LSB February 2018_Web_LSSA

THE
BULLETIN
February 2018
Volume 40 - Issue 1
INSIDE:
PARTIES RESPOND
TO OUR KEY
ELECTION ISSUES
POLITICS & THE LAW

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This issue of The Law Society of South Australia: Bulletin is
cited as (2018) 40 (1) LSB(SA). ISSN 1038-6777
CONTENTS
POLITICS & THE LAW
REGULAR COLUMNS
6 Eligibiilty of dual citizens: the
coming-of-age of Section 44
By Assoc Prof Matthew Stubbs & Dr
Adam Webster
10 Protest & political communication
after Brown v Tasmania
Prof Mary Heath & Dr Peter Burdon
12 Parliamentary prayer & the
establishment of religion
By Prof Paul Babie
16 Law Society’s key election issues
24 Special feature: Poems for the
‘Citizenship 7’
By Stephen McDonald
32 Speech: The role of the Attorney
General – By Chris Sumner AM
36 The SA Parliament & parliamentary
privilege – By Jan Davis
4 President’s Message
5 From the Editor
23 Bookshelf
28 Risk Watch
30 Get in on the Act
40 Gazing in the Gazette
43 Tax Files
20 Politicians respond to key legal issues
Executive Members
President:
Tim Mellor
President-Elect: A Nikolovski
Vice President (M): T White
Vice President (F): R Sandford
Treasurer:
A Michaels
Immediate Past President: A Rossi
Council Members: Vacant
Vacant
Metropolitan Council Members
T Dibden
S Gibbons
M Janus
A Lazarevich
L Polson
T Vozzo
M Frayne SC V Gilliland
F Bell
M Mackie
M Boyle
M Smith
Country Members
S Minney
(Northern and Western Region)
P Ryan
(Central Region)
J Kyrimis
(Southern Region)
Junior Members
R Piccolo 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
Chief Operations Officer
Dale Weetman
dale.weetman@lawsocietysa.asn.au
Member Services Manager
Michelle King
michelle.king@lawsocietysa.asn.au
Director (Ethics and Practice)
Rosalind Burke
rosalind.burke@lawsocietysa.asn.au
Director (Law Claims)
Geoff Thomas
gthomas@lawguard.com.au
Manager (Education)
Sally Browne
sally.browne@lawsocietysa.asn.au
Manager (LAF)
Annie MacRae
annie.macrae@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
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PRESIDENT’S MESSAGE
As the election approaches,
we’re calling for a greater
commitment to justice
TIM MELLOR, PRESIDENT
Dear Colleagues,
A happy and healthy New Year to
you all. It is a year in which, next month,
we will be going to the polls to elect
our state government for the next four
years. Thus the theme of this Bulletin -
Politics and the Law. This is necessarily an
examination of issues at a higher policy
level.
I have had the advantage of looking over
the initial President’s Messages provided by
my predecessors. In 2014 Morry Bailes was
considering the prospective state election,
and reviewed the top policy issues which
the Law Society sought to agitate and
promote. A summary of our present list of
priorities appears in this edition.
Our continuing and overarching concern
is the notion that the administration of
and access to justice must be regarded as a
primary objective of society. It should be
considered on a par with adequate access
to medical and health services, education
and training, and community security and
protection.
A comparison of our key legal issues for
2014 and 2018 indicates that there have
been some important advances in that
period. Nonetheless there remains a core
of issues that have carried over.
The notion of the accessible and efficient
operation of our courts was, and is, a
principal policy issue.
We welcome the positive steps which
have been taken toward the development
of the electronic lodgement of documents.
It is also pleasing to see the proposed
works (albeit limited) on the refurbishment
of the Supreme and District Courts
precinct. Our concern remains that funding
cuts to the operation of the courts have
come at a significant cost, including further
4
THE BULLETIN February 2018
limitations to court access in remote and
regional areas and in some suburban
courts, and some reductions in judicial
officers.
We are also concerned about the level
to which those with disabilities have been
considered in relation to the present
proposed refurbishments.
Our priorities list continues to raise
vital concerns regarding access to justice.
We look to promote fairer and more
substantial compensation in areas including
CTP, workers compensation and victims
of crime. It is clear that reasonable and
achievable improvements could and should
be made to these compensation schemes.
I would encourage you all to read and
consider the Society’s key election issues
(accessible via the home page of the
Law Society website). There will not be
universal acceptance of the order of
priorities, and there may be considered
to be omissions. I do consider, however,
that they are all properly directed to the
objective above. We will of course continue
to advocate for a number of other
important legal issues before and beyond
the election.
The role of our next state government,
of whatever composition, will not be easy.
The competing claims on the government’s
resources are vast, and the means to
address those claims are limited. We do
have a valid case to put, and we will do so
with energy and conviction.
Our principal point of contact with the
government of the day is the Attorney-
General. The Legal Practitioners Act provides
a specific statutory appointment of the
Attorney as a member of the Council of
the Law Society. Although the attendance
of Attorneys at our meetings has been
irregular, the fact is that agenda papers and
minutes are provided to their office as part
of that role.
This relationship, naturally, is attended
with some tensions – the Attorney is a
member of a government whose policies
the Society may be duty-bound, and must
always be free, to criticise. I consider this,
however, to be a vital relationship, and an
essential conduit to government. It is one
which should be marked by mutual respect
and understanding.
I imagine that the role of the Attorney-
General in dealing with other ministerial
colleagues won’t always be easy, but I
believe that it is a reasonable expectation
that any occupant of that office would be
an advocate for and guardian of the rule
of law in the deliberations of cabinet. The
Law Society should support that role.
We are keen also to support the
operation of the parliamentary process
through the provision of information
to all parliamentarians. Many of you will
be in a position, through your political
involvement or contacts, to draw the
attention of members of parliament and
candidates for election to the items in our
key election issue submisison. I would urge
you to consider doing so. B
We will of course continue to advocate for a
number of other important legal issues before
and beyond the election.

FROM THE EDITOR
New Year,
New Opportunities
MICHAEL ESPOSITO, EDITOR
Happy New Year to all. For most of
you, the Christmas holidays are but a
distant memory as the routine of work sets
in but I hope the break has left you energised
and enthusiastic about the year ahead.
Following the success of last year’s event,
the Law Society is inviting Members to
celebrate the “Happy New Legal Year” at
Adelaide Oval on 8 February. While the
working year has already well and truly
started for many, the event is a great opportunity
to catch up with peers and reflect
on the important role that practitioners
play in society and to pledge a commitment
to uphold the principles of fairness that
underpins the practice of law.
It will also be an opportunity to meet the
Society’s new President, Tim Mellor, who
in his inaugural President’s Message for the
Bulletin outlines the Society’s key priorities
in the lead-up to the State election next
month.
Most political parties have responded to
our key election policy issues. A summary
of those responses is in this Bulletin and
the full responses will be available to Members
via a special Advocacy Notes newsletter
and via the Law Society website.
contributions to the law, including as
Counsel Assisting in the in the Children in
State Care Commission of Inquiry headed
by Justice Ted Mullighan QC, as Counsel
Assisting the Board of Inquiry into the
conviction of David Eastman for the
murder of Colin Winchester, and as head
of a review of South Australia’s rape and
sexual assault laws, leading to significant
changes to the state’s Evidence Act and
Criminal Law Consolidation Act.
Judge Chapman began her work as an
Associate to Justice Duggan in in 1994.
She has since worked with the Crown
Solicitor’s Office, as a Crown Prosecutor,
and in 2005 signed the Bar roll before
taking silk in 2010.
Her Honour has also been involved in the
Legal Practitioners Disciplinary Tribunal
the Sentencing Advisory Council, and
Australian New Zealand Forensic Science
Society
On 7 November, His Honour Judge
Steven Dolphin was appointed President of
the South Australian Employment Tribunal
(SAET), replacing His Honour President
Senior Judge Peter McCusker who retired
on 31 October 2017.
Judge Dolphin was appointed as Deputy
President of SAET in 2015 and became a
Judge of the District Court on 1 July 2017.
He has had an extensive legal career
in industrial relations and workers
compensation and has been heavily
involved with the Law Society, including
as Chair of the Industrial Relations
Committee.
Judge Dolphin’s previous role has been
filled by Margaret Kelly, who on 19
December 2017 was appointed a Judge of
the District Court and Deputy President of
the SAET.
Judge Kelly, a former President of the
Law Society, has extensive experience in
worker’s compensation, personal injury,
insurance and industrial law. B
SOCIETY COMMENDS NEW JUDICIAL
APPOINTMENTS
The Law Society congratulates a number
of recent appointees to South Australian
Courts.
On 31 October 2017, Her Honour Liesl
Chapman SC was appointed as a Judge of
the District Court
At the Special Sitting for Judge
Chapman on 22 November, Her Honour
was described as one of the “standout
prosecutors/criminal barristers of [her]
generation”.
She has made a number of significant
Chief Justice Chris Kourakis with Judge Chapman at her swearing in.
February 2018 THE BULLETIN
5

POLITICS AND THE LAW
Eligibility of Dual Citizens:
The Coming-of-Age of Section 44
ASSOCIATE PROFESSOR MATTHEW STUBBS, UNIVERSITY OF ADELAIDE AND DR ADAM WEBSTER, UNIVERSITY OF OXFORD
In 2017, Australia played host to “the
world’s most ridiculous constitutional
crisis”. 1 Section 44 of the Australian
Constitution, which had been invoked in
only a handful of cases to find candidates
ineligible to be chosen to sit in the
Commonwealth Parliament, 2 was suddenly
at the forefront of national attention. So
was the High Court, sitting as the Court
of Disputed Returns, which by the end
of 2017 had ruled that eight of the 10
individuals it had examined were ineligible
to have been elected at the 2016 election. 3
A further three persons have been referred
to the High Court for consideration
in 2018, with all three conceding their
ineligibility. 4 Also, without reference to
the Court, John Alexander resigned on
the basis of ineligibility. Accordingly,
by the end of 2017, it appears that 12
of the 226 members of the Parliament
have been confirmed to be ineligible.
Yet more politicians (and their potential
replacements) may still have questions
surrounding their eligibility to be resolved
in 2018. How did we end up in this
remarkable situation?
Section 44 of the Australian Constitution
is an apparently simple provision which
lists a series of matters that render a person
“incapable of being chosen or of sitting
as a senator or a member of the House of
Representatives”. These include:
i. Where a person ‘is under any
acknowledgment of allegiance,
obedience, or adherence to a foreign
power, or is a subject or a citizen or
entitled to the rights or privileges of a
subject or a citizen of a foreign power’;
ii. Where a person ‘has been convicted
and is under sentence, or subject to be
sentenced, for any offence punishable
… by imprisonment for one year or
longer’;
iii. Being an undischarged bankrupt
or insolvent;
iv. Holding ‘any office of profit under
the Crown’;
v. Having ‘any direct or indirect pecuniary
interest in any agreement with the
Public Service of the Commonwealth’.
Section 44 is intended to reinforce our
elected representatives’ “duty to serve
and, in serving, to act with fidelity and
with a single-mindedness for the welfare
of the community”. 5
The decisions in early 2017 that Rodney
Culleton and Bob Day were ineligible
depended upon sub-ss 44(ii) and (v)
respectively. 6 The ensuing crisis has
predominantly concerned whether s 44(i)
renders ineligible dual citizens (that is,
persons who are citizens of another nation
as well as of Australia).
Variations on three potential approaches
to s 44(i) ineligibility were suggested in
respect of the seven persons referred to
the Court in Re Canavan. In essence, they
would apply the provision:
i. in all cases where a person holds
‘citizenship of a foreign power’ (subject
to a limited exception discussed below); 7
ii. only where foreign citizenship was
voluntarily obtained/chosen, or
voluntarily/knowingly retained; 8
iii. only where a person had knowledge that
would cause a reasonable person in their
situation to inquire as to whether they
held foreign citizenship. 9
Other than the first alternative, each of
these approaches “departs substantially
from the text” of s 44(i), 10 by limiting
its application to particular sets of
circumstances not expressed in the subsection.
In so doing, each draws on the
dissenting approach of Deane J in Skyes
v Cleary, where his Honour expressed the
view that s 44(i) should be interpreted
as “impliedly containing a ... mental
element”. 11
The unanimous High Court in Re
Canavan adopted the first approach to the
interpretation of s 44(i). Their Honours
relied upon the following reasons:
i. the text, which deals with ‘allegiance,
obedience, or adherence’ separately
from having the status of ‘a subject or
a citizen’ (implying that the first covers
situations of voluntary allegiance,
whereas the second is broader) 12 and
which ‘is cast in peremptory terms’; 13
ii. its purpose, which was said to be ‘to
ensure “that members of Parliament
did not have a split allegiance”’, 14 not
merely by reference to ‘the person’s
subjective feelings of allegiance’, 15 but
also objectively where the split arises
from the existence of a legal ‘duty to a
foreign power as an aspect of the status
of citizenship’; 16
iii. its drafting history, which their Honours
concluded demonstrated that s 44(i)
was not addressed merely to situations
where there has been ‘an “act” done by
a person whereby the person became a
… [foreign] citizen’; 17
iv. the consequence of the alternative
interpretation, which by introducing a
mental element would lead to ‘the need
for an investigation into the state of
mind of a candidate’, 18 which would in
turn lead to ‘uncertainties [which] are
apt to undermine stable representative
government’; 19
v. that, although a strict application of
s 44(i) might be thought to be harsh,
‘nomination for election is manifestly
an occasion for serious reflection’ by a
person as to their eligibility. 20
One unusual aspect of the application of
s 44(i) is its reliance on foreign law. As the
Court explained in Re Canavan:
“Whether a person has the status of …
a citizen of a foreign power necessarily
depends upon the law of the foreign
power … because it is only the law
of the foreign power that can be the
source of the status of citizenship
or of the rights and duties involved in
that status”. 21
This should not be a surprise – it is hard
to see how it could be otherwise, and
this is also consistent with the approach
of international law that “[i]t is for each
State to determine under its own law
who are its nationals”. 22 This is also,
practically speaking, why so many people
have managed to fall foul of s 44(i) –
some nations have relatively generous
citizenship laws, such that citizenship can
be inherited from a parent (or grandparent)
by operation of law, without there being
any direct personal involvement of an
individual with that country.
This role of foreign law is, however, the
subject of the only exception allowed by
the High Court. Recognising that there
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THE BULLETIN February 2018

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POLITICS AND THE LAW
is a “constitutional imperative that an
Australian citizen not be irremediably
prevented by foreign law from participation
in representative government”, the High
Court held that s 44(i) would not disqualify
a person:
“Where it can be demonstrated that
the person has taken all steps that are
reasonably required by the foreign law to
renounce his or her citizenship and
within his or her power”. 23
This exception did not avail any of the
persons found to be ineligible in 2017.
The approach to s 44(i) taken by the
unanimous High Court in Re Canavan
led to findings of ineligibility for five of
the seven persons whose situation was
considered, as the Court was satisfied they
held “citizenship of a foreign power”.
The two persons held to be eligible were
found not to hold “citizenship of a foreign
power”: the Court concluded that Matthew
Canavan was not, in fact, a citizen of
Italy; 24 and that Nick Xenophon was only
entitled to a status under UK law known as
“British Overseas Citizenship” 25 which the
Court found “distinctly does not confer the
rights or privileges of a citizen as that term
is generally understood”. 26
The Court subsequently held in Re Nash
[No 2] 27 that Hollie Hughes, who would
have been elected as a Senator on the
special recount of papers held as a result
of the ineligibility of Fiona Nash, was also
ineligible, this time under s 44(iv). One
year after she was not elected, Hughes
was appointed a part-time member of the
Administrative Appeals Tribunal. Thus,
from 1 July to 27 October, 2017 (when she
resigned, within one hour of the Court’s
ruling that Nash was ineligible), Hughes
held an “‘office of profit under the Crown’
within the meaning of s 44(iv)”. 28 The issue
before the Court was when the process of
“being chosen” (within the meaning of
s 44) concluded, which would determine
whether Hughes’ position at the Tribunal
resulted in her ineligibility.
In Re Canavan, the Court had concluded
that the process commenced at the date of
nomination. 29 In Re Culleton (No 2), Kiefel,
Bell, Gageler and Keane JJ wrote that the
process continued “until the return of the
writs for the election, as that is the time at
which the electoral process is complete”. 30
Re Nash [No 2] clarified that this statement
must refer to a valid return of the writs,
and that the process of “being chosen”
will “remain constitutionally incomplete
until” it results “in the determination as
elected of a person who is qualified to be
chosen and not disqualified from being
chosen”. 31 Accordingly, as the process of
“being chosen” had not been completed,
Hughes’ enjoyment of an “office of profit
under the Crown” (more than a year after
the election) rendered her ineligible to be
elected in the special count. The Court
added, “[l]est it might seem harsh or unduly
technical,” that Hughes’ acceptance of
a position at the Administrative Appeals
Tribunal:
“was a voluntary step which she took
in circumstances where reference by
the Senate to the Court of Disputed
Returns of a question concerning
whether a vacancy existed in the
representation of New South Wales
in the Senate by reason of the
disqualification or lack of qualification
of a senator who had been returned
as elected was always a possibility. By
choosing to accept the appointment
for the future, Ms Hughes forfeited
the opportunity to benefit in the future
from any special count of the ballot
papers that might be directed as a result
of such a vacancy being found.” 32
The Court’s attempt to demonstrate
that this result was not harsh or unduly
technical is not especially convincing.
Its reasons for rejecting the submissions
of the Commonwealth and Hughes
that the process of “being chosen”
concludes on polling day drew on several
unsatisfactory results that such an
interpretation would have. 33 More than
this, however, the fundamental reason for
the Court’s decision that the process of
“being chosen” was so extensive lies in its
acceptance of the point made in Vardon
v O’Loghlin in 1907 that: “The election is
Former Nationals deputy leader Fiona Nash
either valid or invalid. If invalid … the case
is to be treated for all purposes, so far as
regards the mode of filling the vacancy,
as if the first election had never been
completed”. 34 So, the Senate election in
New South Wales which commenced at
the close of nominations on 9 June, 2016
(following dissolution of both Houses
of the Parliament on 9 May, 2016), and
reached its zenith on polling day on 2 July,
2016, continued at least until Gageler J
declared that Jim Molan had been elected
as a Senator on 22 December, 2017. 35
The big question that must now be
confronted is whether s 44 of the
Australian Constitution should be
amended – with all the difficulties a
constitutional referendum entails – and/
or whether other steps should be taken to
deal with issues of eligibility? Answering
this question must be left for another
day. What this note has shown is that
the High Court, in its decisions on s 44
in 2017, has demonstrated that it will
interpret the provision strictly as it stands.
If s 44 has become inappropriate in the
modern globalised world, or if it reflects
a legitimate concern but deals with it in a
manner no longer thought ideal, the High
Court has made clear that responding to
any need for change is a matter for
the Parliament and, ultimately, the
Australian people.
Matthew Stubbs is an Associate Professor at
Adelaide Law School, Editor in Chief of the
Adelaide Law Review and Chair of the Society’s
Human Rights Committee.
Adam Webster is a Departmental Lecturer
in Law and Public Policy at the University of
Oxford’s Blavatnik School of Government. B
8
THE BULLETIN February 2018

POLITICS AND THE LAW
Endnotes
1 David Fickling, ‘The World’s Most Ridiculous
Constitutional Crisis’ (Bloomberg) .
2 See, eg, Sykes v Cleary (1992) 176 CLR 77; Free v
Kelly (No 2) (1996) 185 CLR 296; Sue v Hill (1999)
199 CLR 462. See generally Matthew Stubbs
(ed), Jack Richardson, Australia’s Constitutional
Government (LexisNexis, 2016) 78-81.
3 Rodney Culleton (Re Culleton [No 2] (2017) 341
ALR 1); Robert Day (Re Day [No 2] [2017] HCA
14); Barnaby Joyce, Scott Ludlam, Larissa Waters,
Malcolm Roberts, and Fiona Nash (Re Canavan
[2017] HCA 45); and Hollie Hughes (Re Nash [No
2] [2017] HCA 52).
4 Stephen Parry, Jackie Lambie and Skye
Kakoschke-Moore (Re Parry [2017] HCATrans
254 (8 December 2017)).
5 R v Boston (1923) 33 CLR 386, 400 (Isaacs and
Rich JJ) (emphasis in original); cited in Re Day
[No 2] [2017] HCA 14, [49] (Kiefel CJ, Bell and
Edelman JJ), [179] (Keane J), [269] (Nettle and
Gordon JJ).
6 Associate Professor Stubbs examined these
decisions in an article in the July 2017 edition of
the Bulletin.
7 Re Canavan [2017] HCA 45, [13] (Kiefel CJ, Bell,
Gageler, Keane, Nettle, Gordon and Edelman JJ).
8 Ibid [14], [16].
9 Ibid [17].
10 Ibid [13].
11 (1992) 176 CLR 77, 127.
12 Re Canavan [2017] HCA 45, [20]-[23].
13 Ibid [61].
14 Ibid [24], quoting Sykes v Cleary (1992) 176 CLR
77, 107 (Mason CJ, Toohey and McHugh JJ).
15 Re Canavan [2017] HCA 45, [25].
16 Ibid [26], quoting Sykes v Cleary (1992) 176 CLR
77, 109-10 (Brennan J).
17 Re Canavan [2017] HCA 45, [35].
18 Ibid [48].
19 Ibid [54].
20 Ibid [60].
21 Ibid [37].
22 Convention on Certain Questions Relating to the Conflict
of Nationality Law, 179 LNTS 89 (entered into
force 1 July 1937) art 1.
23 Re Canavan [2017] HCA 45, [72] (emphasis
added). Examples of potentially unreasonable
requirements are given at [69].
24 Ibid [86].
25 British Nationality Act 1981 (UK) s 26.
26 Re Canavan [2017] HCA 45, [134].
27 [2017] HCA 52.
28 Ibid [9] (Kiefel CJ, Bell, Gageler, Keane and
Edelman JJ).
29 Re Canavan [2017] HCA 45, [3].
30 [2017] HCA 4, [13].
31 Re Nash (No 2) [2017] HCA 52, [39]
32 Ibid [45].
33 Ibid [21]-[43].
34 Vardon v O’Loghlin (1907) 5 CLR 201, 208-09
(Griffith CJ, Barton and Higgins JJ).
35 Re Nash [2017] HCATrans 272.
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POLITICS AND THE LAW
Protest and Political Communication
after Brown v Tasmania
PROF MARY HEATH, DEAN (EDUCATION), COLLEGE OF BUSINESS, GOOVERNMENT & LAW, FLINDERS UNIVERSITY,
& DR PETER BURDON, ASSOCIATE PROFESSOR, ADELAIDE LAW SCHOOL
personal right to political
A communication has never been a
vibrant part of Australian law. In the
absence of a Bill of Rights or other
express legislative protection, those wishing
to assert such a right have creatively argued
for the existence of an implied right
in the Constitution. In Ansett Transport
Industries (Operations) Pty Ltd v Commonwealth
(1977) 139 CLR 54 [13] Justice Lionel
Murphy argued that our system of
representative government required
“freedom of movement, speech and other
communication, not only between the
States, but in and between every part of
the Commonwealth [13]”.
Murphy’s argument was debated and
adapted over the next 20 years. However,
in Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520 the High Court
unanimously affirmed the implied freedom
of political communication. To determine
whether a piece of legislation contravened
the implied freedom, the High Court
developed a test (the Lange test) which
was refined most recently in McCloy v New
South Wales [2015] HCA 34. The test poses
three questions.
1. Is the freedom burdened? Is political
communication deterred or limited by
the Act? (“burden”)
2. Is the purpose of the Act compatible
with the maintenance of responsible,
representative government?
(“justification”)
3. Is the burden the Act imposes
proportionate to the purpose the
legislation seeks to achieve? Is there
a realistic way of achieving that
purpose with less restriction of the
freedom of political communication?
(“proportionality”) 1
This was the legal position when the state
of Tasmania introduced The Workplaces
(Protection from Protesters) Act in 2014. The
legislation specifically targeted protest,
defined in s 4 to include any activity
promoting “awareness of or support for
… an opinion, or belief, in respect of a
political, environmental, social, cultural or
economic issue” taking place on business
premises. The very broad s 5 definition
of “business premises” included publicly
owned land, such as “business access
areas” and mining and forestry sites. The
new laws dramatically increased penalties
for conduct which was already penalised
by the general criminal law. For example,
under s 8, protesters who failed to “move
on” from a business premises after a lawful
direction faced a $10,000 fine.
The Act was immediately controversial.
While the Tasmanian government
announced that it would “[n]o longer …
tolerate the extremists”, 2 rapporteurs from
the United Nations argued that the Act
“would contravene Australia’s…obligations
under international human rights law”. 3
The stage was set for a challenge. In
January, 2016, Bob Brown and Jessica
Hoyt were arrested while protesting in
the Lapoinya State Forest. Brown was
charged with refusing a police order
to leave a “business access area” while
Hoyt was charged with returning to a
“business premises” after being ordered
to leave. Although the charges against
Brown and Hoyt were dropped, they went
to the High court to argue that the Act
unconstitutionally restricted freedom of
political communication. The Tasmanian
government was joined by the Federal
Government and several states to fight the
challenge.
After two days of argument and five
months of deliberation, the majority of
the High Court (Kiefel CJ, Bell and Keane
JJ, Gageler J, Nettle J) found that sections
of The Workplaces (Protection from Protesters)
Act were unconstitutional. Gordon J took
a more restrictive approach, holding that
only s 8 of the Act was invalid. Edelman
J up held the validity of the Act. We will
focus on the joint judgement of Kiefel CJ,
Bell and Keane JJ and their application of
the Lange test.
First, the justices considered whether
freedom of political communication was
burdened by the Act. In doing so, they
focused on the vagueness of terms like
“business premises” and “business access
area” and noted that it would be very
difficult for protesters and police alike
to tell with certainty when an individual
was in breach of the legislation. Indeed,
it was uncertainty over this very point
that led Tasmanian police to drop the
charges against Brown and Hoyt. The
justices argued:
The point to be made is not that prosecutions
of charges made under the Protesters Act are
unlikely to succeed, if they do proceed. It is
that the difficulty associated with identifying the
area to which the Protesters Act applies in a
given circumstance is likely to result in errors
being made….The result will be that some
lawful protests will be prevented or discontinued
and protesters will be deterred from further
protesting [77].
The plurality found that this impact
“burdened” political communication within
the meaning of the Lange test. They then
found that the Act could be justified by a
legitimate purpose – namely the “protection
of businesses and their operations, here
forest operations, from damage and
disruption from protesters who are engaged
in particular kinds of protests [101]”.
Further, Tasmania was entitled to burden
the freedom of political communication in
its efforts to achieve a legitimate purpose.
However, under Lange, any burden must
be reasonably proportionate to the purpose
of the legislation. The justices held that
provisions prohibiting protesters from
returning to a business area for four days
after a direction and provisions excluding
“whole groups of persons” [136] were not
consistent with the Act’s stated purpose.
Rather, the Court held: “[t]he inference
to be drawn is that [the Act] is directed
solely to the purpose of deterring
protesters [135]”.
10
THE BULLETIN February 2018

POLITICS AND THE LAW
In determining whether the proportionality
test was satisfied, the court applied a test
of necessity, asking “whether there are
alternative, reasonably practicable, means
of achieving the same object but which
have a less restrictive effect on the freedom
[139]”. To answer this question, they
compared the Act with similar legislation
such as the Forest Management Act 2013.
They concluded that the Act had a much
wider operation and created “substantial
deterrent effects” by:
extending the areas of its operation, creating
further consequences for non-compliance with
directions including special offences and heavy
penalties. More importantly they are achieved
by the uncertainty which surrounds the areas
within which the Act applies [144].
In conclusion, the justices argued that
the legislation “is likely to deter protest
of all kinds and that is too high a cost to
the freedom given the limited purpose of
the Protesters Act [145]”. The Act placed
a “significant burden on the freedom of
political communication [152]” going
beyond what was reasonably necessary
to achieve its purpose. That burden was
unjustified and disproportionate, and so
the majority found that the legislation
“cannot be considered as compatible, in
the sense described in Lange [152]”.
This decision represents the first time
the High Court has tested the strength
of the implied freedom of political
communication in the context of nonviolent
protest and freedom of assembly.
In the aftermath of the decision, Bob
Brown praised the High Court for
“defend[ing] the time-honoured rights
of all Australians” 4 while Hoyt stated
that “nobody should be arrested for
peacefully protesting for what they believe
in”. 5 Further, as John Eldridge and Tim
Matthews have argued, the High Court
has recognised that the “physical space
in which a protest occurs is inextricably
tied up with that protest’s communicative
function”. 6 For example, a protest outside
of a forestry building or on a clearing site
has the potential to communicate a much
more powerful political message than a
similar action that is forced to the side of
a road. In these instances, Eldridge and
Matthews argue, it is “necessary to ask
whether the law strikes the right balance
Bob Brown at a climate emergency rally in Melbourne. Photo: Peter Campbell.
in permitting or proscribing protest in the
particular places or spaces which protestors
seek to utilize”. 7
The decision in Brown v Tasmania may
lead to challenges against anti-protest
laws proposed or enacted in other states.
Following the High Court decision, the
Western Australian Attorney-General
Michael Mischin has delayed reintroducing
the Criminal Code Amendment (Prevention of
Lawful Activity) Bill 2015, which has been
condemned by United Nations rapporteurs
as “criminalising lawful protests and
silencing environmentalists and human
rights defenders”. 8 Moreover, the NSW
Attorney-General Mark Speakman
sought advice from the Solicitor-General
concerning The Inclosed Lands, Crimes and
Law Enforcement Legislation Amendment
(Interference) Bill 2016 which expands
police powers and significantly increases
penalties for protesters. A challenge to
this legislation would have immediate
implications for three protesters facing
14 years in jail for peacefully blocking
access to a road and locking onto mining
equipment at the Wilpinjong Coal Mine. 9
The right to protest is certainly under
pressure from increasingly repressive laws
specifically aimed at environmentalists.
However, it is also under pressure from the
privatisation of previously public spaces;
restrictions on NGOs engaged in advocacy;
escalating levels of online, electronic and
visual surveillance and intransigence in
the face of criticism from human rights
monitors including the United Nations.
The decision in Brown v Tasmania comes
as a welcome, if limited, acknowledgment
of the importance of protest to effective
and constitutional government and civic
life in Australia. B
Endnotes
1 See further Tony Blackshield, ‘Green in
Judgement’ Inside Story, 26 October 2017
insidestory.org.au/green-in-judgement/.
2 Ben Hagemann, ‘“Radical” Protesters Face Fines
and Jail Time in Tasmania’ Australian Mining, 18
November 2014, http://austmining.pcmcloud.
com.au/news/radical-protesters-face-fines-andjail-time-in-tasmania-2/.
3 Michel Forst, ‘End of Mission Statement’ 18
October 2016, http://apo.org.au/files/relatedcontent-files/2016-10-18_australia_sr-hrdstatement-final-3.pdf.
4 ABC News, ‘Bob Brown wins High Court case
against Tasmanian Protest Laws’ ABC News
Online, 18 October 2017
5 Ibid.
6 John Eldridge and Tim Matthews, ‘The Right
to Protest after Brown v Tasmania’ AusPubLaw
Blog, 2 November 2017 .
7 Ibid.
8 Human Rights Law Centre, ‘UN Rights Experts
Urge Western Australia to Abandon Proposed
Anti-protest Laws’ 16 February 2016 https://
www.hrlc.org.au/news/un-rights-experts-urgewestern-australia-to-abandon-proposed-antiprotest-laws.
9 Sean Nicholls and Michael Koziol, ‘Call to Scrap
NSW Anti-protest Laws After High Court
decision’ Sydney Morning Herald, 19 October 2017
http://www.smh.com.au/nsw/call-to-scrap-
nsw-antiprotest-laws-after-high-court-decision-
20171018-gz3g7e.html.
February 2018 THE BULLETIN 11

POLITICS AND THE LAW
Parliamentary Prayer and the
Establishment of Religion
PAUL BABIE, PROFESSOR OF LAW, ADELAIDE LAW SCHOOL
Greece, an otherwise unexceptional
town of just over 90,000 people in
Monroe County, New York State, gained
national attention in 2014. Its longstanding
practice of asking a volunteer
chaplain to invoke a prayer to open the
legislative sessions of its Town Council
triggered a challenge on the basis that
doing so violated the establishment clause
of the First Amendment to the United
States Constitution: “Congress shall make
no law respecting an establishment of
religion”. In Town of Greece v Galloway, 1 the
United States Supreme Court confirmed
the well-established principle that such
legislative prayers constituted no violation
of the establishment clause, whether at
a meeting of a Town Council, a State
Legislature 2 or the United States Congress
itself. 3
While the story of Greece, New York,
may seem thoroughly uninteresting to
Australians, it does answer a question
that could be asked here. It is a littleknown
fact that such prayers, typically
referred to as parliamentary prayer, are
the norm in every Parliament in Australia,
Commonwealth, State, and Territory. 4
The Australian Constitution, s 116, contains
a provision similar in its terms to the
American establishment clause: “The
Commonwealth shall not make any law
for establishing any religion”. It also goes
further than its American counterpart,
by prohibiting a Commonwealth law “for
imposing any religious observance,” and
providing that “no religious test shall be
required as a qualification for any office or
public trust under the Commonwealth.”
The question arises, then, do such
prayers violate the guarantees contained
in s 116? This brief essay considers
that question in three parts. Part II sets
out the typical parliamentary prayers
currently used in the Commonwealth,
State, and Territory Parliaments. Part III
considers s 116; drawing upon the existing
Australian jurisprudence, with support
from American precedent, I conclude that
while such prayers may not constitute an
establishment of religion, they may impose
a religious observance and may establish
a religious test for qualification for a
Commonwealth office. Part IV concludes.
PARLIAMENTARY PRAYER
The English Parliament’s tradition of
daily prayer is thought to have begun in
about 1558, and to have become common
practice by about 1567. 5 No doubt drawing
upon this tradition, parliamentary prayer
forms an integral part of the pre-federation
and federal democratic history of
Australia. 6 The agenda of the Australasian
Federal Convention of 1897-98 (“the
Convention”) dealt with a proposal for
a standing order that “the daily session
of the Upper and Lower Houses of the
Federal Parliament be opened with prayer
by the President and Speaker, or by a
chaplain”. 7
Post-federation, vigorous campaigns by
the leading churches and trenchant clerical
advocacy ultimately prevailed, ensuring
prayer was used for the inauguration of
the Commonwealth on 1 January, 1901 8
and, on the authority of a Standing Order,
for the opening of the first Parliament
on 9 May, 1901. 9 The Commonwealth
Parliamentary practice of opening prayers
has continued ever since. The House of
Representatives Standing Orders (Cth) O 38
provides that:
The Speaker shall then read the following prayers:
Almighty God, we humbly beseech Thee to
vouchsafe Thy blessing upon this Parliament.
Direct and prosper our deliberations to the
advancement of Thy glory, and the true welfare
of the people of Australia.
Our Father, which art in Heaven: Hallowed
be Thy Name. Thy Kingdom come. Thy will
be done in earth, as it is in Heaven. Give us
this day our daily bread. And forgive us our
trespasses, as we forgive them that trespass
against us. And lead us not into temptation;
but deliver us from evil: For Thine is the
kingdom, and the power, and the glory, for ever
and ever. Amen.
The first of these prayers mirrors almost
precisely that composed for the opening of
the first Parliament in 1901. 10 The Standing
Orders of the Australian Senate (Cth) O 50
make similar provision for the Senate,
and Standing Orders in every State and
Territory operate to the same effect as those
found in the Commonwealth Parliament. 11
Do these Standing Orders providing for
parliamentary prayer violate s 116, either
for the Commonwealth or for a State or
Territory? I turn now to that question.
SECTION 116
The Commonwealth
Australia has never had an established
church; neither has it had a strict wall of
separation between church and state. The
modern relationship between church and
state can be traced to the Convention,
during which the framers settled upon the
Preamble to the Constitution:
WHEREAS the people of New South
Wales, Victoria, South Australia, Queensland,
and Tasmania, humbly relying on
the blessing of Almighty God, have
agreed to unite in one indissoluble Federal
Commonwealth under the Crown of the United
Kingdom of Great Britain and Ireland, and
under the Constitution hereby established
It was thought that the emphasised words
might establish a Commonwealth power to
legislate with respect to the establishment
of a religion or the infringement of the
free exercise thereof. To prevent this,
the framers inserted s 116. 12 However
the experience since federation has
been one of fruitful interaction and
cooperation between religion and state, 13
with the outcome more “semi-permeable
membrane” 14 or “imaginary wall” 15 than
impenetrable barrier.
Given the historic relationship between
church and state, it ought to come as no
surprise that the Australian judiciary has
seen little need to address the nature of the
wall constructed by s 116. Indeed, in the
entire federal history of Australia, the High
Court has considered the establishment
12
THE BULLETIN February 2018

POLITICS AND THE LAW
guarantee but once, in Attorney-General (Vic);
Ex rel Black v Commonwealth (DOGS Case). 16
In that case, the Defence of Government
Schools organisation challenged
Commonwealth funding of religiouslyaffiliated
private State schools. In upholding
the constitutionality of such funding, the
High Court concluded that s 116 operates
as a limitation on Commonwealth (and
possibly Territory 17 ) legislative power. 18 Chief
Justice Barwick wrote that:
establishing a religion involves the entrenchment
of a religion as a feature of and identifi ed
with the body politic, in this instance, the
Commonwealth. It involves the identifi cation
of the religion with the civil authority so as
to involve the citizen in a duty to maintain
it and the obligation of, in this case, the
Commonwealth to patronize, protect and
promote the established religion. In other words,
establishing a religion involves its adoption as
an institution of the Commonwealth, part of
the Commonwealth “establishment”. 19
Thus, the establishment guarantee
prohibits only the adoption of any religion
as an institution of the state 20 and not a
law which merely “touches or relates to”
religion. 21 We might stop at that point,
concluding that on the basis of the DOGS
Case the parliamentary prayer used in the
House and Senate fail to establish a religion
as an institution of the state.
In the absence of direct Australian
authority on the point, however, we might
also search for further guidance in the
similar wording to s 116 found in the
American establishment clause. Some
members of the High Court in the DOGS
Case cautioned against reliance upon
American interpretive approaches to the
First Amendment in the interpretation of
s 116. 22 Yet Murphy J, who the fullness
of time has proven to be correct about
so much, in both common law and
constitutional interpretation, wrote that:
The United States’ decisions on the
establishment clause should be followed. The
arguments for departing from them (based on
the trifl es of differences in wording between
the United States and the Australian
establishment clauses) are hair-splitting, and
not consistent with the broad approach which
should be taken to constitutional guarantees of
freedom. Even if the United States’ decisions
were set aside, the considerations to which I
have referred show that the same interpretation
is reached by applying ordinary constitutional
principles of interpretation. 23
Thus, since the DOGS Case, scholars
have increasingly turned to American
approaches as aids in interpreting the
Australian Constitution generally and in
respect of s 116 specifically. 24 That is why
the town of Greece matters for Australia:
in the absence of direct domestic authority,
Town of Greece provides guidance as to
the use of the establishment guarantee
as concerns parliamentary prayer. There
Kennedy J wrote that
the Establishment Clause must be interpreted
“by reference to historical practices and
understandings.”… That the First Congress
provided for the appointment of chaplains
only days after approving language for the
First Amendment demonstrates that the
Framers considered legislative prayer a benign

POLITICS AND THE LAW
acknowledgment of religion’s role in society….
Marsh stands for the proposition that it is not
necessary to define the precise boundary of
the Establishment Clause where history shows
that the specific practice is permitted. Any
test the Court adopts must acknowledge a
practice that was accepted by the Framers and
has withstood the critical scrutiny of time and
political change…. 25
Having reviewed the history and
practices in the Australian colonies at
the time of the Convention, Ely writes
that “associating religion with the new
Commonwealth did not offend the
community at large.” 26 Significantly, it
was noted, when the matter was brought
before the first Senate, that “[s]ection
116 began, ‘the Commonwealth shall not
make any law…”, [Sir Frederick Sargood]
commented, “A standing order is not a
law.” 27 And Ely concludes that:
the prayer question at last was settled. As
the Sydney Morning Herald editorial of 8
June remarked, such prayers would provide
a ‘regular expression of the statement in the
preamble…that we as a people “humbly rely
on the blessing of Almighty God”.’ However,
as the debates themselves had made clear, the
religion of the federal parliament would be
undogmatic, unsectarian and unsacerdotal. A
door had been opened, slightly, to religion, but
not to the churches. 28
Whether because a Standing Order
eludes the reach of s 116, or because it
was accepted at the time of federation
that such associations of religion with
the Commonwealth were unproblematic,
historical practices and understandings
suggest that Commonwealth parliamentary
prayer may not violate the establishment
guarantee of s 116.
However, while it may not establish a
religion, it is possible that Commonwealth
parliamentary prayer may violate those
guarantees contained in s 116 against
imposing a religious observance and
against setting a religious test an office
under the Commonwealth. While neither
of those guarantees has been judicially
interpreted, Luke Beck writes that:
Prayers are a type of a religious observance,
and it is compulsory for the president [of the
Senate] and the speaker [of the House of
Representatives] to recite the parliamentary
prayers. This also affects everyone else in the
chambers and public galleries. 29
Similarly, in respect of a religious test for
public office:
The standing orders make it the job of the
president and the speaker to participate in
religious activities. A person has to be willing to
participate in particular religious activities if they
want to take on either role. This looks rather
like a religious test for a federal public office. 30
As such, Commonwealth parliamentary
prayer, while potentially capable of passing
Constitutional muster as concerns, the
establishment guarantee may nonetheless
violate the guarantees against the imposition
of a religious observance, at least in respect
of the relevant members of the Senate and
House of Representatives and the public
who are present for the recitation of the
prayers, and against a religious test upon the
office of president and speaker.
The States and Territories
What of the States and Territories? Its
placement in Chapter V of the Australian
Constitution, which deals with the States, and
the Convention debates about its terms
demonstrate that the prohibition of s 116
was originally intended to extend to the
States. 31 However the express terms of
its final form, and its subsequent judicial
and academic treatment are clear: s 116
does not apply to the States, although it
may to the Territories. A number of postfederation
attempts expressly to extend
the application of s 116 to the States and
Territories have each failed. 32 Consequently,
it seems clear that nothing in the
guarantees enumerated in s 116 prevents
the States (and possibly the Territories)
from legislating so as to establish religion
as an institution of the state, or to impose
a religious observance or test for a State or
Territory office.
But what if s 116 did apply to the
States (and expressly to the Territories)?
My conclusions with respect to the
Commonwealth would almost certainly
be the same. In short, the current
parliamentary prayer used in every State
and Territory may not constitute an
establishment of religion violative of s 116.
Historical conditions and practices provide
some support for this conclusion; Ely
writes that:
…practices regarding prayers in the colonial
legislatures differed considerably. The New
South Wales, Tasmanian and South
Australian legislatures and the Victorian
Legislative Assembly did not have prayers
at all. The Victorian Legislative Council
opened its sessions with the Lord’s Prayer.
The Queensland and Western Australian
legislatures used prayers based on the Book of
Common Prayer. 33
Since colonial times, the practice
has expanded such that it has become
the common practice in every State
and Territory to use some form of
parliamentary prayer. 34 On the basis of
colonial and post-federation practice and
understandings in the States, therefore,
even if s 116 did apply to them, the use of
the parliamentary prayer used today may
not constitute an establishment of religion
violative of the establishment guarantee.
They may, though, constitute the imposition
of a religious observance and of a religious
test for holding a State or Territory office.
CONCLUSION
Commonwealth parliamentary prayer may
not constitute an establishment of religion
violative of the establishment guarantee of
s 116 of the Constitution; it may, however
violate the guarantees against imposition of
a religious observance and against a religious
test for a Commonwealth office. Because
s 116, in its express terms, does not apply
to the States and Territories, no probation
exists against parliamentary prayers in those
jurisdictions. If s 116 did apply, however,
the conclusions reached in respect of the
Commonwealth would be the same. B
Endnotes
1 Town of Greece v Galloway (‘Town of Greece’), 572
US ___ (2014) (references herein are to the slip
opinion).
2 While the First Amendment originally applied only
to the federal government of the United States, the
Supreme Court has extended, or incorporated its
protection against the states through the operation
of the Fourteenth Amendment: see Everson v Board
of Education, 330 US 1 (1947).
3 Town of Greece, above n 1, 6-18 (Kennedy J), citing
Marsh v Chambers (Marsh), 463 US 783 (1983); County
of Allegheny v American Civil Liberties Union, Greater
Pittsburgh Chapter (County of Allegheny) 492 US 573
(1989). See also ‘Establishment Clause: Town of
Greece v. Galloway’ (2014) 128 Harvard Law Review 191.
But see Town of Greece, 1-25 (Kagan J, dissenting).
And see the view expressed in Canada: Mouvement
laïque québécois v Saguenay (City) [2015] 2 SCR 3; Freitag
v Penetanguishene (Town) (1999) 47 OR (3d) 301.
4 See Ian Hunter, ‘Parliament and Prayer’ (2010) 26
Flinders Journal of History and Politics 27.
5 Ibid 30.
6 Richard Ely, Unto God and Caesar: Religious Issues in
the Emerging Commonwealth 1891-1906 (Melbourne
University Press, 1976) 117-24.
14
THE BULLETIN February 2018

POLITICS AND THE LAW
7 Ibid 111-2, 117-24.
8 Ibid 111-2.
9 Ibid 117-24; Hunter, above n 4, 29-30.
10 See Ely, above n 6, 123.
11 See New South Wales: Parliament of New South
Wales Legislative Assembly Standing Orders (NSW) O
39, Standing Rules and Orders of the Legislative Council
(NSW) O 28; Victoria: Legislative Assembly of Victoria
Standing Orders (Vic) O 55(1)(a), O 232(4)(e)(v),
Legislative Council of Victoria Standing Orders (Vic) O
4.02, O 1.01(10), O 1.07(5), O 4.05(1); Tasmania:
House of Assembly Standing & Sessional Orders and
Rules (Tas) O 22, Standing Orders Legislative Council
(Tas) O 28; Queensland: Standing Rules and Orders
of the Legislative Assembly (Qld) ch 11 and O 45(2)
(a); South Australia: Standing Orders of the House of
Assembly (SA) O 39, Standing Orders of the Legislative
Council (SA) O 51; Western Australia: Standing Orders
of the Legislative Assembly of the Parliament of Western
Australia (WA) O 58, Western Australia Legislative
Council Standing Orders (WA) O 14(1)(a); Australian
Capital Territory: Legislative Assembly for the Australian
Capital Territory Standing Orders and Continuing
Resolutions of the Assembly (ACT) O 30; Northern
Territory: Legislative Assembly of the Northern Territory
Standing Orders (NT) O 7, Legislative Assembly of the
Norther Territory Thirteenth Assembly Sessional Orders
(NT) O 6.
12 See Tom Frame, Church and State: Australia’s
Imaginary Wall (UNSW Press, 2006) 48-52; Joshua
Puls, ‘The Wall of Separation: Section 116, The
First Amendment and Constitutional Religious
Guarantees’ (1998) 26 Federal Law Review 151. The
seminal history of s 116 is Ely, above n 6.
13 Frame, above n 12, 7-9.
14 Peter J M MacFarlane and Simon Fisher, Churches,
Clergy and the Law (The Federation Press, 1996)
32, who note that ‘metaphorically, the flow of
Commonwealth largesse to religious institutions is
permitted; what is blocked is the reverse passage of
religious entanglement with Commonwealth affairs
(adapting a metaphor from Lemon v Kurtzman 403
US 602 (1971) 613)).’
15 Frame, above n 12, generally.
16 Attorney-General (Vic); Ex rel Black v
Commonwealth (DOGS Case) (1981) 146 CLR 559.
17 Uncertainty exists as to whether the
Commonwealth’s law-making power in relation
to the Territories means that they are subject to
the constitutional freedoms; precedent suggests
not: Kruger v Commonwealth (1996) 190 CLR 1,
60–1 (Dawson J), 141–2 (McHugh J), 79, 85–6
(Toohey J), 122–3 (Gaudron J). But see Clifford L
Pannam, ‘Travelling Section 116 with a U.S. Road
Map’ (1963) 4 Melbourne University Law Review 41;
Jared Clements, ‘Section 116 of the Australian
Constitution and the Jurisprudential Pillars of
Neutrality and Action-Belief Dichotomy’ (2008)
11 International Trade & Business Law Review 255,
273-275.
18 DOGS case, above n 16, 579–81.
19 Ibid 582 (Barwick CJ); see also 604 (Gibbs J), 612
(Mason J), 653 (Wilson J).
20 Ibid 582 (Barwick CJ), 604 (Gibbs J), 612 (Mason
J), 653 (Wilson J).
21 Ibid 616 (Mason J).
22 Ibid 599-603 (Gibbs J), 613-6 (Mason J).
23 Ibid 632 (Murphy J).
24 See Paul Babie, ‘National Security and the Free
Exercise Guarantee of Section 116: Time for a
Judicial Interpretive Update’ (2017) 45 Federal Law
Review 351, 364-6.
25 Town of Greece, above n 1, 7-8 (Kennedy J), citing
Marsh, above n 3, and County of Allegheny, above n 3
(footnotes omitted and emphasis added).
26 Ely, above n 6, 117.
27 Ibid 124, citing Commonwealth Parliamentary Debates,
Volume 1, 1138-9.
28 Ely, above n 6, 124.
29 Luke Beck, ‘Official prayers in federal parliament
are divisive and unconstitutional, and should
be scrapped’, The Conversation (22 August
2017) .
30 Ibid.
31 Ely, above n 6, 60-8, and see especially 63 for
the text of Henry Bourne Higgins’ version
of s 116. And see House of Representatives,
Joint Standing Committee on Foreign Affairs,
Defence and Trade, Freedom of Religion and
Belief Report (2000) , 57-8.
32 Constitution Alteration Bill 1944 (Cth); Australian
Constitutional Convention, 1978; Constitutional
Alteration (Rights and Freedoms) Act 1988 (Cth):
House of Representatives, above n 31, 58.
33 Ely, above n 6, 122-3.
34 See above n 11.
College
Tours
Senior School
Tuesday 27 February
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Wednesday 14 March
Book online at Ignatius.sa.edu.au

TOP ELECTION ISSUES
LAW SOCIETY’S KEY
ELECTION ISSUES
With the State Election approaching on 17 March, the Law Society has released its Top 10 Election
Issues. The Society has asked State political parties to respond to the submission and outline their
policies to strengthen the South Australia’s justice system. Below is a summary of the Top 10 Election
Issues. The full document can be accessed on the Law Society home page.
1. NEW COURTS BUILDING
The issue: The planned upgrades to
the metropolitan Courts buildings,
as budgeted for last year, is a stop-gap
solution with a limited life span.
The State Government needs to provide
funding for an adequately funded and
suitably resourced courts building to
support effective delivery of justice
within South Australia, according to
contemporary and modern expectations
and standards.
KEY ASK
• A commitment to the construction of a
new State Courts precinct by 2023, with
the 2018-19 State budget to provide
funding for the development of a plan.
2. COURTS FUNDNG
FUNDING FOR THE COURTS
ADMINISTRATION AUTHORITY
The issue: The Courts Administration
Authority (CAA) has been forced over
the past few years to reduce services due
to budget cuts. The Government has also
imposed higher tiered civil lodgement fees
and probate fees, which are collected by
the CAA but go into general revenue rather
than being invested back into the courts.
KEY ASKS
• A significant increase in the Courts
Administration Authority’s budget to
enable it to operate effectively.
• The establishment of an independent
authority to determine a formula for the
appropriate Government funding to be
provided to the CAA.
• Court filing fees and transcript costs
to be waived for ALRM lawyers acting
in State courts for indigent Aboriginal
clients.
• Probate fees and court fees, if to
continue to be imposed, to be based on
the value of the work involved.
DISABILITY ACCESS IN COURTS
The issue: The State’s courts infrastructures,
particularly the Supreme Court building,
fails to provide proper access to people with
physical and cognitive disabilities.
KEY ASKS
• That the Courts Administration
Authority is provided the resources to
engage a disability access consultant to
provide advice and recommendations
on the courts redevelopment project.
• That, in addition to the planned court
upgrades, funding is allocated for the
urgent upgrades of courtrooms 1 and 2
of the Supreme Court to provide access
for those with a disability.
3. ACCESS TO JUSTICE
PSYCHIATRISTS & PSYCHOLOGISTS
The issue: There is a severe shortage
of forensic psychological and psychiatric
services for both prisoners and people
facing trial.
KEY ASKS
• The provision of at least one additional
full-time psychiatrist in the Forensic
Mental Health Services Unit.
• Greater investment in psychological
and psychiatric assessment and
treatment services for prisoners,
including those on remand.
• Investment in specialised services for
prisoners with acquired brain injuries.
• Practitioners undertaking psychological
assessments of prisoners (including noncourt
ordered assessments) to be granted
at least two hours to assess a client.
COMMUNITY LEGAL CENTRES
The issue: State Government funding
to Community Legal Centres has
been reduced and is far lower than the
contribution to CLCs compared to most
other States. The State Government only
contributes 22% of the total funding that
goes to State CLCs.
KEY ASKS
• The share of funding to South
Australian Community Legal Centres by
the State be increased to at least 40% of
the total funding for CLCs.
• A commitment to an ongoing budget
contribution to the core operating costs
of JusticeNetSA.
LEGAL AID FUNDING
The issue: The Legal Services
Commission is facing $10 million
reduction in funding and can only afford
to provide representation to clients in the
bottom 8% of income earners and only
for serious criminal matters or family
law matters involving children. The lack
of remuneration available to private
practitioners affects the viability of private
practitioners taking on legally aided cases.
KEY ASKS
• The restoration of $6 million in State
Government funding for the Legal
Services Commission.
16
THE BULLETIN February 2018

TOP ELECTION ISSUE
• Increased funding to allow the Legal
Services Commission to increase
payments to the private legal profession
acting in legal aid matters.
• Allocation of funding to the Legal
Services Commission for the provision
of legal representation in civil matters.
• Funding for the provision of legal
representation for people subject to
guardianship, medical treatment and
residence orders who appear in the
SACAT in first instance matters.
4. FAIRER COMPENSATION
CIVIL LIABILITY
The issue: Since the 1990s there has been
a steady erosion of the right to obtain fair
compensation both at common law and
under our State Workers Compensation
Scheme. Recent amendments to the Civil
Liability Act 1936 prevent injured people
from obtaining adequate compensation,
deters those who have suffered a loss as a
result of the negligence of another from
obtaining compensation, and is failing to
act as a deterrent to those not inclined to
exercise an appropriate duty of care.
KEY ASK
• The Parliament conduct a review of
the impact of recent amendments to
the Civil Liability Act 1936 in relation to
the scope of liability, burden of proof,
assumption of risk, negligence on the
part of persons professing to have a
particular skill, exclusion of liability
for criminal conduct and in the area of
contributory negligence.
WORKERS COMPENSATION
The issue: The Workers Compensation
Scheme does not provide adequate
recompense to most injured workers.
The Society notes and generally supports
the findings of the Final Report into the
Referral for an Inquiry into the Return to
Work Act and Scheme by the Parliamentary
Committee on Occupational Safety,
Rehabilitation and Compensation (14
November 2017).
KEY ASKS
• That the recommendations of the
Report be adopted, including: an end
to the discrimination against those who
suffer psychiatric injury arising from their
employment; that those who are rendered
totally and permanently incapacitated for
work in the future should be entitled to
long term income and medical support
regardless of the percentage of whole
person impairment; the provision of a
proper allowance of legal representation
costs for injured workers seeking
Tribunal orders for employers to provide
suitable employment; the percentage of
whole person impairment to be able to
pursue a claim for common law damages
must be reduced to 10%, as is the case in
other States.
CTP REFORM
The issue: Under the CTP scheme
as introduced at 1 July 2013, unless
catastrophically injured, those injured as
a result of motor vehicle accidents are
not entitled to an appropriate level of
compensation. Not only is compensation
in relation to severity of injury miserly, but
an injured motorist has to be assessed at an
Injury Scale Value of 11 to even be eligible
for any compensation at all.
KEY ASKS
• The removal of Injury Scale Value
thresholds as they limit the ability of
the injured to qualify for compensation
for both economic loss and noneconomic
loss.
• The CTP Scheme to allow appropriate
compensation to the injured for pain
and suffering.
• The removal of a 20% reduction
in compensation when calculating
economic loss.
• Reinstatement of the right of the
injured to recover legal costs incurred
associated with their claim for
compensation, regardless of the value
of their claim.
VICTIMS OF CRIME
The issue: Payments under the Victims of
Crime Scheme are grossly inadequate and
fail to reflect the trauma suffered by the
victims of serious crimes.
KEY ASKS
• That the Victims of Crime scheme
reverts back to an injury scale running
from 1-50, as per the previous Victims
of Crime Act, but the compensation
payable doubled across the board and
indexed to inflation.
• Representation costs be allowed for
legal representation on the same basis
as the allowance of representation costs
to injured workers under the Return to
Work Act 2014.
BBS Lawyers would like to
welcome Jane Fox to their
team. Jane has practised
solely in Family Law since
her admission in 2003 and
is an Accredited Specialist
in Family Law as recognised
by the Law Society of
SA. She is known for
providing succinct and
direct advice and she
works hard to ensure
exceptional representation
for her clients and the best
possible outcomes.
JANE FOX
SELINA NIKOLOUDAKIS
Jane and Selina are available to take appointments.
Call us now on 8110 2302
BBS Lawyers would like
to congratulate Selina
Nikoloudakis on achieving
her Specialist Accreditation
in Family Law with the Law
Institute of Victoria and the
Law Society of SA.
In addition, we recognise
Selina for her achievement
of the Sandra Paul
Memorial Award as dux of
the Master of Laws (Family
Law) programme which she
also completed in 2017.

TOP ELECTION ISSUES
5. CHILD PROTECTION & YOUTH JUSTICE
YOUNG OFFENDERS
The issue: The Government does not
have a cohesive plan for improving the
welfare of vulnerable children. The strategy
appears to favour incarcerating rather
than rehabilitating at-risk young people.
The Government recently passed a law to
sentence young offenders as adults, and tried
to introduce another law that would have
allowed indefinite detention orders for repeat
young offenders. On the other hand, the
Government also introduced a prevention
and early intervention Bill, but it was not
passed before Parliament rose last year.
KEY ASKS
• That there be a significant expansion
of early intervention and prevention
programs, including intensive,
individualised, youth-based rehabilitative
programs that address the underlying
factors of offending.
• A commitment to increasing and
accelerating access to rehabilitation and
support programs for young people in
custody.
• That young people are not sentenced as
adults but rather, directed to appropriate
rehabilitation, diversion and restorative
justice programs, under supervision.
• That the Government engages
in meaningful consultation with
stakeholders on any proposed laws
regarding the welfare and rights
sentencing of children and youth
offending.
TIME LIMITS ON CHILD ABUSE
COMPENSATION
The issue: Under State law, anyone
pursuing compensation for child abuse
must lodge a claim within three years of
their 18th birthday, or otherwise go through
a long, difficult and potentially costly
process to obtain a special exemption from
the court. Applying for an exemption is
often an insurmountable hurdle for victims
of child abuse. This is a cruel restriction on
the rights of child abuse victims who often
take many years to come to grips with the
abuse they have been subjected to and the
ongoing trauma that follows.
KEY ASKS
• That the State abolishes time limits
that currently apply to personal injury
claims resulting from sexual abuse of a
claimant where the claimant was a child.
• That the removal of time limits be
retrospective in effect so that victims
whose claims may have been subject to
a limitation are able to make a claim for
damages.
• That the definition of child abuse, for
the purpose of making a personal injury
claim, be expanded to include serious
physical abuse and other abuse.
6. ABORIGINAL JUSTICE
JUSTICE REINVESTMENT
The issue: A justice reinvestment initiative,
designed to addressing the cultural, socioeconomic
and psychological factors that
contribute to the high rates of Aboriginal
incarceration, does not have enough
funding continue beyond this year.
KEY ASKS
• That ongoing government funding be
provided to allow Justice Reinvestment
SA to implement its five-year action
plan in Port Adelaide and monitor the
effectiveness of its justice reinvestment
initiatives.
• An increase in early intervention,
prevention and rehabilitative services for
Aboriginal communities.
• A commitment to monitoring criminal
behaviour and to reducing indigenous
incarceration rates in SA in order to
allow the development of evidencebased
programs.
INTERPRETERS
The issue: The lack of Aboriginal
interpreter services in the justice system
is due to several factors, including: a lack
of interpreters with a knowledge of legal
processes, interpreters not being in the
locations where matters are being heard,
the costs incurred by interpreters (who
often live in remote areas) in travelling to
court matters, the restraints of Aboriginal
customs, social issues, confidentiality and
the contactability of interpreters.
KEY ASKS
Specific additional funding be provided to
the Courts Administration Authority to:
• create a think tank for interpreters,
Aboriginal representatives, court
personnel, trainers and accreditors to
examine issues and challenges relating to
interpreters and make recommendations
to improve interpretive services
• implement pay scales for interpreters to
reflect the complexity and skill required
in court work
• provide training for interpreters, judicial
officers, lawyers and court staff to foster
a greater understanding of the roles of
each party.
7. BUILDING BUSINESS
The issue: Lawyers are subject to
heavy regulation, which puts them at a
competitive disadvantage. The costs of
operating a legal practice are increasing
and are borne by clients. The impact of
regulations therefore impacts on people’s
ability to access legal services due to the
cost of doing so. More broadly, the Society
supports measures that:
• ease the costs burden on all businesses,
particularly legal practice
• reduce and simplify the burdensome
regulatory framework for legal practice
• simplify and improve access to
Government services that small
businesses require to perform their
work
• open work opportunities for small
businesses, particularly legal practices.
18
THE BULLETIN February 2018

TOP ELECTION ISSUE
KEY ASKS
• A commitment to an audit of all South
Australian legislation and regulation that
impacts on businesses as to continuing
relevance and to simplify and reduce
the regulatory burden.
• Policy makers contemplating
introduction or changes to major
aspects of regulation must consult in
a genuine and timely way with affected
businesses, community organisations
and individuals.
8. PROTECTION OF ESSENTIAL STATE
SERVICES
PRIVATISATION OF THE LAND SERVICES
GROUP
The issue: The privatisation of services
of the Lands Titles Office (LTO)
was conducted without appropriate
consultation. There has been a lack of
transparency by the Government as to the
terms and conditions of the contract the
Government is entering into with Land
Services SA, particularly regarding issues
of privacy and the protection of personal
data. South Australians have a right to
know how data relating to their property
ownership and transactions will be used
and how it is to be protected.
KEY ASKS
• That the terms of and conditions of the
Contract the Government is entering
into with Land Services SA be publicly
disclosed.
• That in any future sale of a State-owned
asset or a service provided by the State:
o the Government outline its proposal
including the results of a cost/
benefit and risk analysis, before
proceeding to amend legislation
or include projections in the State
budget
o if not otherwise required to
be debated by the Parliament,
Parliamentary approval be required for
sales expected to exceed $50 million
o the terms and conditions of the
contract be transparent
PRIVATISATION OF FINES UNIT
The issue: The Law Society has serious
concerns about the passage of a Bill
that allows the Government to privatise
the fines unit, which is responsible for
recovering unpaid fines. Under the Bill,
a Chief Recovery Officer is responsible
for recovering civil debt owed to the
Government, and the Government could
outsource the Chief Recovery Officer
role to a private debt collection agency, or
privatise the function entirely. The Society
strongly opposes the privatisation of the
Government’s fines collection functions.
KEY ASK
• That the responsibility for the collection
of Government fines remain a function
of the Government.
9. SMARTER CRIMINAL POLICIES
The issue: A number of legislative
changes have been introduced since the
last State election which have expanded
the power of the State and eroded civil
liberties. Several of these laws seek to hand
even more authority to the State, increasing
the risk of people being unfairly oppressed
and persecuted.
They include:
• The Criminal Law Consolidation
(Criminal Organisations) Amendment
Bill 2017
• Statutes Amendment (Child Exploitation
and Encrypted Material) Bill 2017
• The Statutes Amendment (Terror
Suspect Detention) Bill 2017
People are being detained for long
periods of time without access to lawyers
or rights. There is a growing number of
instances where the presumption of bail
has been revoked.
KEY ASKS
• That the Government enact a charter
of rights to ensure that State laws are
compatible with a set of principles that
protect and promote the basic freedoms,
rights and responsibilities of all South
Australians.
• That there be genuine consultation
with stakeholders such as the Law
Society on proposed legislative changes
before they are introduced into
Parliament.
• That an evidence-based rationale be
provided of the merits of proposed
laws that may infringe a person’s rights
and freedoms.
10. PRISONS
The issue: South Australia’s prisons are
chronically overcrowded, which impacts
on the delivery of rehabilitation programs,
the release of prisoners at the end of
their parole period, the capacity to treat
cognitively impaired prisoners, and the
ability of lawyers to meet with their clients
in prison.
KEY ASKS
• Sufficient allocation of funds to support
the execution of the “10by20” strategy
to reduce re-offending by 10% by 2020
• Adoption of the Standard Minimum
Rules for the Treatment of Prisoners
(“the Nelson Mandela Rules”) as
minimum standards for people held in
prisons and other forms of custody.
• The concerns of the Society in
relation to the Correctional Services
(Miscellaneous) Amendment Bill
2017 be addressed. In particular, the
removal from the Bill of the proposed
deletion of section 22(3) of the
Correctional Services Act 1982, which
provides that person who is sentenced
to a term of imprisonment exceeding
15 days must not be imprisoned in a
police prison. B
February 2018 THE BULLETIN 19

TOP ELECTION ISSUES
POLITICIANS RESPOND
TO KEY LEGAL ISSUES
The Law Society sent its Top 10 Election Issues submission to all political parties running in the
upcoming State election. All parties except SA Best submitted responses to the Law Society’s
submission. The following pages feature selected extracts of the responses of political parties. The full
responses will be sent to Members via a special edition of Advocacy Notes in February.
SA LABOR
NEW COURT PRECINCT
The Government is committed to
the development of modern and
technologically advanced State Courts.
The recent announcement of $31 million
towards new criminal courtrooms (where
the most acute difficulty exists) reflects this
commitment. It also marks the early stage
of this important staged upgrade to the
State’s court infrastructure.
PROBATE & COURT FEES BASED ON THE
VALUE OF THE WORK INVOLVED.
If this change is to be responsibly
adopted, the Government considers it
important to consult with the Courts
Administration Authority to understand the
impact this may have on its budget. We are
open to discussing this with the CAA.
PSYCHOLOGICAL & PSYCHIATRIC SERVICES
FOR PRISONERS
The Government is considering
expanding in-reach mental health services
provided to prisoners, which will include
those on remand.
We currently have psychological services
in place for the assessment and treatment
of prisoners comprising more than
70 psychologists, social workers, and
assessment and rehabilitation clinicians
employed across the prison system.
This Government also invested in the
High Dependency Unit at Yatala Labour
Prison and the Complex Needs Unit at Port
Augusta Prison, providing specialist services
for prisoners with acute psychological needs.
WORKERS COMPENSATION REFORM
On 14 November 2017 the Government
appointed former Justice of the Federal
20 THE BULLETIN February 2018
Court of Australia, the Hon John Mansfield
AM QC, to conduct an independent
review of the Return to Work Act and its
administration and operation pursuant to
section 203 of the Act.
The review commenced on 4 December
2017. The review will be completed within
six months of its commencement. The
Society is invited to make a submission to
the review.
VICTIMS OF CRIME SCHEME
In light of the Government’s recent
increase to the maximum payable and legal
fees under the Victims of Crime scheme,
we consider it prudent to allow sufficient
time to monitor and review these recent
changes and its impact before considering
any further such changes.
It should also be noted that in appropriate
circumstances the Attorney General has
discretion to consider awarding a higher
payment.
COMPENSATION FOR CHILD ABUSE VICTIMS
The Government considers there is
no need to abolish such time limits. The
Government’s ex gratia compensation
scheme works well and provides survivors
an alternative means to seek compensation
and avoid the trauma of the courts process.
It may also be noted that the Court has
discretion to extend any time limits and the
Government understands there has been
no case to date where the Court has refused
any relevant application for an extension of
time.
PUBLIC DISCLOSURE OF LAND SERVICES SA
CONTRACT
It is important for the benefit of South
Australians that there is business confidence
in transacting with the Government.
Accordingly, documents the subject of
commercial in confidence should maintain
such confidence.
PRISONER REHABILITATION
As part of our $40 million commitment
to the implementation of the 10by20
strategy, the South Australian Labor
Government committed $12.513 million to
deliver additional rehabilitation programs
for prisoners.
These programs focus on addressing
the dynamic risk factors related to violent,
sexual, domestic violence, generalised and
drug-related offending.
The delivery and effectiveness of
these additional programs will be closely
monitored by the DCS Chief Executive and
Executive Group who have oversight of
10by20’s progress.
SA LIBERAL
Deputy Opposition Leader Vickie
Chapman MP responded on behalf of
the Liberal Party
NEW COURTS PRECINCT
Clearly South Australia’s Supreme Court
buildings are derelict and in some cases
dangerous. I expect the Government’s
current $31 million refit in the Supreme
Court buildings will be suitable for up to
10 years. Much of this will be spent on
buildings leased by Government.
So far, the Government have refused to
provide any of the planning documents
or documents prepared for tender of the
options previously announced and cancelled
for a new court building.
My commitment is to review this material
if elected in March as a first priority.
SUPREME COURT UPGRADES
Although our former Chief Justice
suffered the indignity of not being able to
access his courts when using a wheelchair,
making improvements to the Supreme
Court Building prior to a comprehensive
rebuild may not be the best use of funds
for public and professional disability access.
I would prefer to ask SafeWork SA to

TOP ELECTION ISSUES
prioritise areas necessary to comply with
occupational health and safety standards.
Any rebuild will require disability standards
to be adhered to.
COMMUNITY LEGAL CENTRE FUNDING
It is disappointing that whilst the Federal
Government reconsidered its commitment
to Community Legal Centre funding, that
the same has not been followed by the
State Government. In 2017 the Liberal
Party committed to reinstate services at
the Riverland Community Legal Centre,
which was a direct recommendation
from the Federal Attorney-General when
reconsidering their funding arrangement.
VICTIMS OF CRIME SCHEME
The Victims of Crime fund continues
to accumulate and we have indicated our
support to applying these monies to assist
with domestic violence, drug addiction and
victims generally.
A priority will be to establish the Justice
Rehabilitation Fund, which was promised
two years ago by the State Government,
under confiscation of assets legislation.
CHILD PROTECTION & EARLY
INTERVENTION
The Liberals have committed to the
appointment of an Assistant Aboriginal
Children’s Commissioner. The Government
have not.
Further, we have announced a youth drug
treatment law reform policy, which the
Government continue to oppose.
COMPENSATION FOR CHILD ABUSE VICTIMS
Funds are available in the Victims of
Crime Fund to support extra compensation
payments for victims of institutional child
sexual abuse. Shortly after the Nyland
report was tabled I introduced vital
legislation to remove any time limit to CSA.
The Government refused to support this
legislation however I commit to pursue the
same if elected.
CHARTER OF RIGHTS FOR SA
A charter of rights may have some merit,
but I note the Bill of Rights applying in
Victoria has been most commonly used by
bikie gang members.
PRISONER REHABILTIATION
It is hardly surprising that we have high
recidivism by prisoners in our adult facilities
and youth training centres. Parole Board
Chair, Frances Nelson QC, has repeatedly
complained of the lack of adequate or
merely accessible rehabilitation programs.
Clearly this must change, with services
offered broadly over all prison facilities to
the prisoners who need the services most.
The Opposition have announced policies
to curb drug and mobile phone use in
prisons, and around prisoner voting.
GREENS SA
PROBATE & COURT FEES BASED ON THE
VALUE OF THE WORK INVOLVED
The Greens were the only Party that
advocated on behalf of the Law Society for
changes to Probate fees as part of the 2016
State Budget.
DISABILITY ACCESS IN COURTS
Access to justice is a key priority for
the Greens. We believe that full and
unencumbered participation in the
legal system for people with disability is
essential, and are committed to providing
resources to the Courts Administration
Authority to achieve this aim. In particular,
the Greens support the urgent allocation
of funds for upgrades of courtrooms 1
and 2 of the Supreme Court to provide
full disability access and the engagement
of a disability access consultant to make
recommendations regarding the further
redevelopment of the courts.
LEGAL AID FUNDING
The Greens were key advocates in
Parliament for the campaign by the Law
Council of Australia and the Law Society
for increased funding for both CLCs and
the Legal Services Commission.
PSYCHOLOGICAL AND PSYCHIATRIC
SERVICES FOR PRISONERS
The Greens recognise that there are
insufficient resources to currently deal
with the psychiatric and psychological
needs of participants in the legal system.
The consequential delays to trials and
the compromised services offered to
defendants, remandees and prisoners are
unacceptable. We completely support all of
the Law Society Key Asks to address this
urgent area of need.
JUSTICE REINVESTMENT
The original initiative for Justice
Reinvestment in South Australia came from
former Greens SA Senator, Penny Wright.
We remain committed to this project.
ABORIGINAL INTERPRETIVE SERVICES
The Greens have a strong track record
in campaigning for better outcomes for
Aboriginal people participating in the justice
system, and have fought hard for the recent
increased funding for interpreters and to
raise awareness of the important role they
play in access to justice and in keeping
people out of unnecessary incarceration.
Specific funding for interpreters (and
associated roles) as outlined in the Law
Society’s Key Asks would help to overcome
some of the significant challenges faced by a
number of Aboriginal people in the courts.
AUSTRALIAN CONSERVATIVES –
SA DIVISION
NEW COURTS PRECINCT
Australian Conservatives believe that
the South Australian Court system has
been neglected under the current Labor
Government, and agrees that whoever
forms government must commit to the
construction of a new State Courts precinct
with a proper plan and schedule.
FUNDING FOR COURTS ADMINISTRATION
AUTHORITY
Australian Conservatives have been highly
critical and have opposed the closure of
regional courts and other cost cutting
measures which resulted from the Labor
Government’s cuts to the operating budget
of the CAA.
We will support measures to increase the
CAA budget as we believe that local court
services in regional areas must be available.
We also believe a well-funded court system
is needed to minimise the time it takes
for cases to progress. A faster system is
necessary to reduce the anguish experienced
by victims, witnesses and defendants.
LEGAL AID FUNDING
Legal Aid funding is paramount to
give proper access to the courts for
disadvantaged people. We know there is
an inadequacy in this area as we regularly
try to assist constituents who have trouble
accessing the justice system. We support
the restoration of the $6m funding cut
to Legal Services Commission by the SA
Government.
February 2018 THE BULLETIN 21

TOP ELECTION ISSUES
WORKERS COMPENSATION REFORM
We argued strongly against the changes
to Workers Compensation and believe it
is unfair and needs review. We support
the concept of a lifetime support scheme
however, questions have been raised about
the adequacy of compensation which we
consider needs to be reviewed in the next
term of government.
PRISONER REHABILITATION
Our prisons are chronically overcrowded
and we believe the strategy to reduce
recidivism by 10% should be a minimum
target. More needs to be done to
rehabilitate prisoners and it is never in
the interest of the community to release
someone on early parole if they have not
completed their rehabilitation program.
PROTECTION OF ESSENTIAL STATE SERVICES
Australian Conservatives has fought
against the sale of essential services in
South Australia and had a bill before the
South Australian Parliament which was
defeated with both major parties voting
it down 14-6 in late November. The
Parliamentary Committees (Public Assets
Committee) Amendment Bill 2017 called
for greater scrutiny over the potential sale
of any state asset through the establishment
of a Public Assets Committee.
We believe that government should be
involved in some business and not involved
in other. The Lands Titles Office is one
area that should remain the business of
government.
We agree with the Law Society that the
terms and conditions of the contract the
government is entering into with Land
Services SA be publicly disclosed.
ADVANCE SA
Lead candidate Peter Humphries
responded on behalf of Advance SA
NEW COURTS PRECINCT
The need for a new Courts Building is
very long overdue. It is, in my opinion,
quite disgraceful that South Australia is still
condemned to a Courts building which
is not only old and totally unsuited to
current needs but which has fallen into an
advanced state of disrepair as successive
Governments have chosen to spend money
on any number of other capital works
projects in preference to a new Courts
Building. This should be a priority of the
next Government.
WORK COVER REFORM
I agree with the suggestions in relation
to the Workcover Scheme. As far as the
CTP scheme is concerned I think it is
realistic to revert to the Queensland
scheme without the added thresholds and
for the level of compensation for P&S
to similarly be set by reference to the
Queensland Scale.
I strongly agree with the proposals put
forward in relation to Victims of Crime.
COMPENSATION FOR CHILD ABUSE VICTIMS
I am in broad agreement with the
proposals put forward under the Child
Protection heading and very strongly
committed to the removal of the Statutory
limitations impacting victims of abuse. It
is a matter of some embarrassment to me
that SA is the only State that either has not
already removed that limitation or has not
committed to do so.
DIGNITY PARTY
NEW COURTS PRECINCT
The Dignity Party support a commitment
to the construction of a new State Courts
precinct by 2023, with the 2018-19
State budget to provide funding for the
development of a plan.
DISABILITY ACCESS IN COURTS
The Dignity Party demand that all new
construction court facilities are built to
meet universal design principles, and agree
with the SA Law Society that:
The Courts Administration Authority
must be provided with the resources to
engage a specialist accredited disability
access consultant to provide advice
and recommendations on the courts
redevelopment project.
CHILD PROTECTION & EARLY INTERVENTION
The Dignity Party are calling for a
significant expansion of early intervention
and prevention programs, including
intensive, individualised, youth-based
rehabilitative programs that address
the underlying factors of offending,
such as education, health, employment,
homelessness and child protection.
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February 2018 THE BULLETIN 23

POEMS FOR THE
CITIZENSHIP SEVEN
Last year, Australian politics was caught in the grip of, if not a Constitutional crisis, then at least
a Constitutional debacle as Parliamentarian after Parliamentarian found themselves on the wrong
side of the “dual citizenship” provision of Section 44. While a new wave of politicians have been
implicated in the saga, constitutional law expert Stephen McDonald of Hanson Chambers has
captured the drama, farce, tragedy and triumph that surrounded the first seven to be referred to the
High Court, otherwise known as the “Citizenship 7”. Please enjoy Mr McDonald’s poetic odes to this
infamous gang.
24 THE BULLETIN February 2018

CITIZENSHIP 7 POEMS
IT IS WITH A HEAVY HEAR THAT I AM
FORCED TO RESIGN — A VILLANELLE
Senator Larissa Waters
By S A McDonald
It is with a heavy heart that I am forced to resign
In this, the winter of the Greens’ discontent
I’ve done the honourable thing, haven’t I?
Conceived in the shade of a North American pine
My parents brought me home from
Canada, barely nascent
It is with a heavy heart that I am forced to resign
I’ve fought all my adult life to protect sea and sky
The first to breastfeed in the
Commonwealth Parliament
I’ve done the honourable thing, haven’t I?
Yet there’s much left to do: the Adani mine
Gender equality and defending the environment
It is with a heavy heart that I am forced to resign
The effect of section 44 is surely to disqualify
Though the Attorney submits that was never the intent
I’ve done the honourable thing … haven’t I?
It is with a heavy heart that I am forced to resign
I’ve done the honourable thing, haven’t I?
ODE ON A GRECIAN POLITICIAN
Senator Nick Xenophon
By S A McDonald
Thou ne’er defeated prince of politics
Thou princ’pl’d pragmatist of South Australia
For thy State thy very neck thou risked
To hold the balance of pow’r throughout Australia
You began as SA’s No Pokies MP
Thy re-election time and time again
And the polls which constantly reflect
Thy growing popularity
All the more remarkable given
Poker Machine numbers remain unchecked
But who are they who falsely now accuse?
Who see in thee a touch of Britishness?
Those rogues who now implore thee to recuse
Thyself from further Parliament’ry business?
Are thee with thine home State so smitten
As to resign before the case be even heard?
Does thy faith in counsel waver, then, or what?
Thou hast no right of abode in mother Britain
And to no foreign sovereign gave thy word
Whatever be a BOC, a subject or citizen ’tis not!
LAMENT FOR FIONA NASH
(IN THE STYLE OF ROBERT BURNS)
Senator Fiona Nash
By S A McDonald
A guid Scots lad a-walkin’ gaed
An’ splored in yonder thrissle
Then hooked a train to London an’
A cantie spring did whissle
For swith to fin’ a wife were he
An’ fin’ yin, aye, he did
A bit lassie from Sydney toun
In Essex they were wed
This bonnie lass from New Sooth Wales
Two dochters did she bear
Afore they visited Cronulla
And decided tae live there
Anither bairn was born tae thaim
But she was barely aught
Whan her parents, they did sinder:
For they’d had a donsie faught
For this wee thing Fiona
Her daddie ceased tae fen
Her vauntie lallan ancestry
Soon passed ayont her ken
She married Nash, a crofter
An’ became a politician
Than a chieftain o’ her pairtie
Wi’ ne’er a thocht of Britain
Till the deemsters o’ Austrailae
In thair judgment, tae her fash
Annoonce “five are disqualified
Including Fiona Nash”
But dinnae be ower angry,
Ye mustn’t loss your chear
Ye shan’t hae lang tae wai’, m’ lass
An election’ll soon be here
HAIKU
Senator Malcolm Roberts
By S A McDonald
Of Welsh parentage
A natural born Indian
Whatever that means
A British subject
Tossed on the tide of history
An Australian
Am I still British?
Dot gov dot uk Sydney
I choose to believe
February 2018 THE BULLETIN 25

CITIZENSHIP 7 POEMS
THE BALLAD OF BARNABY JOYCE’
Barnaby Joyce MP
By S A McDonald
’Twas Barnaby from Tamworth, whom voters did affirm
Would represent New England for the twenty sixteen term
To keep his place in Parliament our Barnaby did defeat
The independent Tony Windsor, former holder of the seat
The election was a close one, with Turnbull re-elected
And Barnaby as Deputy was once again selected
But Barnaby’s opponent, that industrious Independent
Had no idea that Barnaby was a New Zealand descendant
Well Barnaby, he knew of course, his father had be proud
To migrate to Australia from the Land of the Long White Cloud
But what he hadn’t twigged to was that by this quirk of kinship
Our Deputy Prime Minister held dual citizenship
The citizenship crisis, first struck in mid July:
Two Members who had not renounced
and thought they must resign
These first two victims both were Greens;
their favourite sons and daughters
The two co-deputy leaders, Mr Ludlam and Ms Waters
Said Barnaby prophetically, when asked about the Greens:
“The Constitution’s clear I think; it’s certain what it means
“Ignorance is no excuse — the law is just the law
“You can’t be a dual citizen, under section 44.”
Matt Canavan, a National, and fellow Minister
Then seemed to be Italian, though hardly sinister
Then in August without warning, came the great catastrophe:
Our Barnaby got a tip-off, that he might just be a kiwi
Stephen Donaghue’s advice was sought,
it seemed to be a beauty
Barnaby could still perform his ministerial duty
Turnbull was emphatic, the S-G’s advice was bold:
“Barnaby’s qualified to sit, AND THE HIGH
COURT WILL SO HOLD!”
But when Barnaby stood in Parliament, and tried to use his voice
He heard from the opposition bench an unseemly baa-ing noise
But Barnaby our hero, he wasn’t finished yet
At a hearing before Kiefel, a Full Court date was set
And Barnaby in due course, was joined by several others:
Fiona Nash his deputy, and Xenophon, and Roberts
Barnaby engaged a team of lawyers led by Walker
An advocate supposed to be the High Court’s greatest talker
Written subs were filed, by which a pretty good attempt
Was made to tell the High Court, that Barnaby was exempt.
The argument, shortly stated? If a person never knew
They had two nationalities, no split allegiance could accrue
But when the hearing date arrived, our hero was shocked to see
Represented at the bar table, his great adversary
That’s right, old Tony Windsor had
convinced the Court he’d reason
To appear as contradictor, represented by Justin Gleeson
Well, if ever there has been a match for Bret Walker SC
It’s that former Solicitor-General’s brand of brilliant adv’cacy
In time the arguments for Barnaby were skilfully encircled
(Followed by a history lesson, presented by Ron Merkel)
Both Donaghue and Walker, with silver tongue, replied
And generally it was agreed, “This isn’t cut and dried.”
“We know you want an answer, we’re afraid you’ll have to wait,”
The Court declared, “We’ll be back soon,
to tell you of your fate.”
And so it was in just two weeks, the Court did reconvene
Chief Justice Kiefel, Justice Bell, and Gag-e-ler and Keane
And Nettle, Gordon, Edelman; they were unanimous
Poor Barnaby disqualified: and yet magnanimous
Among the silver gums, and far away from lawsuits
Dressed in his Akubra hat and RM Williams boots
He called a presser urgently, and Barnaby surmised:
“I actually saw this coming; I’m not a bit surprised.”
To everybody’s puzzlement, Tony Windsor then announced
He’d not contest a by-election,
and since Barnaby’d now renounced
His new found nationality, he was eligible to run.
“In fact,” he thought, “With Windsor out,
this actually could be fun!”
He knew the odds of victory towards him strongly lent:
The two-party preferred margin was at 16.4 per cent!
Meanwhile in the Parliament, more chaos was ensuing
The President of the Senate, the very bloke who had been doing
The referrals to the High Court, made an astonishing admission:
He had known that he was British, but a senior politician
Had advised him not to mention it,
in the hope the Court would say
That being a dual-citizen was actually okay.
Vicious rumours circled, of Ecuadorians and Greeks
And three more British citizens emerged in coming weeks
John Alexander, a tennis player, who’d wondered all along
Why he felt at home at Wimbledon as much as Bennelong
The outspoken Jacquie Lambie,
who’s family history had been written
Now realised that her Network extended all the way to Britain
With a mother born in Singapore was Skye Kakoschke-Moore
All of these fell victim to the scourge of 44
And even as we gather here, to listen to this story
A question mark still hovers above another category:
Each MP with foreign ties which they had sought to sever
Whose renunciation of citizenship, despite their best endeavour
At the time of nomination, was sadly incomplete
But back to our protagonist, and the race to fill his seat
A motley field of candidates, in number seventeen
Nominated for this by-election, the greatest ever seen
Including if you can believe, this “name agnostic” smartie:
Meow-Ludo Disco Gamma Meow Meow for the Science Party
I’ll bet my hat the voters of New England make the choice
To keep this tale going: the adventures of Barnaby Joyce
The by-election will be held on the second of December
And so my friends, the ballad ends, because it’s still November.
26 THE BULLETIN February 2018

CITIZENSHIP 7 POEMS
LIMERICKS FOR LUDLAM
Senator Scott Ludlam
By S A McDonald
A senator from West Australia
Campaigned long and hard for the failure
Of nuclear stations
And for peace among nations
And collected Greens paraphernalia
That Honourable Senator, Scott
A New Zealander thought he was not
Despite naturalisation
Cit’zenship of that nation
To renounce, it appears he forgot
To the Court he submitted, “I erred”
Almost everyone else there concurred
Including their Honours,
Who said, “Yes, you’re all goners;
To hold otherwise is absurd”
SONNET NO [2017] HCA 45
Hon Senator Matthew Canavan
By S A McDonald
In corridors of power there did dwell
A represent’tive of the Sunshine State
His ministry he felt it would be well
To set aside while courts decide his fate
It was (alas!) no cause for celebration
Acquiring that which he had never sought
A retrospective redetermination
Of the Italian Constitut’nal Court
But hearken ye to counsel who now acts
With twademark voice and most familiar face
In absence’f contradictor as to facts
Up silken sleeve he keeps a hidden ace
— That common lawyer to this end doth steer:
That civil lawyers say this civil law’s unclear
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RISK WATCH
Have you settled? ‘Yes’ or ’No’
might not be the answer
AMANDA ADAMSON, SENIOR SOLICITOR, LAW CLAIMS
When negotiating settlements
always specifically advert to
whether or not your negotiations
result in an agreement which is
immediately binding.
id you settle?” ask your colleagues
“Dexpectantly when you return from
Court. Most of the time your answer will
be “Yes” or “No”.
The conversation will not usually go
like this: “Did you enter an immediately
binding legal contract for the client today?”
“No, but we are in the third class of
Masters v Cameron and I think we will get
there eventually”, even though such a
conversation might be the technically
correct answer. Accordingly, it does not
take much imagination to understand the
issue facing the Court in Gailey Projects Pty
Ltd v McCartney and Anor 1 about whether
the parties had reached a legally binding
settlement after a day of negotiation.
On the first day of a two-week trial, the
trial Judge stood the matter down to allow
the parties to negotiate. You can picture
the scene that the trial Judge described;
offers passing backward and forward,
counsel and solicitors variously involved,
in and out of conference rooms and over
the telephone. By 5pm, the words “done
deal” were uttered by someone and there
was discussion whether the Judge should
be informed of the settlement. It was
decided that the solicitors should exchange
emails recording what had been agreed and
report to the Judge the following morning
that settlement had been reached. There
was some discussion about a deed and a
suggestion by at least one party that a deed
was unnecessary. That evening, an email
was sent purporting to set out the terms
of settlement. The email was different in
five respects from the agreement that had
been reached during the day. This lead to
an allegation by the plaintiff that there
28 THE BULLETIN February 2018
was no settlement. The defendant applied
to the trial Judge for a declaration that
settlement had been reached.
The trial Judge’s reasons contain an
orthodox analysis of contract formation. 2
The trial Judge’s consideration of whether
the parties intended to be immediately
legally bound by their agreement arises
from Masters v Cameron 3 where the High
Court divided the intention to create legal
relations prior to execution of a written
agreement into three classes and Sinclair,
Scott & Co Ltd v Naughton 4 where a fourth
class was proposed. As to these classes:
1. in the first class, the parties have reached
finality in all terms of the bargain and
intend to be immediately bound to
perform all terms and at the same time
intending to have those terms restated
in a form that is fuller or more precise
but no different in effect;
2. in the second class the parties have
reached finality in all terms of the
bargain and intend to be immediately
bound but have nevertheless made
performance of one or more terms
conditional upon the execution of a
formal contract;
3. in the third class, the parties do not
intend to be legally bound unless or
until they execute a formal contract;
4. in the fourth class, the parties have
reached finality in some terms of the
bargain and intend to be immediately
bound to perform those terms and at
the same time intend to make a further
contract in substitution of the first
contract containing additional terms by
consent.
The parties are immediately bound to
varying extents without a contract in writing
in the first, second and fourth classes but
not at all in the third class. As the trial Judge
explicitly observed, there is no presumption
that parties do not intend to be legally
bound until a deed is executed. 5
The principles applied by the trial Judge
are well established by the South Australian
decision of Lucke v Cleary & Ors. 6 In
that case, the Full Court referred to the
following matters:
• The intention to be immediately bound
is assessed objectively.
• A solicitor has ostensible authority to
bind a client in settlement of litigation.
• Evidence of post contractual conduct is
admissible on the question of whether
settlement has been reached.
When having regard to the following
matters, the Gailey trial Judge concluded
that the parties had intended to be
immediately bound by 5pm on the day of
the negotiation:
• Negotiations were conducted on the
first day of a 10-day trial such that it
was readily inferred the parties were
attempting to avoid trial costs.
• Negotiations were conducted by Senior
Counsel.
• One of the agreed terms required action
within 24 hours.
• No person had said that there was no
deal unless it was reduced to writing.
• Although a deed had been mentioned,
at least one party had expressed it to be
unnecessary.
• The words “we accept”and “we have a
deal” are consistent with the intention to
create legal relations.
• The express purpose of the email
Even the phrase subject to contract while perhaps
usually signifying an in principle agreement or an
agreement to agree sometime in the future needs
to be measured against the relevant context.

RISK WATCH
exchange between solicitors was to set
out what had already been agreed.
• The parties intended to inform the Judge
of the settlement the following morning.
• Counsel had spoken to persons outside
to the litigation to the effect that it had
settled.
On one hand, Courts have warned against
making incorrect assumptions from the use
of words and conduct that parties usually
associate with the formation of contracts
such as “deal” or “bargain” and the shaking
of hands. 7 On the other, a mere reference
to the drafting of a deed does not make
the agreement subject to contract. 8 Even
the phrase subject to contract while perhaps
usually signifying an in principle agreement
or an agreement to agree sometime in the
future needs to be measured against the
relevant context. 9
Although Courts have said that there
is no particular language or conduct that
will be determinative of the objective
analysis of the parties’ intentions, in Lucke,
the communication to the Court that the
parties had settled was an important feature
in favour of the finding of an immediately
binding settlement.
The lesson to be learned from cases like
Gailey and Lucke is that there is no downside
to expressly stating either that your client
intends to be immediately legally bound by
terms which you go on to identify or it does
not. There may be utility in actually using
the language of the High Court’s Master v
Cameron classes. At the very least, language
of this kind is likely to prompt relevant and
constructive discussion about the parties’
intentions, the certainty of terms and the
relevance of any subsequent deed before
representations are made to the Court.
Endnotes
1 [2017] QSC 185
2 At [46], the trial Judge posed three questions; (i)
Did the parties have an intention to create legal
relations? (ii) Were there material terms which
were yet to be agreed or were uncertain? (iii)
Was any agreement to compromise intended
to be conditional upon execution of a deed of
settlement?
3 [1954] HCA 72
4 [1929] HCA 34
5 [2017] QSC 185 [70]
6 [2011] SASCFC 118
7 Stellard Pty Ltd & Anor v North Queensland Fuel Pty
Ltd [2015] QSC 119 [33]
8 Lucke v Cleary & Ors [2011] SASFC 118
at [72]
9 Stellard Pty Ltd & Anor v North Queensland Fuel Pty
Ltd [2015] QSC 119 [36] – [38]
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GET IN ON THE ACT
Costs disclosure in Litigation
ETHICS & PRACTICE UNIT
“Get in on the Act” is a new
monthly column from the Law
Society’s Ethics & Practice Unit
which details practitioners’
statutory professional obligations
and responsibilities.
As from 1 July 2014 all new costs
agreements had to be compliant with
Schedule 3 of the Legal Practitioners Act
1981 (the Act) and from 1 July 2015 all
pre-1 July 2014 costs agreements also had
to be compliant with Schedule 3.
The main thrust of Schedule 3 revolves
around disclosing to clients what the cost
implications of intended proceedings
will be so that they can make informed
decisions as to whether to proceed or not.
The purpose of this article is to serve as
a reminder to practitioners of the above,
particularly in litigation matters with
particular reference to sub-clauses 10(1)(g)
and 10(4) of Schedule 3 of the Act.
These sub-clauses make it clear that
clients are to be informed not only
of what costs they may recover if
successful with the litigation but also
what they may be required to pay if
unsuccessful.
The disclosure requirement is further
expanded by sub clause 4 which requires
the disclosure to also contain a statement
advising the client that even if the court
orders a payment in favour of the client,
the client may still be out of pocket as not
all fees incurred can be recovered. The
disclosure must also make it clear to the
client that even if they are unsuccessful
with the litigation they may still be
expected to pay disbursements even in the
case of a conditional costs agreement.
Clause 10 of Schedule 3 proceeds to
set out the requirements and states the
following (clauses 10(1)(g) and 10(4) have
been underlined for easy reference):
10—Disclosure of costs to clients
(1) A law practice must disclose to a client in
accordance with this Part—
(a) the basis on which legal costs will be
calculated, including whether a scale of
costs, or a recommendation as to the
calculation of barristers’ costs, applies to
any of the legal costs; and
b) if the law practice will not be calculating
legal costs in accordance with an applicable
scale of costs—that another law practice
may calculate legal costs in accordance with
the scale; and
c) the client’s right to—
(i) negotiate a costs agreement with the law
practice; and
ii) receive a bill from the law practice; and
(iii) equest an itemised bill after receipt of a
lump sum bill; and
(iv) be notified under clause 17 of any
substantial change to the matters
disclosed under this clause; and
(d) an estimate of the total legal costs if
reasonably practicable or, if that is not
reasonably practicable, a range of estimates
of the total legal costs and an explanation
of the major variables that will affect the
calculation of those costs; and
(e) details of the intervals (if any) at which the
client will be billed; and
(f) the rate of interest (if any) that the law
practice charges on overdue legal costs,
whether that rate is a specific rate of interest
or is a benchmark rate of interest (as
referred to in subclause (2)); and
(g) if the matter is a litigious matter, an
estimate of—
(i) the range of costs that may be recovered
if the client is successful in the litigation;
and
(ii) the range of costs the client may
be ordered to pay if the client is
unsuccessful; and
(h) the client’s right to progress reports in
accordance with clause 19; and
(i) details of the person whom the client
may contact to discuss the legal costs;
and
(j) the following avenues that are open to the
client in the event of a dispute in relation to
legal costs:
(i) raising the matter with the practice;
(ii) adjudication of costs under Part 7;
(iii) the setting aside of a costs
agreement under clause 30;
(iv) if the client believes there has been
overcharging—making a complaint
to the Commissioner; and
(k) any time limits that apply to the
taking of any action referred to in
paragraph (j); and
(l) that the law of this State applies to legal
costs in relation to the matter; and
(m) information about the client’s right—
(i) to accept under a corresponding
law a written offer to enter into an
agreement with the law practice that
the corresponding provisions of
the corresponding law apply to the
matter; or
(ii) to notify under a corresponding law
(and within the time allowed by the
corresponding law) the law practice
in writing that the client requires
the corresponding provisions of the
corresponding law to apply to the
matter.
(2) For the purposes of subclause (1)(f), a
benchmark rate of interest is a
rate of interest for the time being equal
to or calculated by reference to a rate of
interest that is specified or determined
from time to time by an ADI or another
body or organisation, or by or under other
legislation, and that is publicly available.
(3) The regulations may make provision for or
with respect to the use of benchmark rates
30
THE BULLETIN February 2018

GET IN ON THE ACT
of interest, and in particular for or with
respect to permitting, regulating or preventing
the use of particular benchmark rates or
particular kinds of benchmark rates.
(4) For the purposes of subclause (1)(g), the
disclosure must include—
(a) a statement that an order by a court
for the payment of costs in favour
of the client will not necessarily cover
the whole of the client’s legal costs;
and
(b) if applicable, a statement that
disbursements may be payable by
the client even if the client enters a
conditional costs agreement.
(5) A law practice is taken to have complied
with the requirement to disclose the details
referred to in subclause (1)(c)(i) to (iii),
(h), (j), (k) and (m) if it provides a
written statement in or to the effect of a
form prescribed by the regulations for the
purposes of this subclause at the same time
as the other details are disclosed as required
by this clause.
(6) A form prescribed for the purposes of
subclause (5) may, instead of itself
containing details of the kind referred to
in that subclause, refer to publicly accessible
sources of information (such as an Internet
website) from which those details can be
obtained.
(7) The regulations may—
(a) require the Society to develop a
statement of the relevant details and
to revise it as necessary to keep it up
to date; and
(b) require the Society to make the
statement publicly available in the
prescribed manner.
THE AUSTRALIAN SOLICITORS’
CONDUCT RULES
Practitioners are further reminded that
Conduct Rule 7 requires practitioners
to provide clients with clear and timely
advice to understand the relevant legal
issues and to make informed choices about
action to be taken and also to inform the
client of alternatives to fully contested
adjudication. 1
GENERAL APPLICATION
Gino Dal Pont, in his book ‘lawyers’
professional responsibility, 6th Edition,
Thomson Reuters, 2017 confirms that
costs disclosure must be in language that
the client will understand clearly setting
out what the client’s exposure might be. 2
Dal Pont further states that the fairness
requirement reflects that the relationship
between lawyer and client should not be
taken advantage of and the lawyer should
not be benefitting from an agreement into
which the client has been induced as a
result of relying on the lawyer. 3
This would necessarily involve a full
and frank explanation of costs exposure
in the matter, ensuring that the client has
full and complete understanding of how
this course of action will affect him/her
financially.
CONCLUSION
The clear and overriding theme is that
the client must always know and not be
caught by surprise. Costs estimates in
litigation can sometimes be a bit of a
moving feast depending on how the matter
progresses. It is therefore crucial for the
initial (win /lose) costs/ recovery of costs
estimates to be provided, the client to be
kept up to date with the progress of the
matter and being advised of any changes
in circumstances and how, if at all, it could
affect the client’s cost exposure.
Endnotes
1 Australian Solicitors Conduct Rules, Rule 7.
2 GE Dal Pont, Lawyers’ professional
responsibility, 6th Edition, Thomson Reuters,
2017, 468 [14.15].
3 GE Dal Pont, Lawyers’ professional
responsibility, 6th Edition, Thomson Reuters,
2017, 494 [14.170].
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SPEECH
The role of the Attorney General
& the challenges of riding the
‘law & order tiger’
THE HON CHRIS SUMNER AM
Former Attorney General, The
Hon Chris Sumner AM, spoke
at the Law Society Senior
Practitioners’ and Honorary
Member’s Luncheon on 17
October last year about the
unique role of the Attorney
General, and the inevitable
tension between promoting
Government policy and
upholding the rule of law that
the Attorney General of the day
must negotiate.
thought I would review some of
I the issues and controversies I
faced as Attorney-General many of which
remain current.
On my first appointment in 1979 I
received a package of materials sent to
me by Ian Dow (of the firm Knox and
Hargraves).The package contained articles
about the role of the Attorney General
which he had collected. Why he sent them
to me I do not know. What is important
is that there is an important body of law,
convention and practice attached to the
office expounded on in more detailed
texts written by Dr J Edwards on ‘the Law
Officers of the Crown’. 1
Whatever modifications have been made
in the colonial context it remains the case
that the holder of the office has special
responsibilities in government. This is the
case even though the Attorney General in
Australia is usually a member of Cabinet
and not just an MP as is the case in the
UK. Despite this there are certain decisions
which are not the subject of Cabinet
direction, including in relation to criminal
prosecutions. This was understood and
respected by my cabinet colleagues. If
32 THE BULLETIN February 2018
possible, I think the Attorney General
should be an admitted legal practitioner as
that position carries with it certain ethical
obligations and responsibilities to the
law and the courts. I would also observe
that having an Attorney General outside
Cabinet does not avoid controversy as we
saw in the UK when Lord Goldsmith, the
Attorney General in the Blair Government,
is said to have changed his view on the
legality of the 2003 Iraq invasion.
An important role is the recommending
of judicial appointments to Cabinet. This
achieves appropriate democratic input
into the process. I don’t think there is any
enthusiasm in Australia to directly involve
the Parliament as occurs in the US. One
of the recommendations I made was for
Elliott Johnston. Merit was not in doubt
but there was some trepidation because of
the fierce controversy only 15 years before
about his nomination for appointment as
QC because of his political views. Cabinet
was supportive. Now for the tricky part I
thought. David Wicks was the President
of the Law Society and not one known
for his radical views. “Wonderful” he said.
“Should have happened years ago”. How
easy is this I thought. The appointment was
greeted with almost universal approval by
the profession and community. A sublime
moment when for once doing the right
thing delivered a political dividend.
There has been some recent commentary
from the Chief Justice and others that
Attorneys-General no longer see their role
as defending the Courts. I am not sure that
it was ever the practice for an Attorney
General to defend every court decision
made no matter what the circumstances.
The Attorney or other Law Officers
have always represented the Crown
which is a litigant. I was responsible for
introducing Crown appeals in criminal
matters which saw the Attorney directly
challenge Court decisions. I also (with a
little encouragement from Chief Justice
King) introduced the independent Courts
Administration Authority (which followed
the earlier initiative to remove magistrates
from the public service). These measures
enshrined the independence of the
judiciary and a consequence of this was
that the Courts would need to not only run
the courts administratively but also to take
greater measures to explain their decisions.
Chief Justices Doyle and Kourakis have
recognised this. This does not absolve an
Attorney General from responsibility. The
Attorney General should defend the courts
- not every decision, but certainly there
is an important need for explanation and
support for the role of independent courts
and the rule of law to a proper functioning
democracy.
One area in which my views have been
misunderstood relates to the emergence of
a separate bar within the fused profession.
I was never opposed to legal practitioners
deciding to practice only as barristers but I
did not support this turning into a legal or
factual division which privileged barristers
who chose this mode of practice over
others who may have preferred to conduct
litigation within a firm of barristers and
solicitors as had traditionally been the case.
And it’s not that the traditional system
produced dud jurists as mention of the
names of Bray, King, Zelling, Bright,
Mitchell to name just a few will attest.
SA has a very flexible system – a legal
practitioner can practice as a barrister and
a solicitor on their own or in a firm and
with or without a trust account. A fused
legal profession is in the public interest
and in an era of increasing concern about
access to and the cost of justice it would be
a retrograde step to in any way formalise a
division of the profession.
It was in this area that I had my only
serious disagreement with Chief Justice
King. This was over the undertaking he

SPEECH
South Australian Attorney-Generals such as Robin Milhouse (left), Chris Sumner, Trevor Griffin and current office holder John Rau, have put their unique stamp on the
role of first legal officer of the State.
required that QC/SCs should undertake
not to practice in a firm as had traditionally
been permitted. Legislation was passed to
render an undertaking of this kind invalid
and this he countered with an alternative
undertaking to the effect that if a QC/SC
continued to practice in a firm then they
were seriously restricted in the way they
could use the title. To me this seemed like
an artificial device to avoid the effect of
invalidating the original undertaking as it
was unlikely that anyone would agree to take
silk if they were restricted in the way the
title could be used. There is I think still a
Supreme Court Rule to this effect which is
not really acceptable. The important point
is that this undertaking has reinforced the
separation of the profession and privileges
members of the separate bar in terms of
judicial appointment. I think the pool for
judicial appointments should be as wide
as possible and not so restricted. Being a
barrister in an adversarial system does not
necessarily translate into the attributes of a
good judge. Learning in the law is important
but so is personal aptitude including an
understanding of society and the human
condition as well as sense of fairness.
The other controversy which erupted
over legislation I had introduced was in
the Nemer case. The Director of Public
Prosecutions Act of 1992 includes a
power for the Attorney General to direct
the DPP. In accordance with established
practice the legislation made clear that this
was a decision for the Attorney and not
the cabinet or government. Nemer shot
the victim who was going about the lawful
business of delivering morning newspapers
which resulted in the loss of his eye. Plea
negotiations resulted in the charge being
reduced to endangering life and a good
behaviour bond sentence imposed. The
Attorney-General directed the DPP to
appeal which was successful resulting in
a head sentence of 4 years and 9 months
(and a non- parole period of 1 year and
9 months) which reflected the obvious
seriousness of the offence. The defence
challenged the validity of the direction.
The Law Society took the view that
the Attorney-General should not have
this power or that it shouldn’t be used in
individual cases. There was an exchange
of learned articles in the Bulletin where
I took the opposite view and defended
the legislation. There was considerable
confusion about the separation of powers
doctrine. The maintenance of security
and public order and the investigation and
prosecution of offenders is quintessentially
an executive government function. The
citizenry including victims of crime accept
that in civil society the state will perform
this function in lieu of private vigilante
action and taking the law into their own
hands. It is an essential part of the deal (or
compact) that the community be satisfied
the measures taken by the Crown, the state
or the government (however you wish to
describe the executive) will keep them as
safe as practicable. The police are part of
the executive and can be directed by the
government of the day. The constitutional
propriety of this was established in the
Vietnam Moratorium Royal Commission in
1972 by Sir Charles Bright. The safeguard
is that any direction should be tabled in
Parliament. In a similar way the prosecution
of offenders is constitutionally a function
of the executive, it is certainly not part of
the judicial role. Democratic accountability
for this function is secured by the Attorney
General having ultimate responsibility
for prosecution policy and being able to
direct the DPP, any direction to be made
transparent by being tabled in Parliament,
thus ensuring that the Attorney can provide
at least some level of accountability to the
Parliament for this function.
For those opposed to this approach I
pose the question of why the DPP alone
of any public official should be immune
from having their decisions reviewed. It is
clear enough that a decision to prosecute is
reviewed by a trial and subsequent appeal
rights. However, what happens when the
DPP makes a mistake by declining to
prosecute or agreeing to an inappropriate
charge reduction or agreement with the
defence that the prosecution would not
oppose a custodial sentence. Apart from
the current power vested in the Attorney-
General there is no vehicle for a mistake
of this kind to be corrected. I have seen
suggestions that such a decision could
be the subject of judicial review by, for
instance, an aggrieved victim. Or that an
independent panel could be established
to which members of the public or
victims could take their case that the
DPP had failed in its duty. I think such
proposals would produce their own set of
problems and would not support them.
The Westminster system has in its rather
quaint way produced a situation where the
ultimate responsibility for prosecutions
rests with an elected official who is part of
executive government but immune from
direction by the government of the day
while according to the DPP substantial
operational independence. I think both
officers properly apprised of the relevant
principles and powers relating to each of
them can benefit from the dialogue and
advice which they can impart to each other.
The power to direct will be used sparingly
but is a fail - safe mechanism to ensure that
any egregious errors made by the DPP can
be corrected. In the Nemer case I think
there were some aspects of the political
debate that were unfortunate and it would
have been better if the Attorney-General
had inserted himself into it to more fully
explain the relevant powers and principles
that were involved. But in the end the
correct result was arrived at, an error was
corrected and a potential miscarriage of
February 2018 THE BULLETIN 33

SPEECH
justice for the general community and the
victim averted. The power to direct was
upheld by the Supreme Court and the High
Court which in my view as proponent of
the legislation is what was intended.
I don’t think the legal profession
completely understands how difficult the
law and order tiger is to ride for people in
elected office. But even so, it is important
for the Attorney-General to maintain a
stance of reasonable detachment and
reason within government, whether dealing
with sentencing or as has been highlighted
more recently in the Keogh case in dealing
with petitions to the Governor to refer
criminal cases back to the Supreme Court.
This role is now diminished as groundbreaking
legislation introduced by John Rau
now provides a direct route for a convicted
person to have their cases reviewed by
the Supreme Court in certain defined
circumstances of new evidence and where
a miscarriage of justice may have occurred.
It will be interesting to see what the High
Court in the van Beelan case makes of
this (Ed note: The High Court dismissed
van Belelen’s appeal against his murder
conviction). The Splatt Royal Commission
that I recommended also did some good
work in dealing with forensic evidence and
leading to it being collected and examined
independently of the police – but perhaps
not enough to satisfy the current critics of
our forensic services.
On the law and order front what we
tried to do was put together a coherent
package of measures involving greater
support for victims, sentencing reforms
with imprisonment as a penalty of last
resort, proper rehabilitation measures and
importantly a community crime prevention
policy which tried to acknowledge that
crime rates were not amenable to reduction
just by custodial sentences. This was
broadly supported by the Opposition and
my successor Trevor Griffin. I am pleased
to see that after a lapse under the Rann
government there is an attempt by the
Law Society and others to revive the crime
prevention approach even if it is now
rebadged as justice reinvestment.
I would like to say how much I enjoyed
and appreciated working with the lawyers
employed by the Crown. They are engaged
34 THE BULLETIN February 2018
in an important public service and I am
pleased to see suggestions to privatise
or outsource the work have rightly been
resisted in SA. I courted some controversy
when Cathy Branson was appointed
Crown Solicitor in 1985 - the first woman
to be appointed CEO of a government
department in SA. She was able to entice
John Doyle to take up the position of
Solicitor General who with Brad Selway
constituted a formidable constitutional
team. It is insufficiently recognised that
their efforts in the High Court resulted
in a reinterpretation of s 92 (which
hardly ever provokes controversy these
days). With my support and over the
objections of such notably forceful figures
as Victorian Premier Jeff Kennett they
also lead the way in trying to get a more
limited definition of excise adopted. Had
this been successful it would have allowed
the States to impose a GST type tax and
helped to correct the fiscal imbalance
between the Commonwealth and the
States. Unfortunately, by a narrow margin
this failed.
Finally, I like to think I enjoyed good
relations with the Law Society even
though, for potential conflict reasons, I
did not regard it as appropriate to actively
participate in the Council’s deliberations.
Unlike the present Attorney I was not
antagonistic to submissions produced
from your word processor, matters I
see addressed by (then) President Tony
Rossi in the September (2017) Bulletin. I
am often pleased to see reference to the
success of the Litigation Assistance Fund
as an aspect of enhancing access to justice.
It is little known again that it fell to me
to take the Law Society’s side in agreeing
to make the funds available from the
Guarantee Fund to establish the Fund over
the Legal Services Commission which also
wanted the money.
Access to and the cost of justice were
major issues in the 1980s and remain so
today even to a greater extent. B
Endnotes
1 see also Hon L J King AC, QC ‘The Attorney-
General, Politics and the Judiciary. Paper
delivered to the Fourth Annual Colloquium
of the Judicial Conference of Australia in
November 1999’.
CPD Events
For further details and to register:
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All sessions that are being held at LSSA,
will be held at Level 10 Terrace Towers,
178 North Terrace Adelaide
Forum
15 and 16 February 2018
9.00am – 5.00pm
Country Conference - Robe
16 February 2018
9.00am – 5.00pm 6 Units *
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21 February 2018
5.30pm – 7.00pm 1.5 Units *
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22 February 2018
9.00am – 12.30pm 3 Units *
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27 February 2018
9.00am – 12.30pm 1.5 Units *
Trusts Symposium
9 March 2018
9.00am – 5.00pm 6 Units *
Small Practice Conference
16 March 2018
9.00am – 5.00pm 6 Units *
*Total CPD Units are accurate at time of
printing and should be taken as a guide only.
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POLITICS AND THE LAW
The South Australian Parliament
and Parliamentary Privilege
JAN DAVIS, CLERK OF THE LEGISLATIVE COUNCIL
Australian laws on Parliamentary
Privilege have largely been derived
from the laws of England regarding
the privileges of the Houses of the UK
Parliament and more particularly, those of
the House of Commons and its Members.
The sources of the English laws are to be
found chiefly in ancient practice asserted
by Parliament and accepted over time
by the Crown and the courts of law, and
custom of Parliament. English laws are
developed by the statutes enacted by the
English Parliament such as the Bill of Rights
1689 and the common law developed
by the Courts. By Imperial Statute 13
& 14 Vic C59, the Australian colonies
were empowered to enact legislation
providing for the establishment of
bicameral legislatures. The Constitutions
for the Colonies of South Australia and
Victoria enacted in the 1850s, provided
that the Houses of their Parliaments and
their Members should be co-extensive
with those of the House of Commons
and its Members, as of a specified date.
The English laws so transported could
be modified by later statutes. New South
Wales is the only Australian State in
which the laws of parliamentary privilege
continue to be based mainly on common
law (Enid Campbell, Parliamentary Privilege
[2003, pp2-4]).
In 1858, shortly after attaining
responsible government in the province of
South Australia, there was enacted specific
legislation delineating the penal jurisdiction
of the Houses of Parliament with the
power to punish for contempt limited
to defined clauses. The South Australian
Parliament subsequently repealed this
Act and substituted legislation, which
adopted for the Houses of Parliament all
the powers, privileges and immunities of
the Commons House and Members and
committees thereof as of 1 July, 1856. This
was later qualified in 1888 when legislation
provided that no member of the South
36 THE BULLETIN February 2018
Australian Parliament should be entitled
to claim any of the privileges to which he
might be entitled under the Act of 1858
against any process issued by a court of
law within the colony, except that no writ
of capias ad satisfaciendum should be put into
effect against a member during any session
of Parliament or within 10 days before
Parliament meets, and that no member
should be liable to any penalty or process
for non-attendance as a witness in court
when his non-attendance should be due
to his attendance in Parliament. This was
subsequently repealed and provision made
in the Constitution Act 1934 that:
9. The Parliament may, by any Act,
define the privileges, immunities,
and powers to be held, enjoyed, and
exercised by the Legislative Council
and House of Assembly, and by
the members thereof respectively:
Provided that no such privileges,
immunities, or powers shall exceed
those held, enjoyed, and exercised
on the twenty-fourth day of
October, eighteen hundred and fiftysix,
by the House of Commons, or
the members thereof.
38. The privileges, immunities, and
powers of the Legislative Council
and House of Assembly respectively,
and of the committees and
members thereof respectively, shall
be the same as but no greater than
those which on the twenty-fourth
day of October, 1856, were held,
enjoyed, and exercised by the House
of Commons and by the committees
and members thereof, whether such
privileges, immunities, or powers
were so held, possessed, or enjoyed
by custom, statute, or otherwise.
The earlier provision enacted in 1888 now
appears as Section 39 in the Constitution Act
1934 though, in slightly different form.
Section 38 of the Constitution Act 1934
restricts the South Australian Parliament
to not exceeding the powers, etc. of the
House of Commons as at 24 October,
1856, which was the date of the enactment
of the Constitution Act on the attainment
of responsible Government. Therefore,
should the UK Parliament change its
privileges, it would seem that there would
be no effect on the South Australian
Parliament. As the majority of privileges
of the House of Commons are enjoyed by
common law, or custom, it is not easy to
determine with certainty, 160 or more years
later, what privileges were enjoyed at the
earlier date. Halsbury’s Laws of England (1st
Ed, 1912) lists privileges of both Houses,
at that time, as freedom from arrest,
exemption from jury service, protection
of witnesses before Parliament or any
parliamentary committee and of counsel,
solicitors etc. engaged upon business of
Parliament from arrest or any other legal
action, freedom of speech, control over
publication of proceedings and power to
exclude strangers during parliamentary
sittings.
E G Blackmore, in Practice of the Legislative
Council (2nd Ed, 1915, p41), stated -
“It is obvious that a legislative body must, in
order to the efficient discharge of its functions,
be invested with power to punish offenders, to
exercise discipline over its own Members, to
enforce obedience to its orders, and to prevent
interference with its proceedings.”
Both the South Australian and
Victorian Parliaments, by virtue of their
Constitutions, have the same punitive
powers then possessed by the House of
Commons as at 24 October, 1856 (SA)
and 1 July, 1855 (Vic). This power has
been seen as the keystone of Parliamentary
privilege. Parliament declares what is
a breach of privilege and punishes by
censure and commitment, with the
public having no redress in a Court. A

POLITICS AND THE LAW
scandalous or libellous reflection on the
proceedings of the House or on a Member,
disobedience to orders of the House,
tampering with a witness, interfering with
the Officers of the House in the execution
of their duty and attempts to influence the
decision of a Committee are considered
breaches of privilege.
It is a necessary privilege of a legislative
body that it should have the right to
summon and examine witnesses and
compel the production of papers and, if
a witness is in custody, to cause him to be
produced as required. Privilege extends to
protect witnesses, petitioners and others
while in attendance at Parliament from
arrest and from the consequences of any
statement made by them.
In Odgers in Australian Senate Practice
(12th Ed, 2008, p65) it is explained that the
“rationale of treating defamation of the Houses
or of their Members as a contempt was not as
was some time supposed, to protect the dignity and
good name of Parliament and its Members but to
prevent public attacks which, by undermining the
respect due to Parliament as an institution and
diminish its authority, tend to obstruct or impede
the Houses in the performance of their functions”.
In 1870, Serjeant-Major Patrick McBride
was sent to prison for one week for
sending a letter to a member of the
Legislative Council accusing him of having
lied to the Council. Mr John Baker, a
Member of the Legislative Council, read
to the Council an “abusive” letter which
he had received from a Mr McBride (a
Serjeant-Major, R.A.), as follows:
“Sir - I regret to hear you state what is a
deliberate and repeated and base lie, on your
part, stating Mr H.H.B. Strangways is or
was my lawyer on any matter connected with
the Volunteer Force of this Colony. Such a
statement is a base calumny against the Hon.
Gentleman.
I am, Sir, your obedient servant, McBride.”
The Hon J Baker
The letter was forthwith, on motion,
declared a breach of the privileges of
Parliament. At a subsequent sitting the
President reported that he had received
from Serjeant-Major McBride the following
letter, apologising that he had committed a
breach of privilege:
Privilege extends to protect witnesses, petitioners
and others while in attendance at Parliament from
arrest and from the consequences of any statement
made by them.
“Pennington Terrace, North Adelaide, 16th
September 1870.
The Honourable the President of the
Legislative Council.
Sir - It was with great regret that I found,
on reading the Register of the 14th of this
month, that the Council has resolved that I
had, in forwarding a letter to the Honourable
Mr. Baker, ‘committed a breach of the
privileges of Parliament,’ and ‘that some
members of the Council considered that I had
offered an insult to the Council generally’. I
assure you, Sir, as President of the Council,
that nothing could be further from my intention
than to commit any breach of the privileges
of Parliament, nor would I willingly insult a
body of gentlemen for whom I entertain a high
respect on account of the individual action of
one member of that body; I beg to express my
extreme regret that I should have done anything
that should be capable of such a construction as
that arrived at by the Council, and to request
that you will read this letter to the Council.
I am your obedient servant,
P. McBride.”
However, despite the apology he was at
once “adjudged guilty of contempt of
the Council” and committed to Her
Majesty’s Gaol for seven days on the
warrant of the President. On the expiry
of the seven days, the Council ordered
“that no fees be demanded from Serjeant-
Major McBride”.
Enid Campbell in Parliamentary Privilege in
Australia (1966, p129) argued:
“This is a good illustration of the kind of
case in which legislative assemblies ought not
to intervene at all. If anyone is defamed, it is
not members of parliament collectively, but an
individual member who is free to seek amends
in the ordinary courts. Protection of the
reputations of individual members is not the
business of the Houses of Parliament, and if
they extend their punitive jurisdiction thus far,
they expose themselves to the charge not only
of usurping the jurisdiction of the courts, but
of dispensing justice to their members on the
cheap. If jurisdiction is usurped in this way,
the citizen who is made to suffer as a result is
without a remedy. No writ of prohibition or
injunction could issue to prevent either House
of Parliament proceeding with the case, nor
could the House’s judgement be upset by appeal
or certiorari.”
Likewise, Odgers (p65) held that “To
constitute a contempt, a reflection upon an
individual member had to relate to the member’s
capacity as a member and tend to obstruct the
performance of the member’s duties”. It should
not be the business of the Houses to
become involved in the punishment
of defamation as a contempt, which it
is argued, does not impede Parliament
or its Committees going about their
business.
In 1898 Lord Kilmorey, who was a
stranger in South Australia but was
promoting the Outer Harbor Bill, was
accused of having sent certain Members
of the Council circulars that reflected on a
Report of the Standing Orders Committee.
The matter was referred to a Select
Committee, which reported that the circular
was a breach of privilege; but that, in view
of Lord Kilmorey having withdrawn and
apologised, the matter did not proceed any
further. The Council adopted the Report of
the Select Committee.
It was not until 1968 that this issue
arose again. A witness before the Select
Committee on the Scientology Bill 1968
brought along a prepared statement to
the Committee, the opening paragraph
of which referred to certain misgivings
which the witness desired resolved before
proceeding with his evidence. The first
referred to protection afforded him in
respect of evidence tendered by him and
the Chairperson quoted LC Standing
February 2018 THE BULLETIN 37

POLITICS AND THE LAW
Order No. 437 which was accepted by
the witness. The second referred to the
Chairperson’s refusal to see him “some
weeks ago because as he stated over the
telephone, he had ‘made up his mind on
the matter’ and that [he] would be better
advised to seek somebody else who had
not made this decision. [He went on
to request] … the reassurance of the
Committee that the hearing of evidence
tendered will be examined in a completely
impartial manner and not subject to bias in
any way, shape or form”.
The Chairperson gave the assurance
that the Committee would look at this
matter impartially. Further, the position
was explained in relation to charges made
against Members of the Committee, in
that “if any information comes before a
Committee that charges any Member of
the Council, the Committee shall only
direct that the Council be acquainted with
the matter of such information, without
proceeding further thereupon”.
Subsequently the witness wrote to the
Secretary of the Select Committee and
“formally” charged the Chairperson with
being unduly biased etc. The Committee
agreed upon a Special Report to the
Council on the matter “in order that the
Council may take such steps as it shall
think fit”. Other witnesses forwarded
correspondence to the Committee
indicating that they too were unable to
give evidence in support of Scientology
as they had been forced to the view that
the Chairperson was biased, but offering
to reconsider their positions if the
Chairperson should resign.
The Special Report drew attention to
the letter from the witness which was
addressed to the Clerk of the Legislative
Council and stated:
“that as such letter appears to reflect upon the
conduct of the Chairperson, the Committee
has agreed to report the same to the Council
in accordance with Standing Order No. 399
and that the letter and relevant Minutes of
Evidence be Tabled with this Special Report in
order that the Council may take such steps as it
shall think fit”.
After the Special Report was Tabled
(5 November, 1968), the Council resolved
to summon the Witness to appear at the
Bar of the Council on the next Tuesday
of sitting “to answer such questions as the
38 THE BULLETIN February 2018
Council may see fit to put to him regarding
his letter concerning the Chairperson of
the Select Committee on the Scientology
(Prohibition) Bill 1968”. On the next
sitting Tuesday (12 November, 1968), the
Clerk was required to read the Resolution
concerning the Special Report of the Select
Committee and Black Rod was required to
ascertain whether the witness was present.
Having so determined, the President
ordered that the witness be brought to the
Bar. He was questioned as to whether he
was the person mentioned in the Minutes
of Evidence and whether he signed the
letter attached to the Special Report. After
the witness confirmed that he was the
said person, he was asked to withdraw,
following which a motion was moved:
“That in the opinion of the House the
writing and sending of the letter was highly
improper conduct and the House, without
proceeding to the question whether that conduct
constitutes a contempt of the House, issues
a warning to …(the witness) to refrain from
a repetition of such conduct in the future
which could be attended with most serious
consequences”.
Considerable debate occurred with the
then four Labor Members opposing the
motion. The motion was carried on strict
party lines. The witness was then recalled
to the Bar and the President informed him
of the Resolution and added:
“To deliberately attribute to the Chairman of
a Select Committee a lack of impartiality is a
contempt of the Legislative Council, which, on
being duly established, can be severely punished.
Honourable members, when individually
engaged on official duties both inside and
outside the Chamber, are obliged to make up
their minds and speak out as they think fit, but
when sitting as members of a Select Committee
they are, whatever they may have said before,
under a strict duty to be impartial, and they
invariably discharge their duties. That concludes
the proceedings, and you (the witness) may
withdraw”.
This was the last time that such action
occurred. At the time, the summoning
before the Bar did not reflect well on the
Upper House and was treated so in the
local press. Subsequently, Committees and
Members have always been counselled
against proceeding thus in the public forum.
In 1987, a Member of the House of
Assembly made certain allegations in
Parliament. Those allegations implied that
a member of the public had sought and/
or received favoured treatment because of
close association with the former Labor
Government. Subsequently, a Newspaper
published a letter written by this member
of the public in which he disputed the
allegations saying that they were unfounded
and defamatory. The Member of
Parliament then issued proceedings against
this person and the Newspaper alleging
that the letter was defamatory.
The member of the public and the
Newspaper filed their defence to that
claim. The defence pleaded qualified
privilege, fair comment and justification
(i.e. truth). On the face of it, the defences
of fair comment and justification (at least
as pleaded) would require the Court to
determine whether the allegations made
by the Member in Parliament were true.
The Court would probably also be required
to inquire into the Member’s motives
in making the statement. The Member
of Parliament then applied to have the
defences struck out as being in breach of
Parliamentary privilege. He argued that
the privilege was absolute and that the
Court could not hear any evidence of what
occurred in Parliament.
The Judge accepted this argument and
struck out the relevant defences. This had
the effect that the member of the public
a defendant faced with an action by a Member of
Parliament for defamation has a right ... to crossexamine
the Member of Parliament as to the facts
of the statement which was made in the Parliament
and to which a citizen’s response may related, the
motives and even the sources of information.

POLITICS AND THE LAW
and the Newspaper had no defence. This
decision was appealed to the Full Court.
The Attorney-General intervened and his
argument can be summarised as follows:
• A court cannot inquire into the truth
of what is spoken in Parliament or the
motive of a member when speaking in
Parliament. It is doubtful whether this
privilege can be waived.
• A court can receive admissible evidence
to prove as a fact that a particular
statement was made in Parliament.
Parliamentary privilege may render
inadmissible some otherwise relevant
evidence on this topic. However,
Hansard can be received in evidence for
this purpose.
• Any person who is attacked by a speech
in Parliament has a qualified privilege
to publicly answer that attack. The
qualified privilege will apply so long as
the answer is a reasonable response to
the attack and is not actuated by malice.
The truth or otherwise of the answer
need not be proved.
The Attorney-General was not successful.
Two Judges of the Supreme Court were
of the view that in the circumstances
of this case in particular, a defendant
faced with an action by a Member of
Parliament for defamation has a right in
those circumstances to cross-examine
the Member of Parliament as to the
facts of the statement which was made
in the Parliament and to which a citizen’s
response may related, the motives and even
the sources of information.
Subsequent to the decision of the Full
Court, the then Attorney-General sought
leave to appeal to the High Court based
on the same argument that he put to the
Full Supreme Court. However, he later
withdrew, indicating his concern that this
was the worst possible case on its facts
to use as a vehicle to test the extent of
Parliamentary privilege. He recommended
that Parliament should consider the
issue of privilege unencumbered by
the potentially unjust case then being
considered. The Parliament could then
consider whether legislation to cover
privilege should be introduced.
Subsequently, a Joint Committee of the
Parliament was established to examine
the extent of Parliamentary privilege and
the means by which such privilege may be
enunciated and protected in the interests
of the community and the institution
of Parliament. The Committee never
reported. At the time, it was felt that to
introduce legislation defining Parliamentary
privilege may indeed limit the privileges
attained by the South Australian Parliament
in Section 38 of the Constitution Act 1934,
which extends “the privileges, immunities and
powers of the Legislative Council and House of
Assembly respectively, and of the Committees and
members thereof respectively, to those held by the
House of Commons as at 24 October 1856”.
It was not until 1999 that the then
Attorney-General moved for a Sessional
Standing Order according a Citizen’s
Right of Reply in the Legislative Council.
The Sessional Standing Order enables
persons who believe that they have been
adversely referred to during proceedings
of the Council to request that a response
be incorporated in Hansard. This has been
adopted in every subsequent Session of
Parliament in the Legislative Council and
by the House of Assembly since 2007. B
Jan Davis retired on 31 December 2017 after
53 years on the Staff of the Legislative Council
Challenging cancer
Leading the way towards a cancer free future
LINCOLN SIZE, CHIEF EXECUTIVE, CANCER COUNCIL SA
Every day, 26 South Australians will Our essential support services have
hear the words “you have cancer.” It’s continued to change lives, with more
a sobering statistic, and one that highlights than 30,500 nights of accommodation
the impact of cancer in our community. provided through the Cancer Council
Over the last 12 months Cancer Council Lodges based at Flinders and Greenhill,
SA has made great strides in reducing the and more than 6,400 people receiving
impact of cancer on all South Australians. information and support from our Cancer
As the only organisation to work across Council nurses. We have empowered
every area and every type of cancer, we are South Australians of all ages to reduce
proud to invest in ongoing cancer research, their cancer risk, with smoking rates in
lead life-changing prevention activities, South Australia the lowest ever recorded at
pioneer advancements in advocacy and 14.9%, largely influenced by our advocacy
provide essential support services. work along with our Quitline and Quitskills
In the last year alone, Cancer Council’s programs.
Beat Cancer Project has funded more We are also proud to lead cancer
than 200 research initiatives, with every prevention amongst our younger
$1 donated by the community funding $4 generations, with more than 110,000
worth of research.
South Australian children now protected
from harmful UV radiation through our
SunSmart program.
All of these achievements are not
possible without the tireless work of our
staff, volunteers, ambassadors, donors,
fundraisers and corporate partners
which last year alone, enabled us to raise
$9.3million, which will directly impact
the lives of the more than 9,700 South
Australians diagnosed with cancer every
year.
We couldn’t do what we do without you,
and through your generous support, every
minute, every hour, every day we’re getting
closer to a cancer free future.
To find out more about Cancer Council
SA and how you can make a difference
visit www.cancersa.org.au.
February 2018 THE BULLETIN 39

GAZING IN THE GAZETTE
4 November 2017 – 2 January 2018
A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS
AND RULES COMPILED BY MELLOR OLSSON’S ELIZABETH OLSSON.
Acts Proclaimed
Local Government (Boundary Adjustment)
Amendment Act 2017 (No 32 of 2017)
Commencement: 1 January 2019
Gazetted: 7 November 2017,
No. 75 of 2017
Local Government (Mobile Food Vendors)
Amendment Act 2017 (No 33 of 2017)
Commencement: 1 March 2018
Gazetted: 15 November 2017,
No. 76 of 2017
Adoption (Review) Amendment Act 2016 (No
64 of 2016)
Commencement ss 4 (other than the
insertion of s 3(3) into Adoption Act 1988);
5(6) (other than the insertion of the
definitions of party to an adoption and
Registrar into Adoption Act 1988); 5(7) and
(10); 6; 9(1); 14(3); 15; 17; 19 to 22; 23(1);
24 to 29: 18 December 2017
Gazetted: 21 November 2017,
No. 77 of 2017
Intervention Orders (Prevention of Abuse)
(Recognition of National Domestic Violence
Orders) Amendment Act 2017 (No 8 of 2017)
Commencement: 25 November 2017
Gazetted: 21 November 2017,
No. 77 of 2017
Environment Protection (Waste Reform)
Amendment Act 2017 (No 45 of 2017)
Commencement except
Schedule 2: 28 November 2017
Gazetted: 28 November 2017,
No. 78 of 2017
Notaries Public Act 2016 (No 42 of 2016)
Commencement: 1 February 2018
Gazetted: 28 November 2017,
No. 78 of 2017
Children and Young People (Oversight and
Advocacy Bodies) Act 2016 (No 48 of 2016)
Commencement remaining provisions:
18 December 2017
Gazetted: 5 December 2017,
No. 79 of 2017
Electoral (Legislative Council Voting and
Other Measures) Amendment Act 2017
(No 31 of 2017)
Commencement remaining
provisions: 12 December 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Land and Business (Sale and Conveyancing)
(Beneficial Interest) Amendment Act 2017
(No 30 of 2017)
Commencement: 29 January 2018
Gazetted: 12 December 2017,
No. 81 of 2017
Liquor Licensing (Liquor Review) Amendment
Act 2017 (No 49 of 2017)
40 THE BULLETIN February 2018
Commencement except ss 4; 5(1) and (2);
5(4) - (9); 5(11); 5(13) - (15); 5(17); 5(21)
and (22); 5(24) - (26); 5(28); 6; 7; 9 to 15; 17;
19; 20; 22; 23; 25 - 32; 33(1) and (2); 34 - 38;
39(2); 40 - 52; 53(2); 55 - 64; 67 - 69; 73 -
76; 78 - 80; 82(3); 83 - 95; 96(2); Schedule 1;
Schedule 2, Part 3; Schedule 2,
clause 12: 18 December 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Statutes Amendment (SACAT No 2) Act 2017
(No 51 of 2017)
Commencement except for Part 2; Part 4;
Parts 7 to 12; Parts 14 to 16; Part 19; Part
21; Parts 24 to 28; Parts 30 to 35; Parts 37
and 38; Part 40; section 225; Parts 44 to 47;
Part 49: 14 December 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Summary Procedure (Indictable Offences)
Amendment Act 2017 (No 18 of 2017)
Commencement: 5 March 2018
Gazetted: 12 December 2017,
No. 81 of 2017
Surveillance Devices Act 2016 (No 2 of 2016)
Commencement: 18 December 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Australian Energy Market Commission
Establishment (Governance) Amendment Act
2017 (No 52 of 2017)
Commencement: 19 December 2017
Gazetted: 19 December 2017,
No. 82 of 2017
Biological Control (Miscellaneous) Amendment
Act 2016 (No 66 of 2016)
Commencement: 1 January 2018
Gazetted: 19 December 2017,
No. 82 of 2017
Children and Young People (Safety) Act 2017
(No 25 of 2017)
Commencement ss17, 18; Chapter 4 Parts
2 and 3; Chapter 5; Chapter 6 Parts 1 and 2
(other than section 59); ss 67, 68; Chapter
7 Part 1 (other than Division 4); Chapter 7
Parts 2, 3 and 4; Chapter 7 Parts 6, 7 and
9; s111; Chapter 8; Chapter 10; Chapter 11
Part 2; ss 151, 152, 161; Schedule 1 Part 2
clause 2(b) to (e) and clause 2A (as enacted
by section 60 of Children’s Protection Law
Reform (Transitional Arrangements and Related
Amendments) Act 2017);
Schedule 1 Part 3: 22 October 2018
Commencement remaining
provisions: 26 February 2018
immediately after
section 60 of
Children’s Protection Law
Reform (Transitional
Provisions and Related
Amendments) Act 2017
comes into operation.
Gazetted: 19 December 2017,
No. 82 of 2017
Children’s Protection Law Reform (Transitional
Provisions and Related Amendments) Act 2017
(No 64 of 2017)
Commencement ss 22, 23, 26, 60; Part 22; s
149(1), 150; Part 22: 26 February 2018;
Commencement ss24, 25, 27-32, 33, 35-38;
Parts 5, 6, 9 (except s46); s 58; Parts 11, 12,
14-17, 19, 20; ss 148, 149(2),
151-153: 22 October 2018;
Commencement remaining provisions
except Parts 2, 7, 13,
18 and 21: 19 December 2017;
To avoid doubt, while section 60 of
the Act comes into operation on
26 February 2018:
(a) clause 2(a) of Schedule 1 Part 2 of
Children and Young People (Safety) Act
2017) commences on 26 February
2018;
(b) clause 2(b) to (e) and clause 2A of
Schedule 1 Part 2 of Children and Young
People (Safety) Act 2017 commences on
22 October 2018.
Gazetted: 19 December 2017,
No. 82 of 2017
Industry Advocate Act 2017 (No 42 of 2017)
Commencement: 1 January 2018
Gazetted: 19 December 2017,
No. 82 of 2017
Justices of the Peace (Miscellaneous) Amendment
Act 2016 (No 41 of 2016)
Commencement: 19 December 2017
Gazetted: 19 December 2017,
No. 82 of 2017
Road Traffic (Roadworks) Amendment Act 2017
(No 12 of 2017)
Commencement: 1 June 2018
Gazetted: 19 December 2017,
No. 82 of 2017
Statutes Amendment (Transport Online
Transactions and Other Matters) Act 2017
(No. 38 of 2017)
Commencement ss 23, 26, 33(1)
and (2); Sch 1: 20 March 2018;
Commencement remaining provisions:
19 December 2017
Gazetted: 19 December 2017,
No. 82 of 2017
Acts Assented To
Environment Protection (Waste Reform)
Amendment Act 2017, No. 45 of 2017
(amends Environment Protection Act 1993 and
Motor Vehicles Act 1959)
Gazetted: 15 November 2017,
No. 76 of 2017

Work Health and Safety (Representative
Assistance) Amendment Act 2017,
No. 46 of 2017
Gazetted: 15 November 2017,
No. 76 of 2017
Criminal Law Consolidation (Criminal
Organisations) Amendment Act 2017,
No. 47 of 2017
Gazetted: 15 November 2017,
No. 76 of 2017
Police (Drug Testing) Amendment Act 2017,
No. 48 of 2017
Gazetted: 28 November 2017,
No. 78 of 2017
Liquor Licensing (Liquor Review) Amendment
Act 2017, No. 49 of 2017
Gazetted: 28 November 2017,
No. 78 of 2017
Statutes Amendment (Court Fees) Act 2017,
No. 50 of 2017
(amends District Court Act 1991; Magistrates
Court Act 1991; Sherriff’s Act 1978; and
Supreme Court Act 1935)
Gazetted: 28 November 2017,
No. 78 of 2017
Statutes Amendment (SACAT No 2) Act
2017, No. 51 of 2017
Gazetted: 28 November 2017,
No. 78 of 2017
Australian Energy Market Commission
Establishment (Governance) Amendment Act
2017, No. 52 of 2017
Gazetted: 28 November 2017,
No. 78 of 2017
Statutes Amendment (Sentencing) Act 2017,
No. 53 of 2017
Gazetted: 28 November 2017,
No. 78 of 2017
Statutes Amendment (Vehicle Inspections and
South Eastern Freeway Offences) Act 2017, No.
54 of 2017
(amends Motor Vehicles Act 1959 and Road
Traffic Act 1961)
Gazetted: 28 November 2017,
No. 78 of 2017
Stamp Duties (Foreign Ownership Surcharge)
Amendment Act 2017, No. 55 of 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Health Practitioner Regulation National Law
(South Australia) (Remote Area Attendance)
Amendment Act 2017, No. 56 of 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Genetically Modified Crops Management
Regulations (Postponement of Expiry) Act 2017,
No. 57 of 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Planning, Development and Infrastructure (State
Planning Policy) (Biodiversity) Amendment Act
2017, No. 58 of 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Linear Parks (Miscellaneous) Amendment Act
2017, No. 59 of 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Nuclear Waste Storage Facility (Prohibition)
(Public Money) Amendment Act 2017,
No. 60 of 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Statutes Amendment (Extremist Material) Act
2017, No. 61 of 2017
(amends Criminal Law Consolidation Act 1935
and Summary Offences Act 1953)
Gazetted: 12 December 2017,
No. 81 of 2017
Statutes Amendment (Explosives) Act 2017,
No. 62 of 2017
(amends Criminal Law Consolidation Act 1935
and Summary Offences Act 1953)
Gazetted: 12 December 2017,
No. 81 of 2017
Statutes Amendment (Drink and Drug Driving)
Act 2017, No. 63 of 2017
(amends Harbors and Navigation Act 1993,
Motor Vehicles Act 1959, Rail Safety National
Law (South Australia) Act 2012 and Road
Traffic Act 1961)
Gazetted: 12 December 2017,
No. 81 of 2017
Children’s Protection Law Reform (Transitional
Arrangements and Related Amendments) Act
2017, No. 64 of 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Constitution (One Vote One Value) Amendment
Act 2017, No. 65 of 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Constitution (Electoral Redistribution) (Appeals)
Amendment Act 2017, No. 66 of 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Statutes Amendment (Youths Sentenced as
Adults) Act 2017, No. 67 of 2017
(amends Young Offenders Act 1993; Criminal
Law (Sentencing) Act 1988; Sentencing Act 2017)
Gazetted: 12 December 2017,
No. 81 of 2017
Labour Hire Licensing Act 2017,
No. 68 of 2017
Gazetted: 12 December 2017,
No. 81 of 2017
Statutes Amendment (Terror Suspect Detention)
Act 2017, No. 69 of 2017
(amends Bail Act 1985; Correctional Services
Act 1982; Criminal Law (High Risk Offenders)
Act 2015; Police Act 1998; Young Offenders
Act 1993)
Gazetted: 12 December 2017,
No. 81 of 2017
Statutes Amendment (Attorney-General’s Portfolio
No 3) Act 2017, No. 70 of 2017
(amends Advance Care Directives Act 2013;
Bail Act 1985; Construction Industry Long
GAZING IN THE GAZETTE
Service Leave Act 1987; Guardianship and
Administration Act 1993; Legal Practitioners
Act 1981; Magistrates Act 1983; Magistrates
Court Act 1991; Remuneration Act 1990;
Second-hand Dealers and Pawnbrokers Act
1996; South Australian Employment Tribunal
Act 2014; Spent Convictions Act 2009; Young
Offenders Act 1993)
Gazetted: 12 December 2017,
No. 81 of 2017
Fines Enforcement and Debt Recovery Act 2017,
No. 71 of 2017
(amend Cross-border Justice Act 2009,
Expiation of Offences Act 1996, Magistrates
Court Act 1991, Motor Vehicles Act 1959,
Summary Procedure Act 1921 Victims of Crime
Act 2001)
Gazetted: 12 December 2017,
No. 81 of 2017
Appointments
President of the South Australian
Employment Tribunal
from 7 November 2017
Steven Peter Dolphin
Gazetted: 7 November 2017,
No. 75 of 2017
Magistrate
Ancillary Magistrate of the Youth Court
of South Australia
South Australian Civil and
Administrative Tribunal
Member
commencing on 22 November 2017
Protective Security Officers
Disciplinary Tribunal
Panel Member:
Police Disciplinary Tribunal
Panel Member:
From 22 November 2017 until 28 April 2020
Oliver Rudolf Gerhard Koehn
Gazetted: 21 November 2017,
No. 77 of 2017
Youth Court of South Australia
Magistrate of the Court
Member of the Court’s principal
judiciary
for a term of 2 years.
Luke Anthony Davis
Gazetted: 21 November 2017,
No. 77 of 2017
South Australian Civil and
Administrative Tribunal
Sessional Ordinary Members
for a term of three years commencing on 5
December 2017 and expiring on 4 December
2020 -
Alicia Mary Devitt Bills
Suzanne Elizabeth Carlton
Sandra Mary Clark
Julie Cowdroy
Maria Demosthenous
Mark Ewart Fuller
Allan Roy Hunter
Jane Louise McGrath
Anne Veronica Moroney
Matt Murphy
February 2018 THE BULLETIN 41

GAZING IN THE GAZETTE
Kelly Anne Ryan
Carolyn Louise Wilson
Gazetted: 5 December 2017,
No. 79 of 2017
Judge of the District Court of
South Australia
Deputy President of the South
Australian Employment Tribunal
commencing on 19 December 2017
Margaret Julia Kelly
Gazetted: 19 December 2017,
No. 82 of 2017
Rules
Magistrates Court Rules 1992
Amendment 64
Gazetted: 15 November 2017,
No. 76 of 2017
District Court Civil Rules 2006
Amendment 35
District Court Civil Supplementary
Rules 2014
Amendment 7
District Court Criminal Rules 2014
Amendment 5
District Court Criminal Supplementary
Rules 2014
Amendment 4
District Court Special Applications
Rules 2014
Amendment 1
District Court Special Applications
Supplementary Rules 2014
Amendment 2
Supreme Court Criminal Rules 2014
Amendment 5
Supreme Court Criminal
Supplementary Rules 2014
Amendment 4
Supreme Court Civil Rules 2006
Amendment 34
Supreme Court Civil Supplementary
Rules 2014
Amendment 8
Supreme Court Special Applications
Rules 2014
Amendment 2
Gazetted: 28 November 2017,
No. 78 of 2017
Supreme Court Special Applications
Supplementary Rules 2014
Amendment 5
Gazetted: 5 December 2017,
No. 79 of 2017
South Australian Civil and
Administrative Tribunal Rules 2014
Amendment No. 3
Gazetted: 19 December 2017,
No. 82 of 2017
REGULATIONS PROMULGATED (4 NOVEMBER 2017 – 2 JANUARY 2018)
REGULATION NAME REGULATION NO. DATE GAZETTED
Development Act 1993 301 of 2017 7 November 2017, Gazette No. 75 of 2017
Aquaculture Act 2001 302 of 2017 7 November 2017, Gazette No. 75 of 2017
Freedom of Information Act 1991 303 of 2017 7 November 2017, Gazette No. 75 of 2017
Controlled Substances Act 1984 304 of 2017 7 November 2017, Gazette No. 75 of 2017
Trans Tasman Mutual Recognition (South Australia) Act 1999 305 of 2017 7 November 2017, Gazette No. 75 of 2017
Mutual Recognition (South Australia) Act 1993 306 of 2017 7 November 2017, Gazette No. 75 of 2017
Local Government Act 1999 307 of 2017 15 November 2017, Gazette No. 76 of 2017
Heavy Vehicle National Law (South Australia) Act 2013 308 of 2017 21 November 2017, Gazette No. 77 of 2017
Harbors and Navigation Act 1993 309 of 2017 21 November 2017, Gazette No. 77 of 2017
Intervention Orders (Prevention of Abuse) Act 2009 310 of 2017 21 November 2017, Gazette No. 77 of 2017
Public Corporations Act 1993 311 of 2017 21 November 2017, Gazette No. 77 of 2017
Notaries Public Act 2016 312 of 2017 28 November 2017, Gazette No. 78 of 2017
Legal Practitioners Act 1981 313 of 2017 28 November 2017, Gazette No. 78 of 2017
Local Government Act 1999 314 of 2017 28 November 2017, Gazette No. 78 of 2017
SACE Board of South Australia Act 1983 315 of 2017 28 November 2017, Gazette No. 78 of 2017
Public Sector (Data Sharing) Act 2016 316 of 2017 28 November 2017, Gazette No. 78 of 2017
Controlled Substances Act 1984 317 of 2017 5 December 2017, Gazette No. 79 of 2017
Fair Trading Act 1987 318 of 2017 5 December 2017, Gazette No. 79 of 2017
Controlled Substances Act 1984 319 of 2017 5 December 2017, Gazette No. 79 of 2017
Children and Young People (Oversight and Advocacy Bodies) Act 2016 320 of 2017 5 December 2017, Gazette No. 79 of 2017
Criminal Law Consolidation Act 1935 321 of 2017 12 December 2017, Gazette No. 81 of 2017
Criminal Procedure Act 1921 322 of 2017 12 December 2017, Gazette No. 81 of 2017
Criminal Law (Sentencing) Act 1988 323 of 2017 12 December 2017, Gazette No. 81 of 2017
Criminal Law Consolidation Act 1935 324 of 2017 12 December 2017, Gazette No. 81 of 2017
Land and Business (Sale and Conveyancing) Act 1994 325 of 2017 12 December 2017, Gazette No. 81 of 2017
Liquor Licensing Act 1997 326 of 2017 12 December 2017, Gazette No. 81 of 2017
Public Sector Act 2009 327 of 2017 12 December 2017, Gazette No. 81 of 2017
Surveillance Devices Act 2016 328 of 2017 12 December 2017, Gazette No. 81 of 2017
Electoral Act 1985 329 of 2017 12 December 2017, Gazette No. 81 of 2017
Primary Industry Funding Schemes Act 1998 330 of 2017 12 December 2017, Gazette No. 81 of 2017
Primary Industry Funding Schemes Act 1998 331 of 2017 12 December 2017, Gazette No. 81 of 2017
Primary Industry Funding Schemes Act 1998 332 of 2017 12 December 2017, Gazette No. 81 of 2017
Primary Industry Funding Schemes Act 1998 333 of 2017 12 December 2017, Gazette No. 81 of 2017
Primary Industry Funding Schemes Act 1998 334 of 2017 12 December 2017, Gazette No. 81 of 2017
Primary Industry Funding Schemes Act 1998 335 of 2017 12 December 2017, Gazette No. 81 of 2017
Primary Industry Funding Schemes Act 1998 336 of 2017 12 December 2017, Gazette No. 81 of 2017
Water Industry Act 2012 337 of 2017 19 December 2017, Gazette No. 82 of 2017
Motor Vehicles Act 1959 338 of 2017 19 December 2017, Gazette No. 82 of 2017
Motor Vehicles Act 1959 339 of 2017 19 December 2017, Gazette No. 82 of 2017
Road Traffic Act 1961 340 of 2017 19 December 2017, Gazette No. 82 of 2017
Livestock Act 1997 341 of 2017 19 December 2017, Gazette No. 82 of 2017
Summary Procedure Act 1921 342 of 2017 19 December 2017, Gazette No. 82 of 2017
Justices of the Peace Act 2005 343 of 2017 19 December 2017, Gazette No. 82 of 2017
Health Practitioner Regulation National Law (South Australia) Act 2010 344 of 2017 19 December 2017, Gazette No. 82 of 2017
National Electricity (South Australia) Act 1996 345 of 2017 19 December 2017, Gazette No. 82 of 2017
National Energy Retail Law (South Australia) Act 2011 346 of 2017 19 December 2017, Gazette No. 82 of 2017
National Gas (South Australia) Act 2008 347 of 2017 19 December 2017, Gazette No. 82 of 2017
Criminal Law Consolidation Act 1935 348 of 2017 19 December 2017, Gazette No. 82 of 2017
Southern State Superannuation Act 2009 349 of 2017 19 December 2017, Gazette No. 82 of 2017
Road Traffic Act 1961 350 of 2017 19 December 2017, Gazette No. 82 of 2017
Road Traffic Act 1961 351 of 2017 19 December 2017, Gazette No. 82 of 2017
Harbors and Navigation Act 1993 352 of 2017 19 December 2017, Gazette No. 82 of 2017
Children and Young People (Safety) Act 2017 353 of 2017 19 December 2017, Gazette No. 82 of 2017
Summary Procedure Act 1921 354 of 2017 19 December 2017, Gazette No. 82 of 2017
Children and Young People (Safety) Act 2017 355 of 2017 19 December 2017, Gazette No. 82 of 2017
Teachers Registration and Standards Act 2004 356 of 2017 19 December 2017, Gazette No. 82 of 2017
Births, Deaths and Marriages Registration Act 1996 357 of 2017 19 December 2017, Gazette No. 82 of 2017
42 THE BULLETIN February 2018

TAX FILES
New surcharge duty
on foreign acquisitions
BERNIE WALRUT, MURRAY CHAMBERS
INTRODUCTION
On 1 January, 2018 the Stamp
Duties (Foreign Ownership Surcharge)
Amendment Act 2017 (SA) (FOA) came into
effect and amended the Stamp Duties Act
1923 (SA) (SDA). It imposes a surcharge
of 7% on acquisitions of residential land
by foreigners or acquisitions by foreigners
of certain interests in landholding entities
under Part 4 of the SDA. The imposition
of that surcharge is effected by the
introduction of two new substantive
provisions in the SDA: section 72 imposes
the duty on relevant land acquisitions and
section 102AB imposes the surcharge on
acquisitions of interests in landholders.
There are no express transitional
provisions in the FOA. 1
In effect, the stamp duty imposed
on acquisitions of residential land by
foreigners, is likely to range from 10.8%
to close to 12.5%. 2 A foreign purchaser
surcharge is currently imposed in New
South Wales at the rate of 8%; 3 in Victoria
it is at the rate of 7%; 4 in Queensland it is
currently 3% though there is a proposal to
increase it to 7%; 5 and Western Australia
proposes to introduce a 4% surcharge
from 1 January, 2019. 6
DUTIABLE INSTRUMENTS ATTRACT
SURCHARGE
In the case of transactions involving
land, the foreign surcharge is only payable
on a “dutiable instrument” (including a
statement under section 71E) executed or
taken to be executed on or after 1 January,
2018. 7 There is no definition of a dutiable
instrument in the SDA. Section 72(2)
provides, that if an instrument to which
section 72 applies, effects, acknowledges,
evidences or records a transaction whereby
an interest in residential land is acquired
by a foreign person or a person takes the
interest as trustee for a foreign person
then the surcharge is payable. It is in
effect a new head of duty. Section 72(2)
appears to define what transactions, and
consequently instruments, are within the
scope of the surcharge provision. Further,
section 72 is concerned with transactions
not instruments. The provision is applying
the surcharge potentially to a broader class
of instruments than those currently liable
to ad valorem duty.
In effect, the duty imposed could be
payable on an option 8 or contract for
the sale of land to a foreigner, as it is
likely to be regarded as an instrument
that effects, acknowledges, evidences
or records a transaction whereby an
interest in residential land is acquired by
a foreign person 9 or a person takes the
interest as trustee for a foreign person.
This is a significant departure from
the current taxing regime of the SDA.
The Commissioner does not appear to
currently share the view that the provision
operates so broadly. 10
RESIDENTIAL LAND
The definition of residential land in
the provisions is similar to that recently
adopted to facilitate the abolition of stamp
duty on commercial real property. 11 In
effect, the Commissioner will rely on the
land use codes provided by the Valuer-
General in most situations to determine
whether a property is residential land. 12
Such land use codes are provided by
the Valuer-General as an administrative
practice. They are not mentioned in the
Valuation of Land Act 1971 (SA) (VLA) or
the regulations made thereunder. There is
no right to object to a code that may be
assigned by the Valuer-General under the
VLA, yet such codes are being increasingly
used to determine liability for stamp duty.
In the experience of practitioners, the
Valuer-General does, on request, review
such codes, but that may not always lead
to them being changed. 13 The situation
can be even more difficult where there is
a mixed use and disagreement about the
extent of a particular use.
Ultimately the Commissioner has
the discretion under section 72(8) to
determine the use of land under the
SDA and the decision is one that may
be the subject of an objection under the
Taxation Administration Act 1996 (SA). One
assumes that, on any appeal against any
such decision, the Court must consider
the land use codes, as well as the actual
factual situation. So, ensuring the land use
codes are themselves accurate remains
significant for all affected. Also, the
definition of what is residential land can
create significant issues in the case of
property the subject of a changing use
or involving a mixed development (e.g.
deemed residential land currently unused
but is acquired for the purpose of a
development of commercial premises on
the ground and lower floors and residential
use on the upper floors).
Under section 72(9) the relevant date
for determining the use of the land is
the date of the relevant instrument.
Whilst this does, by definition, define a
point in time for determining the use,
it really does not address the issue of a
changing or mixed uses. It also highlights
the issue of determining what is the
date of a relevant instrument, where the
instrument that is liable is an instrument
that effects, acknowledges, evidences or
records a transaction whereby an interest
in residential land is acquired by a foreign
person. It may be a letter, an option,
the contract for sale, a subsequent deed
varying the contract and a conveyance.
Each may effect, acknowledge, evidence
or record a transaction by which property
is acquired, it is only the conveyance that
perfects the transaction. So, there may be
multiple points in time that need to be
considered under this provision.
FOREIGN PERSONS
A natural person is a foreign person 14 if
the person is not an Australian citizen, 15
the holder of a permanent visa 16 or a New
Zealand citizen who is the holder of a
special category visa. 17
A corporation is a foreign person if it is
incorporated in a jurisdiction that is not
an Australian jurisdiction. 18 A corporation
incorporated in another country and
owned wholly by Australian citizens will be
a foreign corporation (including even, say,
a New Zealand company). So, for some
purposes it is appropriate to look through
the corporation as to who controls it,
when suitable to the revenue, but not in
other situations, where it is not suitable to
the revenue.
A corporation is also a foreign person, if
another person who is a foreign person or
February 2018 THE BULLETIN 43

TAX FILES
a trustee of a foreign trust, or a number
of such persons in combination, hold
50% or more of the corporation’s shares
or are entitled to cast, or control the
casting of, 50% or more of the maximum
number of votes at a general meeting
of the corporation. 19 In this provision
the emphasis is solely on voting power,
rather than economic consequences (i.e.
dividends or capital distributions). 20
A foreign trust is one where the
beneficial interests are fixed, or one where
a beneficial interest of 50% or more of
the capital of the trust property is held 21
by one or more foreign persons. In the
case of a discretionary trust, it is a foreign
trust if one or more of the following is a
foreign person:
• a trustee;
• a person who has the power to appoint
under the trust; 22
• an identified object 23 under the trust; or
• a person who takes capital of the trust
in default.
The last three of these trust nexus
provisions each have the potential to
create real practical issues. The first is the
power to appoint where it is vested in a
foreign person, the second is an identified
object who is a foreign person and the
third is a person who may take the capital
of the trust in default.
Most discretionary trusts have a wide
range of powers to appoint, including the
power to appoint property, income, a new
trustee and a person to be a beneficiary.
Most such powers are held by the trustee,
though occasionally by a third person (e.g.
the power to appoint a new trustee). So,
if any person with any such power is a
foreign person then the trust is a foreign
trust without anything more.
It was suggested by the Government,
in the passage of the legislation, that the
simple way of avoiding having any issue
with this aspect was to ensure that the
person who has the power to appoint is
not a foreign person. In some cases, it can
be as simple as that. But in some cases,
the persons who have such control, attain
such power by death, divorce, bankruptcy
or possibly by the person becoming a
foreign person by migration. If any of
those events occur within three years of
the acquisition of the residential property
by the trustee then it appears that section
72(7) will apply to render the acquisition
by the trustee of the trust the acquisition
of the residential land by a foreign trust.
So, this can be triggered by involuntary
events not simply matters of choice.
The second is the trust nexus provision,
which simply requires, that an identified
44 THE BULLETIN February 2018
object 24 under the trust is a foreign person.
Does this provision simply mean a person
who is actually named as an object 25 or
is a reference to the brothers, sisters and
parents of the person named as, say, the
primary beneficiary, sufficient to be an
identified object. The response in the
course of the passage of the Budget Bill
was that the person must be identified
in the trust deed by name. The term is
apparently not intended to include all
persons within a broad class or range of
beneficiaries under a discretionary trust
deed. The Commissioner proposes to
address this issue in a circular.
It is still unclear how the provision will
work if, say, three brothers are named as
objects of the trust and one of them is
foreign person (as defined). Is it sufficient
that one person is a foreign person or does
it need to be a majority or all of them?
The current drafting appears to assume
there will only be one such person named.
The third nexus provision of concern
is that based on a foreign person being
a taker in default of the capital of the
trust. The provision applies to a “person
who takes capital of the trust property
in default”, presumably that means in
default of appointment by the trustees.
In most modern discretionary trusts, it
means those persons who take the capital
of the trust on the failure of the trustee
to appoint or distribute the capital prior
to the ultimate vesting of the trust. 26 The
response to the Budget Bill provision was
that the concept of a taker in default is
commonly understood. It is suggested
that the expression “takes capital of the
trust property in default” usually means,
in the context of most discretionary
trusts, the persons who take in default
of appointment by the trustee at the
expiration of the term of the trust, that
is on the vesting day. As the Victorian
decision in Lygon Nominees Pty Ltd v
Commissioner of State Revenue 27 highlighted,
such persons often cannot be determined
until the actual vesting day.
Notwithstanding the width of the
provision, the response to the Budget Bill
on this aspect was that it is a reference to a
specified person in the trust deed. That is,
the person must be identified in the trust
deed by name. The term is not a blanket
reference to persons who may potentially
take capital of the trust property in default
under a discretionary trust deed. In most
discretionary trust deeds, it is uncommon
to simply specify such a person by name.
In most cases the takers of the capital
in default are a broad class. It appears
this issue may also be covered by a
Commissioner’s circular
SECTION 72 – SUBSECTIONS (6) AND (7)
–ADJUSTMENT PROVISIONS
As if the provisions are not complex
enough they include mechanisms for
adjustments in respect of the surcharge
where there is a change in status of the
person in some limited situations. One
provides for a refund where a foreign
person or a foreign trust pays the
surcharge and within twelve months the
person or trust ceases to be a foreign
person or foreign trust. 28 The other one
provides that the surcharge is payable
where a person or trustee becomes a
foreign person or trust within three years
of the acquisition of residential land. 29
Section 72(7)(c), which provides for the
adjustment of any such claw back, where
the corporation or trust becomes a foreign
person within three years, is in my view
particularly difficult to understand and
apply, it is effectively an exclusion on an
exclusion coupled with an apportionment.
Further, the three-year adjustment
provision appears to be unduly harsh
where there are changes in the control
of a company or a trust for good
family reasons (e.g. death, divorce etc),
particularly as the legislation does not
provide any power for the Commissioner
to provide relief from the operation of the
claw back provision in such situations.
A simple example is a resident taxpayer’s
wholly owned company acquiring
residential land. The resident taxpayer dies
shortly after that acquisition. The shares
in the company are transferred to his nonresident
foreign citizen son pursuant to the
terms of his will. Section 72(7) will require
the payment of the surcharge in this
situation. Various other similar common
situations can be described. 30
Whilst there are adjustment provisions in
connection with the status of the foreign
persons, corporations or trusts, there are
no adjustment mechanisms where there is
a change in the status of the land acquired,
whether within twelve months or three
years. 31 In the passage of the Budget Bill
the Government indicated developments
that may benefit the State may be granted
ex gratia relief from the foreign owner
surcharge, where it is appropriate to do
so. Accordingly, it is proposed to publish
a ruling setting out factors that will be
considered in determining whether
ex gratia relief from the surcharge will
apply to certain land. 32 Apparently, all
other jurisdictions with a foreign owner
surcharge exclude significant residential
developments either by way of Treasurer’s
discretion or ex gratia relief.

TAX FILES
LANDHOLDER PROVISIONS
Section 102AB includes similar
provisions imposing the surcharge on the
acquisition of interests in companies or
unit trusts that own residential land under
the landholder provisions in Part 4 of
the SDA including where there is a group
acquisition that involves a foreign entity. 33
These provisions include similar claw back
and refund provisions. The same issues
as described above will apply to many of
the provisions described in respect of the
acquisition of interests in land.
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 provisions in the FOA were taken from
the Budget Measures Bill 2017 (SA) (Budget Bill)
that was amended in the Legislative Council
to remove the bank levy. That Bill as amended
did not pass the Parliament and that lead to the
introduction of the FOA with the surcharge
increased from 4% to 7%. The Budget Bill
proposed a surcharge of 4%.
2 This is based on the acquisition of a modest
dwelling of $300,000 (stamp duty of effectively
3.8% is payable) to say one of $2 million (stamp
duty of effectively 5.2% is payable).
3 Section 104U of the Duties Act 1997 (NSW).
4 Section 28A of the Duties Act 2000 (Vic).
5 Section 244 of the Duties Act 2001 (Qld). The
Queensland Government announced prior to the
Queensland State election a proposed increase of
the surcharge to 7%.
6 See https://www.finance.wa.gov.au/cms/News/
State_Revenue/2017-18_Budget_Measures.aspx.
7 Section 72(1).
8 See George Wimpey & Co v IRC [1974] 2 All ER
602. Also see section 2(4) of the SDA.
9 The usual view is that a contract for the purchase
of land creates an interest commensurate with
the ability to obtain specific performance, though
it does not effect a passing of a legal title or full
beneficial ownership (see by way of example
the discussion in Trust Company of Australia Ltd v
Commissioner of State Revenue [2007] VSC 451).
10 See https://www.revenuesa.sa.gov.au/taxes-andduties/foreign-ownership-surcharge.
11 Section 72(3).
12 Section 72(8).
13 In some situations, there may be a right to object
to a designation as to the use of land under
sections 8 and 9 of the Emergency Services Funding
Act 1998 (SA), but its relationship to the land use
codes and the right to dispute them is unclear.
14 Section 14(2)
15 Within the meaning of the Migration Act 1958
(Cth) (Migration Act).
16 As defined in section 30(1) of the Migration Act.
17 As defined in section 32(1) of the Migration Act.
18 Section 2(14).
19 Section 2(14).
20 This may be contrasted with section 93(3)
of Part 4.
21 “Hold” in these definitions is given an extended
meaning.
22 Section 14(2).
23 Ibid.
24 This is apparently intended to focus on the
person commonly described as the primary
beneficiary.
25 Such as the Primary Beneficiary, as that term is
commonly used in the drafting of discretionary
trusts.
26 See I Hardingham and R Baxt Discretionary Trusts
(2 nd ed) [202]-[213] and [604]. That text at [604]
says they may be ascertained in one of three
ways, they may be named as such, they may be
identified by operation of law or they may be
identified by implication.
27 [2007] VSCA 140 [63].
28 Sections 72(5) and 72(6).
29 Section 72(7).
30 Notwithstanding the wording of the provision,
it appears that the Commissioner intends to
administer the provision on the basis that the
exemption in section 71(5) will render the
instrument non dutiable for stamp duty and
also for surcharge purposes, see Budget Bill
responses.
31 Sections 72(5), 72(6) and 72(7). Victoria deals
with one change in status of land situation in
section 18A of the Duties Act 2000 (Vic).
32 At the State Taxes Liaison Group meeting of
6 December 2017 the Commissioner indicated
that the publication of such a ruling is a matter
for the Treasurer’s office and that consultation
would occur prior to its publication.
33 Section 102AB.
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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
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3/224 Queen Street
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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
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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
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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.
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If you have a problem, speak
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The Law Society is pleased to
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All information divulged to the
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