the Society, for reference on to The Law Council of Australia for its policy statement. Of paramount importance in our submission was that appointments be made on merit. We also recommended that diversity should play a part in the Attorney’s choice.
The Committee’s submission drew on a number of academic papers, some of which complained that the process of appointment had sometimes been somewhat “opaque”. The submission by the Advocacy Committee embodies my view. I consider, like a number of commentators, that it is time for some change. A judicial appointment should not be a reward for service. I have another political complaint which has been borne from my experiences in the law. Our Federal System, enshrined as it is in the Constitution, is stifling and wasteful. We are in a country of only about 25 million people, yet we have multiple governments, legislatures, and legal systems – all of them jealously guarding their apportionment of power. The “Tyranny of Distance” is no longer any Aboutexcuse.40 years ago, when I was Chairman of the Criminal Law Committee of the Law Society, one of our tasks was to contribute to the nationwide effort to formulate a Uniform Criminal Code across Australia. There is still no Uniform Criminal Code operating in Australia. We have the ludicrous situation of a person, who commits a crime in Victoria, after which he flees home to South Australia, requiring extradition to Victoria to face charges.Iam sure a civil war or similar cataclysmic event will be necessary to make any substantial change – more is the pity. Perhaps we can change slowly, for example, uniform laws – we copy one another anyway – and then one Court system. One final comment – of course there should be a robust corruption watchdog both State and Federally – amongst other institutions our democratic system requires vigilance.Ihave had what I regard as a lucky and happy life in the law – I treasure it. B
DS: I offer the following rough and ready perceptions: In 1967, when I first appeared in Court as an Articled Clerk, the legal profession was small, and male dominated. I witnessed some Hollywood style flamboyance, which gradually diminished over the years. The fees charged by lawyers seemed to be received, as reasonable. As the years rolled on, lawyers seemed to become more “corporate”, and, for the better, more women began joining legal practice. Then, in 1999, when I was appointed to the District Court, it became obvious to me that many great ordinary people could not afford a lawyer. In consequence, the civil list slowly reduced. Like some elite sportsmen, some lawyers charged obscene daily fees, and still do so. It was rare that “Party and Party Costs” would meet a party’s legal bill and so it was not unusual for the legal bill to eat into any damages award. On more than one occasion, when I emerged from my Chambers, in the District Court, I was confronted by a person, draped in a sandwich board, advertising a protest that a sizeable damages award had all but been consumed by legal fees. In a sense, the growing popularity of such measures as Mediation is testament to the failure of the ordinary legal action. The threat of the ongoing cost of litigation is used by a Mediator to encourage parties to resolve their legal dispute. I think more needs to be done to give ordinary people access to the Courts.
2. THOMAS AND NAAZ PTY LTD a. The facts of this case were quite ii.similar:the applicant company operated three medical centres. Various doctors ran their practices from each. Each had an agreement with the applicant for the provision of rooms, and various medical and administrative support services; iii. each Doctor billed his or her patients, but most got the applicant to make the claims with Medicare. Funds went into a central account, with the Doctor receiving 70%, and the applicant retaining the other 30%. Unlike in The Optical Superstore, there was no express reference to the company holding the funds on trust for the doctors.
The Payroll Tax legislation in each jurisdiction has provisions aimed at treating payments to ‘contractors’ as wages, so that they are subject to tax. The South Australian provisions are contained in ss 31-36 of our Act.
b. The NSW CAT held for the iii.Commissioner:theDoctors mainly provided services to patients, but could also be said to be providing services to the applicant; iv. those services were provided for or in relation to work as they were ‘work-related’; v. the payments made by the applicant to the doctors were ‘for or in relation to the performance of •work’:there was a clear relationship between the provision of services and the payments, albeit indirect; and • whether or not the payments represented the Doctor’s own
Section 32(1) then relevantly provides: ‘In this Division, a “relevant contract” in relation to a financial year is a contract under which a person (the “designated person”) during that financial year, in the course of a business carried on by the designated person –(a) supplies to another person services for or in relation to the performance of work; or (b) is supplied with the services of another person for or in relation to the performance of work …’ (emphasis Sectionadded).
Payroll tax for medical practices
• CCSR v The Optical Superstore Pty Ltd [2019] VSCA 197; and • Thomas and Naaz Pty Ltd v CCSR [2021] NSWCATAD 259, and on appeal [2022] NSWCATAP suggest that they do apply, exposing such service arrangements to Payroll Tax. This article examines those two decisions.
Section 35(1) relevantly provides as follows: ‘For the purposes of this Act, amounts paid or payable by an employer during a financial year for or in relation to the performance of work relating to a relevant contract…. are taken to be wages paid or payable during that financial year’ (emphasis added).
1. THE OPTICAL SUPERSTORE PTY LTD
The Optical Superstore dealt with arrangements between Optometrists and The Optical Superstore Pty Ltd (TOS), being the entity that owned the premises from which each Optometrist practised. The Optometrists provided services to the public, fees were collected by TOS (but expressly held on trust for the Optometrists), with TOS deducting an ‘occupancy fee’ (a percentage of the gross fees) before passing on the rest to the Optometrist. The Victorian Court of Appeal held that: • the arrangements were ‘relevant contracts’; and • the amounts distributed by TOS, back to the Optometrists were ‘amounts paid or payable for or in relation to work, and were therefore subject to PRT; • the fact that the amounts were held by The Optical Superstore as trustee was not relevant: ‘[64] At no point does the statute articulate as a relevant inquiry whether the flow of money in question is beneficially owned by the recipient ... [67] The ordinary meaning of ‘payment’ readily embraces a payment of money to a person beneficially entitled to that money…’Thetaxpayer’s subsequent application for special leave to appeal to the High Court was refused. It was hoped that the decision was an ‘outlier’ that could be confined to its own facts. In particular, the documentation did contain some reference to hourly rates, which is unusual, and perhaps did make the Optometrists look a bit more like employees than would otherwise have been the case. However, worse was still to come.
THE BULLETIN September 2022TAX24 PAULFILESINGRAM, MINTERELLISON
32(2) then sets out a series of key Whereexemptions.there is a ‘relevant contract’, the person to whom services are provided is taken to be an employer (section 33), and the person who supplies the services is taken to be an employee (section 34). The question is whether these provisions capture the service arrangements commonly entered by medical practitioners and other health practitioners. Two recent decisions:
Tax Files is submitted on behalf of the Adelaide-based members of the Taxation Committee of the Law Council of Australia B
The reality is that these payments are simply a return of the medical professional’s own money, and are not properly seen as ‘wages’. In this regard, it should be noted that neither the rejection of this argument in The Optical Superstore, or the following of that decision in Thomas and Naaz, have been properly tested on appeal.Itis further submitted that the payments made to medical professionals under these arrangements should not be seen as being made ‘for or in relation to the performance of work’. It is unfortunate that an adverse finding of fact in Thomas and Naaz meant that this point wasn’t fully considered on appeal in that case.It is understood that various professional bodies are already preparing submissions on the need for policy reform. In the meantime, affected clients should be considering the potential impact of the decisions on their existing structures, and what action may need to be taken in the event that a better policy outcome is not achieved.
September 2022 To discuss your needs call: 0418 884 174 george@georgerechnitzer.com.auwww.georgerechnitzer.com.au SUPPORTLITIGATIONREPORTSFORENSICEXPERT&
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CONCLUDING COMMENTS
money was irrelevant - neither the capacity in which the employer receives the amount which is paid to the employee, nor the amount of the funds transferred, is a relevant consideration in applying the words of the statute, for the reasons that were explained in The Optical Superstore. c. The Taxpayers’ appeal was also iv.unsuccessful:thekeypoint raised on appeal was that the Doctors were only providing services to their patients, and were not providing services to the applicant company. However, the Appeal Panel viewed this as nothing more than an attack on the Tribunal’s findings of fact, from which there was no appeal as of right; v. the taxpayer’s attempt to rely on the decision in Homefront Nursing Pty Ltd v CCSR [2019] NSWCATAD 145, which had been delivered on the same day as the decision in The Optical Superstore, also failed (but apparently on the basis that there was no finding of fact in Homefront Nursing that services were provided to the applicant company).
It is submitted that taxing the payments made to medical professionals under these arrangements is a poor outcome, and one which may need to be addressed by policy reform (whether administrative or legislative in nature).
TAX FILES
Benefit
In June, 1995, BankSA and the Law Society of South Australia came together to provide an exceptional banking offer for Law Society Members. Some 27 years later, that strong relationship continues. Members can still access many superior banking and financial benefits, which have now extended to include offers from Westpac. Westpac and BankSA State General Manager, Consumer, Ben Owen, said the relationship with the Law Society has been one of the most lasting and stable member-benefit partnerships for both organisations.
CORPORATE PARTNER MANAGER, BANKSA AND WESTPAC
Financial wellbeing top of the agenda
“Over the years we have refined the benefits available to members, enabling the partnership to grow from strength to strength,” Mr Owen said. “An extended focus for the partnership this term, in addition to existing monetary cashback benefits, is on financial education and wellbeing - equipping members with the right tools to tackle financial hurdles, particularly with the complex economic environment and rising costs at the front of people’s minds.” Law Society Chief Executive, Stephen Hodder, said the Society and its Members had greatly benefitted since the partnership was established – not only in financial terms but also through the sheer convenience of having a direct and single point of contact with the bank. “I’m delighted that we’ve maintained this effective partnership for 27 years, having now extended it to include another option for Members with Westpac, and hope it will continue to grow, benefitting even more Members in the coming years,” Mr Hodder said. BankSA and Westpac have committed to working with Law Society Members to help achieve their financial goals and improve their financial wellbeing.
Contact David Brownie on 0466 404 074 or david.brownie@banksa.com.au for more information about BankSA and Westpac’s current home loan options, and to discuss what other measures may help reduce your home loan more quickly and save money in the long term. B
An example of this could be reducing your home loan through additional repayments, which could have a big impact in the long term. By putting surplus spare funds into extra mortgage repayments, Members can reduce the length of a loan by years and save thousands of dollars in the process. Similarly, changing a payment frequency from monthly to fortnightly, means you effectively end up paying the equivalent of 13 monthly repayments in a year instead of 12. Likewise, weekly repayments will help repay your loan even BankSAfaster.Corporate Partner Manager, David Brownie, is the Law Society’s dedicated partnership manager and has assisted many Members make their money work better for them. He is particularly passionate about financial education, and together with his team, regularly provides member education sessions for first home buyers, property investors, small business banking and equipment finance.
THE BULLETIN September 2022DAVIDBANKSA26BROWNIE,
September 2022 THE BULLETIN 27
AND
Ask the plaintiff’s lawyer and they might say “not so fast – what about the interests of my client to have their civil case heard expeditiously – it might be years before the criminal proceedings are heard, by which time any assets the defendant has left will be spent on the criminal proceedings or otherwise dissipated”.
At the same time, the employee may be investigated by police or other authorities, and ultimately charged with criminal offences arising from the theft. The defendant is in a dilemma. If they decide not to disclose any defence in the civil proceedings for fear of foreshadowing a criminal defence, they will be defending the civil claim with one hand tied behind their
FEATURE
Ask a lawyer representing a defendant in civil proceedings what they would do if their client was charged with criminal acts relating to the civil case, and they’d immediately say, “seek a stay”. After all that is the only way to protect the client from revealing material in the civil case that might compromise their criminal defence.
MEMBER, CIVIL
Granting a stay of civil proceedings to protect the criminally accused civil defendant involves a careful balancing of interests by the court, and it is not such a straightforward option as it seems.
Take the example of an employee who has been siphoning funds from an employer’s accounts over a period of time. The employee has accumulated assets that are still accessible. The employer has a civil claim for breach of fiduciary duty and conversion and can claim an interest in any assets accumulated.
The right to silence, and the associated privilege against self-incrimination, are key protections in the Anglo/Australian legal system. No criminal accused can be compelled to speak or proffer information against their interests, and as a result uncommunicative accused persons are a typical feature of criminal proceedings.
This article looks at recent developments in the law for granting a stay in these circumstances and asks whether the courts are getting the balance right for the parties affected.
ALEXANDER LAZAREVICH, CHAIR, MARGARET CASTLES, LITITGATION
COMMITTEE
In civil proceedings, it is a very different story. Defendants in civil cases are required to engage with and actively respond to the allegations against them in pleadings, via discovery of documents, and affidavits. They may also be compelled to disgorge documentation via search orders.
Increasingly, civil defendants charged with fraud, theft from employers or other organisations, or similar crimes will also be investigated to determine whether the acts might give rise to criminal or regulatory prosecution (for example, by ASIC, Safework SA or the Fair Work Ombudsman), and charges might be laid, or civil penalty proceedings might eventually be brought.
STAYS OF CIVIL PROCEEDINGS IN THE CASE OF CIVIL DEFENDANTS WITH CRIMINAL PROCEEDINGS PENDING: GETTING THE BALANCE OF JUDICIAL DISCRETION RIGHT
This contradiction arises because the criminal system requires the Crown alone to prove that the offence is proven beyond reasonable doubt, whereas the civil system seeks to determine the truth of the matter by evaluation of all the evidence available. In criminal proceedings there is a significant power imbalance between state/defendant, whereas there is a notionally level playing field between parties to a civil dispute.
The Court concluded that in all of these circumstances in this case there was nothing about the civil proceedings that would further compromise his criminal defence.The Court set out a number of principles to be considered. These have been added to by numerous courts since and are summarised below: 1. The Plaintiff is entitled to have its action tried in the ordinary course of the procedure and business of the court, and there is no presumption that a stay will be granted merely because there are parallel criminal proceedings2 A tactical advantage will not be sufficient to warrant a stay3. There must be a “real risk” of prejudice to the accused. What must be considered is the ‘requirements of justice overall.’4
DAVID KELLYSUZANA JOVANOVIC
CIVIL LITIGATION back and may lose as a result. On the other hand, if they disclose all of the information that they are required to through various civil court processes (defence or other court documents, discovery, interrogation, or via the above protective orders) this may lead investigators to evidence, witnesses or arguments that will count against them in criminal prosecution. The criminal defendant will seek a stay of the civil proceedings for fear that they can’t actively defend the civil case without compromising a future criminal defence. A stay leaves the civil applicant with nowhere to go in terms of prosecuting their case in a timely manner. By the time criminal proceedings conclude (assuming even that they are commenced which is not always the case), assets may have been liquidated or removed (not least to pay for legal fees) and the civil plaintiff will have been denied access to the normal court process to recover their loss. Freezing orders might provide a measure of protection for a plaintiff at the start of a civil case, but they are often only as good as the defendant’s respect for the Court process, with issues of enforcement often being problematic (and where the privilege against self-incrimination might apply).
THE BULLETIN September 202228
The directors of Adelaide specialist workplace law firm KJK Legal are pleased to announce the promotion of Suzana Jovanovic to the role of senior associate at the firm from 1 July 2022. Following her joining of the firm several years ago, Managing Director of KJK Legal, Mark Keam, noted Suzana continues to flourish as a lawyer both within the firm, as well as external to the firm. During the COVID-19 pandemic, Suzana was recognised as a leader in legal innovation by providing interstate
mentoring in the TFL Connect virtual mentoring program. Law Society of SA Young Lawyer of the Year in 2022, David Kelly was called to the Bar and joined Anthony Mason Chambers in August this year. He accepts briefs in a wide range of areas. David previously practised for 7 years as a solicitor in Adelaide working primary in civil, commercial, and corporate litigation and alternative dispute resolution. During that time, he represented a broad range of clients in State and Federal Courts and Tribunals.Before practising as a solicitor, David was an Associate to Peek J of the SASC. In addition, since 2015, he has been a member of the Civil Litigation Committee and headnote writer (SASR, FCR, FLR, and IR). He has also been a casual tutor at Flinders University where he completed his studies as Dux of Law, graduating with the University Medal, double First Class Honours in Laws and Legal Practice, and Psychology, and winning seven subject prizes.
MEMBERS ON THE MOVE
And the plaintiff cannot get access to any assets until the criminal case is determined, which may be years in the future by which time the plaintiff may themselves have become insolvent by reason of being out of theirCourtsmoney.inAustralia are charged with balancing the competing interests of the parties in this event. An oft applied test was articulated in McMahon v Gould 1 where the Supreme Court of Victoria ruled that the court had inherent power to stay civil proceedings if criminal proceedings could be commenced against a defendant in respect of substantially the same conduct and continuing the civil case would result in prejudice to the defendant in the criminal matter. McMahon v Gould involved the Plaintiff liquidator of a company suing the directors including Gould for fraud and conversion involving company funds. Gould was then charged with conspiracy and other matters related to his directorship of the company. The Court outlined a range of factors to be considered, including the risk and severity of prejudice to the accused, the cost of dual proceedings, and the impact on forthcoming criminal proceedings, the possibility of miscarriage of justice by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses by prosecutors. The Court concluded that the stay would not be granted. This turned in part on the fact that Gould had already disclosed his defence to the civil claims, and that he had himself instigated other civil proceedings on the same topic.
“In my opinion, it is not appropriate to read the more recent authorities in a narrow way. What the High Court has made clear is that the privilege against self-incrimination is a “cardinal principle” laying at the heart of the administration of criminal law. To accede to the plaintiff’s submission would be to relegate that “cardinal principle” to simply one of a basket of issues to be considered in the balance when determining whether or not to stay a matter.” In considering the prejudice to the plaintiff His Honour described the delay in finalisation of the civil matter as relevant, but “not a significant prejudice”.
2. The burden is upon the applicant for the stay to show that the plaintiff’s right to an expeditious hearing should be deferred because of potential injustice to the defendant in criminal proceedings 3. As an alternative to granting a stay, the court may give directions designed to ensure that the hearing of the civil proceedings occurs after the determination of the criminal proceedings5, or make other orders to limit prejudicial impact of civil steps, which might include proceeding to a certain point, or deferring some aspect of proceedings.
Whilst the McMahon factors are still used as guidelines in stay decisions, the case has at various times been criticised and distinguished over the years, although it has not yet been expressly overruled6.
An illustration of the readiness to grant a stay perhaps going too far was a matter where winding up proceedings against a company were stayed on the basis of an assertion by directors that they could provide evidence that the company was solvent, but in doing so might incriminate themselves of an offence, leading to the Court staying the winding up application.11
September 2022 THE BULLETIN 29 CIVIL LITIGATION
In considering an application for stay of the civil proceedings by the Defendant, Judge Dart considered that the law had evolved since McMahon v Gould, and emphasised the fundamental importance of the privilege against self-incrimination:
In FM Conway v Sugget12, the Court determined that being required to disclose a civil defence that may foreshadow the criminal defence was not a basis for a stay, and that in seeking a stay the criminal defendant would have to explain in the civil process how they may be prejudiced. The decision whether to file a defence and engage in further documentary exchange etc in the civil case was a strategic decision for the Defendant. If the Defendant chose not to file a defence, adverse inferences could be drawn by the Court, and by inference any negative effect on the defendant’s civil case was a consequence of that choice.
The High Court case of Commissioner of the AFP v Zhou and Jin8 has influenced this trend. Zhou was a criminal accused charged with people trafficking. At the same time as the criminal charges proceeded, the AFP commenced civil proceedings under Proceeds of Crime Act 2002 (Cth). In staying the civil penalty proceedings, the court noted that if the proceedings were not stayed, the prosecution would be informed, in advance of the respondent’s criminal trial, of his defence because he could not realistically defend the forfeiture proceedings without telegraphing his likely defence. In a similar case, involving concurrent criminal and asset forfeiture proceedings by the Crown9, the NSW Court of Appeal noted that the in prosecuting both cases at the same time the Crown would be advantaged in a way that would fundamentally alters its position vis-à-vis the accused and therefore render the trial of the criminal proceedings unfair, a decision that was affirmed by the High Court.Whilst the High Court in Lee expressly declined to comment on the applicability of McMahon v Gould on other cases, this line of reasoning has influenced subsequent cases, having the effect of elevating the protection against the privilege of selfincrimination to a determining factor in the balancing, process, rather than considering it as one (albeit very important) factor to be considered.Withoutin any way questioning the importance of protecting the interests of accused persons, our contention is that using Zhou and Lee to significantly elevate the bar for plaintiffs to avoid a long stay of proceedings, fails to recognise the unique context of the cases, in that the prosecuting authority was the same in both the civil recovery and the criminal cases. In both cases the court determined that flagging or foreshadowing possible defence to the criminal proceedings in the civil process which was prosecuted by the same authority as the criminal case was basis enough to warrant a stay. Clearly this is a different situation to that of a citizen plaintiff (whether an individual or corporation) taking action in a civil case, with no involvement (perhaps other than as an informant or witness) in potential criminal proceedings. In McLachlan v Browne the Court considered that the weight given to the to the privilege against self-incrimination must be paramount in any balancing of the McMahon factors, emphasising the primary importance of the liberty of accused persons. The Judge also stated that the applicant could not be asked to justify the nature and extent of the prejudice because this would infringe on the very right sought to be protected by the application for stay (25). In Adelaide Brighton Cement Ltd v Burgess10 the Plaintiff took action (cause of action) in relation to $12 m defrauded by the Defendant employee. The employee had not yet been charged for the theft. The privilege against self incrimination applies though not just when criminal charges are laid, but where it there is a reasonable possibility that charges might be laid.
This situation can be contrasted with that in the United Kingdom. Whilst the foundational principles that require a balancing of interests with due attention to the significant risk to the accused are the same, the weight given to the factors differs.
In Barrowfen Properties v Patel and Ors13 the Court affirmed that the availability of the right to silence in criminal proceedings,
However, authorities applying (or perhaps misapplying) two recent cases in the High Court have thrown serious doubt on the ongoing applicability of the case. Courts have questioned the implication in McMahon v Gould that all of the factors mentioned would be put into the balance to determine the outcome is flawed, and that one factor, in favour of the principle that privilege of the defendant against self incrimination must outweigh all the others. This is based on the proposition that the privilege against self-incrimination is a cardinal principle, and should not just be thrown into the balance along with a range of other factors7
1Endnotes1982 ACLR 202 2 Elliot v Australian Prudential Regulation Authority [2004] FCA 586 at [15] 3 (1993) 12 ACSR 69 at 77 4 Hurley v FCT (1992) 37 FCR 11 at [13]; see also Australian Securities Commission v Kavanagh (1993) 12 ACSR 69 5 Silbermann v CGU Insurance Ltd (2003) 48 ACSR 231 6 Lee v DPP 2009 75 NSWLR 581 7 Adelaide Brighton Cement Ltd v Burgess [2018] SASC 134 8 [2015] HCA 5 9 2009 NSWCA 347 10 [2018] SASC 134 11 In the matter of Plutus Payroll Australia Pty Limited [2017] NSWSC 1854 12 [2018] EWCH 3173 (QB) 13 [2020] EWHC 2536 14 Citing V v C [2002] C.P Rep. 8, Waller LJ at paras 37 and 38. Tribunal 3301877/2020; 3302639/2020 (V)
15 Employment
THE BULLETIN September 2022CIVIL30 LITIGATION DELTA-V EXPERTS We Are Forensic Experts In Delta V Experts • Engineering Analysis & Reconstruction • Traffic Crashes & Road Safety • Workplace or Mining Incidents • Reporting & Experts Court Testimony • Failure Analysis & Safety Solutions • Physical, Crash, Incident & Vehicle Dynamic Handling Testing • Clarifies the facts in a situation • Scientifically substantiates the evidence • Strengthens your communication • Diverse experience and expertise 03 9481 2200 www.dvexperts.net 9 Springbank Street, Tullamarine, 3043 and the right not to give notice of the criminal defence, carried little weight in civil proceedings, where the defendant is expected to serve a defence, although the privilege could subsequently be invoked where the defendant is being interrogated, compelled to produce documents, or cross examined14 (similar protection is provided by the UCR in SA). And in Dacorum Sports Trust Limited v Connolly15 the Judge confirmed that the Defendant has a choice whether or not to remain silent in civil proceedings, but “harshness of such a choice did not provide a good ground for staying civil proceedings”, and even if there is a real risk of serous prejudice leading to injustice if the civil proceedings continued, the proceedings should not be stayed if safeguards can be put in place. Thus the UK courts take a different approach – firstly, that prejudice to the criminal defendant arising from a decision not to plead any or a full civil defence is a strategic decision and no basis for a stay; secondly that revealing possible bases for future criminal defence in a civil defence is of little importance and thirdly, that if a defendant argues that they will be seriously prejudiced if the civil case proceeds, they must explain how and why. Our concern is that applying the principles devised in cases involving defendants being attacked by the same prosecuting authority in both civil and criminal proceedings to more typical cases where the civil plaintiff and the prosecuting authority are not in any way connected has skewed the balance in these decisions in a way that presumptively demands a stay. In our view there is a clear distinction between punitive recovery action imitated by the same authority that is pressing criminal charges, but in the normal case where the civil plaintiff is not in any way connected to or involved in such action. That is not to infer that it should be difficult for a defendant to obtain a stay, rather, that the unique circumstances of the prosecuting authority being the same in both criminal and civil cases with exactly overlapping facts should be seen as a “high point” of the discretion to grant a stay. Our proposition is that the legal culture of determining when stays should be granted in Australia has drifted to implicit assumptions that stays should be readily (and at times even automatically) granted when there is serious risk of criminal investigation or charge. We contend that the more rigorous approach taken in the UK, including the use of varied means of protecting the criminal accused whilst not absolving them of the responsibility of pleading the civil case, creates a more equitable balance in this increasingly important area of civil law. B
4 K Allman, Pandemic mental health toll on lawyers revealed, Law Society of NSW Journal, 2021.
COLIN BROWN, DIRECTOR, LEGAL & LEGISLATIVE POLICY, SA HEALTH
5 2020 National Profile of Solicitors, p.30.
WELLBEING & RESILIENCE September 2022 THE BULLETIN 31
1 2020 National Profile of Solicitors, p.13.
3 Okereke O, Anxiety Linked to Shortened Telomeres, Accelerated Aging, PLoS ONE, 2012
2 Office for Ageing Well, SA Government.
Across the nation, South Australia has one of the largest proportions of solicitors in sole-principal private practice.5 Helping sole-principal colleagues support themselves as well as their staff is therefore of importance - particularly in circumstances where the funding apparatus found in larger private or government legal practices may not exist. The Law Society’s various wellbeing offerings, such as the Small Practice Committee’s Coffee-Break for Sole & Small Practitioners, are a helpful way of staying connected to other practitioners and debriefing about stressors in legal practice and approaches to managing those. South Australia, compared to other jurisdictions, has a large proportion of newly-admitted solicitors (a year or less).
Importantly, South Australian universities continue to supply quality legal education and law graduates to the profession. Graduates find work in private practice, government, and other areas adding excellent value to business and society. These workplaces must strive to provide suitable scaffolds for new lawyers as they begin on their journey of ageing well in the profession. Nurturing and growing their self-care skills is critical for practising law for career sustainability and longevity.
Ageing Well in the Law – A professional wellbeing perspective
“With age comes wisdom, but sometimes age comes alone!” Oscar Wilde could have been reflecting on the importance of wellbeing and appropriate stress-management as we age through life. Professionally, as we gain experience through the years, we tend to engage with increasingly more stressful roles, matters, and responsibilities. Exploring and developing self-awareness and self-care is a piece of wisdom to keep us balanced as we age and grow professionally.Demographically, the South Australian solicitor workforce tends to be slightly older than other jurisdictions,1 consistent with South Australia’s higher proportion of older people generally.2 Nonetheless, with a mean age of just 43 in 2020, it still seems we have youthful solicitors! Perhaps more important than our workforce’s increasing statistical mean-age is the way in which it handles the increasing responsibility and pressure of legal-related work; at both individual and group levels. Biologically and otherwise, ageing is complex. And perhaps unsurprisingly, psychological stress has been identified as a possible risk factor for accelerating ageing.3 Our political leaders certainly appear to age exponentially after taking the stress of top-office! (think of the beforeand-after photos of Tony Blair and Barack Obama). We probably all have relatable examples within our own professional experience where our colleagues, or indeed ourselves, have felt the exhaustion (if not apparent ‘ageing’) from sustained stressful workloads and responsibilities. While the pandemic also created additional stress for the Australian legal profession,4 it highlighted the importance of strong local leadership for establishing and maintaining workplace cultures that support managing chronic stress of increased work responsibilities in unpredictable environments.
The Law Society offers through its membership additional profession-long support, assisting all lawyers to gain and retain the wisdom of self-care. Various networks and opportunities are available, including helpful wellbeing resources and tools, Young Lawyers’ Support Group, as well as Dr Jill’s confidential support service as part of LawCare Ageing well in the Law is everyone’s responsibility; to ourselves and each other.
Please keep an eye out for future events from the Society’s Wellbeing and Resilience EndnotesCommittee.
CRAIG NICHOL & KELEIGH ROBINSON,
I n Isles & Nelissen [2022] FedCFamC1A 97 (1 July, 2022), the Full Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin & Tree JJ) dismissed a father’s appeal from orders made by McGuire J that four children live with the mother and spend supervised time with the Thefather.father had been charged with rape of the eldest child in criminal proceedings that had been discontinued for “lack of specificity” in the evidence ([63]). McGuire J found he could not make a specific finding of sexual abuse; but found the father presented an unacceptable risk of harm.TheFull Court noted cases had gone so far as to posit that (from [6]): “[T]he risk of … abuse … must be proven on the balance of probabilities according to the civil standard of proof …We consider that statement of principle to be incorrect … [7] … [I]t is an oxymoron to expect … possibilities to … be forensically proven on the balance of probabilities … By definition, possibilities are not, and could never be, probabilities. ( … ) [56] … [T]he principles enunciated in M v M (1988) 166 CLR 69 about ‘unacceptable risk’ were woven into the fabric of family law in instances of alleged actual and prospective child sexual abuse. The Full Court later extended such principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A v A [1998] FamCA 25 … ) ( … ) [59] … The provisions of the Act are [now] wide enough to embrace most, if not all, assertions of an ‘unacceptable risk’ of harm … and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act. ( … ) [85] The assessment of risk is an evidence-based conclusion and is not discretionary. … The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment … which entails an exercise of discretion. …”
In Barrett & Winnie [2022] FedCFamC1A 99 (1 July, 2022), the Full Court (McClelland DCJ, Baumann & Hartnett JJ) dismissed with costs a husband’s appeal against a decision of Kent J declining to make property adjustment orders in the context of a 14 yearSubsequentmarriage. to their separation, there was an informal settlement whereby the husband demanded and received the wife’s interest in a jointly owned property ([91]); where the wife was also removed as appointor of a trust called “the Winnie Family Trust” in February 2008 ([100]). The husband unsuccessfully sought to set the wife’s removal aside pursuant to s 106B. Kent J excluded the trust’s property from the matrimonial asset pool, otherwise finding that the husband already retained property 95.61% of the existing net asset pool.The Full Court said (from [99]):
“The … judge accepted the evidence of … [the] respondents as to the adverse impacts of the … global financial crisis … The … judge accepted the evidence that … the … respondents … took effective action including by way of selling properties at a loss. … [T]he … judge found that a substantial part of the asset base that currently exists in the trusts … accrued in the period subsequent to the global financial crisis and … post the separation of the parties to the marriage. ( …[137]) … [T]he … judge found, as a matter of fact, that the Winnie Family Trust had never operated as or been treated as the alter ego of the [wife] ( … ) [145] … [T]he … judge … appropriately had regard to the interests of other third parties and the significant contributions that they made to the trust property in determining whether it was appropriate to exercise his discretion to set aside the Deed. ( … ) [155] … [T]he judge, appropriately … excluded the trust property from the property pool but had regard to the trust assets as being a significant financial resource available to the [wife] …”
Family Law Case Notes
THE BULLETIN September 2022FAMILY32 LAW CASE NOTES
THE FAMILY LAW BOOK
PROPERTY – TRUST PROPERTY EXCLUDED FROM ASSET POOL – DESPITE HER ROLE AS APPOINTOR, WIFE NEVER HAD CONTROL OF THE TRUST
CHILDREN – ASSESSMENT OF UNACCEPTABLE RISK IS A PREDICTIVE EXERCISE THAT INCLUDES MERE POSSIBILITIES
In Qian & Xue [2022] FedCFamC1A 93 (21 June, 2022), Aldridge J set aside a “suite of interim freezing orders”, including an order that the wife pay $850,000 to the husband’s solicitors trust account.
Contested property proceedings had been on foot since 2019; where the husband brought an application for injunctions in anticipation of the wife receiving monies on 24 August, 2021; the wife received the $850,000 on 30 August 2021, but transferred $735,000 to her brother, sister and father in China, prior to the listing of the application in November.
In Chan & Lee [2022] FedCFamC1A 85 (3 June, 2022), the Full Court (Tree, Gill) allowed an appeal from a decision of Rees J, where the wife appealed orders where she was to receive 100% of the net asset pool, where the effect of the further order that she indemnify the husband as to debts was that she would retain a net deficit overall. Wilson J dissented.
The net pool was primarily comprised by a $570,000 property (at Suburb C); subject to a mortgage; there being conflicting evidence of loans owed to the wife’sTreeparents.&Gill JJ said (from [96]): “Although the wife sought … that an obligation should be placed upon the husband to pay the mortgage for that property, this is not a sustainable position. If the husband were to be required to hold the obligation for … the … debts in relation to that property he would effectively be required to bring property into existence that does not at present form a part of the parties’ pool of property. ( … ) [98] The debt related to the property is constituted by $440,000 secured by mortgage and $92,000 unsecured but owed to the wife’s parents, totalling $532,000 in relation to a property valued at $570,000, leaving a net equity of $38,000. Where the wife is to retain the … Suburb C property, she should indemnify the husband in respect of all debt associated with the property … [99] The balance of the debts total a $26,826 student loan taken out by the wife and $30,500 borrowed from her parents for various living expenses and supports for the parties. ( … ) [101] … [I]nsofar as the orders required the wife to indemnify the husband in respect of the non … Suburb C property related debt to the parents, this should not be the case … [N]o provision should be made for indemnification in respect of this debt. This leaves the husband also indebted, and both parties in a net debt position. … [102] Whilst this may seem a minor benefit to the wife, given her parlous financial circumstances, it is potentially significant, and not mere tinkering. Moreover, it properly reflects the reality of the position arrived at (correctly) by the primary judge that the orders should reflect a 100 per cent adjustment to the wife …
The wife said the transfers were to repay loans; the husband seeking injunctions on the basis that “the disposition of the funds would put them beyond the jurisdiction of the court and diminish the property pool” ([15]). Aldridge J said (from [22]): “A freezing order ‘operates to preserve the status quo and not to change it in favour of the party who seeks the order’ per Gageler, Keane, Gordon and Gleeson JJ in Deputy Commissioner of Taxation v Huang [2021] HCA 43; (2021) … [23] The order made … for the payment of $850,000 exposed the wife to the risk of punishment for contempt in the event it was not complied with … [24] … [T]he purpose of a freezing order is … not to improve the security position of the applicant or to render the respondent liable for imprisonment for debt. The order should only have been considered if it was clear that it could be complied with ( … ) [26] … [W]hilst there may have been a basis to prevent the funds from being transferred, absent an order from the Court preventing her from doing so, the wife was free to deal with her funds … ( … ) [29] The fact that an injunction could have been obtained preventing … [a] person from transferring funds, but was not, does not automatically lead the proposition that, having permissibly done so, they must now reacquire the funds …”
September 2022 THE BULLETIN 33 FAMILY LAW CASE NOTES
PROPERTY – INJUNCTION – FREEZING ORDERS ARE TO PRESERVE THE STATUS QUO, NOT CHANGE IT IN FAVOUR OF THE PARTY WHO SEEKS THE ORDER
” B
PROPERTY – WIFE RECEIVES 100 PER CENT OF NET ASSET POOL WHERE NET EQUITY IN HOME WAS $38,000 – NO ORDER MADE AS TO JOINT DEBT
Legal Profession Conduct Commissioner (commencing on 1 August 2022 and expiring on 31 July 2025)
Naomi Mary Kereru Gazetted: 28 July 2022, Gazette No. 52 of 2022 RULES Nil
REGULATION NAME REG NO. DATE GAZETTED
Civil Liability (BYO Containers) Amendment Act 2022, No. 6 of 2022 Gazetted: 14 July 2022, Gazette No. 49 of 2022 Animal Welfare (Jumps Racing) Amendment Act 2022, No. 7 of 2022 Gazetted: 14 July 2022, Gazette No. 49 of 2022
GAZING IN THE GAZETTE THE BULLETIN September 2022343
Commencement ss 150(5) and (8); 150(9) but only insofar as it inserts subsection (8) into s 6 of Local Government (Elections) Act 1999; 151; 160; 174: 7 July 2022 Gazetted: 7 July 2022, Gazette No. 46 of 2022
A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA
Return to Work (Scheme Sustainability) Amendment Act 2022 (No 4 of 2022)
Plant Health Regulations 2022 53 of 2022 7 July 2022, Gazette No. 46 of 2022 Local Government (Elections) (Miscellaneous) Amendment Regulations 2022 54 of 2022 7 July 2022, Gazette No. 46 of 2022
Civil Liability (Institutional Child Abuse Liability) Amendment Act 2021 (No 52 of Commencement:2021)
JUL 2022 – 2 AUG 2022
1 August 2022
ACTS PROCLAIMED Statutes Amendment (Local Government Review) Act 2021 (No 26 of 2021)
Cross Border Commissioner Act 2022, No. 8 of Gazetted:2022 14 July 2022, Gazette No. 49 of 2022 Statutes Amendment (Child Sex Offences) Act 2022, No. 9 of 2022 (amends Child Sex Offenders Registration Act 2006, Criminal Law Consolidation Act 1935 and Sentencing Act 2017) Gazetted: 14 July 2022, Gazette No. 49 of 2022
Local Government (General) (Electoral Advertising Posters) Amendment Regulations 2022 55 of 2022 7 July 2022, Gazette No. 46 of 2022
History Trust of South Australia Regulations 2022 56 of 2022 21 July 2022, Gazette No. 51 of 2022
Gazetted: 28 July 2022, Gazette No. 52 of 2022
Evidence Regulations 2022 57 of 2022 28 July 2022, Gazette No. 52 of 2022
APPOINTMENTS
ACTS ASSENTED TO Return to Work (Scheme Sustainability) Amendment Act 2022, No. 4 of 2022 Gazetted: 14 July 2022, Gazette No. 49 of 2022 South Australian Motor Sport (Miscellaneous) Amendment Act 2022, No. 5 of 2022 Gazetted: 14 July 2022, Gazette No. 49 of 2022
REGULATIONS PROMULGATED (3 JULY 2022 – 2 AUGUST 2022)
Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 58 of 2022 28 July 2022, Gazette No. 52 of 2022
Commencement except ss 3; 4; 5; 8; 9; 10; 11(1), (2) and (5); 12; 14; 15; 16; 18; 19; Schedule 1, clause 1(1), definitions of Category 1 seriously injured worker, Category 2 seriously injured worker, designated worker, interim seriously injured worker and relevant day; Schedule 1 clauses 2-5: 1 August 2022 Gazetted: 28 July 2022, Gazette No. 52 of 2022
Anthony John Keane Gazetted: 21 July 2022, Gazette No. 51 of 2022 Coroner for a term commencing on 11 August 2022 and expiring on 10 August 2023
Primary Produce (Food Safety Schemes) (Plant Products) Regulations 2022 52 of 2022 7 July 2022, Gazette No. 46 of 2022
If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you.
whoseLawCareTheLawCareCounsellingServiceisformembersoftheprofessionormembersoftheirimmediatefamilylivesmaybeadverselyaffectedbypersonalorprofessionalproblems.
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.
September 2022 THE BULLETIN 35
Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug Theabuse.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.
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.
To contact Dr Jill 08 8110 5279 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher
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