LSB September 2017

THE 

BULLETIN 

September 2017 

Volume 39 - Issue 8 

MODERN LAW: 

TRENDS, TIPS & TRAPS IN CONTEMPORARY 

LEGAL PRACTICE

DREAM HOME, DREAM LOCATION. 

CHOOSE A NEW HOME JUST THE WAY YOU WANT IT 

Love the neighbourhood but not the house? Why not demolish and build new? 

We are Australia’s leading home builder and trusted specialists in knock down new build. 

And with our fixed price contract and 25 year structural guarantee, * 

you can build your dream home with confidence. 

NEWBUILD 

Find out how easy turning your dream into a reality can be. 

Visit one of our knock down new build display centres today. 

ST CLAIR 

St Clair 

Actil Ave 

Open Mon, Tue, Wed, Sat, Sun 

12pm-5pm 

NORTHGATE 

Lightsview 

Cnr Waterford Cct & Cooper St 

Open Mon, Tue, Wed, Sat, Sun 

12pm-5pm 

CRAIGBURN FARM 

Blackwood Park 

Shelter Row 

Open Mon, Wed, Sat, Sun 

12pm-5pm 

HEAD OFFICE 

88 Fullarton Road 

Norwood 

Open Mon-Fri 

8:30am-5pm 

1300 METRICON 

metricon.com.au 

Image includes items not supplied by Metricon, namely landscaping, planter boxes, fencing & path. Image includes upgrade items. 

*For more information on our 25-year structural guarantee, please visit www.metricon.com.au. SA Builder’s Licence BLD231776

This issue of The Law Society of South Australia: Bulletin is 

cited as (2017) 39 (8) LSB(SA). ISSN 1038-6777 

CONTENTS 

MODERN LAW 

6 New practice management course to 

be delivered next year 

By Rosalind Burke 

8 Anti-Money Laundering and Counter 

Terrorism Financing: Regulating the 

legal profession – By Morry Bailes 

12 The benefits of offering an 

Employee Assistance Program 

By Wallmans Lawyers 

14 Cybersecurity must be a priority for 

firms – By Fiona McLeod SC 

18 Clarifying the rules on incorporated 

legal practices & partnerships 

By Ethics & Practice 

20 Snapshot of the South Australian 

legal profession 

22 The role of private practice in the 

legal assistance sector 

By Hannah Rose 

24 Developing in a smaller firm versus a 

larger firm 

By Rebecca Clafton & Evelyn Johns 

32 Modern slavery: What responsibilities 

should Australian businesses have? 

By Raffaele Piccolo & Celia Moodie 

FEATURES 

11 Vale: Bob Piper AO 

By Hugh Piper 

16 International competition policy: 

Is Australia surfing the wave? – By 

Nicolas Petit & John Mansfi eld QC 

22 70 years of the Law Society Judgment 

Scheme comes to an end 

By Lorna Hartwell 

28 Space: Not just for superpowers 

anymore – By Candida D’Arcy 

38 Pursuing access to justice 

By James Goh & Jasmine Flavell 

REGULAR COLUMNS 

4 President’s Message 

5 From the Editor 

16 Wellbeing & Resilience 

26 Tax Files 

30 Bookshelf 

31 Risk Watch 

35 Family Law Case Notes 

37 Young Lawyers 

42 Gazing in the Gazette 

43 Dialogue 

Executive Members 

President: 

A Rossi 

President-Elect: T Mellor 

Vice President (M): T White 

Vice President (F): A Nikolovski 

Treasurer: 

R Shaw 

Immediate Past President: D Caruso 

Council Members: R Sandford 

A Michaels 

Metropolitan Council Members 

T Dibden 

S Gibbons 

P Humphries M Janus 

A Lazarevich A Michaels 

C O’Connor SC L Polson 

D Rieniets R Sandford 

T Vozzo 

M Frayne SC 

Country Members 

P Boylan 

(Northern and Western Region) 

P Ryan 

(Central Region) 

J Kyrimis 

(Southern Region) 

Junior Members 

V Gilliland S Hooper 

Ex Officio Members 

The Hon J Rau, Prof W Lacey, 

Prof M de Zwart, Prof T Leiman 

KEY LAW SOCIETY CONTACTS 

Chief Executive 

Stephen Hodder - 

stephen.hodder@lawsocietysa.asn.au 

Executive Officer 

Rosemary Pridmore - 

rosemary.pridmore@lawsocietysa.asn.au 

Member Services Manager 

Michelle King - 

michelle.king@lawsocietysa.asn.au 

Director (Ethics and Practice) 

Rosalind Burke – 

rosalind.burke@lawsocietysa.asn.au 

Director (Law Claims) 

Geoff Thomas – 

gthomas@lawguard.com.au 

Manager (Education) 

Sally Browne – 

sally.browne@lawsocietysa.asn.au 

Manager (LAF) 

Annie MacRae - 

annie.macrae@lawsocietysa.asn.au 

Manager (Finance and 

Administration) 

Ciro Pipolo - 

ciro.pipolo@lawsocietysa.asn.au 

THE BULLETIN 

Editor 

Michael Esposito - 

bulletin@lawsocietysa.asn.au 

Editorial Committee 

D Barnfield E Olsson 

S Kljun S Hodder 

R Earles P Wilkinson 

S Errington E Belperio 

A Siow B Grant 

A Bradshaw R Hasda 

E Moran J Napier 

The Law Society Bulletin is published 

monthly (except January) by: 

The Law Society of South Australia, 

Level 10-11, 178 North Tce, Adelaide 

Ph: (08) 8229 0200 

Fax: (08) 8231 1929 

Email: bulletin@lawsocietysa.asn.au 

All contributions letters and enquiries 

should be directed to 

The Editor, The Law Society Bulletin, 

GPO Box 2066, 

Adelaide 5001. 

Views expressed in the Bulletin 

advertising material included are 

not necessarily endorsed by The 

Law Society of South Australia. 

No responsibility is accepted by the 

Society, Editor, Publisher or Printer for 

accuracy of information or errors or 

omissions. 

PUBLISHER/ADVERTISER 

Boylen 

Level 3, 47 South Terrace, Adelaide 

SA 5000. 

Ph: (08) 8233 9433 Fax: (08) 8212 6484 

Email: admin@boylen.com.au 

Studio Manager: Cindy Ridgwell 

Layout: Henry Rivera 

Advertising 

Email: sales@boylen.com.au 

Printer 

Lane Print Group 

101 Mooringe Ave, 

Camden Park SA 5038. 

Ph: (08) 8376 1188

PRESIDENT’S MESSAGE 

Ill-judged comments do 

disservice to important 

work of our committees 

TONY ROSSI, PRESIDENT 

An important function of the Society is 

to assist in the parliamentary process 

associated with its consideration of new 

Bills. 

Overwhelmingly, Bills are introduced into 

the Parliament by the government of the 

day. 

It is also commonplace for the 

government to issue Bills to relevant 

stakeholders, including the Society, and 

sometimes in advance of the introduction 

of the Bill into the Parliament. 

The Society is always appreciative of 

the opportunity to make submissions and 

engage with all political parties. This year, 

during my presidency, I have received 

comments of support from members of 

various political parties, both large and 

small, indicating the assistance they gain 

from these submissions. The submissions 

frequently result in amendments which 

improve the Bill. It is an important service 

to the community. 

The Society takes this process very 

seriously. When Bills are received, I have 

a preliminary discussion with the Society’s 

policy officer, Anna Finizio. We identify the 

committees of the Society that would be 

able to assist in the submission. Sometimes, 

like in the area of child protection, multiple 

committees are involved. 

Typically, there is a synergy in the 

recommendations of the committees and, 

having regard to those recommendations, 

Ms Finizio and I work together to finalise 

the submission. 

The committees of the Society are 

populated by hardworking dedicated 

lawyers who devote their time without fee. 

The Society always strives for a balanced 

and considered approach having regard 

primarily to the principles associated with 

the rule of law. 

The Criminal Law Committee, for 

example, is populated by lawyers in private 

practice and lawyers within the office of 

the DPP. The Accident Compensation 

Committee comprises lawyers who 

represent workers, registered employers, 

self-insured employers and from within 

ReturnToWorkSA and the office of the 

CTP Regulator. 

It would not be possible for the Society 

to provide quality submissions without the 

work of its committees. 

In these circumstances it is disturbing 

to note that the Attorney General rose 

in the Parliament on 6 July 2017 and 

denigrated both the Society and the South 

Australian Bar Association in relation to 

the submissions that these bodies make in 

relation to Bills before the Parliament. 

In response to a member of the Liberal 

Party advising that it proposed to seek the 

view of the Society in relation to a Bill 

before expressing a concluded view, the 

Attorney General stated, with respect to 

both the Society and the Bar Association: 

“They will crank up the word processor 

with a predetermined letter in which it 

says, “we disagree with everything you 

have done”, insert a small amount of 

text and then they will sign and send it 

off to the opposition…” 

The Attorney then compared the Society 

to plumbers and suggested that the Society’s 

submission should have no greater standing 

with respect to Bills that come before the 

Parliament than a union of tradespersons. 

He indicated that the Society is motivated 

by the financial interest of its members. 

In doing so, the Attorney General failed 

to have regard to the standing of the 

Society, as a creature of statute under 

the Legal Practitioners Act 1981 and the 

important functions entrusted to it by both 

the Parliament and the Supreme Court of 

this State. 

The assertions of the Attorney General 

are untrue. Not one submission of the 

Society, under my presidency, in relation 

to a Bill introduced by the Government, 

has been by reference to the financial 

interest of our members. Each submission 

has been by reference to established legal 

principle and tailored to the issues raised. 

Where appropriate, support has been 

given to the Bill. However, where there are 

matters of concern they are clearly raised, 

as they should be. 

As members of the Society would be 

aware, its peak regulatory body is its 

Council. 

The Attorney General is a member of the 

Council that has not attended a meeting 

since 2 March 2015. I have repeatedly 

asked him to attend and I think that would 

assist in him having a better understanding 

of the role and the functions of the Society 

if he did so. 

I wrote to the Attorney General, on 

behalf of the Society, by letter dated 4 

August 2017, bringing to his attention, in 

clear terms, the concerns of the Society 

in relation to the statements made by him 

in the Parliament and requesting that he 

retract the statements made and that he 

apologise to the Society. 

The concerns of the Society are such that 

I also provided a copy of that letter to the 

Premier. 

Whilst we have received an 

acknowledgment of the letters, we have 

not, at the time of print, received a 

substantial response to the concerns raised. 

Nevertheless, the Society will continue 

to assist the Government, and all other 

political parties, to the best of its ability, in 

relation to any proposed Bills. This year, 

I and other Members of the Executive 

of the Society have attended meetings of 

most of our committees. At the beginning 

of the year I met with the chairs of 

the committees. These steps have been 

undertaken to emphasise how much the 

Society, through its Council and Executive, 

appreciate the selfless contribution and the 

high standard of the recommendations 

that we receive. B 

4 

THE BULLETIN September 2017

FROM THE EDITOR 

National report sheds 

light on legal profession 

MICHAEL ESPOSITO 

The recent National Profile of the 

Profession, released as a joint initiative 

of all law societies and published by 

the Law Society of NSW, provides an 

interesting, and in some respects, alarming 

insight into the profession both nationally 

and locally. 

Naturally, the most widely publicised 

statistic coming out of the survey was the 

revelation that women for the first time 

outnumbered men in the legal profession. 

Across the nation, there are far more young 

female practitioners than young male 

practitioners, while males still dominate the 

profession in the over 50 age category. 

The higher the age bracket, the higher 

the ratio of men. For example, 83% of 

practitioners in Australia aged 65-69 were 

male. Notwithstanding structural barriers 

still faced by female practitioners today, the 

dominance of older males partly reflects 

the male-dominated environment of 

universities when these practitioners were 

studying law. 

One should expect that the ascendance 

of female practitioners entering the 

profession, coupled with proactive efforts 

to promote equality and diversity, will lead 

to a more even spread of male and female 

lawyers in senior ranks. 

In South Australia, some statistics should 

be of concern to the profession. 

Our profession is the slowest growing 

profession in Australia, having grown just 

6% since 2011. 

There are several factors contributing to 

this stagnation. South Australia’s economy 

has been struggling for some time and 

there are no clear signs that it will bounce 

back from the decline in the manufacturing 

sector which was once the backbone of the 

economy. 

While the Law Society cannot create a buoyant 

economy for our businesses to thrive, we will 

continue to advocate for reforms that facilitate 

the work of lawyers and oppose changes that 

unfairly hold the profession back. 

Add to this the significant legislative 

changes, particular in the area of tort law, 

which have eroded both people’s rights 

and work for lawyers, as well as an underinvestment 

in our legal aid system, and you 

have an environment that is not conducive 

to high growth. 

As a profession, lawyers are getting older, 

with the average age of the profession the 

highest in the country at 43.7 years. South 

Australia also has the highest proportion of 

practitioners (46%) admitted for 15 years 

and 7.3% of the profession is over 65 years 

old, perhaps indicating a need to continue 

working past retirement age. 

This reflects general population trends 

in the State. The Economic Development 

Board of SA recently predicted that South 

Australia’s ageing population will rise by 

70% by 2050, with people over 65 making 

up 42% of the State’s population by 2030 

and 74% of the population by 2050. 

It is perhaps no surprise then that more 

South Australian lawyers are moving into 

areas such as wills and estates, as well 

as other areas not as dependant on the 

economy such as family law. Unfortunately, 

the growth in these areas is due to lawyers 

moving out of other, less viable areas of 

law, rather than an indication of a general 

uplift of the profession. 

The legal profession in its current state 

cannot absorb the increasing numbers 

of law graduates coming through. An 

unfortunate consequence of this is bright 

young minds moving interstate or overseas 

for work. This is a problem across a range 

of sectors. 

While the Law Society cannot create a 

buoyant economy for our businesses to 

thrive, we will continue to advocate for 

reforms that facilitate the work of lawyers 

and oppose changes that unfairly hold the 

profession back. Invariably, changes that 

impact on the legal profession have an 

even greater impact on members of the 

community who are entitled to have access 

to justice and to uphold their rights and 

freedoms. 

The national survey revealed that the 

majority of lawyers in South Australia are 

sole practitioners or in smaller firms of no 

more than four partners. One of the major 

challenges for principals of small practices 

is the pressure of keeping up with the 

administrative duties as well as maintaining 

a legal practice. 

In response the Law Society will be 

delivering a practice management course 

next year. It is an exciting initiative and will 

help to equip practitioners with the skills 

required to run their own firm. Ethics and 

Practice Director Rosalind Burke provides 

a run-down of the course in this edition of 

the Bulletin. Stay tuned for updates about 

course dates and registration. B 

September 2017 THE BULLETIN 5

LEGAL PRACTICE 

New practice 

management course to 

be delivered next year 

ROSALIND BURKE, DIRECTOR, ETHICS & PRACTICE 

So, you’ve completed your two years 

of supervised practice, applied to the 

Board of Examiners to have your LPEAC 

restriction lifted, and have just received 

your unrestricted practising certificate. 

Congratulations! Where to now? 

The lifting of your LPEAC restriction 

means that you can consider whether you 

want to make the move to being a principal 

of a law practice. Whether that is as a 

partner of a multi-practitioner law practice, 

or as a sole practitioner or barrister, there 

is a great deal to consider and learn before 

taking the step up. 

Your experience as an employed 

practitioner is unlikely to have provided 

you with the full range of knowledge 

required to operate a law practice. The 

practice of the law is highly regulated and 

it is important that principals know and 

understand their regulatory responsibilities 

especially in respect of trust money, 

costs disclosure, professional indemnity 

insurance, practising certificates, and 

practice structures. 

Employment is also unlikely to have 

provided much, if any, understanding 

of how to run a business and manage 

staff. Basic understanding of financial 

management, staff supervision, risk 

management, technology options and 

business development and marketing is 

crucial for anyone seeking to make the step 

to law practice principal. 

As a law practice principal you are 

6 

THE BULLETIN September 2017 

responsible and liable for the provision 

of all the services by your law practice 

and the actions of your employees 

(with some exceptions) in doing so. It is 

important that you are aware of the risks. 

According to the Legal Profession Conduct 

Commissioner’s 2016 Annual Report: 

• 56.7% of the complaints received by 

him in the 2015/2016 period were 

against principals of law practices 

(partners, directors, sole practitioners 

and barristers); 

• the most common complaints 

were related to overcharging, delay, 

negligence, inappropriate behaviour, 

lack of communication and poor matter 

management; and 

• family law matters accounted for the 

largest proportion of total complaints 

at 23.1% while succession law matters 

came second with 13.9% of complaints. 

Figures reported by Law Claims in the 

Society's 2016 Annual Report show that, 

of the claims made in 2016: 

• 23% related to commercial 

(transactional) work; 

• 19% related to civil litigation; 

• 19% related to commercial litigation; 

• 15% related to statute barred PI claims; 

and 

• 11% related to estate matters. 

• Commercial (transactional) and 

commercial litigation claims accounted 

for 36% and 23% of total claims costs 

respectively. 

Whether that is as a partner of a multipractitioner 

law practice, or as a sole practitioner 

or barrister, there is a great deal to consider and 

learn before taking the step up. 

The costs (financial, temporal and 

emotional) of complaints and negligence 

claims take a heavy toll on law practice 

principals. Claims and complaints can be 

the result of many factors but it is clear that 

some simple preparation of practitioners 

stepping from employment to principal 

would assist greatly with minimising the risk 

of many complaints and claims. 

In recognition of the risks involved in 

stepping from employment to being a 

principal, the regulatory authorities in 

New Zealand, Western Australia, Victoria, 

New South Wales and the ACT all require 

that practitioners complete a practice 

management course before becoming a 

practice principal. 

While the requirement to complete 

a practice management course is not 

mandatory in South Australia, the Law 

Society is in the process of developing 

a practice management course that is 

focussed on the preparation of employed 

practitioners who are taking on principal 

roles. 

It is envisaged that the course will 

provide practical training on regulatory 

and operational issues facing law practice 

principals, including staff management, 

advertising, cash flow, practice management 

systems and risk management, as well 

as on the supervision of trust money 

transactions, identifying ethical dilemmas 

and how to respond to them, and client 

relationship management. It will include 

topics falling under all three required CPD 

units. All presenters will be South Australian 

based professionals in the relevant fields. 

The Society anticipates that the course 

will be operational in mid 2018. We look 

forward to providing the profession with 

full details soon. In the meantime, please 

don’t hesitate to contact the Society with 

any questions or suggestions. B

Visit our showroom and be inspired by our unique and 

extensive range of timber flooring on display. 

With over 20 years in business, you can trust our 

timber experts to bring superior service and expertise 

to your next home or office project. 

138 Magill Road, Norwood 5067 

T 08 8363 2681 

www.adelaidetimberflooring.com


Anti-Money Laundering 

and Counter-Terrorism 

Financing: Regulating 

the legal Profession 

MORRY BAILES, PRESIDENT-ELECT, LAW COUNCIL OF AUSTRALIA 

The Federal Government is looking to 

extend the Anti-Money Laundering 

and Counter-Terrorism Financing 

(AML/CTF) regulatory regime to the 

legal profession. The Law Council of 

Australia is actively engaging the Federal 

Government on this issue, which has 

potentially far-reaching implications 

for the cost of legal practice and 

professional obligations of lawyers with 

respect to client legal privilege and 

confidentiality. 

WHAT IS THE AML/CTF REGIME? 

The AML/CTF regime aims to 

deter, detect and respond to financial 

criminality and terrorism financing 

activities that use financial and 

professional services to launder the 

proceeds of crime or disguise the 

transfer of funds. A large number of 

countries have implemented broadly 

similar AML/CTF regimes as part of 

a web of internationally agreed or 

supported arrangements, in recognition 

that global approaches and cooperation 

among law enforcement agencies is 

necessary to counter the risk that 

financial criminality poses to national 

economies and the risk that terrorism 

activities pose to global security. 

AML/CTF regimes that apply to 

financial and other designated services 

have three basic components: 

• client identification, due diligence and 

internal procedures and controls to 

minimise the risk that the services they 

provide might unwittingly be used 

for money-laundering or terrorismfinancing 

purposes; 

• transaction reporting above a threshold 

value to a financial intelligence unit (in 

Australia’s case this is AUSTRAC - the 

Australian Transactions Reports and 

Analysis Centre) which undertakes 

analysis of these reports and 

disseminates intelligence to various 

law enforcement, national security and 

other government agencies; and 

• reporting of suspicious matters arising 

in connection with requests for, or the 

provision of, designated services. 

WHY IS THE FEDERAL GOVERNMENT 

PROPOSING TO EXTEND THE REGIME 

TO THE LEGAL PROFESSION? 

The Federal Government’s rationale 

for extending the AML/CTF regime to 

the legal profession is based on perceived 

gaps in existing Federal and State 

regulatory frameworks. 

At present, the AML/CTF regime in 

Australia targets financial institutions, 

the gambling sector and bullion dealers 

that provide certain “designated services” 

listed in the AML/CTF legislation. 

In a report published in April 2016 1 

the Attorney-General’s Department 

(AGD) said that professional facilitators 

are being used by criminal groups to 

circumvent controls in the financial 

sector that have been established by the 

AML/CTF regime. It recommended 

that the AGD and AUSTRAC should, 

in consultation with industry, develop 

options for regulating a number of nonfinancial 

businesses and professions under 

the AML/CTF Act, including the legal 

profession, as well as accountants and 

real estate agents. 

For the legal profession, it would likely 

capture such services as the buying and 

selling of real estate and business entities, 

managing client money, security or 

other assets, and the creation, operation 

or management of legal persons or 

arrangements. The United Kingdom has 

applied AML/CTF regulation to its legal 

profession since about 2004, and New 

Zealand has recently introduced a bill to 

its Parliament to apply the core obligations 

in its AML/CTF legislation to lawyers. 

The use of professional facilitators, 

or ”gatekeepers”, is a risk that has 

been identified by the Financial Action 

Task Force (FATF), an international, 

inter-governmental body that develops 

and promotes global standards to 

address money laundering and terrorist 

financing. In its Mutual Evaluation 

Report of Australia in April 2015, 

FATF criticised Australia for not 

imposing AML/CTF regulation on 

certain businesses and professions, 

including lawyers. The proposed 

extension of the AML/CTF regime to 

the legal profession is therefore also 

intended to bring Australia’s regulatory 

framework in line with FATF standards. 

ISSUES WITH THE PROPOSED AML/ 

CTF REGULATION OF THE LEGAL 

PROFESSION 

Lack of evidence 

While there may very well be gaps in 

the existing AML/CTF regime, we have 

no information demonstrating a systemic 

problem within the legal profession. 

In its submissions, the Law Council 

has argued that the Federal Government 

should first demonstrate that a problem 

exists that the proposed regulation is 

capable of addressing. The lack of 

evidence to date of involvement, either 

wittingly or unwittingly, in these 

crimes would suggest that the existing 

framework for the regulation of the legal 

profession in Australia is working quite 

well in maintaining the integrity of the 

profession. While the Law Council 

appreciates the need for all members 

of the international community to 

actively address money laundering 

and terrorism financing, extending the 

AML/CTF regime to the Australian legal 

profession is a disproportionate measure 

for a risk that has not materialised. 

8 



Client confidentiality & privilege 

The Law Council also has serious 

concerns about the erosion of 

client legal privilege and the duty of 

confidentiality. The AML/CTF regime 

would require legal practitioners to report 

any ‘suspicious’ matters to AUSTRAC. In 

these circumstances, a legal practitioner 

may be required to cease acting for the 

client pursuant to relevant professional 

obligations. At the same time, the legal 

practitioner would have to navigate the 

offence of tipping off under the AML/ 

CTF legislation. In its consultation paper 

on extending the AML/CTF regime 

to the legal profession, AGD said that 

ceasing to act for a client “...would need 

to be managed in a manner that takes 

into account the risk of tipping off the 

client”. 2 It is unclear what this would 

mean for the legal practitioner in 

these circumstances. This highlights 

that there are some difficult issues that 

need to be addressed in extending the 

existing AML/CTF regime to the legal 

profession. 

The lack of clarity that can sometimes 

arise as to whether a communication 

is privileged might even expose 

legal practitioners to disciplinary 

consequences if they inadvertently 

report a communication that was 

privileged. 

In this way, the AML/CTF regime 

has the potential to undermine the 

essential role of legal practitioners in 

the community. Extending the AML/ 

CTF regime as it currently exists 

effectively turns a legal practitioner 

into an informant by requiring them 

to provide financial intelligence and 

report suspicions about their clients to 

law enforcement. This undermines the 

important relationship of trust and 

confidence that exists between a legal 

practitioner and their client. It is this 

relationship that encourages a client to 

fully and frankly disclose all relevant 

information and circumstances to 

their legal practitioner and enables the 

legal practitioner to give frank and fully 

informed legal advice to their clients. 

Legal practitioners have a fundamental 

ethical duty to strongly advise against, 

and never assist a client to use the legal 

system to further an illegal or improper 

purpose. This is a key protective role 

performed by the legal profession on 

behalf of the whole community in 

supporting the rule of law and the 

administration of justice. 

The threat that AML/CTF regulation 

poses to these principles was recognised 

by the Supreme Court of Canada in 

2015. The Court struck down the 

proposed imposition of AML/CTF 

obligations on the Canadian legal 

profession. In doing so, it highlighted 

that the obligations did not provide 

adequate protection of solicitor-client 

privilege. It also said that imposing such 

obligations was not a proportionate 

response to the objective of combating 

money laundering and terrorism 

financing. This was because the existing 

regulation of the profession already 

obstructs involvement in these crimes. 

Cost 

Finally, we note that AML/CTF 

regulation of the legal profession will 

impose a significant cost and regulatory 

burden on practitioners. 

Preliminary findings of research 

undertaken by the Queensland Law 

Society indicate that the cost of AML/ 

CTF regulation to the legal profession 

may be around $2.11 billion annually. This 

figure represents a cost of $748,000 per 

year for larger firms (comprising 19 or 

more solicitors) to $119,000 per year for 

smaller firms (comprising sole practitioner 

firms and firms up to five solicitors). 

These estimated costs derive from 

obligations relating to risk management. 

Client due diligence, for example, would 

require ongoing client re-identification and 

verification using reliable, independent 

source documents, data or information. It 

would also require firms to conduct risk 

ratings of clients to determine whether a 

client is a higher risk of being involved 

in money laundering. This work will be 

highly resource-intensive. 

HOW IS THE LAW COUNCIL 

RESPONDING? 

AGD concluded a consultation 

process on the implementation of the 

AML/CTF statutory review in January, 

2017. The Law Council of Australia 

submitted a comprehensive submission, 

recommending that legal practitioners in 

Australia should not be made subject 

to the regulatory requirements of the 

AML/CTF regime. 

The Federal Government has 

concurrently commissioned a costbenefit 

analysis of their proposed model 

by KPMG, which was concluded in June, 

2017. 

If it is concluded that further 

regulation of legal practitioners is 

required, the Law Council has argued 

that additional requirements should 

be built into State and Territory legal 

profession regulatory systems, rather 

than imposing an additional federal 

regulatory structure. As a profession, 

we have worked collaboratively with 

State and Territory governments 

and invested a huge amount of time 

and effort in developing a strong, 

comprehensive and effective regulatory 

system for the legal profession. 

The Law Council is also pressing for a 

carefully targeted regime that limits any 

additional regulation to perceived gaps 

identified in the course of the review. 

The Law Council, through its 

advocacy, is working to ameliorate 

the cost and other impacts on 

the profession, and to prepare the 

profession for any new regime that 

is ultimately implemented. As the 

Government’s proposed response 

becomes clear, the Law Council will 

be working with its constituent bodies 

to roll out guidance materials for legal 

practitioners, to ensure they are able to 

comply with new regulatory options and 

to assist in navigating potential conflicts 

that may arise from any reporting 

framework. 

I wish to acknowledge the contribution 

of the Law Council Secretariat for its 

assistance in preparing the article. B 

Endnotes 

1 Attorney-General’s Department, Report on the 

Statutory Review of the Anti-Money Laundering and 

Counter Terrorism Financing Act 2006 and Associated 

Rules and Regulations (April 2016) 

. 

2 Attorney-General’s Department, Legal practitioners 

and conveyancers: a model for regulation under Australia’s 

anti-money laundering and counter-terrorism financing 

regime (November 2016) 19. 


IN HONOUR 

Vale: Robert (Bob) William Piper AO 

HUGH PIPER 

Bob Piper, a well-known and respected 

Adelaide lawyer, died on 28 June, 2017, 

aged 87 years. 

Bob was born in Adelaide to Francis 

Ernest Piper and Joyce Gertrude Piper (nee 

Gillard) on 12 November, 1929. Bob was 

the eldest of three children, his younger 

siblings being Geoffrey and Josephine. 

Bob was educated at Prince Alfred College, 

Adelaide from 1938 to 1947, being the 

third generation of his family to be 

schooled at PAC. He then studied Law at 

the University of Adelaide. In 1961 Bob 

met Margaret Ann Corfield Packer and 

they married in 1962. 

Bob was a significant figure in the 

Adelaide legal and business communities 

for over 60 years. Bob’s legal career started 

in 1950 when he commenced work as a 

solicitor in the firm Piper Bakewell & Piper, 

the same firm in which his father Justice F 

E Piper and grandfather Justice A W Piper 

worked prior to their appointments as 

Supreme Court judges. After a short period 

as an articled clerk and working on criminal 

matters, Bob developed his legal career as 

a commercial and estates lawyer. In 1988 

he was instrumental in the merger of Piper 

Bakewell & Piper with another historic 

Adelaide law firm, Aldermans, to form 

Piper Alderman which is now a national 

law firm. 

Bob’s common-sense approach to 

resolving legal and commercial problems 

led to his appointments to the boards of 

many Australian public companies. Bob 

was a founding director and shareholder 

of Austereo Ltd and held company 

directorships with Advertiser Newspapers 

Ltd, FH Faulding & Co Ltd, Adelaide 

Bank Ltd, Standard Chartered Bank Aust 

Ltd, Envestra Ltd, Adelaide Stevedoring 

Co. Ltd, Alexander Stenhouse Ltd, G & R 

Wills Ltd, J N Taylor & Co Ltd, AFMECO, 

Reid Bros Holdings Ltd, TVW Enterprises 

Ltd and other listed and unlisted public 

companies. Bob was also chairman of the 

boards of Quarry Industries Ltd, Austereo 

Ltd, Executor Trustee Australia Ltd, Co-op 

Retirement Services Pty Ltd and SA Gas 

Co. Ltd. 

Bob’s community work was also reflected 

in his appointments to the boards of 

national and local statutory and charitable 

organisations including the National 

Gallery of Australia, the National Archives 

of Australia, the National Trust of South 

Australia (as President), the Australian 

Council of National Trusts (as Chairman), 

State Records SA (as Chairman), Art 

Gallery SA Foundation. He additionally 

served as an Adelaide City Councilor for 

four years. Bob was also President of the 

South Australian branch of the Institute of 

Company Directors and a trustee of the 

Gordon Darling Foundation. 

Bob was Chairman of the Prince Alfred 

College Council from 1980 to 1992 and 

a founding member 

of the Prince Alfred 

College Foundation. 

From the late 1960s 

to the mid-1980s. Bob 

also served on the 

boards of the South 

Australian Lawn Tennis 

Association of SA, the 

South Australian Lawn 

Tennis Club and the Memorial Drive Tennis 

Club (as President from 1968 to 1987). 

In 2000, Bob was made an Officer of the 

Order of Australia for his services to the 

law and to the community. 

Throughout his career Bob never failed 

to acknowledge the support from and love 

for his wife Margaret. Margaret was born 

in Melbourne and grew up in Sandringham, 

before her family moved to Adelaide 

in 1960, where she met Bob. Bob and 

Margaret had five children being Hugh, 

Bill, Ann (deceased), John and Tim. 

Bob will also be remembered as a 

hardworking and loving family man, whose 

pastimes included learning French, playing 

tennis, golfing, following Norwood FC 

and gardening. His passionate loyalty to 

South Australia and his Christian work and 

family values are an example for many of 

his family, friends and colleagues. Bob is 

survived by his wife Margaret, his four sons 

and 14 grandchildren. 

Hugh Piper is Bob’s eldest son B 

Society congratulates new appointments 

The Law Society congratulates 

Justice Judy Hughes, Michael 

Wait, Magistrate David White and 

Magistrate Jayne Basheer on their recent 

appointments. 

Former Crown Solicitor Judy Hughes has 

been appointed as the new President of the 

South Australian Civil and Administrative 

Tribunal (SACAT) and as a Supreme Court 

Judge. 

Justice Hughes replaces Justice Parker as 

SACAT President, who will continue as a 

full-time Supreme Court Judge. 

The appointment marks the addition 

of one full-time judicial officer, as Justice 

Parker was previously dividing his time 

between being SACAT President and A 

Supreme Court Judge. Justice Hughes’s 

position is full-time. 

Attorney General, The Hon. John Rau, 

said Justice Hughes had the “experience 

and knowledge as a specialist administrative 

lawyer and organisational manager to be an 

excellent appointment.” 

Michael Wait SC was appointed Crown 

Solicitor on 4 July. 

A graduate with double degrees and 

honours from universities in Adelaide and 

Cambridge, Mr Wait was an Associate of 

Federal Court Judge Madgwick (1999) and 

High Court Justice Gaudron (2000). He has 

been special counsel and executive solicitor 

within the Attorney-General’s Department 

and has most recently been working in 

the Crown Solicitor’s Office, providing 

legal opinions and work on complex State 

matters involving statutory interpretation, 

administrative and constitutional law. 

David White commenced his role 

Magistrate, including as a Magistrate of the 

SACAT and of the Youth Court, on 12 

July 2017. 

Mr White had recently commenced as a 

member of the Law Society’s council, and 

the Society, while disappointed to lose such 

a valuable asset, wishes Mr White well in 

this exciting new step in his career. 

Mr White replaces Magistrate Jayne 

Basheer, also a former Law Society Council 

member, who has been appointed to the 

new role of Deputy State Coroner. B 

10 


FREE 

EVENT! 

You’re invited... 

Start the Conversation 

Please join the Law Society of South 

Australia’s Wellbeing & Resilience 

Committee for drinks with the 

Honourable Chris Kourakis, Chief Justice 

of SA, to launch the Society’s Health & 

Wellbeing on-line program. 

All good* 

The program is an exciting initiative 

seeking to address mental health issues 

within the legal profession. 

I’m fine thanks* 

Sponsored by the Professional Standards Council 

Date/Time: 

Location: 

14 September 2017 The Law Society of South Australia 

5:30pm – 7:30pm 

Level 10, 178 North Terrace, Adelaide 

To register, RSVP to Brooke Theil - Brooke.Theil@lawsocietysa.asn.au 

Visit ruok.org.au for tips on how to ask

The benefits of offering an 

Employee Assistance Program 

WALLMANS LAWYERS 

Wallmans Lawyers seeks to be 

proactive in assisting to reduce the 

high rates of mental illness in the legal 

profession, by encouraging our employees 

to utilise the services of an Employee 

Assistance Program (EAP) should they 

need to seek help. 

An EAP is a personal counselling service 

provided by an employer to all employees 

free of charge. Services provided by an 

EAP can include short-term counselling, 

professional assessments and referrals. The 

services are directed towards discussing 

issues in the employee’s work or personal 

life that can infringe on their health and 

performance at work. Additionally, many 

EAP services not only assist employees, 

but also extend services to immediate 

family of the employee free of charge. 

Every EAP session is strictly confidential. 

Employers are not notified when an 

employee decides to utilise the service 

ensuring their right to privacy. Employees 

often feel more comfortable speaking 

to unbiased, qualified third parties 

regarding sensitive issues, rather than 

their supervising partner or the Human 

Resources department, or in many smaller 

organisations, where there may be no 

dedicated human resource staff member 

at hand. 

EAPs have been proven as an effective 

way for workplaces to assist with the 

greater wellbeing of their staff. A study 

by Flanagan and Ots 1 in 2011 found 

employees had 86% improvement in 

emotional wellbeing, 50% improvement in 

work morale and motivation, and averages 

of 24-27% improved physical health and 

work productivity after accessing EAP 

services. 

Work stress is an underlying factor that 

has been linked to mental illnesses such as 

depression and anxiety. Head of Human 

Resources at Wallmans Lawyers, Kate 

Maguire believes that “those working in 

the legal profession are under constant 

pressures from their job. These come in 

12 


the form of working long hours, complex 

matters and tight deadlines, coupled with 

personal and family pressures, it can be 

difficult to maintain a healthy work/life 

balance”. 

In fact, a 2015 survey run by Lawyers 

Weekly 2 showed that “thirty-two per cent 

of lawyers surveyed ... reported moderate 

to extremely severe depression” and 

that lawyers reported a “higher rate of 

moderate to extremely severe anxiety” as 

compared to the rest of the population. 

Wallmans’ Partner, Trevor Edmond, 

has been an advocate for mental health 

issues and wellbeing in the legal profession 

for many years and is a member of the 

Law Society’s Wellbeing and Resilience 

Committee. 

“EAP services allowing staff, not just 

professional staff, the ability to obtain 

help in dealing with issues affecting their 

wellbeing, is one very important part of 

the suite of assistance that can and should 

be available. In today’s age of immediacy, 

there is so much pressure on all working 

in the profession to get it right quickly and 

the first time, which, in turn places great 

stress on an already stressful profession”, 

he states. 

Trevor believes it is important that there 

is no limit on how an EAP service may 

be utilised. “Issues that impact someone’s 

ability to perform at the necessary levels 

expected in our workplace do not only 

come from within the workplace” he 

reiterates. 

As our lives become more frenetic and 

stressful, external factors can have as much 

of an impact as internal ones. Marital and 

family concerns, substance abuse and grief 

are some of the issues that can impede job 

performance, but with the assistance of 

Wallmans Partner Trevor Edmond said EAP 

services should be provided across the profession 

a qualified EAP counsellor, the employee 

can discover strategies that will assist 

them cope to when dealing with difficult 

experiences. 

Trevor, who has been practising law 

for over 30 years and has witnessed the 

changing demands and pressures the 

industry now faces, would like to see EAP 

services offered across the profession. 

“One of my key hopes is that through 

the Wellbeing Committee we can help 

broaden the services available, particularly 

to those in smaller firms or sole practice, to 

facilitate an EAP equivalent available to the 

profession.” 

Additionally, the question as to whether 

having an EAP assists workplaces to 

manage their work, health and safety risks 

is something that Michael Kay, Head of 

Employment Law, Wallmans Lawyers, is 

often asked. 

“Whether an employer has taken all 

“Whether an employer has taken all reasonably 

practicable steps to ensure the health and safety 

of its employees will often be open to debate.”

easonably practicable steps to ensure the 

health and safety of its employees will 

often be open to debate”, says Michael, 

who is regularly asked by clients whether 

professional services firms “must offer an 

EAP service?” 

“Absent exceptional circumstances, the 

answer is often “no”. However, such a 

strict analysis in a high pressure industry 

such as the law, largely misses the point. 

Offering EAP, where resourcing at your 

firm reasonably permits, is not only about 

addressing employment or safety risks, 

but is about protecting our greatest asset 

in professional services – the mental 

health of our people. Not offering such a 

service creates a very real risk that morale, 

productivity and employee satisfaction will 

be adversely affected.” 

Michael believes that offering an EAP is 

about being proactive, not reactive. “Unlike 

a tradesperson using their hands, our entire 

expertise as lawyers comes from inside our 

head. If there is no immediately available 

help, or help comes too late, the damage 

may have been done. We need to do 

everything we reasonably can to ensure our 

most important tool in our toolkit is the 

best that it can be”. 

Whilst effective, it is important to 

remember that EAPs are only one of 

the many offerings available to modern 

firms and employers. Diverse and practical 

programs which assist positive self 

improvement such as structured reviews, 

professional development and coaching, 

flexible work arrangements, support for 

healthy eating and exercise programs, stress 

reduction activities and a culture that is 

aligned to values and beliefs are all likely 

to play a part in supporting employee 

engagement and wellbeing. 

Endnotes 

1 Flanagan, P.J.& Ots, J. (2011) EAP Counselling: 

Outcomes, Impact and Return on Investment, 

available at http://www.davcorp.com.au/wpdata/ 

files/23.pdf 

2 Lawyers Weekly, 20/05/2015, Leanne Mezrani, 

https://www.lawyersweekly.com.au/news/ 

16068-you-don-t-really-give-a-damn-about-ourmental-health


CYBERSECURITY 

MUST BE A PRIORITY 

FOR FIRMS 

FIONA MCLEOD SC, PRESIDENT, LAW COUNCIL OF AUSTRALIA 

At the end of last year the Law Council — in business, in politics, and within the 

of Australia launched Cyber Precedent, legal profession. 

an information campaign developed with The threat is becoming harder and harder 

cybersecurity experts and government, to ignore, however. 

to help the legal profession defend itself In the United States, for example, a 

against ever growing cyber threats. particularly high profile hack hit the 

As cybercrime and cyberespionage networks of Cravath Swaine & Moore LLP 

climbs exponentially across the globe, the and Weil Gotshal & Manges LLP recently. 

campaign will help equip legal professionals The assumption is they were looking to 

with the resources needed to remain on the steal confidential information for insider 

front foot. 

trading, or potentially blackmail. 

The information resources now available The full investigation, however, will drag 

through Cyber Precedent include a list on for years, because it is such a complex 

of the essential cybersecurity precautions matter to piece together exactly what was 

law firms should take, advice on how to accessed. 

protect against ransomware, a response Often the case with these kind of attacks 

checklist in the case of a cyber attack, and is that the first indication of what has 

a cybersecurity toolkit for the education of been stolen comes when the information 

staff. 

gleaned is used maliciously. 

Of course, the legal profession is not The Cravath/Weil attack should be 

alone in having to step up its response to acutely disturbing for legal professionals, 

this global scourge. 

because the motives appear to be so clear. 

Cybercrime and cyberespionage are The possibilities for malicious behaviour, 

among the most serious challenges if the private information of law firms is 

facing the world today, with significant accessed by people who know what they 

implications for every sector of the are doing, are near limitless. 

modern global economy. 

Just consider the kind of highly sensitive 

More than 500 million entities globally are information the legal profession has that 

compromised through cyberattacks each could be viewed as a glittering prize for 

year, while hacking tools, and hackers for cybercriminals. 

hire, are proliferating. 

There is sensitive client and firm business 

Individuals, organisations, and nation information, confidential client business 

states are looking to breach computer information, and client intellectual property. 

networks to commit any number of crimes Corporate clients, in particular, will often 

— from sabotage, through data theft, to have shared details about undisclosed 

insider trading, and far beyond. 

mergers and acquisitions that could be 

Despite this, it is fair to say cybersecurity stolen and used easily for insider trading. 

remains an issue we have not normalised as There are also litigation and negotiation 

part of our everyday lives and operations strategies, settlement parameters, and 

14 


analysis of evidence that can be used by an 

opponent. 

All this is patently alarming. Yet it 

becomes even more so when you consider 

how these threats fundamentally strike at 

the core of what it is that we do as legal 

professionals. 

Client confidentiality is the very bedrock 

of the client/lawyer relationship. The 

importance of trust in this area can 

scarcely be overstated. 

As the Australian Bureau of Statistic’s 

“#censusfail” of 2016 demonstrated, even 

well-established trust is a flimsy thing. It 

can be critically damaged in an instant by 

cybercriminals. 

So not only are law firms, and lawyers 

more broadly, an attractive target for 

sophisticated hackers — we are also highly 

sensitive to such attacks 

It is fundamental, therefore, that lawyers 

are able to demonstrate to their clients and 

regulators that they understand the nature 

of risk and are adequately prepared to 

address the threat. 

The number of ways through which law 

firms may be threatened by cybercrime or 

cyberespionage is also a major concern. 

Sometimes attacks — like the attacks on 

Cravat Swaine & Moore and Weil Gotshal 

& Manges — are obvious and spectacular. 

Yet there are so many other ways law 

firms are vulnerable. 

Ransomware – computer malware that 

installs covertly on a victim’s computer, 

executes a cryptovirology attack that 

adversely affects that computer, and then 

demands a ransom payment to restore it 

– is rife.

It infects systems and devices via phishing 

emails and texts, as well as compromised 

websites, and “malvertising.” 

Ransomware is not actually new — the 

first known case was in the 1980s. But its 

prevalence, and the sophistication of its 

business models, is on a very steep rise. 

A 2015 survey from the Australian Cyber 

Security Centre in Australia found that 

ransomware was the most prevalent type of 

incident affecting Australian businesses, with 

some 72 per cent of respondents affected. 

The conservative estimate is that at 

least $5 million annually is extorted via 

ransomware from victims. 

The real figure could in fact be much 

higher, given that many firms will simply 

choose to pay the ransom, given that the 

amount demanded is, on average, only $200. 

HOW CAN LAW FIRMS AVOID BEING 

HELD RANSOM? 

As is the case in so many areas, it is often 

the seemingly simple and obvious actions 

that are too often overlooked. 

Although it is the elaborate “heists” that 

tend to make the headlines, data breaches 

are more typically caused by simple human 

error, or by poor internal controls, or 

through deficient system infrastructure. 

Managing this incredible range of risk 

must become a core priority for law firms. 

Some simple preventative measures 

include: 

• Implementing a strong password policy 

requiring all users to regularly change 

passwords and requiring more complex 

passwords, i.e. mixture of lower and 

uppercase letters, numbers, and symbols 

• Making sure all network patches 

and anti-virus software are updated 

regularly 

• Reviewing and auditing all permissions 

in your network 

• Updating and deactivating all user 

accounts regularly 

• Deactivating and off-boarding departing 

employees 

• Walling off, or segregating users and 

certain sensitive data 

• Changing network and Wi-Fi passwords 

regularly 

While such measures may sound prosaic, 

it is fair to say there is still a level of 

complacency within the legal profession 

that is not at all commensurate with the 

seriousness of the threat faced. 

Some recent research from the legal 

sector in the UK, for example, indicates 

70% of firms do not place cyber resilience 

within their top five risks, while 85% of 

firms do not have a documented strategy 

to improve cyber resilience. 

MAKING CYBERSECURITY A TOP 

PRIORITY 

Yet the central point is not adhering to 

a set checklist, but rather recognising that 

cyber risks should evolve beyond being 

seen as an “IT issue”. 

Mitigating the risks has to be managed 

by a strategic and coordinated approach, 

and that means making cyber security a 

strategic objective. 

At senior management level — and even 

at board level — there must be an acute 

sensitivity to cybersecurity threats to foster 

a culture of vigilance. 

Yet ultimately if the legal profession’s 

cyber defences are to evolve effectively to 

keep pace with the changing techniques 

of foreign adversaries firms need to start 

acting more holistically and cooperatively, 

both with each other and with government 

agencies. 

Currently, Australian firms and practices 

tend to manage cyber risks individually, but 

this means a fairly common threat is being 

handled in a diverse and disparate range of 

ways. 

It is inefficient and creates something of 

a ‘broken line of defence’ to innovative 

cyber criminals. 

Yet there are now promising green shoots 

in the coordination space. 

The federal government recently 

launched a national cyber security strategy 

to help businesses and organisations 

protect their interests online. Although 

still in its early phases, this Cyber Security 

Strategy will likely include the development 

of mechanisms such as alert systems, to 

advise law firms and chambers they may be 

specifically targeted by foreign adversaries. 

The Law Council will also continue 

to develop and advance Cyber Precedent, 

working in partnership with the legal 

profession, our Constituent Bodies, 

industry, and government. 

As a profession we are in the early stages 

of formulating an appropriate defensive 

approach, and the mitigation strategy will 

need to continually evolve. 

The vital point is that the success of 

our approach will largely depend on our 

capacity to cooperate, both across the 

profession and with government. B 


COMPETITION LAW 

International competition policy: Is 

Australia surfing the wave? 

NICOLAS PETIT, RESEARCH PROFESSOR, UNIVERSITY OF SOUTH AUSTRALIA SCHOOL OF LAW, & JOHN MANSFIELD QC 

The UniSA School of Law, in 

partnership with the Australian 

Competition and Consumer Commission 

(ACCC), will hold the 15th edition of 

its Competition Law and Economics 

Workshop in Adelaide on 13-14 October 1 . 

Emphasis will be placed on the domestic 

and international context. On both 

fronts, the tides are rising for Australian 

competition policy. 

MARKET INVESTIGATIONS & NEW 

LEGISLATIVE POWERS 

At the domestic level, the Federal 

Government has requested the ACCC to 

conduct a market investigation into the 

retail electricity pricing sector. 2 The topic 

is politically sensitive. Polls have singled 

out energy prices as a top priority for 

Malcolm Turnbull’s government. 3 Failure 

to deliver quick and effective solutions to 

this matter could prove divisive when 

it comes to public support for green 

energies and fossil fuel emission targets. In 

addition, this investigation could pose an 

administrative challenge for the ACCC. It 

comes on the heels of an array of ongoing 

market investigations in the dairy sector, 

new car retailing and communications 

sectors. As such, this additional 

investigation could potentially stretch the 

resources of the ACCC. 

16 


At the same time, however, the ACCC 

could soon assume new powers. Draft 

legislation released in 2016 proposes 

to introduce an express prohibition of 

“concerted practices” in the Competition 

and Consumer Act (CCA) of 2010. 4 

This amendment purports to fill a gap. 

Under the 2010 CCA, the law only 

prohibits “contracts, arrangements and 

understandings” that substantially lessen 

competition, thereby leaving beyond the 

ambit of the law less formal instances 

of collusion, such as price signaling 

and information exchanges. 5 The new 

amendment to the CCA, could allow the 

ACCC to operate more efficiently and 

confidently in such cases, with lower 

risks of review before the Australian 

Competition Tribunal. 6 Yet the CCA 

amendment implies an additional 

workload for the ACCC. Firms involved 

in “concerted practices” will certainly seek 

protection under the leniency programme 

by reporting their conduct to the ACCC. 

Moreover, the prohibition of concerted 

practices could burden administrative and 

judicial proceedings with endless quarrels 

among economists. All competition 

systems with a similar provision have, at 

some point in their history, had to address 

the issue of whether conscious parallelism 

amongst oligopolists – think, for example, 

of two petrol stations on either side of a 

street – could (and should) be enjoined 

as a concerted practice short of any 

explicit agreement. 7 This hard question 

is contentious. Short of an agreement, 

there is nothing to remedy. Unless, of 

course, one requires oligopolists to behave 

irrationally. 

TRUMP, BREXIT AND INDUSTRIAL 

POLICY? 

On the international scene, last year’s 

election of President Trump in the US 

may well be a game changer in an area 

where international convergence had 

until then been a stable equilibrium. 

President Trump’s “America first” 

rhetoric, and the early withdrawal from 

the Trans-Pacific Partnership augur a 

non-trivial possibility that antitrust laws 

could be used to protect and promote US 

businesses. At the same time, Republicans 

have traditionally supported minimalist 

antitrust enforcement. The Party may 

thus be reticent to embrace the idea of 

reinvigorating antitrust in pursuit of a trade 

agenda. As for other policies, the policy 

line of the new US administration remains 

to date in limbo. And key functions within 

the US antitrust agencies (the FTC and the 

DOJ) remain to be filled. 

Besides, Brexit could also prove a 

disruptive force. At present, the European 

Union (EU) internal market rules leave no 

space for industrial policy interventions 

in the form of State subsidies, restrictions 

on foreign takeovers, and discriminatory 

regulations. But this outlook could 

be entirely different in a “hard Brexit” 

world, where UK competition policy 

has taken back control over market 

regulation. Should we conjecture a revival 

of industrial policy in the UK? 8 Theresa 

May’s Government has already announced 

it will review the public interest regime in 

UK merger control and consider greater 

controls on foreign investment. And the 

Labour opposition has expressly advocated 

industrial subsidies and public ownership. 9 

Whoever ends up at Downing Street UK

COMPETITION LAW 

post Brexit, the prospect of a “United 

Kingdom first” is not entirely fictional. 

With all this, the tides are rising for 

Australian competition policy. Large trade 

partners in the Anglo-American world 

are increasingly leaning towards a view of 

competition policy as a trade instrument. 

And this new policy vision is one that 

subjects competition policy to a degree 

of political authority. In contrast, the 

EU in 2016 reaffirmed its commitment 

to independent competition policies, 

suggesting that enforcement agencies be 

further insulated from executive power. 10 

Whilst all those policy developments 

happen abroad, they create a novel 

intellectual context that will no doubt 

inform, and possibly influence (in one way 

or the other), the conduct of competition 

policy in Australia in the years to come. 

These issues will be tabled for discussion at 

the 2017 CLEW. They are of concern to 

all of us as legal practitioners, consumers 

and global citizens. 

Programme and registration details 

can be found at the following website: 

http://www.unisabusinessschool.edu.au/ 

connect/news-and-events/2017/15thannual-competition-law-and-economicsworkshop/ 

B 

Endnotes 

1 http://www.unisabusinessschool.edu.au/ 

globalassets/schools/docs/competitionworkshop-e-program-21072017.pdf 

2 Market investigations shine a light on the level 

of competition in a market, and on possible 

violations of the Act prohibiting anti-competitive 

practices and unfair practices (such as misleading 

and deceptive conduct and false and misleading 

representations). 

3 See “Power prices top of voter concerns on 

energy policy, says Newspoll”, The Australian, 

June 20, 2017. 

4 The proposed amendment would insert a new 

sub-paragraph (c) into section 45 as set out 

hereafter: “Section 45 (1) A corporation must not: … 

(c) engage with one or more persons in a concerted practice 

that has the purpose, or has or is likely to have the effect, 

of substantially lessening competition”. 

5 Laws prohibiting anti-competitive price signaling 

and information disclosures were introduced 

in June 2012. But these laws only apply to the 

banking sector in relation to taking deposits and 

making loans. 

6 It remains to be discussed if this gap actually left 

significant forms of anticompetitive collusion 

unchecked by the ACCC. See [___]. 

7 In over 50 years, the problem has received 

a dozen names – tacit collusion, conscious 

parallelism, oligopolistic interdependence – and 

academics still fret on whether cartel law is 

the right tool. See, for instance, Louis Kaplow, 

Competition Policy and Price Fixing, Princeton. 

University Press, Princeton and Oxford, 2013. 

8 For a good discussion and overview, see 

Lyons, Bruce and Reader, David and Stephan, 

Andreas, “UK Competition Policy Post-Brexit: 

In the Public Interest?” (November 4, 2016). 

Centre for Competition Policy Working Paper 

16-12. Available at SSRN: https://ssrn.com/ 

abstract=2864461 

9 Id. 

10 See EU Commission, Press Release, 22 March 

2017, “Commission proposal to make national 

competition authorities even more effective 

enforcers for the benefit of jobs and growth”, 

available at http://europa.eu/rapid/pressrelease_IP-17-685_en.htm 

CRICOS No: 00603F 

JOIN US FOR A SCHOOL TOUR 

Year 7 Ready 

(Senior School) 

9:30 am, Wed 6 September 

9.30 am, Thurs 16 November 

Book online: ignatius.sa.edu.au 

Senior School 

9:30 am, Wed 25 October 

Ignatius Early Years & Junior School 

9:30 am, Thurs 9 November 

Ite Inflammate Omnia: Go, set the world alight. 

Year 7 Ready Since 1996


Clarifying the rules on incorporated 

legal practices & partnerships 

ETHICS & PRACTICE UNIT 

Practitioners should be 

aware of the amendments 

to Schedule 1 of the Legal 

Practitioners Act 1981 

(“the Act”) with regard 

to Incorporated Legal 

Practices (ILPs) practicing in 

partnership with other ILPs 

or legal practitioners or both. 

Since the 2014 amendment of the Act, 

ILPs have become increasingly more 

popular in the South Australian legal 

landscape. 

The definition of an ILP is found in 

Clause 1 of Schedule 1 of the Act which 

states that an incorporated legal practice is 

a corporation that engages in legal practice 

in this jurisdiction. 

The reading of the Act prior to the 

amendment appeared to create difficulty 

with regard to whether or not ILPs could 

in fact operate in partnership. It was this 

apparent difficulty that the amendment set 

out to address. 

THE AMENDMENT 

Although the new ILP provisions 

contained in Schedule 1 of the Legal 

Practitioners Act 1981 were still in their 

infancy, it became clear that as result of 

the new Schedule 1 and other amendments 

that doubt had arisen as to whether or not 

Schedule 1 in its current format allowed for 

ILPs to practice in partnership with other 

ILPs and/or other natural persons. 1 

As a result, the further amendment 

followed to clarify this aspect by inserting 

sections 3A, 4A and 5A to Schedule 1 

of the Act which came into effect on 13 

November, 2016. 

The three newly inserted sections now 

make it clear that ILPs can practice in 

partnership with other ILPs or individuals 

or both. 

The newly inserted sections state the 

following: 

18 THE BULLETIN September 2017 

3A—Incorporated legal practices may 

practise in partnership 

Subject to this Act, an incorporated legal 

practice may practise in partnership with 

another incorporated legal practice or a 

legal practitioner (or both). 

4A—Notice to be given by incorporated 

legal practice of intention to practise in 

partnership 

(1) Before an incorporated legal practice 

starts to engage in legal practice in this 

jurisdiction in partnership with another 

incorporated legal practice or a legal 

practitioner (or both), the practice 

must give the Supreme Court written 

notice, in the approved form, and 

accompanied by the prescribed fee, of 

its intention to do so. 

(2) An incorporated legal practice must 

not engage in legal practice in this 

jurisdiction in partnership with an 


practitioner (or both) if it is in default 

of this clause. 

Maximum penalty: $50 000. 

(3) An incorporated legal practice that 

starts to engage in legal practice in 

this jurisdiction in partnership with an 


practitioner (or both) without giving a 

notice under subclause (1) is in default 

of this clause until it gives the Supreme 

Court written notice, in the approved 

form, of the failure to comply with 

that subclause and the fact that it has 

started to engage in legal practice in 

partnership with an incorporated legal 

practice or a legal practitioner. 

(4) The giving of a notice under 

subclause (3) does not affect an 

incorporated legal practice’s liability 

under subclause (1) or (2). 

(5) A firm of incorporated legal practices, 

or of incorporated legal practices and 

legal practitioners, is not entitled to 

recover any amount for anything the 

firm did while a member of the firm 

was in contravention of subclause (2). 

(6) A person may recover from a firm 

of incorporated legal practices, or of 

incorporated legal practices and legal 

practitioners, as a debt due to the 

person, any amount the person paid 

to or at the direction of the firm for 

anything the firm did while a partner 

of the firm was in contravention of 

subclause (2). 

(7) This clause does not apply in relation 

to— 

(a) a firm of incorporated legal 

practices, or of incorporated legal 

practices and legal practitioners, if 

the firm— 

(i) was established before the 

commencement of this clause; 

and 

(ii) engaged in legal practice in this 

jurisdiction immediately before 

the commencement of this 

clause; or 

(b) an incorporated legal practice that 

was a member of a firm referred to 

in paragraph (a) immediately before 

the commencement of this clause 

insofar as the practice engages in 

legal practice as a member of the 

firm. 

5A—Notice to be given by incorporated 

legal practice providing legal services 

in partnership 

(1) This clause applies to— 

(a) an incorporated legal practice 

that— 

(i) immediately before the relevant 

day— 

(A) was a legal practitioner within 

the meaning of this Act (as in 

force immediately before the 

relevant day); and 

(B) was practising in partnership 

with another legal practitioner; 

and 

(ii) immediately before the 

commencement of this clause, 

continued to practise in the 

partnership; and


(b) an incorporated legal practice that, 

after the relevant day but before the 

commencement of this clause— 

(i) commenced practising in 

partnership with another 

incorporated legal practice or a 

legal practitioner (or both); and 

(ii) immediately before the 

commencement of this clause, 

continued to practise in the 

partnership. 

(2) An incorporated legal practice to which 

this clause applies must, if it intends 

to continue to engage in legal practice 

in this jurisdiction in partnership with 

another incorporated legal practice or 

a legal practitioner (or both), within 

28 days following the commencement 

of this clause, give the Supreme Court 

written notice, in the approved form 

and accompanied by the prescribed fee, 

of that intention. 

(3) An incorporated legal practice to which 

this clause applies must not engage 

in legal practice in this jurisdiction in 

partnership with an incorporated legal 

practice or a legal practitioner (or both) 

if it is in default of this clause. 

Maximum penalty: $50 000. 

(4) An incorporated legal practice to 

which this clause applies that engages 

in legal practice in this jurisdiction in 

partnership with another incorporated 

legal practice or a legal practitioner (or 

both) after the end of the 28 day 

period referred to in subclause (2) 

without giving a notice under that 

subclause is in default of this clause 

until it gives the Supreme Court 

written notice, in the approved form, 

of the failure to comply with that 

subclause and the fact that it has 

continued to engage in legal practice 

in partnership with another 


practitioner (or both). 

(5) The giving of a notice under 

subclause (4) does not affect an 

incorporated legal practice’s liability 

under subclause (2) or (3). 

(6) A firm of incorporated legal practices, 

or of incorporated legal practices and 

legal practitioners, is not entitled to 

recover any amount for anything the 

firm did while a member of the firm 

was in contravention of this clause. 

(7) A person may recover from a firm 

of incorporated legal practices, or of 

incorporated legal practices and legal 

practitioners, as a debt due to the 

person, any amount the person paid 

to or at the direction of the firm for 

anything the firm did while a member 

of the firm was in contravention of this 

clause. 

(8) In this clause— 

relevant day means the day on which this 

Schedule came into operation. 

SCHEDULE 1 NOTICE REQUIREMENTS 

Practitioners who are considering to 

either commence practice as an ILP or to 

change their existing business structure 

to an ILP are reminded of the notice 

requirement under Clause 4 of Schedule 1 

to provide to the Supreme Court written 

notice of their intention to engage in legal 

practice in this jurisdiction. 

In addition, there are now new notice 

requirements contained in sections 4A 

and 5A that must be complied with if a 

partnership is to be set up. Accordingly an 

ILP may not engage in legal practice in this 

jurisdiction in partnership with another 

ILP, legal practitioner or both, if the 

required written notice has not been given. 

NON-COMPLIANCE 

An offending ILP may not recover any 

amount for anything the corporation 

did whilst in contravention of the notice 

requirements and will also be indebted 

to the client for the amount of any 

payments received during the period of 

contravention. 2 Practitioners should also 

be aware that non-compliance carries a 

prescribed maximum penalty of $50,000. B 

Endnotes 

1 South Australia, Parliamentary Debates, House of 

Assembly, 22 June 2016, 6038 (The Hon. J.R. RAU). 

2 Legal Practitioners Act, 1981(SA), Schedule 1, cls 

4A (5-6), 5A (6-7). 

Adelaide Cloud, providing local cloud services 

to our customers since 2000. 

• cPanel hosting 

• IIS hosting 

• Cloud email – Hosted Exchange 

• Cloud spam filtering 

• Cloud anti-virus 

• Cloud storage 

• VPS hosting 

• Cloud backup 

• Domain registry, DNS and SSL 

Phone: (08) 8132 7350 

Email: info@adelaidecloud.net

SOUTH AUSTRALIAN LEGAL PROFESSION: 

A SNAPSHOT 

The Conference of Law Societies recently released its 2016 

National Profile on Solicitors, which provides a detailed 

picture of what the modern legal profession looks like and how 

it is changing. The report builds on similar surveys conducted in 

2011 and 2014. 

The survey revealed some interesting data about the profession 

in South Australia. There are almost as many female practitioners 

as male practitioners, and given the rapid increase in young female 

practitioners, it is inevitable that women will outnumber men in 

the very near future in SA. Nationally, female practitioners have 

already overtaken male practitioners, making up 50.1% of the 

profession. 

The study also shows that the SA profession is ageing, with SA 

practitioners being the oldest in the country. 

Below is an infographic which summarises some of the key 

findings in the report about the South Australian profession. 

SIZE OF THE PROFESSION 

The South Australian profession has grown the least in the past five years (as at October 2016), recording a net increase of 

6% in the profession since 2011. 

RATE OF GROWTH IN THE 

PROFESSION SINCE 2011 

ACT 50% 

WA 34% 

QLD 29% 

VIC 23% 

NSW 23% 

TAS 22% 

NT 7% 

SA 6% 

60% 

50% 

40% 

30% 

20% 

10% 

0% 

ACT WA QLD VIC NSW TAS NT SA 

Series 1 

GENDER 

There has been a 10.8% increase in female practitioners since 2011, compared with a 1.7% increase in male practitioners. 

GENDER PROFILE OF SA LAWYERS 

NUMBER OF PRACTITIONERS UNDER 

40 YEARS OF AGE 

1009 669 

50.8% 49.2% 

NUMBER OF PRACTITIONERS AGED 

60 AND OVER 

130 441 

20 THE BULLETIN September 2017

AGE 

Average age of the South 

Australian practitioner: 

43.7 YEARS 

Number of practitioners 

over 65 years of age: 

7.3% 

LOCATION 

Where practitioners work: 

SOUTH AUSTRALIA HAS THE HIGHEST 

PROPORTION OF LONG-SERVING PRACTITIONERS, 

WITH 46% OF THE PROFESSION IN THIS STATE 

BEING ADMITTED FOR 15 YEARS OR MORE. 

CITY 

72.9% SUBURBS 

19% RURAL/REGIONAL 

7.1% 

EMPLOYMENT 

PRACTITIONERS BY EMPLOYMENT SECTOR 

Private 

Practice 

70.80% 

Government 

17.50% 

Corporate 

8.90% 

SIZE OF LAW FIRMS 

Sole 

Practitioner* 

70.20% 

2 to 4 

Partners 

21% 

5 to 20 

Partners 

6.70% 

21+ 

Partners 

2.10% 

*includes barristers 

ABORIGINAL & TORRES STRAIT 

ISLANDER STATUS 

OF THE 3,694 PRACTITIONERS IN SA, ONLY 17 (0.5%) IDENTIFIED AS 

ABORIGINAL OR TORRES STRAIT ISLANDER. 

September 2017 THE BULLETIN 

21


The role of private practice in 

the legal assistance sector 

HANNAH ROSE, HEAD OF PRO BONO & COMMUNITY, SPARKE HELMORE LAWYERS 

The provision of free legal assistance 

by private law firms for people who 

cannot afford it has a long history in 

Australia 1 and is on the rise. 

In 2016, lawyers in large law firms 

averaged 34.8 hours of pro bono 

legal work — 9.7% higher than the 

figures reported to the Australian Pro 

Bono Centre in 2014. 2 This growth is 

predominantly seen at firms with 

between 201 and 449 full time equivalent 

(FTE) lawyers. 3 

Pro bono services provided by private 

firms are an adjunct to publicly funded 

legal services, such as legal aid, community 

legal centres, Aboriginal and Torres Strait 

Islander legal services, and family violence 

prevention legal services. Nevertheless, 

private practice’s contribution to the 

provision of pro bono services is 

a valuable source of assistance for 

individuals experiencing disadvantage, who 

do not have the financial means to access 

legal services and are unable to get support 

from the legal assistance sector. 

The 2014 Productivity Commission 

Inquiry Report confirms that private 

firms play a small but important role in 

bridging the access to justice gap. 4 The 

report found that when considered in the 

broader context, the overall contribution 

of pro bono services from private practice 

is relatively modest — around 3% of the 

capacity of the legal assistance sector and 

less than 1% of the entire legal market. 5 

This is in some cases because private 

firms are not adequately equipped to deal 

with the raft of legal issues experienced 

by disadvantaged individuals. It is also 

because pro bono is outside of the core 

business activities of private firms. The 

Australian Pro Bono Centre reports that 

further growth in pro bono work from 

private practice is likely to be limited due to 

resourcing and financial limitations. 6 

It is clear though that pro bono is an 

important part of doing business for mid 

to large private law firms and is increasingly 

Pro bono work contributes to a positive work 

environment by providing employees with a 

sense of connection to the values of the firm, 

variety in their work and a chance to give a 

helping hand to those in need. 

a factor that practitioners consider before 

joining a firm. 7 Pro bono provides an 

opportunity for lawyers to connect with 

members of their community, support 

organisations that provide invaluable 

community services and to broaden 

their experience. Pro bono work also 

contributes to a positive work environment 

by providing employees with a sense of 

connection to the values of the firm, 

variety in their work and a chance to give a 

helping hand to those in need. 

Through its Pro Bono Program, Sparke 

Helmore acts on its ethical obligation to 

enhance access to justice for individuals 

experiencing disadvantage. The firm also 

supports charitable organisations through 

the provision of pro bono or significantly 

reduced fee services, so their funds can be 

used to provide the valuable community 

services they offer. Pro bono legal work 

is highly valued by Sparke Helmore and 

all lawyers are encouraged to participate 

in the program. The firm supports this by 

recognising the time spent on pro bono 

matters in the same manner as commercial 

work, which also ensures a high-quality 

pro bono service. Fee earners are also 

encouraged to include their pro bono legal 

activities and hours in their professional 

development reviews. 

In 2013, the firm became a signatory to 

the National Pro Bono Aspirational Target 

of 35 pro bono hours on average per FTE 

per year. The Target is set and monitored 

by the Australian Pro Bono Centre in 

consultation with the legal profession, and 

Sparke Helmore has exceeded the target 

for the past two years. This is thanks to the 

commitment and passion of our lawyers 

who enthusiastically get involved in pro 

bono projects such as, for example, our 

wills clinic initiative. 

The firm collaborates with community 

organisations in regional, rural and remote 

areas of New South Wales and Western 

Australia (WA) to hold wills clinics for 

Aboriginal and Torres Strait Islander 

people. In the past financial year, our 

lawyers assisted 86 attendees to draft more 

than 180 estate documents, including wills, 

powers of attorney and appointments of 

enduring guardianship. The positive impact 

of our first Clinic in Northam, WA— 

which was held in collaboration with the 

Wheatbelt Community Legal Centre and 

other local community organisations—was 

recently acknowledged at the Wheatbelt 

Aboriginal Health Services Moorditj 

Djinda Awards, which is a credit to the 

hard work and dedication of all those 

involved. 

For firms developing a pro bono 

practice, it is important to recognise that 

working with clients who are experiencing 

disadvantage, illness or hardship requires 

specialised client management skills 

that are not always developed through 

commercial legal practice. To assist 

lawyers with developing these skills, 

Sparke Helmore collaborated with the 

Australian Pro Bono Centre, Henry Davis 

York, Clayton Utz, McCabes Lawyers and 

others in the legal assistance sector and 

mental health profession to develop the 

Client management and self-care—a guide for pro 



bono lawyers. The Guide is a useful tool to 

train lawyers on effective communication 

with clients experiencing disadvantage, 

assessing clients’ legal capacity as well as 

obtaining clear instructions and providing 

comprehensive, easy-to-understand 

advice. The guide, which can be found 

at www.probonocentre.org.au, also 

covers cultural awareness, working with 

interpreters and understanding common 

mental health issues. B 

Endnotes 

1 Australian Pro Bono Centre, History of Pro Bono 

in Australia . 

2 Australian Pro Bono Centre, Report on the Fifth 

National Law Firm Pro Bono Survey 2014 . 

3 Ibid. 

4 Productivity Commission, Productivity Commission 

Inquiry Report: Access to Justice Arrangements (5 

September 2014) . 

5 Ibid. 

6 Australian Pro Bono Centre, Report on the 

Fifth National Law Firm Pro Bono Survey 

2014 . 

7 Productivity Commission, Productivity Commission 

Inquiry Report: Access to Justice Arrangements (5 

September 2014) . 

70 years of the Law Society Judgment 

Scheme comes to an end 

LORNA HARTWELL, LIBRARIAN, LAW SOCIETY OF SA 

The Law Society’s case report series, 

The Law Society Judgment Scheme ( LSJS) 

spanned nearly 70 years and comprised 303 

volumes. The first volume of the series was 

published in 1947 and the last in 2017. 

In August 1947 1 , the Society’s Council 

resolved to trial (for a 12-month period) 

a “scheme” to circulate copies of the 

judgments of the Supreme Court of South 

Australia to the profession. Mr Ralph 

Hague was offered and accepted the job 

of selecting the judgments to be copied. 

It was in this same year that Mr Hague 

took over the editorship of the authorised 

reports for South Australia, The State 

Reports, which he edited for forty years. The 

Judgment Scheme very quickly took off as 

an essential service, offering practitioners 

access to important judgments, not 

necessarily reported in The State Reports. 

Over the years the look and format of 

the LSJS changed considerably. With 

the increasing number of judgments 

emanating from the Courts, the Society 

from January 1971 ceased posting out 

individual judgments to subscribers and 

consolidated the publication of judgments 

in a volume distributed monthly. 2 From 

the early nineties the judgments were 

delivered from the Courts to the Society in 

electronic format according a new look to 

the published appearance. 

In 1992, after 45 years of service, Kelvyn 

Prescott took over the editorial reins from 

Mr Hague. At this time the editor had the 

help of an assistant editor and a reporting 

team of over 30 reporters who read the 

cases and made recommendations as to 

which decisions merited reporting. 

The case volumes have been 

accompanied by the publication of a listing 

and summary of unreported judgments, 

along with periodic consolidated indexes. 

The publication of the LSJS would 

not have been possible over the years 

without the work of the people involved in 

delivering the administrative duties which 

are associated with the reports. Robyn 

Burnett, Personal Assistant to the Chief 

Executive has tirelessly worked on the 

publishing and distribution of the Reports 

since 2009. Unfortunately little is known of 

her predecessors. 

With the cessation of the LSJS it is 

fitting to acknowledge the enormous and 

dedicated work of the chief editors as 

listed here: 

• Ralph Hague CBE 1947 to 1992 (Vol 

1-163) 

• Kelvyn Prescott 1992 to 2002 (Vol 164- 

221) 

• Cassandra Francas 2002 to 2015 (Vol 

222-292) 

• Darren Evans 2015 to 2016 (Vol 292- 

299) 

• Tom Evans 2016 to 2017 (Vol 300-303) 

A copy of the first Judgment Scheme, published 

in 1948 

A complete set of the Law Society Judgment 

Scheme is available in the Law Society’s 

Library, The Murray Law Library. B 

Endnotes 

1 The Law Society of South Australia Council Minutes, 

18 August 1947 

2 The Law Society of South Australia Council Minutes, 

29 November 1971 



Developing in a small 

firm versus a large firm 

REBECCA CLAFTON, MINTER ELLISON & EVELYN JOHNS, ROSSI LEGAL 

Rebecca Clafton and Evelyn Johns are 

two young lawyers who have both 

been practising for around five years and 

therefore like to consider themselves out 

of the “baby lawyer” phase. Both of them 

have worked in large and smaller sized 

firms but each started their career quite 

differently. 

Rebecca commenced her career at the 

Southern Community Justice Centre and 

then moved to a small firm, Ezra Legal, 

practising in commercial litigation for 

nearly three years. She then moved to the 

Dispute Resolution team at Minter Ellison. 

Evelyn on the other hand commenced 

working at Fisher Jeffries in commercial 

litigation, where she practised for around 

five years before moving to Rossi Legal, a 

smaller firm. 

They compare the benefits of 

commencing practice in smaller and large 

firms: 

HOW DID YOU GET YOUR FIRST JOB? 

R: I started volunteering at the Southern 

Community Justice Centre, assisting in 

a wide variety of disputes including in 

criminal, family and civil matters. When 

an opportunity arose at Ezra Legal, 

it gave me the chance to move into 

commercial litigation, as I knew it was 

the area that I wanted to grow in. 

E: I was lucky enough to be able to obtain 

a summer clerkship at Fisher Jeffries 

in November/December, 2011. I 

thoroughly enjoyed this clerkship and 

tried to work hard during my four 

weeks there. I was thankfully offered an 

ongoing position from March, 2012. 

WHAT WERE THE BENEFITS OF 

STARTING OUT IN A SMALL/LARGE 

FIRM? 

R: When I started, the practitioners 

around me were the principal and one 

other established solicitor. The smaller 

size of the firm meant getting thrown 

in at the deep end in relation to several 

aspects of practice, including client 


contact and management, contact with 

both junior and senior counsel, liaising 

with court staff, and attending hearings. 

Whilst the thought of attending 

hearings, in particular, was daunting to 

me, I consider it was the best way to 

get familiarity with court practice and 

procedure, and the lessons learned will 

always stay with me. 

E: Having my start at Fisher Jeffries was 

invaluable to me, as due to their size, 

they have a lot of resources to train 

junior lawyers, as well as distinct teams, 

which meant you got a good one-onone 

mentoring experience with your 

partner. I was lucky that both partners 

I worked for would spend a lot of 

time teaching me new things and were 

interested in my ongoing development. 

Also, because Fisher Jeffries is a rather 

large firm, there are a lot of other 

junior lawyers there. I found this meant 

there was a large support network of 

people of your own age, which made 

the transition from life as a university 

student to working life that much 

easier. 

HOW DO YOU THINK THAT EXPERIENCE 

HELPED YOU GROW AS A LAWYER? 

R: The steep learning curve simply meant 

taking more on and learning more 

quickly. This “learning by doing” 

method was useful for me and gave 

me invaluable hands-on experience 

very early on but with the comfort of 

knowing that, being under supervision, 

whilst I had a level of responsibility 

that I needed to face up to, there was 

always a principal standing behind me. 

E: I think that due to the mentoring I 

had from my partners and the training 

I received, I now have quite good 

attention to detail and analytical skills. 

While at Fisher Jeffries I primarily 

practised in one area of law, I found the 

skills I learnt there to be transferable. 

WHAT WERE THE DETRIMENTS ABOUT 

STARTING OUT IN A SMALL/LARGE 

FIRM? 

R: There is always going to be less in the 

way of resources at a small firm. When 

a person is away or ill, sometimes 

there is nothing else to do but step in 

and make a call, or attend a hearing. 

This can be daunting for a young 

lawyer. There may also be less of an 

opportunity to bounce ideas off other 

people, and for mentoring relationships 

to grow. 

E: While I did get some different kinds 

of matters at Fisher Jeffries, I primarily 

practised in one area, so perhaps I did 

not get as much exposure to different 

kinds of matters as I would have at a 

smaller firm. Many people might say 

at a big firm you get less responsibility, 

however, I was lucky in that I had a 

small team of just three of us, so I 

found I got a reasonable amount of 

responsibility; for example, I was given 

the opportunity to attend a mediation 

alone with our client in the Supreme 

Court of Western Australia, which was 

an invaluable learning experience and 

one I will always remember. 

WHAT HAVE YOU FOUND CHALLENGING 

IN MAKING YOUR RESPECTIVE 

MOVES? 

R: Having come from an environment 

where I had rarely delegated tasks to 

others, it was difficult to get used to 

thinking about what could and should 

be delegated to make things more 

efficient, and how to go about doing 

I consider it was the best way to get familiarity 

with court practice and procedure, and the 

lessons learned will always stay with me.


so. I also had to get used to a different 

level of secretarial and business 

services support, going from putting 

together tender books and trial or 

mediation materials myself, to having a 

dedicated team to assist. 

E: While at Fisher Jeffries, I had a 

reasonably large workload, it was 

primarily for one client. At Rossi Legal, 

I have quite a large amount of different 

clients, including individuals and 

companies. As such, I initially struggled 

balancing clients’ expectations. The 

other thing that has changed is that I 

have gone from sharing a secretary to 

having my own secretary and being 

encouraged to dictate. Initially I found 

it challenging to let go of control of 

some tasks and allow my secretary to 

take responsibility, as well as learning 

how to dictate. 

WHY WOULD YOU RECOMMEND 

YOUR CAREER PATH TO A GRADUATE 

LAWYER? 

R: There is no one way to start a career 

but I will say that starting practice in a 

small firm was an excellent experience 

for me and if I had my time again 

I would probably do it the same 

way. However, neither law firms nor 

graduate lawyers are all the same; not 

all people react and learn in the same 

way. For every person who responds 

well and learns from being put to the 

challenge quickly with less of a team 

behind them, there is a person who 

thrives having more people around 

them at the same post-admission 

experience level to work things through 

with. That said, there is something 

special about the closeness of a small 

firm and the camaraderie that you build 

with each person in it. 

E: Everyone is different, so you really 

have to do what is right for you, 

however, in the current market you 

really have to take whatever job you 

are given. Nevertheless, I think I 

would recommend the career path I 

have taken. I received great training 

at Fisher Jeffries which helped me 

to manage the variety of work and 

different clients that I now have and 

also helped me to be more confident 

and independent in my new job, 

especially when I have been given more 

responsibility. I also think the large 

amount of support I received from my 

colleagues and friends at Fisher Jeffries 

and the large social network I had there 

was important in transitioning from 

university to the workplace. B

LEGAL PROFESSION 

DINNER 

REGISTRATION FORM 

DATE: Thursday 5 October 2017 

TIME: 

6.30pm for 7pm – 11.30pm 

VENUE: 

Adelaide Oval (Ian McLachlan Room) 

DRESS: 

Cocktail 

BAND: 

Lucky Seven 

MC: Mike Smithson, Channel 7 

INCLUSIONS: 

3 course menu with premium wines 

Award Presentations 

RSVP & ENQUIRIES: Amelia Garreffa (Member Services) 

Phone: (08) 8229 0264 

Email: mcs@lawsocietysa.asn.au 

GUEST SPEAKER: BRET WALKER SC 

“THE LAW. WHAT’S GOD GOT TO DO WITH IT?” 

Bret Walker SC was admitted to the New South Wales bar in 1979. He was appointed Senior Counsel in 

1993, Queen’s Counsel in 1994, and was President of the NSW Bar Association from November 2001 to 

November 2003. He was President of the Law Council of Australia from 1997 to 1998. He practises mainly 

in general appellate advocacy, equity/commercial, administrative and Constitutional law. 

Mr Walker has been editor of the NSW Law Reports since 2006. He was a Governor of the Law Foundation 

of NSW from 1996 to 2007, and Special Commissioner of Inquiry for the NSW government into Sydney 

Ferries in 2007 (among other Special Commissions and enquiries for the State). He was the inaugural 

Independent National Security Legislation Monitor 2011 – 2014, and is a foundation fellow of the Australian 

Academy of Law. 

He was a director of the Sydney Writers’ Festival from 2000 to 2010. Mr Walker is the chairperson of Red 

Room Poetry, a not-for-profit organisation promoting poetry in unusual and useful ways. 

He was leading counsel in the ‘School Chaplains case’, Williams v Commonwealth of Australia (2012) 248 

CLR 156 & Williams v Commonwealth of Australia (2014) 252 CLR 416. 

SPONSORS 


LEGAL LEGAL PROFESSION 

LEGAL PROFESSION 

DINNER 

DINNER 

THURSDAY THURSDAY 

THURSDAY 5 OCTOBER 5 OCTOBER 

5 OCTOBER 2017 

2017 

2017 

ADELAIDE ADELAIDE ADELAIDE OVAL, OVAL, IAN OVAL, IAN MCLACHLAN IAN MCLACHLAN ROOM 

ROOM 

6.30PM 6.30PM 6.30PM FOR FOR 7PM 

7PM FOR 7PM 

REGISTRATION FORM 

REGISTRATION FORM FORM 

Contact Name 

Firm / Organisation 

act Name Contact Name 



l 

Email 

Telephone 

Email 

Telephone Telephone 

PLEASE BOOK SEATS FOR THE FOLLOWING GROUP: (alternatively book online at members.lawsocietysa.asn.au) 

SE PLEASE BOOK SEATS BOOK FOR SEATS THE FOR FOLLOWING THE FOLLOWING GROUP: GROUP: (alternatively (alternatively book online book at members.lawsocietysa.asn.au) 

online at Table Name 

Name Table Name 

Full Name YL PM M NM DIETARY REQUIREMENTS 

ame Full Guest Name 1 

YL PM YL MPM NM DIETARY NM DIETARY REQUIREMENTS 

t 1 

Guest 1 

2 

t 2 

t 3 

t 4 

t 5 

t 6 

t 7 

t 8 

Guest 2 

3 

Guest 4 

Guest 3 

Guest 5 

Guest 4 

Guest 6 

Guest 5 

Guest 7 

Guest 6 

Guest 8 

Guest Guest 7 

9 

Guest 8 

10 

t 9 Guest 9 

LEGAL PROFESSION DINNER TICKET PRICES: 

t 10 Guest YL : 10 

Young Lawyer Member & partner $125 per person 

PM: Platinum Member & partner $150 per person 

AL LEGAL PROFESSION PROFESSION DINNER DINNER TICKET TICKET PRICES: PRICES: 

M : Member & partner $175 per person 

Young YL : Lawyer Young Member Lawyer & Member partner & partner NM : Non Member & partner 

$125 per person $125 per person 

$250 per person 

Platinum PM: Platinum Member & Member partner & partner $150 per $150 person per person 

PAYMENT 

Member M : & Member partner & partner Total Amount Payable $_________________________ 

$175 per person $175 per person 

Non NM Member : Non & Member partner & partner Payment must be received with the Registration Form to confirm the booking. 

$250 per $250 person per person 

MENT PAYMENT 

Please find a cheque enclosed for $_____________ (Cheques payable to the Law Society of SA) 

or Payment by Credit Card (please tick) VISA MASTERCARD 

l Amount Total Amount Payable Payable $_________________________ 

ent must be received with the Registration Form to confirm the booking. 

Payment Credit Card must Number 

received with the Registration Form to confirm the booking. 

e find Please Expiry a cheque find Datea enclosed cheque enclosed for $_____________ for $_____________ (Cheques Signature (Cheques payable to payable the Law to Society the Law of Society SA) of SA) 

yment or Payment by Credit by Card Credit (please Card tick) (please tick) VISA VISA MASTERCARD MASTERCARD 

Name on card 

it Card Credit Number Card Number 

PLEASE RETURN REGISTRATION FORM AND PAYMENT TO: 

Law Society of SA, GPO Box 2066, Adelaide SA 5001 or DX 333 or Fax 8231 1929. 

y Date Expiry Date 

Signature Signature 

For phone enquiries or payments please contact Amelia Garreffa on 8229 0264 or email mcs@lawsocietysa.asn.au 

Cancellations advised in writing ten days prior to the event or more will be refunded in full or a replacement may be 

e on Name card 

nominated. on card 

SPONSORS 

ASE PLEASE RETURN RETURN REGISTRATION REGISTRATION FORM FORM AND PAYMENT AND PAYMENT TO: TO: 

Society Law of Society SA, GPO of SA, Box GPO 2066, Box Adelaide 2066, Adelaide SA 5001 or SA DX 5001 333 or or DX Fax 333 8231 or Fax 1929. 8231 1929. 

hone For enquiries phone enquiries or payments or payments please contact please Amelia contact Garreffa Amelia on Garreffa 8229 0264 on 8229 or email 0264 mcs@lawsocietysa.asn.au 

or email ellations Cancellations advised in advised writing in ten writing days ten prior days to the prior event to the or more event will or more be refunded will be refunded in full or a in replacement full or a replacement may be may b

TAX FILES 

When Unpaid Present Entitlements 

can be treated as loans 

PAUL INGRAM, PARTNER, MINTER ELLISON 

It is common for trustees, shortly before 

30 June each tax year, to resolve to 

distribute the income of the trust for 

that tax year to selected beneficiaries, but 

not to make any actual payment of the 

relevant amounts until some time later. 

Such resolutions are generally treated as 

giving rise to “unpaid present entitlements” 

(UPEs) in favour of the relevant 

beneficiaries. 

Division 7A of Part III of the Income 

Tax Assessment Act 1936 (Div7A) contains 

important provisions which seek to 

impose additional tax where certain loans, 

payments and other benefits are provided 

to the shareholders in a private company 

(of their associates). It does this by 

deeming those loans, payments or other 

benefits to be dividends. 

Accordingly, a key issue has long been 

whether a UPE in favour of a corporate 

beneficiary constituted a “loan” by that 

corporate beneficiary back to the trustee 

for Div 7A purposes. If so, a deemed 

dividend could often arise. 

THE COMMISSIONER’S VIEW 

Prior to 16 December 2009, UPEs 

were generally not treated as loans and 

accordingly did not give rise to deemed 

dividends (subject to some specific rules in 

Subdivision EA of Div 7A). 

However, this position changed (with 

application to UPEs arising on or after 

16 December 2009), with the issue of two 

key documents by the Commissioner: 

• Taxation Ruling TR 2010/3; 

• Practice Statement PSLA 2010/4. 

Those documents ushered in a new 

regime for the taxation of UPEs, 

essentially requiring taxpayers to do 

one of the following by the relevant 

lodgement date: 


• document the outstanding UPE as a 

complying Division 7A loan, which 

involves either 

° a seven year loan (unsecured); or 

° a 25 year loan (secured over real 

property) 

both with prescribed principal and 

interest repayments during the relevant 

term; or 

• enter into a qualifying “sub-trust 

arrangement” under PSLA 2010/4, 

which involves: 

° a seven year interest only loan, with 

interest payable at the “benchmark 

interest rate”, (Sub-trust Option 1); 

° a 10 year interest only loan, with 

interest payable at the “prescribed 

interest rate” (Sub-trust Option 2); 

° an investment in a specific income 

producing asset or investment (Subtrust 

Option 3). 

Many taxpayers would have chosen Subtrust 

Option 1. Under that option, 

the investment amount of a UPE relating 

to the tax year ending 30 June 2010 

would need to be paid out on or before 

30 June 2018. However, neither TR 

2010/3 or PSLA 2010/4 specified the 

consequences that would follow from a 

failure to do that. 

NEW PRACTICAL COMPLIANCE 

GUIDELINE 

In order to clarify the position, the 

Commissioner has now issued Practical 

Compliance Guideline PCG 2017/13 (the 

Guideline). The key details are as follows: 

• failure to repay the outstanding principal 

by 30 June 2018 1 will result in a deemed 

loan; 

• however, if a qualifying seven year 

Division 7A loan agreement 2 is entered 

into by the trust’s lodgement date for 

the 2018 year (generally 15 May 2019), 

the taxpayer will effectively have 

another seven years to repay the 

outstanding amount (but with 

complying principal and interest 

payments along the way). 

This is an important concession which 

many taxpayers will want to access. It is 

also hoped that similar arrangements will 

be put in place for UPEs arising in respect 

of the 2011 and later tax years. 

However, advisers should also note 

that there is a potential sting in the tail. 

Paragraph 18 of PCG 2017/13 states that 

if the facts and circumstances indicate 

that there was never an intention to repay 

the principal at the end of the seven-year 

period that was applicable under Option 1, 

this may lead the Commission to consider 

that the investment arrangement was a 

sham, or that there was fraud or evasion, 

in which case the Commissioner can go 

back and deem a dividend in the income 

year in which the UPE first arose (being 

30 June 2010 for present purposes). It is 

far from clear when such drastic action 

might be taken. 

Tax Files is contributed on behalf of the South 

Australian based members of the Taxation 

Committee of the Business Law Section of the 

Law Council of Australia. B 

Endnotes 

1 The Guideline also contains references to 30 

June 2017, but this is apparently to cover off 

taxpayers who entered into Sub-trust Option 1 

arrangements in the 2010 tax year (which the 

author believes will be very rare, as while the new 

regime first applied to UPEs relating to the 2010 

year, action was only regarded to be taken prior 

to 30 June 2011). 

2 It is not possible to roll into a 25 year secured 

loan, or Sub-trust Options 2 or 3. Nor will the 

Commissioner allow the new 7 year loan to be 

subsequently converted into a 25 year secured 

loan.

Growth through digital and 

traditional marketing. 

boylen.com.au 

P 08 8233 9433 

A Level 3, 47 South Tce, Adelaide SA

SPACE LAW 

Space: Not just for 

superpowers anymore 

CANDIDA D’ARCY, BARRISTER, EDMUND BARTON CHAMBERS AND 

A LEGAL OFFICER IN THE RAAF SPECIALIST RESERVE 1 

This year brings some significant 

anniversaries of major developments 

in humanity’s relationship to space. It is 

the 60th anniversary of the first artificial 

satellite of Earth, Sputnik 1. 2 It is also the 

50th anniversary of the United Nations 

Outer Space Treaty. 3 

Much has changed on Earth since 

Sputnik 1. Space was then an arena in 

the Cold War between the Soviet Union 

and western powers. The “Space Race” 

between the Soviet Union and the USA 

was energised by each side vying for 

technological superiority in the hope 

of thereby demonstrating ideological 

superiority. Mutual distrust fed the fear that 

the other side would seek to use space for 

military advantage and that ultimately, all of 

humanity might be wiped out by a nuclear 

war in space. Space was thought of as the 

domain of international States, because the 

huge costs involved in gaining a presence 

in space and the immense scientific knowhow 

required to achieve it were beyond 

the realm of any other entities apart from 

governments. 

The Cold War, if not over, has markedly 

eased since 1957. The Soviet Union no 

longer exists. And it has become evident 

that space is no longer the exclusive 

preserve of government agencies. 

Commercial entities are mounting 

forays into space. As mastery of the 

necessary technology spreads, the costs 

involved decrease and a presence in 

Space becomes an increasingly realistic 

possibility for commercial corporations 

and independent research bodies as well 

as governments. 

What has not altered much in space 

discourse since 1957 is concern about 

hostile military activities being conducted 

in, from and through space. What this 

piece seeks to argue is that the concern 


should not focus solely on the activities of 

professional military forces, but should also 

focus on the havoc that could be unleashed 

by civilians interfering, maliciously or 

otherwise, in space by cyber means. 

ELEMENTS OF SPACE LAW 

The Outer Space Treaty is an 

international agreement which has as one 

of its objectives the peaceful use of Space. 

Article 3 provides for Space activities to be 

carried on “in the interest of maintaining 

international peace and security”. Article 

4 bans the placement of nuclear and 

other weapons of mass destruction in 

full orbit around Earth and provides that 

“the Moon and other celestial bodies shall 

be used by all … exclusively for peaceful 

purposes”. The language reflects a world 

fearful of war and suspicious of what uses 

might be made of Space in the absence 

of an express provision that it be used for 

peaceful purposes. 

Australia has ratified the Outer Space 

Treaty which has 106 parties, indicating a 

good degree of international acceptance 

of it. Twenty-four other countries have 

signed but not yet ratified it. In Australia 

the relevant implementing legislation is the 

Space Activities Act 1998 (Cth) which covers 

regulation of space activities, liability for 

damage by space objects, the registration 

of space objects and the investigation of 

accidents. The Space Activities Act not only 

enshrines the Outer Space Treaty but also 

5 other international agreements about 

space matters, 4 of them being multilateral 

agreements and one being a bilateral 

agreement between Australia and Russia. 

The Outer Space Treaty represents 

the high-water mark of international 

agreements about Space. The 4 multilateral 

international agreements which followed it 

have a diminishing number of parties, and 

success in reaching binding international 

agreement about Space ceased in 1979 

with the Moon Agreement which has only 

17 parties, and with a further 4 signatories 

yet to ratify it. 4 Although a major aim of 

the Moon Agreement is to regulate the 

management of resources that may be 

developed on or taken from the Moon, its 

effectiveness is severely downgraded by 

the failure of the USA, Russia or China to 

participate in it. 5 

Before binding international consensus 

dried up, in addition to the Outer 

Space Treaty and the Moon Agreement 

multilateral concord was achieved on 

the return and rescue of astronauts, 6 

international liability for damage caused 

by space objects 7 and registration of 

space objects. 8 Subsequently, “space law” 

has been augmented by a number of 

international declarations and statements 

of principles, which are non-binding. 

A major difficulty in establishing 

jurisprudence for space is the rate at which 

technology progresses. Countries are 

rightly reluctant to tie themselves to treaties 

which may be outstripped at any moment 

by another technological development 

rendering a previous agreement 

inconvenient and at worst otiose. 

The term “space activity” conjures up 

images of fiery crewed rocket launches 

and human moon landings. These dramatic 

and significant activities do not represent 

the preponderance of space activity in 

the 21 st century. By far the most common 

space activity is the use of satellites. Indeed 

photographs of Earth taken from Space 

now show a band around the Earth that 

resembles a ring of Saturn but is in fact 

made up of satellites occupying the prized 

geostationary orbit around the Equator. 

There satellites can most closely match the 

rotation of the Earth, thus making tracking

from Earth relatively easy without the need 

for frequent movements of the Earthbound 

antennae. It is estimated from UN 

records that around 70 countries currently 

operate the more than 4,200 artificial 

satellites orbiting Earth, with about a 

quarter of them having commercial users. 

Satellites are used for a myriad of different 

purposes, with communications, global 

positioning systems, surveying and research 

purposes being common. Satellite launch 

facilities are commonly made available 

to paying commercial customers, and 

private corporations are actively engaged 

in researching and developing rocket 

technology which can launch satellites 

as well as other cargo into Space. The 

University of Adelaide proudly built and 

launched its own research “Cubesat” from 

Cape Canaveral in April 2017. Space is 

inexorably becoming widely accessible for 

far more than a propaganda war between 

superpowers. 

CYBER-ATTACK IN SPACE 

Humanity has an increasing dependence 

on satellites for many terrestrial activities. 

These include essential routine human 

activities such as being able to withdraw 

money from an ATM, up to the use of 

GPS to keep passenger planes on the 

correct route. The traditional concern 

in Space has been to prevent the use of 

kinetic military force between belligerent 

superpowers. This concern is outdated. 

Military force is no longer limited to 

kinetic force. Cyber warfare is an important 

contemporary issue, and the law of armed 

conflict is struggling to keep pace with 

cyber threats. The role of the law of armed 

conflict in “space law” may be crucial. 

Satellites, which are controlled by 

cyber means, could be the target of a 

cyber-attack. The Tallinn Manual 2.0 has 

declared that a cyber-attack could in some 

circumstances constitute an armed attack, 

legitimising the use of force in response. 9 

However, the cyber threat comes not 

only from military actors. A scenario of a 

civilian cyber-attack on a satellite can easily 

be imagined, in these times of computer 

hacking (malicious or experimental), 

ransomware and malware. 

International law provides that where an 

armed attack comes from a non-state actor, 

military force can be used in response. 10 A 

hacker taking out a country’s satellite might 

conceivably find themselves subjected to 

the use of force by that country exercising 

its lawful right of self-defence. The 

“ifs, buts and maybes” surrounding this 

proposition are the subject of current 

international debate. It is to be hoped that 

consensus can be achieved at the same rate 

as the rapid technological progress that 

creates the need for it. B 

Endnotes 

1 The author gratefully acknowledges the input 

into this article of Professor Dale Stephens, 

University of Adelaide Law School. 

2 Launched by the Soviet Union in 

October 1957. 

3 Treaty on Principles Governing the Activities of States 

in the Exploration and Use of Outer Space, including 

the Moon and Other Celestial Bodies (General 

Assembly resolution 2222 (XXI), annex) – 

adopted on 19 December 1966, opened for 

signature on 27 January 1967, entered into force 

on 10 October 1967. 

4 Agreement Governing the Activities of States on the 

Moon and Other Celestial Bodies (resolution 34/68, 

annex) – adopted on 5 December 1979, opened 

for signature on 18 December 1979, entered into 

force on 11 July 1984. 

5 Those being the only countries who have 

yet made controlled landings on the Moon. 

Japan, India and the European Space Agency 

all pursue uncrewed missions and have 

reached the Moon although not in a controlled 

fashion. 

6 Agreement on the Rescue of Astronauts, the Return 

of Astronauts and the Return of Objects Launched 

into Outer Space (resolution 2345 (XXII), annex) 

– adopted on 19 December 1967, opened for 

signature on 22 April 1968, entered into force on 

3 December 1968. 

7 Convention on International Liability for Damage 

Caused by Space Objects (resolution 2777 (XXVI), 

annex) – adopted on 29 November 1971, opened 

for signature on 29 March 1972, entered into 

force on 1 September 1972. 

8 Convention on Registration of Objects Launched into 

Outer Space (resolution 3235 (XXIX), annex) 

– adopted on 12 November 1974, opened for 

signature on 14 January 1975, entered into force 

on 15 September 1976. 

9 Tallinn Manual 2.0 on the International Law Applicable 

to Cyber Operations, General Editor Michael N 

Schmitt, Cambridge University Press 2017, at 

pp.20-21. 

10 State Practice, as shown in UN Security Council 

Resolutions 1368 and 1373. 


BOOKSHELF 

COWEN & ZINES’S FEDERAL JURISDICTION IN AUSTRALIA 

By G Lindell 

4 th ed, The Federation Press 2016 

HB $165.00 

Abstract from Federation Press 

This book examines the jurisdiction of 

the High Court, federal courts and Territory 

courts, as well as the federal jurisdiction of 

State courts. It is an area of law that has been 

described as technical, complicated, difficult 

and not infrequently absurd. It is, however, 

the direct result of the federal distribution 

of judicial power made by the Australian 

Constitution and it is of great practical 

importance. Much of the difficulty and some 

of the absurdity has come about because 

of the unthinking copying of the United 

States Constitution. On a number of matters, 

therefore, the book contains an analysis of the 

American position. 

Contact Federation Press: 02 9552 2200 

info@federationpress.com.au 

www.federationpress.com.au 

By S Hepburn 

5 th ed, The Federation Press 2016 

PB $110.00 

PRINCIPLES OF EQUITY AND TRUSTS 

Abstract from Federation Press 

This fifth edition of Principles of Equity and 

Trusts has been comprehensively updated and 

revised. It also includes a foreword by the 

Honourable Justice Geoffrey Nettle of the 

Australian High Court. 

The fifth edition retains its original style of 

presenting principles and remedies relevant 

to equity and trusts in a straightforward and 

succinct manner, referencing up-to-date cases 

and materials. It includes a discussion of new 

developments in fiduciary obligations, express 

trusts, unconscionable dealing, constructive 

trusts, penalties, injunctions, trustee duties and 

charitable trusts. 

Contact Federation Press: 02 9552 2200 

info@federationpress.com.au 

www.federationpress.com.au 

By R J Desiatnik 

3 rd ed , LexisNexis 2017 

HB $220.00 

LEGAL PROFESSIONAL PRIVILEGE IN AUSTRALIA 

Abstract from LexisNexis 

Extensively revised and updated this third 

edition of Legal Professional Privilege in Australia 

brings together all the important aspects of the 

doctrine and all substantive decisions thereon, 

in a readable fashion rather than a bare and 

dry exposition. It covers the doctrine both at 

common law and as set out in the Evidence 

Act 1995, including its qualifications and 

exceptions thereto, and closely examines the 

associate and complex doctrine of waiver of 

the privilege. It also cites numerous cases to 

provide detailed illustrations of the application 

of the doctrine. 

Contact LexisNexis: 1800 772 772 

customersupport@lexisnexis.com.au 

store.lexisnexis.com.au/store/au 

ETHICS, PROFESSIONAL RESPONSIBILITY AND LEGAL PRACTICE 

By P MacFarlane & Y Ross 

LexisNexis 2017 

PB $109.00 


Abstract from LexisNexis 

This authoritative and accessible text 

combines commentary, case law and legislative 

sources to demonstrate and explain the 

nexus between ethical principles and the 

rules of legal practice and professional 

conduct. It covers all Australian jurisdictions 

to provide comprehensive coverage of the 

ethical framework and rules applicable to the 

Australian legal context. 

Each topic is introduced with a clear and 

succinct explanation of the relevant principles 

and supported by short edited extracts from 

key cases and other source materials, while 

readers are challenged to think critically 

about important issues confronting lawyers in 

modern practice. 

Contact LexisNexis: 1800 772 772 

customersupport@lexisnexis.com.au 

store.lexisnexis.com.au/store/au

RISK WATCH 

Risk management for counsel 

GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS 

Practitioners who act as 

counsel should, just like 

those who practice as 

solicitors, adhere to good risk 

management principles. 

With the recent contraction of the 

doctrine of advocate’s immunity 

(see Riskwatch – July 2017) and a rise in 

reported claims against barristers being 

seen at Law Claims this month’s Riskwatch 

will look at some risk management 

techniques applicable to counsel. 

In a paper first presented to the NSW Bar 

Practice Court in 2004 Mr P H Greenwood 

SC listed ten basic precautions for 

barristers. These are: 

• Record the date and time of receipt on 

all briefs. 

• Examine all briefs on receipt to 

determine what you are being asked to 

do and any time limits. 

• Send fee agreements/disclosures. 

• When advising, enunciate any 

restrictions you perceive to the retainer 

(e.g. I note that I have not been asked to 

advise on….). 

• Make notes of conferences which 

include a description of what happened, 

what you said and your impressions. 

• When in doubt about ANYTHING, 

consult with others. 

• Warn clients of the risks of litigation, 

including the costs ramifications. 

• “Smell” problems, and address them, 

there and then. 

• Invite suggestions, comments and 

perceptions from solicitors and clients. 

• The client who doesn’t want to listen 

is the client who really needs to hear. 

Explain why he or she needs to hear. 

The good sense of these precautions 

should be obvious: indeed, the sending of 

fee agreements/disclosures is now required 

by the Legal Practitioners Act 1981 (SA). 

The making of notes by practitioners 

(Precaution No. 3 above) is a well-known 

“hobby horse” of Law Claims and has 

been addressed in a number of Riskwatch 

articles (see for example Riskwatch 

October 2016 and February 2015) but 

a recent claim matter dealt with by Law 

Claims emphasises the fact that it is 

just as important for barristers to make 

(and retain) proper file notes as it is for 

solicitors. 

In this matter a Claimant alleged both the 

barrister (insured in SA) and the solicitors 

(insured interstate by different insurers) 

involved had provided negligent advice 

in respect of court proceedings including 

in respect of settlement offers made 

at a mediation. The solicitors claimed, 

in part, that they had relied upon the 

advice provided by the barrister as to the 

prospects of success of the claimant’s case 

and the level of damages the claimants 

would recover. The barrister did not retain 

his brief and had no notes of the advice 

provided at the mediation which made 

dealing with the claim extremely difficult 

from the barrister’s point of view. 

Where it is not possible for a barrister 

to retain his or her brief (and this would 

be ideal from the risk management point 

of view) then at the very least all notes 

of conferences, mediations and court 

appearances should be retained for at least 

7 years after the conclusion of the relevant 

matter. 

This recent claim also underlined the 

importance of Precaution No. 7 above – 

warning clients of the risks of litigation, 

including costs ramifications. It was also 

alleged by the Claimant that, in effect, 

the advice provided was overly “bullish” 

and did not appropriately reflect the 

risk (indeed, any risk) of not settling at 

the mediation and proceeding with the 

claim in Court. As it happened the claim 

proceeded and was entirely unsuccessful. 

It was alleged that the advice which was 

provided at the mediation was to the 

effect that the minimum amount that the 

client would receive was “[x] %” of the 

amount claimed, with no indication that 

there was a risk that the claim might in 

fact wholly fail. Whilst it is certainly the 

case that a mistaken view is not necessarily 

a negligent one, the issue in this case was 

that the client was not apparently advised 

of there being any risk at all when that was 

plainly not the case. The barrister did not 

accept the allegations however there were 

no contemporaneous notes of any advice 

which might have been given. 

Further litigation will often be launched 

on the basis of an opinion from Counsel. 

If this opinion takes an overly ambitious 

view problems may ensue if the litigation 

becomes expensive and protracted. It will 

also often be the case that, as the matter 

progresses, the key points of dispute may 

narrow to a critical matter of construction 

or evidence which becomes the difference 

between winning and losing. This key 

point might well not have been at all 

apparent at the early stages of the dispute, 

however, by the end of a trial it will often 

seem obvious, especially to a disgruntled 

losing party – hindsight being a wonderful 

thing. 

One way of avoiding these sorts of 

problems is to make sure at all stages 

that you properly evaluate the risks in the 

client’s claim or defence and that the client 

properly understands both the risks of 

litigation and the risks in their own claim 

or defence. Another useful approach 

is to regularly review and reassess the 

client’s claim/defence and the initial advice 

provided as the matter progresses. 

If it becomes clear that, as a result of 

further evaluation or the availability of new 

evidence, the initial advice is too “bullish” 

it is better to confront that issue as soon as 

possible rather than just leave it be in the 

hope that it might just be “alright on the 

night” (as they say in the Theatre). 

Finally, the nature of the duties of 

Counsel and what may occur if there is a 

shortfall in meeting those duties are set out 

by the Chief Justice in the recent case of 

Wallis v Wallis [2017] SASC91, especially at 

para [30]. 



Modern slavery at home & abroad: 

What responsibilities should 

Australian businesses have? 

RAFFAELE PICCOLO AND CELIA MOODIE, HUMAN RIGHTS COMMITTEE 

In February 2017, the 

Commonwealth Parliament’s 

Joint Standing Committee 

on Foreign Affairs, Defence 

and Trade was tasked with 

inquiring into and reporting 

on establishing a Modern 

Slavery Act in Australia. 

This article will explore the 

issue of modern slavery, how 

it relates to Australia, and 

possibilities for law reform. 

MODERN SLAVERY AT HOME AND 

ABROAD 

The Global Slavery Index 2016 estimates 

that 45.8 million people are subject to some 

form of modern slavery in 167 countries. 1 

That same report notes that the lowest 

prevalence of modern slavery continues 

to be found in the countries of Western 

Europe and North America, and Australia 

and New Zealand. Australia is similarly 

ranked as one of the most proactive 

countries in responding to, and combatting, 

modern slavery. 2 

Two matters should be immediately noted 

from these observations. First, the report 

describes Australia as being among the 

group of countries that has the “lowest 

prevalence” of modern slavery, not that 

modern slavery does not exist in Australia. 

Second, the report describes Australia as 

being one of the countries “taking the 

most steps to respond to modern slavery”. 3 

This cannot, and should not, be taken as a 

suggestion that Australia is doing enough 

to ensure that products sold in Australia by 

Australian businesses do not involve the 

use of slavery. 

RANA PLAZA BUILDING COLLAPSE 

The potential for Australian businesses 

to be implicated in modern slavery 


increases as Australian business operations 

increasingly reach abroad. That potential 

is epitomised in the 2013 collapse of 

the nine-storey Rana Plaza building in 

Bangladesh. More than 1100 garment 

workers were killed. This occurred 

after thousands of workers had earlier 

protested about the state of the building 

(complaining about visible cracks in the 

pillars). Nonetheless, the workers had been 

forced to commence their shifts on the 

day in question. 4 The incident caught the 

attention of Australian media, unions, and 

consumers, and served as a wake-up call 

for the many Australian businesses that 

sourced garments from Bangladesh. 5 

The Bangladeshi prosecuting authorities 

subsequently charged a total of 41 persons 

for offences relating to the collapse of 

the building. Those charged included the 

owner of the building, proprietors of 

businesses based in the building, engineers 

who allegedly confirmed that the building 

met safety requirements, and government 

officials, including the local Mayor, and a 

town councillor. 6 The charges ranged 

from failures to adhere to the applicable 

building regulations to “culpable 

homicide”. 7 The prosecuting authorities 

noted that “[a]ll 41 of those charged have 

a collective responsibility for the tragedy”. 8 

But what of the foreign businesses that 

were to be the ultimate re-sellers of the 

garments; were they simply naïve about 

the costs that attach to cheaply sourced 

products? Or were they wilfully blind to 

such exploitative labour practices? Where 

does responsibility start and end in the 

supply chain? 

SLAVERY IN AUSTRALIAN BUSINESS 

SUPPLY CHAINS 

While not directly implicated in the 

collapse of the Rana Plaza building, these 

questions remain relevant to Australia, as 

Australian businesses continue to source 

their products from abroad. Unfortunately, 

even post the Rana Plaza building collapse, 

The Rana Plaza Collapse in Bangladesh 

(CC BY-SA 2.0) by rijans on Flickr 

(https://www.flickr.com/people/rijans/) 

that potential has been realised. One 

Australian business was accused of having 

“sold millions of dollars’ worth of clothes 

made in North Korea, where factory 

workers endure slave-like conditions”. 9 

Australian businesses placed in other 

industries have similarly been accused 

of selling slavery produced goods from 

abroad. 10 

These concerning examples are 

compounded by recent studies into 

supply chain management by Australian 

businesses. In one study, Australian 

businesses engaged in the electronics 

industry were assessed on the strength of 

the labour rights management systems that 

they had adopted to mitigate the risk of 

forced labour, child labour and exploitation 

in their supply chain. The report found that 

a number of Australian businesses “were 

amongst the worst performers”. 11 A similar 

study assessed the efforts of Australian 

fashion businesses to protect workers in 

their supply chain from labour exploitation 

and “the egregious practice of modern 

slavery”. The report concluded that “91% 

of companies [assessed] still don’t know 

where all their cotton comes from, and 

75% don’t know the source of all their 

fabrics and inputs”.’ 12 

The concerns and questions posed do 

not remain limited to Australian businesses 

that source their goods from abroad. 

Unfortunately, slavery has been found to 

exist at home. Some of the fresh food


produce that is placed on the shelves of 

major Australian supermarket businesses, 

and used in the products of fast food 

restaurants, has been found to have 

been produced locally, using exploitative 

labour practices. Such practices have been 

particularly targeted at foreign workers. 13 

ROLE & RESPONSIBILITY OF BUSINESS 

That businesses have a role to play in 

guarding against slavery is not novel. 

One only has to consider the work of the 

Special Representative of the Secretary- 

General on the issue of human rights 

and transnational corporations and other 

business enterprises, John Ruggie, in 

developing the Guiding Principles on 

Business and Human Rights: Implementing 

the United Nations ‘Protect, Respect 

and Remedy’ Framework. 14 Principle 13 

relevantly provides that businesses have 

a responsibility to “[a]void causing or 

contributing to adverse human rights 

impacts through their own activities, and 

address such impacts when they occur’ and 

to ‘[s]eek to prevent or mitigate adverse 

human rights impacts that are directly 

linked to their operations, products or 

services by their business relationships, 

even if they have not contributed to those 

impacts”. 15 Thus, “[t]he Guiding Principles 

‘clearly anticipate the need for companies 

to accept that their responsibility to respect 

human rights goes beyond the bounds 

of the enterprise (i.e. formally affiliated 

entities) to reach extended networks of 

third parties”. 16 

Businesses are expected to look beyond 

their immediate contracts and contacts, 

and to consider and explore the practices 

of those who engage with their respective 

product supply chains. The United Nations 

Human Rights Council endorsed the 

Guiding Principles in June 2011. 17 

AUSTRALIAN LAW ON SLAVERY 

Division 270 of the Criminal Code 

criminalises slavery, including forced 

labour, carried out in Australia, or abroad, 

by any person, regardless of nationality. 18 

Relevantly, it is an offence for a person to 

intentionally enter into any commercial 

transaction involving a slave, 19 or for a 

person to intentionally provide finance 

for any commercial transaction involving 

a slave. 20 Similarly, a person commits an 

offence if they enter into any commercial 

transaction involving a slave, or provide 

finance for any commercial transaction 

involving a slave, and are reckless as 

to whether the transaction involves a 

slave. 21 These provisions apply to bodies 

corporate. 22 The extent to which these 

provisions might criminalise the conduct 

of an Australian business in allowing 

slavery to be present in its supply chain, 

either intentionally, or recklessly, remains 

unclear. It might be necessary to amend the 

Criminal Code so as to criminalise slavery in 

supply chains. 23 

OPTIONS FOR REFORM 

The implementation of measures that 

promote transparency in supply chains of 

Australian businesses is one option. This 

could take the form of a Modern Slavery 

Act, such as the Modern Slavery Act adopted 

by the United Kingdom in 2015. 24 That 

Act imposes an obligation upon businesses 

to submit an annual statement describing 

actions taken to ensure that slavery is 

not present in their operations, including 

supply chains. The statement may include 

information on the business’s policies in 

relation to slavery, due diligence processes, 

and staff training on slavery. 25 The Act 

does not oblige businesses to undertake 

any particular efforts to eliminate slavery 

from supply chains. No penalties attach to 

non-compliance with the requirement to 

submit the annual statement. It seems that 

the purpose of the provision is to promote 

transparency, and in doing so, embarrass 

businesses into acting to ensure that slavery 

is not present in their supply chains. This 

approach assumes that possible poor 

publicity may cause a business to be 

proactive, or reactive, and act accordingly 

to protect its name. Time will tell. 

A second option is to impose 

responsibility, and sanctions, on Australian 

businesses for the presence of slavery 

in their supply chains which, with due 

diligence, they could have reasonably 

been expected to discover and address. 

An example of this approach in found 

with the Illegal Logging Prohibition Act 2012 

(Cth). It combines civil and criminal 

liability with due diligence requirements. 

In effect, Australian businesses engaged 

in the processing or importation of 

timber are obliged to adopt procedures to 

ensure that the timber that they purchase 

was not illegally harvested. Intentionally, 

knowingly, or recklessly, importing or 

processing illegally harvested timber, 

attracts fines and/or imprisonment. 26 The 

Act “deliberately targets the firm at the top 

end of the supply chain.” 27 

CONCLUSION 

Given the continued prevalence of 

slavery (despite its proclaimed abolition), it 

is obvious reform must be forthcoming. 28 

The options discussed should not be 

considered as mutually exclusive. The 

promotion of transparency in the 

supply chains of Australian businesses 

is necessary, but inadequate in and of 

itself. The prevalence of slavery, and its 

possible presence in the supply chains of 

Australian business, is notorious. Australian 

businesses should accordingly be taken to 

be aware of such risks. For that reason, 

they must equally be prepared to take on 

the responsibility of ensuring that slavery is 

not present in their domain of influence. B 

Endnotes 

1 ‘[M]odern slavery refers to situations of 

exploitation that a person cannot refuse or leave 

because of threats, violence, coercion, abuse of 

power or deception, with treatment akin to a 

farm animal’, Walk Free Foundation, The Global 

Slavery Index 2016 (Minderoo Foundation, 2016) 

158; Walk Free Foundation, 8. 

2 Ibid 9. 

3 Ibid. 

4 Australian Broadcasting Corporation, Rana 

Plaza collapse: Bangladeshi workers demand justice 

on factory disaster anniversary (24 April 2016) 

. 

5 Hayden Cooper, Factory collapse a ‘wake-up call’ 

for fashion industry (1 May 2013) Australian 

Broadcasting Corporation . 

6 Australian Broadcasting Corporation, Owner 

of collapsed Bangladesh building arrested (28 April 

2013) http://www.abc.net.au/news/2013- 

04-28/arrests-made-as-factory-collapse-tollpasses-360/4655726>; 

Australian Broadcasting 

Corporation, Sohel Rana, owner of Bangladesh 

garment factory that collapsed killing more than 1,100 

people, to face murder charges (31 May 2015) . 



7 The Financial Times, Rana Plaza disaster: Court 

cases linger for four years, justice eludes victim’’ families 

(24 April 2017) . 

8 Rohit Inani, ‘Bangladesh Factory Owner Charged 

With Murder Over Rana Plaza Collapse’, Time 

(online), 1 June 2015 . 

9 Nick McKenzie and Richard Baker, ‘Surf clothing 

label Rip Curl using ‘slave labour’ to manufacture 

clothes in North Korea’, The Sydney Morning 

Herald (online), 21 February 2016 . 

10 Greenpeace, Dodgy Prawns: The hidden environmental 

and social costs of prawns in Australia (Greenpeace 

Australia Pacific, 2015). 

11 Gershon Nimbalker, Jasmin Mawson and 

Haley Wrinkle, The Truth Behind the Barcode: 2016 

Electronics Industry Trends (Baptist World Aid 

Australia/ Not For Sale, 2016) 3. 

12 Gershon Nimbalker, Jasmin Mawson and Claire 

Cremen, The Truth Behind the Barcode: Australian 

Fashion Report 2015 (Baptist World Aid Australia/ 

Not For Sale, 2015) 1. 

13 Caro Meldrum-Hanna and Ali Russell, Slaving 

Away (6 May 2015) Australian Broadcasting 

Corporation . 

14 John Ruggie, Report of the Special Representative of 

the Secretary-General on the issue of human rights and 

transnational corporations and other business enterprises, 

UN Doc A/HRC/17/31 (21 March 2011). 

15 Ibid Annex. 

16 Justine Nolan, ‘Business and human rights: The 

challenge of putting principles into practice and 

regulating global supply chains’ (2017) 42(1) 

Alternative Law Journal 42, 43. 

17 Human Rights Council, Report of the Human 

Rights Council on its seventeenth session, UN Doc A/ 

HRC/17/4 (24 May 2012) 12. 

18 Criminal Code Act 1995 (Cth) sch (‘Criminal Code’); 

Criminal Code s 270.3A. 

19 Ibid s 270.3(1)(c). 

20 Ibid s 270.3(1)(d)(ii). 

21 Ibid s 270.3(2)(a)(i),(b); 

Criminal Code s 270.3(2)(a)(ii),(b). 

22 Ibid div 12. 

23 Ryan Turner, ‘Transnational Supply Chain 

Regulation: Extraterritorial Regulation as 

Corporate Law’s New Frontier’ (2016) 17(1) 

Melbourne Journal of International Law 188, 209. 

24 Modern Slavery Act 2015 (UK) c 30. 

25 Ibid s 54(5). 

26 Nolan, above n 16, 45-6. 

27 Ibid 46. 

28 See, eg, Criminal Code s 270.2. 

Challenging cancer 

Girls’ Night In raises awareness 

for women’s cancer 

LINCOLN SIZE, CHIEF EXECUTIVE, CANCER COUNCIL SA 

Cancer Council SA is calling on the legal survival rate for breast cancer improving by 

profession to host a Girls’ Night In and approximately 20 percent. 

raise money to help beat women’s cancers. However there is still more work to do, 

Hosting a Girls’ Night In is chance especially around early detection and also 

for family, friends and loved ones to get supporting women during and after a 

together to spend a ‘night in’ instead of diagnosis. 

going out, which usually costs a fraction of Hosting a Girls’ Night In is a great 

the price. 

opportunity to not only support family 

Cancer Council SA encourages ladies to and friends going through cancer, but 

donate the money they save by staying in also raises awareness and encourages the 

to help those affected by cancer, with the women in our lives to have regular pap tests 

money raised going towards Cancer Council and mammograms to stay on top of their 

SA’s cancer research, prevention programs health. 

and support services. 

Female friendships are a really powerful 

It is estimated that over 23,000 Australian form of support and Girls’ Night In is 

women will be diagnosed with breast or a great opportunity for women to get 

gynaecological cancer this year. 

together and show a friend, family member 

Despite this number, cancer research, or loved one that they’re there for them 

early detection and prevention has seen throughout their cancer journey. 

some great progress in women’s cancers. If you want to host your own Girls’ 

Data taken from 1984 to1988 and again Night In you can register via the website at 

from 2009 to 2013 shows the five year girlsnightin.com.au to receive a free host 

survival rate for gynaecological cancers kit. You can also contact 1300 65 65 85 for 

has improved by 8 percent, with the more information. 


FAMILY LAW 

Family Law Case Notes 

ROB GLADE-WRIGHT, THE FAMILY LAW BOOK 

HAGUE CHILD ABDUCTION 

CONVENTION – MOTHER ORDERED TO 

RETURN CHILD TO NZ – CONDITIONS 

IMPOSED ON FATHER SET ASIDE 

In Arthur & Secretary, Department of Family 

& Community Services and Anor [2017] 

FamCAFC 111 (29 June 2017) the mother, 

who retained the parties’ child in Australia 

after a visit, was ordered by the Family 

Court of Australia to return the child to 

New Zealand under the Family Law (Child 

Abduction Convention) Regulations 1986 (Cth). 

The Full Court (Bryant CJ, Thackray & 

Austin JJ) dismissed the mother’s appeal 

against that order but allowed the father’s 

cross-appeal against conditions imposed in 

a subsequent order. 

The conditions were ([60]) that the father 

(who in 2013 was granted supervised 

contact in NZ) pay for the mother’s rental 

accommodation in NZ for two months 

(and bond); undertake to pay her NZ$535 

per week until she began receiving welfare 

payments; pay all child support obligations 

in Australia and NZ; and undertake to 

provide his employer with a copy of an 

existing protection order and not use any 

firearm until further order of the NZ 

Family Court. 

The husband argued that the conditions 

were ultra vires or made without considering 

his meagre financial position, frustrating 

the return order. 

The Full Court said ([69]) that reg 15(1) 

confers the power to impose a condition 

the court considers “appropriate to give 

effect to the Convention”, citing ([76]) an 

English case Re M (Abduction: Undertakings) 

[1995] 1 FLR 1021 at 1025 in which 

Butler-Sloss LJ said that “conditions or 

undertakings should operate only until the 

courts of the country of habitual residence 

can become seized of the proceedings 

brought in that jurisdiction”; “must not 

be so elaborate that their implementation 

might become bogged down in protracted 

hearings and investigations”; and “courts 

must be careful not … to usurp … 

the functions of the court of habitual 

residence”. 

The Full Court concluded ([94]): 

“ … [H]is Honour erred in failing to 

recognise that the conditions would 

result in the child not being returned 

to the country from which she was 

wrongfully removed, and that they 

therefore did not satisfy the requirement 

that they be ‘appropriate to give effect 

to the Convention’”. 

PROPERTY – LONG SEPARATION UNDER 

SAME ROOF – WIFE BOUGHT LAND 5 

YEARS AFTER PARTIES SEPARATED 

FINANCES – JUDGE ERRED IN FINDING 

CONTRIBUTIONS BY HUSBAND 

In Zaruba [2017] FamCAFC 91 (12 

May 2017) the Full Court (Bryant CJ, 

Thackray & Murphy JJ) heard the wife’s 

appeal against a property order made by 

Moncrieff J of the FCWA. The parties 

separated their finances in 1988, divorced 

in 1996 but lived separately under the one 

roof until 2005. The wife gave birth to 

twins in 1996 to another man, moving out 

with her children in 2005. 

In 1993 she bought land at Mindarie (a 

Perth suburb) for $74,000 paid by a friend 

Mr S. A home was built in 2004 using 

$125,500 from her mother and another 

$146,000 from Mr S, the wife and children 

moving there in 2005. The Mindarie 

property was at trial worth $1m. Moncrieff 

J adopted an asset by asset approach, 

assessing the husband’s contributions as 

10 per cent ($100,000). The Full Court said 

([12]) that the husband made no financial 

contribution to the property and ([15]) that 

an asset by asset approach was proper but 

considered ([27]) that “it was not open … 

to conclude that it was just and equitable to 

make any order altering the wife’s interests 

in Mindarie”. 

Allowing the wife’s appeal, the Court 

declared that she held her interest in 

Mindarie to the exclusion of the husband. 

INTERNATIONAL COMMERCIAL 

SURROGACY – ORDER FOR TWINS TO 

LIVE WITH SPERM DONOR AND HIS 

FORMER MALE PARTNER 

In Adair & Anor and Bachchan [2017] 

FCWA 78 (22 June 2017) Duncanson 

J of the FCWA heard an undefended 

application under Part 5 of the Family 

Court Act 1997 (WA) in respect of twin 

children aged 4 by Mr Adair and his former 

de facto partner, Mr Bonfils. While their 

relationship ended before the children 

were born they remained close friends who 

lived together as “housemates”. The twins 

were born pursuant to an international 

commercial surrogacy arrangement entered 

into by Mr Adair and the birth mother in 

India. 

The Court found ([10]-[19]) that the 

surrogacy was documented; the children 

were conceived with sperm from Mr Adair 

and an egg from an anonymous donor; 

both applicants were in India for the birth, 

spending 3 weeks there before bringing the 

children to Perth; the children were issued 

with birth certificates in Delhi naming Mr 

Adair as father and the mother as ‘NIL’. 

The children obtained citizenship by 

descent from Mr Adair and became 

Australian citizens in 2013 (prior to which 

DNA testing found him to be the genetic 

father of the children). An opinion was 

adduced from an advocate in New Delhi 

that Mr Adair and the surrogate were 

legally competent to make the contract and 

that she would have no enforceable right 

after giving birth. The agreement recorded 

([27]-[30]) that the surrogate gave informed 

consent and was to be paid in rupees the 

equivalent of $3,858 for a normal birth or 

$4,458 for caesarean birth. 

The Court said ([36]-[39]) that while Mr 

Adair was primary carer of the children he 

had been diagnosed with a terminal illness 

so “wishes to ensure that the children are 

cared for and loved by someone as he had 

hoped to do”, Mr Bonfils being that person 

and the children having a close relationship 

with both applicants. Neither was a parent 

([58]) but they were held ([59]) to have 

standing as “persons concerned with their 

care, welfare or development” (ss 88 and 

185 FCA). The Court ([62]-[64]) took 

into account the considerations of s 66C 

(FCA’s equivalent of s 60CC FLA) and was 

satisfied ([71]) that the orders sought were 

in the children’s best interests. 

It was ordered that the applicants share 

parental responsibility and that the children 

live with them, the birth mother to be 

served with the order. B 


Painting by Tu ti artist Dougie Jacob sen 

Lane can now help your business with signage! 

Lane’s now have the ability to supply a range of solutions for promotional display, signage and point of 

sale material that you may require to promote your brand. With an an extensive printing division featuring 

wide format UV flatbed, laser, high speed web inkjet and offset machinery, we have the equipment and 

knowledge to see projects through from conception to installation. 

If you have any questions regarding your printing needs contact Matthew on 0419 998 837 or mhaddad@laneprint.com.au 

JT_a2 poster adelaide.qxp_JT_a2 poster adelaide 23/10/2016 10:09 am Page 1 

BERNARD 

FANNING 

WITH VERY SPECIAL GUESTS 

& KASEY CHAMBERS 

FEBRUARY 9 

BOTANIC PARK 

ADELAIDE 

ON SALE OCTOBER 28 

TICKETMASTER.COM.AU OR 136 100 

VIP PACKAGES & EVENT INFO AT 

JAMESTAYLORLIVE.COM 

JAMESTAYLOR.COM • FACEBOOK.COM/JAMESTAYLOR • LIVENATION.COM.AU 

Corflute & Rigid Media 

Posters 

Vinyl Banners & Mesh Banners 

Flags 

Stickers 

Pull Up Banners 

A-Frame 

Display & Media Walls 

www.laneprint.com.au

facebook.com/YLCSA 

Young lawyers learn how 

to cook healthy food with 

loads of flavour 

On 15 June the Young Lawyers 

Committee hosted a Healthy Cooking 

Class at the Sprout Cooking School. 

After a leisurely champagne introduction, 

the group of enthusiastic young lawyers 

and professionals then descended into the 

Masterchef-inspired kitchen to cook up a 

storm. 

Under the expert tutelage of Cam and 

Emilee, the group prepared and cooked 

a mouth-watering two course meal. We 

began with a Malaysian inspired satay 

chicken curry served with a side of okra 

and beans atop a bed of quinoa. This 

was followed up with a red wine poached 

pear with orange mascarpone and roasted 

hazelnuts. Of course, a generous pouring 

of wine was matched to each course. 

Despite falling into the category of 

“healthy”, the food was delicious, and so 

simple to prepare. 

Between courses was a food quiz, which 

had participants having to taste and guess 

different mystery ingredients as well 

as answer a number of healthy eating 

questions. The winners of the quiz, and 

now the proud owners of two beautiful 

Sprout oven mitts, were the Juvenile 

Jackfruits. 

Congratulations to them and all who 

attended. We look forward to seeing more 

of you at next year’s class. 

The Committee would like to thank all 

the team at Sprout for making the night 

so enjoyable, as well as our major sponsor 

Burgess Paluch Legal Recruitment. 

CPD Events 

For further details and to register: 

www.lawsocietysa.asn.au 

cpd@lawsocietysa.asn.au 

All sessions that are being held at LSSA, 

will be held at Level 10 Terrace Towers, 

178 North Terrace Adelaide 

Spot the Ethical Solutions in Estate 

Administration Dilemmas 

4 October 2017 

5.30pm – 7.00pm 1.5 Units * 

Grants of Probate and Letters of 

Administration 


5.30pm – 7.00pm 1.5 Units * 

Working Effectively in Teams 


9.00am – 12.30pm 3 Units * 

Drafting Affidavits 


1.30pm – 5.00pm 3 Units * 

Drafting Effective Pleadings 


9.00am – 12.30pm 3 Units * 

Trusts Demystified 


9.00am – 12.30pm 3 Units * 

Country Update - Clare 


9.00am – 5.00pm 6 Units * 

*Total CPD Units are accurate at time of 

printing and should be taken as a guide only. 

HAVE AN IDEA FOR A FUTURE 

SEMINAR? 

We invite practitioners to tell us what 

seminar they would like to see conducted 

next. Email us at 

cpd@lawsocietysa.asn.au with your ideas. 

September 2017 THE BULLETIN 

39

PRO BONO CONFERENCE 

Pursuing a fair go for all: 

National Access to Justice 

and Pro Bono Conference 2017 

JAMES GOH & JASMINE FLAVELL, LAW STUDENTS, UNIVERSITY OF ADELAIDE 

The pivotal concept that all members of 

society should have access to justice 

forms a firm backbone of the Australian 

legal system. It is unsurprising then that 

most members of the legal profession tend 

to be highly passionate about contributing 

to the pursuit of justice. 

The biennial National Access to Justice and 

Pro Bono Conference affords a remarkable 

opportunity for members of the profession 

to engage with such concepts and turn 

their mind to innovative improvements for 

the future. On 23 and 24 March, 2017 the 

Conference was held in Adelaide for the 

very first time, attracting delegates from 

across Australia and beyond – including 

legal professionals, judges, government 

law officers, academics and students. 

The Conference featured both local and 

international speakers, who discussed 

the crucial access to justice issues and 

challenges facing Australia today. 

The purpose of this article is to empower 

those of you who were unable to attend 

the Conference, to nevertheless benefit 

from the critical subject matter discussed. 

INVOLVING LAW SCHOOLS IN 

REFORMING THE PROFESSION 

Giving the first Keynote Address, 

Professor Sheldon Krantz of Georgetown 

University, who is heavily involved with pro 

bono work in the USA, added his voice 

to many calling for reform of the legal 

profession. 1 Professor Krantz argues that 

law schools should have a greater role in 

reforming the profession. 

With the current state of the legal job 

market, there is a substantial pool of 

law students who are extremely eager 

to pursue experience in real-world legal 

practice but unable to find a place to do 

so. Concurrently, there exists a significant 

number of people unable to afford legal 

advice or access to legal aid. Professor 


Krantz argues that greater law student 

involvement in community legal services 

may assist in bridging this gap by creating 

jobs for law students and providing legal 

advice for the community. Innovation in 

increasing the involvement of law students 

in community legal work is an effective 

means of improving access to legal advice, 

and consequently, justice. 

Such university initiatives are already 

beginning to take shape. Every university in 

South Australia currently runs a student-led 

community legal service. For example, the 

University of Adelaide runs the Magistrates 

Court Legal Advice Service and Adelaide 

Legal Outreach Service which are staffed 

by law students who are supervised by 

lawyers in providing free legal advice. 

The University of South Australia also 

provides a Legal Advice Clinic at its City 

West Campus. Continuance and further 

development of these programs will 

contribute to addressing the need for 

access to justice. 

PARTNERSHIP BETWEEN THE 

PROFESSION AND JUDICIARY 

The Honourable Justice Hinton of 

the Supreme Court of South Australia 

highlighted the judiciary’s commitment in 

delivering “perfect justice” in a context of 

limited time and resources. His Honour 

stressed that true change in improving 

access to justice could not be driven by 

courts alone. Rather, his Honour asserted 

that it requires a partnership between 

courts and the profession, commenting 

that “the enforcement powers of the Court 

are a blunt tool”. 

Justice Hinton argued for more practical 

assistance from legal counsel in resolving 

disputes, as counsel is in a better position 

to advise on how to deploy the Court’s 

rules in each case. In any judicial matter, 

legal counsel will enjoy broader knowledge 

Professor Sheldon Krantz of Georgetown 

University during his keynote address 

of their client and the matter than the 

presiding judicial officer. Justice Hinton 

observed that legal counsel are best placed 

to advise judicial officers in tailoring 

the rules of the Court to any particular 

dispute, praising counsel’s willingness to 

assist in this regard. The onus for effective 

deployment of the Court’s powers may 

well lie with practitioners. With true 

partnership, and practitioners working with 

members of the judiciary, the tools of the 

courts may be better deployed to achieve 

just outcomes. 

ROLE OF MEDIA IN ACCESS TO 

JUSTICE 

The importance of the media’s 

commentary on the law was discussed in a 

panel composed of the Honourable Justice 

Charlesworth of the Federal Court, Sean 

Fewster, Chief Court Reporter for the 

Advertiser and Andrew Short, Partner at 

Minter Ellison. 

The media plays an important role in 

providing transparency and public trust in 

the court system, providing opportunity 

for public education in regards to legal 

justice and processes. However, concerns 

were raised at the Conference regarding the 

sensationalist nature of much reporting on

PRO BONO CONFERENCE 

court proceedings and that the complex 

reasoning behind judicial decisions is lost 

when condensed into media reports. 

Conversely, Mr Fewster asserted that 

there is a burden on the individual to seek 

out the information to be well-informed. 

Citing the new practice of journalists 

publishing the minute details of important 

court proceedings on social media as 

they occur, Mr. Fewster noted that the 

information necessary to be well-informed 

was available to those willing to seek it out. 

Mr Fewster also called for greater 

communication between the courts 

and media. With many concerned that 

the media generally reports only on 

‘scandalous’ trials, a view was raised that 

the judiciary should seek to inform the 

media about trials they feel are important 

for the public to be informed about. Such 

improved communication could represent 

a significant improvement for media 

coverage of the courts, and improve faith 

in the legal system. 

JUSTICE FOR ABORIGINAL AND 

TORRES STRAIT ISLANDER PEOPLE 

Legal injustice for Indigenous and 

Torres Strait persons was discussed in 

two contexts: at the police level and at 

the judicial level. Cheryl Axelby, CEO of 

the Aboriginal Land Rights Movement, 

noted that many Indigenous persons 

are incarcerated for minor offences. At 

the judicial level, the Honourable Judge 

David Parsons of the County Court said 

traditional court processes such as parole 

requirements were not able to be met by 

such offenders. This highlights systemic 

issues within the legal sector in regards to 

how justice is awarded to Indigenous and 

Torres Strait Islanders. 

HEALTH JUSTICE PARTNERSHIPS 

Three health-justice partnerships were 

discussed in context of innovation in 

access to justice for women who are 

domestically abused. 

Ms Axelby noted that one of the key 

contributors to Indigenous women 

being abused was the fact that they were 

The Conference highlighted just how 

many groups in the community would be 

disadvantaged if funding to the sector was cut; 

disabled, Indigenous, and abused people would 

lose advocacy and access to justice. 

socially isolated. The program “Sisters 

Day Out” was developed to target 

this factor. 2 It aimed to increase social 

interaction between Indigenous women, 

providing more social supports and thereby 

decreasing isolation and violence. 

The two remaining partnerships discussed 

addressed environmental barriers to 

access to justice. Lack of physical access 

to legal services was identified by both 

Chris Boundy, Manager of the Access 

Services Project established by the Legal 

Commission South Australia, and Dr Tessa 

Boyd-Caine, Health and Justice Australia, 

as a significant reason why many abused 

women cannot obtain legal justice. Both 

detailed that most abused women are not 

permitted to leave the house unsupervised 

except for medical and grocery needs. 

The health-justice partnership 

between the Melbourne Royal Women’s 

Hospital and the Inner Melbourne Legal 

Community Centre aimed to focus on the 

target group of pregnant, abused women 

who were allowed to visit the hospital for 

neonatal care. The partnership was placing 

a specialized legal clinic in the Hospital 

to enable women to receive legal advice 

while they attended the Hospital to receive 

neonatal care. The partnership also aimed 

to provide a holistic approach to abused 

women’s needs by providing healthcare, 

legal advice, and counselling in one place. 

The health-justice partnership between 

the Legal Services Commission and 

the Lyell McEwin Hospital in Playford, 

South Australia was also established to 

be a specialized legal service to abused 

women who are allowed to visit hospital 

unsupervised. However, this service was 

not just aimed at pregnant women. Chris 

Boundy stated that the service was placed 

within the hospital because health care 

professionals are the first people that 

women tell about their domestic abuse. 

CONCLUSION 

Despite the recent reversal of further 

funding cuts to legal assistance services, 

such services remain significantly 

underfunded. As such, concern and 

trepidation for the future of legal 

assistance services was a common theme 

of the Conference. Out of necessity, 

the individuals working in this area have 

become experts in doing more with 

less; seeking innovative new pathways to 

empower the entire community with access 

to justice. These extraordinary individuals 

have demonstrated a commitment to 

making a true difference with limited 

resources. 

The Conference highlighted just how 

many groups in the community would 

be disadvantaged if funding to the sector 

was cut; disabled, Indigenous, and abused 

people would lose advocacy and access to 

justice. Furthermore it threw light on the 

legal sector as a whole, from law students 

to the courts, collaborate to fill the gaps in 

sector funding and provide support to the 

community. 

James Goh and Jasmine Flavell 

volunteered at the National Access to 

Justice and Pro Bono Conference 2017. B 

Endnotes 

1 Professor Krantz has written previously on 

the topic of reforming the American legal 

profession, see, eg, Sheldon Krantz, The Legal 

Profession: What is Wrong and How to Fix It 

(LexisNexis, 2013). 

2 For more information on ‘Sisters Day Out’ and 

upcoming workshops, please visit: http:// 

www.fvpls.org/Prevention-and- Education.php 


GAZING IN THE GAZETTE 

4 July 2017 – 3 August 2017 

Acts Proclaimed 

Independent Commissioner Against Corruption 

(Miscellaneous) Amendment Act 2016 (No 54 

of 2016) 

Commencement ss 20, 21, 25 (insofar 

as it inserts Schedule 4 into Independent 

Commissioner Against Corruption Act 2012), 

Schedule 1 Part 2: 15 July 2017 

Gazetted: 11 July 2017, 

No. 44 of 2017 

Legal Practitioners (Miscellaneous) Amendment 

Act 2016 (No 44 of 2016) 

Commencement remaining 

provisions: 30 July 2017 



Local Government (Building Upgrade Agreements) 

Amendment Act 2015 (No 47 of 2015) 

Commencement: 1 August 2017 



National Gas (South Australia) (Pipelines 

Access—Arbitration) Amendment Act 2017 

(No 23 of 2017) 


Gazetted: 1 August 2017, 


Planning, Development and Infrastructure Act 

2016 (No 14 of 2016) 

Commencement ss 58-62; 70-74; 77; 

82-87; clauses 12-16 of Sch 8: 

1 August 2017 



Relationships Register Act 2016 

(No 67 of 2016) 




Statutes Amendment (Planning, Development 

and Infrastructure) Act 2017 (No 5 of 2017) 

Commencement ss 4-9: 1 August 2017 

immediately after commencement s58 

Planning, Development and Infrastructure Act 

2016. 



Statutes Amendment (Registered Relationships) 

Act 2017 (No 13 of 2017) 





Summary Procedure (Abolition of Complaints) 

Amendment Act 2016 (No 43 of 2016) 

Commencement: 3 October 2017 



Acts Assented 

Children and Young People (Safety) Act 2017, 




Sentencing Act 2017, No. 26 of 2017 

(repeals Criminal Law (Sentencing) Act 1988) 



Statutes Amendment (Possession of Firearms and 

Prohibited Weapons) Act 2017, No. 27 of 2017 

(amends Firearms Act 2015 and Summary 

Offences Act 1953) 



Appointments 

Legal Practitioners Disciplinary 

Tribunal 

(from 10 July 2017 until 9 July 2020) 

Presiding Member: 

Maurine Teresa Pyke 

Deputy Presiding Member: 

Sashi Jass Maharaj 

Member: 

Simon Patrick O’Sullivan 

Liesl Jane Chapman 

Robert Lindsay Kennett 

Lesley Hastwell 

Domenico Petraccaro 

Debra Ruth Lane 

Patsy Alison Kellett 

Sandra Gail Lilburn 

Anne Gordon Burgess 

Michael John Dean Dawson 

Gary Davis 

Roger Sallis 



Judge of the Supreme Court of South 

Australia 

President of the South Australian Civil 

and Administrative Tribunal 

effective from 4 July 2017 

Judith Hughes 

REGULATIONS PROMULGATED (4 JULY 2017 – 3 AUGUST 2017) 

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS 

AND RULES COMPILED BY MELLOR OLSSON’S ELIZABETH OLSSON. 



South Australian Civil and 

Administrative Tribunal, 

effective from 4 July 2017 

Justice Gregory Parker 



Resignations 

Cross-Border Magistrate 

Magistrate of the Youth Court of 

South Australia 

for a term of five years commencing on 11 July 

2017 and expiring on 10 July 2022 

Sarah McNamara 



Magistrate 

Magistrate of the Youth Court of 

South Australia 

Member of the South Australian Civil 

and Administrative Tribunal 

commencing on 12 July 2017 

Police Disciplinary Tribunal 

Protective Security Officers 

Disciplinary Tribunal 

Panel Member: 

(from 12 July 2017 until 28 April 2020) 

David John White 



Commissioners of the South Australian 

Employment Tribunal 

for a term of two years commencing on 11 July 


Full-Time 

Christopher Neil Aikens 

Don Smyth 

Part-Time 

Luisa Jane Georgeff 

Sessional 

for a term of one year commencing on 11 July 


Helen Ward 



Rules 

Magistrates Court (Civil) Rules 2013 

Amendment 19 



REGULATION NAME REGULATION NO. DATE GAZETTED 

Gene Technology Act 2001 196 of 2017 4 July 2017, Gazette No. 43 of 2017 

Education and Early Childhood Services (Registration and Standards) Act 2011 197 of 2017 4 July 2017, Gazette No. 43 of 2017 

Independent Commissioner Against Corruption Act 2012 198 of 2017 11 July 2017, Gazette No. 44 of 2017 

Freedom of Information Act 1991 199 of 2017 11 July 2017, Gazette No. 44 of 2017

REGULATION NAME REGULATION NO. DATE GAZETTED 

Local Government Act 1999 200 of 2017 25 July 2017, Gazette No. 48 of 2017 

Cross-border Justice Act 2009 201 of 2017 25 July 2017, Gazette No. 48 of 2017 

Legal Practitioners Act 1981 202 of 2017 25 July 2017, Gazette No. 48 of 2017 

Lottery and Gaming Act 1936 203 of 2017 25 July 2017, Gazette No. 48 of 2017 

Casino Act 1997 204 of 2017 25 July 2017, Gazette No. 48 of 2017 

Gaming Machines Act 1992 205 of 2017 25 July 2017, Gazette No. 48 of 2017 

Natural Resources Management Act 2004 206 of 2017 1 August 2017, Gazette No. 49 of 2017 

Criminal Law Consolidation Act 1935 207 of 2017 1 August 2017, Gazette No. 49 of 2017 

Criminal Law Consolidation Act 1935 208 of 2017 1 August 2017, Gazette No. 49 of 2017 

Planning Development and Infrastructure Act 2016 209 of 2017 1 August 2017, Gazette No. 49 of 2017 

Planning Development and Infrastructure Act 2016 210 of 2017 1 August 2017, Gazette No. 49 of 2017 

Natural Resources Management Act 2004 211 of 2017 1 August 2017, Gazette No. 49 of 2017 

Relationships Register Act 2016 212 of 2017 1 August 2017, Gazette No. 49 of 2017 

Relationships Register Act 2016 213 of 2017 1 August 2017, Gazette No. 49 of 2017 

Births, Deaths and Marriages Registration Act 1996 214 of 2017 1 August 2017, Gazette No. 49 of 2017 

A round-up of recent Society 

meetings & conferences 

ROSEMARY PRIDMORE, EXECUTIVE OFFICER 

25 JULY 2017 

Practitioner Update, Southern 

District 

The President, Tony Rossi and Chief 

Executive, Stephen Hodder travelled to 

Mount Gambier to meet with Members 

practising in that region. Issues raised by 

the local practitioners included difficulties 

associated with the closure on 1 July 2017 

of the SE Community Legal Service (the 

Southern Community Justice Centre to 

commence a reduced service); the slow 

delivery of judgments in District Court 

matters; difficulties for clients in remand, 

including no access to services and cultural 

and language barrier issues; the lack of 

appropriate court facilities; causes of 

stress in legal practitioners; concerns with 

Advance Care Directives; difficulties with 

AVL including access to clients, parties not 

being punctual, poor camera and sound 

setting; and appropriate management of 

participants there having been an occasion 

when the two opposing parties in a matter 

were together at a teleconference point 

without any operator or other person 

present. 

27 JULY 2017 

Small Practice Networking Drinks – 

Western 

Approximately 20 practitioner Members 

attended a networking function for those in 

small practices in the Western Metropolitan 

area. The practitioners received an 

update from the President, including as 

to the viability of the Fidelity Fund, the 

establishment of a Working Group to 

identify areas of over-regulation of the 

profession that could be addressed, and 

recent advocacy by the Society. 

2 AUGUST 2017 

Commonwealth Treasury 

consultation 

The Chair of the Property Committee, 

Philip Page, represented the Society at 

a teleconference consultation meeting 

convened by Commonwealth Treasury 

in relation to a 2017-18 budget measure, 

“Improving the integrity of GST on property 

transaction”. 


Australian Medical Association 

Tony Rossi and Stephen Hodder met 

with the new President of the AMA, 

Associate Professor William Tam and the 

CEO, Mr Joe Hooper. Matters discussed 

included plans for a Medico-Legal Dinner 

in November 2017 for interested Members 

of the Society and the AMA; the AMA’s 

consultation with the Courts as to its 

concerns with Court Rules that require 

those providing an expert medical report 

to consult and consider the views of any 

other experts who have provided a medical 

report relating to the matter; compliance 

of expert medical reports with Rules of 

Court and therefore their admissibility; 

Advance Care Directives; personal injury 

claims; the AMA’s concern that three 

nurses were sent by the Government to be 

trained to do colonoscopies. The potential 

implications for medical negligence were 

discussed. 


Professional Standards Scheme 

Managers– National meetings 

On 7 August 2017, the Society hosted two 

national meetings relating to Professional 

Standards Schemes. The first was a joint 

meeting of CEOs and Professional 

Standards Scheme Managers, attended by 

Dr Deen Sanders and Mr John Rappell of 

the Professional Standards Authority (PSA). 

The meeting sought to obtain responses 

to matters which had been outstanding as 

between Law Societies and the PSA for 

several years. The Scheme Managers then 

met to discuss issues of mutual concern and 

interest, and to share experiences including 

as to the development and sharing of 

precedents, systems and operational policies. 


SA Legal Assistance Forum 

Vice-President, Tim White represented 

the Society at a meeting of the SA Legal 

Assistance Forum. Matters discussed 

included recent changes to the structure 

of the services offered by Community 

Legal Centres; a proposed amendment to 

the Legal Practitioners Act 1981 in relation 

to conditional costs for migration matters; 

disclosure and electronic disclosure 

requirements; and the Society’s concern, 

expressed to the Attorney-General, at the 

low rate of the State contribution to legal 

aid funding compared to that contributed 

by other States to their service providers. 

Please note: the Society’s advocacy work is 

reported to Members via the Advocacy Notes 

e-newsletter. B 


SUPER 

A Long-Term Engagement 

ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER 

new ASIC report has called for more 

A to be done to help people engage with 

their superannuation. 

A new report by the Australian Securities 

and Investments Commission (ASIC) has 

highlighted the need for more work to be 

done to increase member engagement with 

their super funds. 

The ASIC “Member Experience of 

Superannuation” Report (Report 529) 

released on 30 June, 2017 is well worth 

a read as it presents both challenges 

and opportunities for employers and 

employees. 1 

You might be thinking: why is a report on 

the need to increase member engagement 

with super of interest to employers and 

employees? 

FINANCIAL STRESS HURTS 

INDIVIDUALS AND BUSINESSES 

For most Australians, their quality of 

lifestyle in retirement is largely dependent 

on how much super they have accumulated 

(along with owning one’s own home). 

People with lower super balances are 

more likely to fear retirement and, over the 

course of their working life, be subject to 

increasing levels of financial stress. 

Financial stress in the workplace can 

lead to feelings of hopelessness, anxiety, 

depression, risk-taking, illness, absenteeism, 

poor decision-making, reduced 

productivity, and more. 

In addition, a lack of financial 

preparedness for retirement can also lead 

to people who would otherwise have 

retired, and who want to retire, feeling as 

though they have no other choice but to 

stay on at work. 

A report released last year by the Centre 

for Social Impact revealed that two million 

Australians are experiencing a high level of 

financial stress or vulnerability. 2 

Similarly, the Australian Psychological 

Society’s series of “Stress and Wellbeing” 

surveys concluded that financial stress is 


felt strongly by a “concerning” number of 

Australians. 3 

The ASIC “Member Experience of 

Superannuation” Report maps three stages 

of the superannuation lifecycle – joining a 

fund, ongoing membership of a fund and 

changing or leaving a fund. The balance 

of this article considers how people can 

be encouraged and supported in the 

workplace to better engage with their super 

at all times. 

JOINING A FUND 

An important threshold question for 

employers here is: why have they chosen 

their existing default super fund and does it 

remain the most appropriate fund for their 

employees? 

Usually employers choose a default 

super fund based on factors such as past 

performance and competitive fees and 

charges. If you are an employer, how long 

has it been since you benchmarked the 

performance of your default fund, its fees 

and charges and its level of service and 

support provided to your employees with 

that of other super funds? 

Most employees do not choose their own 

super fund which means their super will be 

paid to the default super fund chosen by 

their employer. 

Unless members choose otherwise, 

their super will be invested in the fund’s 

default investment option. Additionally, 

they will be provided an automatic level of 

insurance which may or may not suit their 

particular financial goals. 

Employees can also make decisions 

about whether or not to make voluntary 

contributions to their super. Sadly, many 

people realise too late in their working 

life that if they had made additional 

contributions to their super (which are 

subject to caps) they would have been 

more likely to have accumulated sufficient 

savings to fund the retirement lifestyle 

they want. If you are an employee, how 

long has it been since you reviewed the 

level and type of your voluntary super 

contributions? 

In relation to insurance, super fund 

members have options to take out death, 

total and permanent disability insurance or 

income protection insurance, and to do so 

at different levels of cover depending on 

their current circumstances. 

The most important decision members 

of super funds can, and should, make is 

how their super is invested. 

As the ASIC Moneysmart says: “With 

super, it’s easy to set and forget. But 

choosing a suitable investment option will 

have a major impact on how your super 

performs.” 4 

Members of super funds can typically 

choose from a number of investment 

options including Growth, Balanced or 

Conservative options. The Growth option 

is likely to aim for higher average returns 

over the long term, a Balanced option aims 

for reasonable returns which are generally 

lower than those of a Growth option, and 

a Conservative option would typically aim 

for lower risk and a lower return over the 

long term. 

Typically, younger people who will 

not access their super for some years, 

will benefit from a Growth option. As 

members approach retirement they may 

switch to a more conservative option. Of 

course, the appropriate investment option 

depends on individual circumstances 

and the role super plays in an individual’s 

overall financial planning. 

Businesses can encourage and support 

their staff to take an active interest in, and 

ownership over, these important financial 

decisions by: 

• Asking their super fund to run 

information sessions for staff and 

management; 

• Ensuring their super fund has useful 

and well-presented information on 

its website including easy to use 

calculators; and

CLASSIFIEDS 

• Checking their super fund provides high levels of customer 

service and support for member inquiries. 

ONGOING MEMBERSHIP OF A FUND 

A very good time to engage strongly with super arises each year 

when funds distribute their annual member statement. This usually 

occurs between August and December. 

The statement will contain important information including the 

individual’s super balance, levels of insurance cover, investment 

option/s selected, and fees paid. Funds will often also indicate 

how the fund performed against various independent industry 

rating agencies medians. 

At this time of the year, employers seeking to support staff 

engagement with super may consider the following types of 

strategies: 

posting short notices in the staff newsletter or on the company 

intranet which encourage people to make the time to read their 

annual statement and consider contacting their super fund for an 

annual ‘super checkup’. Your super funds can provide you with 

suggested wording. 

inviting your super fund to conduct a workplace seminar for 

staff. 

Bequest Cocktail Event 

(does your firm specialise in wills and deceased estates?) 

Time: 6pm– 7.30pm 

Date: 15th December 2017 

Venue: Rigoni’s Bistro 

Guest Speaker: Professor David David 

Finger food will be served 

Attendees will receive a gift bag and 

copy of our request booklet 

RSVP: no later than December 1st 2017 

Email: sponsorship@acmff.org.au 

Phone: 8267 4128 

Craniofacial Australia, a registered charity (CCP653) supporting the 

Australian Craniofacial Unit through patient care, family support, 

education, training & research. PO Box 1138 North Adelaide SA 5006 

P: +61 (08) 8267 4128 E: info@acmff.org.au 

www.craniofacial.com.au 

CHANGING OR LEAVING A FUND 

The factors to be considered, continually reviewed and acted 

upon when joining and participating in a fund also apply when 

changing or leaving a fund. 

Is the fund performing well compared to the industry median? 

Are its fees and charges value for money? Does it provide high 

quality member service and support? 

The ASIC report reminds us that to make the most of super 

requires ongoing engagement and activity. If your super fund is 

not providing the levels of individual and/or business support 

outlined in this column, it may be time to “break off the 

engagement” and find someone better matched to your needs. 

Andrew Proebstl is the Chief Executive of Legalsuper, 

Australia’s super fund for the legal community. He can be 

contacted by telephone on (03) 9602 0101 or by email at 

aproebstl@legalsuper.com.au. B 

Endnotes 

1 See http://asic.gov.au/regulatory-resources/find-a-document/reports/rep- 

529-member-experience-of-superannuation/ 

2 See http://www.csi.edu.au/financialresilience/ 

3 See http://www.psychology.org.au/psychologyweek/survey/ 

4 See https://www.moneysmart.gov.au/superannuation-and-retirement/howsuper-works/super-investment-options 

Ideas Made Visible 

Bronte Turner 

Ph: 08 8370 0026 

Mob: 0434 621 222 

Serpentine-Studio.com.au 

Take 

Your 

Business BOYLEN 

Mobile 

boylen.com.au 

P (08) 8233 9433 

+ 

A Level 3, 47 South Tce, 

Adelaide SA 5000 

+ 


CLASSIFIEDS 

VALUATIONS 

MATRIMONIAL 

DECEASED ESTATES 

INSURANCE 

TAX REALIGNMENT 

INSOLVENCY 

FURNITURE 

ANTIQUES, COLLECTIONS 

BUSINESS ASSETS 

MACHINERY 

MOTOR VEHICLES 

CARS, BOATS, PLANES 

CITY & COUNTRY 

ROGER KEARNS 

Ph: 08 8342 4445 

FAX: 08 8342 4446 

MOB: 0418 821 250 

E: auctions@senet.com.au 

Certifi ed Practising Valuer NO.346 

Auctioneers & Valuers Association 

of Australia 

Family Law - Melbourne 

Marita Bajinskis 

formerly of 

Howe Martin & Associates 

is a Principal at 

Blackwood Family Lawyers 

in Melbourne 

Marita is an Accredited Family 

Law Specialist and can assist with 

all family law matters including: 

• matrimonial and de facto 

• property settlements 

• superannuation 

• children’s issues 

3/224 Queen Street 

Melbourne VIC 3000 

T: 03 8672 5222 

Marita.Bajinskis@ 

blackwoodfamilylawyers.com.au 

www.blackwoodfamilylawyers.com.au 

CONSULTING 

ACTUARIES 

Brett & Watson 

P TY. LTD. 

t. +61 8 431 80 82 

m. +61 401 712 908 

e. ahi@andrewhillinvestigations.com.au 

For professional actuarial 

advice on 

• economic loss 

• workers compensation 

• all superannuation issues 

Contact 

Geoff Keen or Bruce Watson 

Phone 08 8232 1333 

Fax 08 8232 1324 

Ground Floor 

157 Grenfell Street 

Adelaide SA 5000 

Andrew Hill Investigations 

Investigating: 

ABN 68 573 745 238 

• inappropriate workplace 

conduct including bullying 

• fraud 

• unprofessional conduct 

• probity 

Support services: 

• forensic computing analysis 

• transcription services 

• information sessions, particularly 

for HR practitioners on the 

investigative process 

PO Box 3626 

• policy development. 

NORWOOD SA 5067 

t. +61 8 431 80 82 

m. +61 401 712 908 

e. ahi@andrewhillinvestigations.com.au 

Andrew Hill 

Andrew Hill 

Investigations 

NEED EXTRA 

HELP? 

Call Graeme Kirkham 

• 30+ years’ experience 

• Former Managing Partner 

• Consultancy work 

• Locum 

• Agency work 

graeme@lawcall.net.au 

www.lawcall.net.au 

Ph: 0418 888 295 

LITIGATION ASSISTANCE 

FUND 

The Litigation Assistance Fund (LAF) is a 

non-profit charitable trust for which the 

Law Society acts as trustee. Since 1992 

it has provided funding assistance to 

approximately 1,500 civil claimants. 

LAF receives applications for funding 

assistance from solicitors on behalf of 

civil claimants seeking compensation/ 

damages who are unable to meet the 

fees and/or disbursements of prosecuting 

their claim. The applications are 

subjected to a means test and a merits 

test. Two different forms of funding exist – 

Disbursements Only Funding (DOF) and 

Full Funding. 

LAF funds itself by receiving a relatively 

small portion of the monetary proceeds 

(usually damages) achieved by the 

claimants whom it assists. Claimants who 

received DOF funding repay the amount 

received, plus an uplift of 100% on that 

amount. Claimants who received Full 

Funding repay the amount received, plus 

15% of their damages. This ensures LAF’s 

ability to continue to provide assistance 

to claimants. 

LAF recommends considering whether 

applying to LAF is the best course in the 

circumstances of the claim. There may be 

better methods of obtaining funding/ 

representation. For example, all Funding 

Agreements with LAF give LAF certain 

rights including that funding can be 

withdrawn and/or varied. 

For further information, please visit 

the Law Society’s website or contact 

Annie MacRae on 8229 0263. 

LawCare 

The LawCare Counselling 

Service is for members of 

the profession or members 

of their immediate family 

whose lives may be adversely 

affected by personal or 

professional problems. 

If you have a problem, speak 

to the LawCare counsellor Dr 

Jill before it overwhelms you. Dr 

Jill is a medical practitioner 

highly qualified to treat social 

and psychological problems. 

The Law Society is pleased to 

be able to cover the gap 

payments for two consultations 

with Dr Jill per patient per 

financial year. 

All information divulged to the 

LawCare counsellor is totally 

confidential. Participation by 

the legal practitioner or family 

member is voluntary. 

To contact Dr Jill 08 8110 5279 

8am-8pm, 7 days a week 

LawCare is a member service 

made possible by the generous 

support of Arthur J. Gallagher 

Consulting Engineers 

Australian Technology Pty Ltd 

for expert opinion on: 

• Vehicle failure and accidents 

• Vehicle design 

• Industrial accidents 

• Slips and falls 

• Occupational health and safety 

• Statistical analysis 

W. Douglass R. Potts 

MAOQ, FRAI, FSAE-A, FIEAust, 

CPEng, CEng, FIMechE 

8271 4573 

0412 217 360 

wdrpotts@gmail.com 

Forensic 

Accounting 

Simple, clear, 

unbiased advice, 

without fear or 

favour. 

Hugh McPharlin FCA 

d +61 8 8139 1130 

m +61 419 841 780 

e hmcpharlin@nexiaem.com.au 

w nexiaem.com.au 

Licensed Investigation Agents 

& Process Servers 

Servicing the Mid North, Yorke & 

Eyre Peninsula`s and Outback of 

South Australia with: 

• Process Serving 

• Property Lockouts 

• Investigations 

• Missing Persons 

OUTBACK BUSINESS SERVICES 

P.O. Box 591, 

PORT AUGUSTA. 5700 

P: 0418 838 807 

info@outbackbusinessservices.com.au 

VALUER 

Commercial & Residential 

Real Estate 

Matrimonial 

Deceased Estates 

Rentals etc. 

Experienced Court 

Expert Witness 

Liability limited by a scheme approved under 

Professional Standards Legislation 

JANET HAWKES 

Cert. Practising Valuer, AAPI 

0409 674 122 

janet@gaetjens.com.au 


JAGUAR XE 

EXPERIENCE THE THRILL OF 

HIGH PERFORMANCE DRIVING 

OWN AN XE FROM $59,990* AND RECEIVE 

A JAGUAR TRACK EXPERIENCE. 

Now is the time to own an XE 20t Prestige at 

the incredible price of $59,990* drive away. 

Plus you’ll receive a Jaguar Track Experience where 

you can test your skills. This offer won’t last long. 

Visit Solitaire Jaguar today. 

Solitaire Jaguar 

32 Belair Road, Hawthorn 5062 

1300 439 524 

solitairejaguar.com.au 

DL65541 

*Recommended drive away price for Jaguar XE 20t Prestige petrol automatic ordered and delivered between 01.07.17 and 30.09.17 at participating dealers while stocks last.

Save Time Creating Legal Documents 

LEAP includes: 

Automated precedents and letters 

6,000 pre-configured automated forms 

Up-to-date legal rates and charges 

Access to: 

6,000 legally drafted By Lawyers precedents 

130 end-to-end integrated Legal Guides 

Import your own precedents and letters 

$239 * per user per month 

*Plus GST 

THE Legal Practice Management Platform 

Contact us for an obligation free demonstration 

sales@leap.com.au | 1300 886 243 | leap.com.au/content 

By Lawyers is a companion product which seamlessly integrates with LEAP. Additional charges apply.

LSB September 2017

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?