LSB December 2018_Web

THE 

BULLETIN 

December 2018 

Volume 40 - Issue 11

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

cited as (2018) 40 (11) LSB(SA). ISSN 1038-6777 

CONTENTS 

HUMAN RIGHTS 

6 The Universal Declaration of Human 

Rights at 70 – By Matthew Stubbs 

9 Addressing incarceration rates of 

Aboriginal & Torres Strait Islander 

Women in the context of family 

violence – By Celia Moodie 

15 AI in Criminal Sentencing: a risk to 

our human rights? – By Raffaele Piccolo 

18 Australia, the Universal Declaration of 

Human Rights & the Future 

By Jonathan Brohier 

20 The UDHR in 2018: What are our 

courts saying? – By Georgia Hagias 

22 Lowering the voting age: a human 

rights perspective 

By Raffaele Piccolo & Matthew Stubbs 

26 Supported decision-making: a new 

approach for older clients with 

cognitive impairment 

By Margaret Castles 

FEATURES 

28 Brown v Tasmania: How the High 

Court struck down Tasmania’s antiprotest 

laws 

By Chris Wood & Emily Howie 

32 Event wrap-up: John William Perry 

AO QC Oration with guest speaker 

Justice Keane - By Louis Leventis 

38 Speech: The Rule of Law and the 

Independence of the Judiciary: Values 

Lost or Conveniently Forgotten? 

By Chief Justice Stephen Thackray 

REGULAR COLUMNS 

4 President’s Message 

5 From the Editor 

8 Dialogue 

10 Young lawyers 

25 Get in on the Act: The incorporated 

Legal practice regime in SA 

30 Tax Files 

33 Family Law Case Notes 

34 Wellbeing & Resilience 

35 From the Conduct Commissioner 

35 Members on the Move 

36 Risk Watch 

44 Gazing in the Gazette 

45 Bookshelf 

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: M Frayne QC 

S Hooper 

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 

E Shaw 

R Shaw 

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 V Chapman, Prof W Lacey, 

Prof M de Zwart, Ass 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 (LAF) 

Annie MacRae 

annie.macrae@lawsocietysa.asn.au 

Programme Manager (CPD) 

Natalie Mackay 

Programme Manager (GDLP) 

Desiree Holland 

THE BULLETIN 

Editor 

Michael Esposito 

bulletin@lawsocietysa.asn.au 

Editorial Committee 

D Barnfield E Olsson 

S Kljun R Earles 

P Wilkinson S Errington 

E Belperio A Siow 

B Grant A Bradshaw 

E Moran J Napier 

T Shueard 

The Law Society Bulletin is published 

monthly (except January) by: 

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Ph: (08) 8229 0200 

Fax: (08) 8231 1929 

Email: bulletin@lawsocietysa.asn.au 

All contributions letters and enquiries 

should be directed to 

The Editor, The Law Society Bulletin, 

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Adelaide 5001. 

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PRESIDENT’S MESSAGE 

We must continue to protect 

& honour the principles that 

underpin our profession 

TIM MELLOR, PRESIDENT 

When I wrote my first President’s 

Message I had the benefit of 

those inaugural messages penned by my 

predecessors. For this, my last President’s 

Message, I have again sought inspiration 

from former office bearers. This will 

include an inevitably inadequate list of 

thanks. More of this later. 

How appropriate that we end the year 

with an edition which concerns itself with 

that most quintessential underpinning 

issue for the legal profession – human 

rights. If you boil it down, there is no area 

of legal practice, no common law principle 

or legislative measure, no matter how 

mundane or utilitarian, that does not find a 

basis in some way in the notion of human 

rights. 

This issue marks the 70 th anniversary 

of the Universal Declaration of Human 

Rights of the United Nations 1948. It 

was actually relatively straightforward, I 

believe, for a world which was lurching out 

of the horrors of World War II to seek to 

annunciate a basic statement of undeniable 

values and beliefs for the guidance and 

protection of future generations. 

The rule of law is the glue which holds 

these principles together and in their place. 

It is like Shakespeare’s description of love 

(another underpinning value and virtue) in 

Sonnet 116. 

Like love, the rule of law is not 

something: 

“Which alters when it alteration finds. 

Or bends with the remover to remove. 

Oh no! It is an ever-fixed mark 

4 THE BULLETIN December 2018 

That looks on tempest and is never shaken; 

It is the star to every wand’ring bark, whose 

worth’s unknown, although his height be 

taken.” 

Those lofty ideals contained in the 

UDHR were formulated and resolved 

during the tenure of Herbert Vere 

“Doc” Evatt as President of the General 

Assembly of the United Nations. They 

continue to provide an immutable 

yardstick against which to gauge our laws 

and our professional endeavours. 

Now then to the list of thanks for 

those who have helped me during this 

challenging and enjoyable year. 

I would first like to thank my partners 

of Mellor Olsson who have tolerated 

my half presence over this period. It is a 

considerable and silent contribution which 

they make. 

At the Society Stephen Hodder and 

Rosemary Pridmore have provided endless 

support and guidance. Michael Esposito 

and Anna Finizio have also kept me well 

directed in formulating the Society’s 

contributions to public discussion and 

debate – an immense and important role. 

At various points throughout the year 

I have been impressed by the accessible 

competence and courtesy of the 

Membership Services team and the 

Ethics & Practice Unit. I have never 

encountered anything but warm and 

professional assistance from Society staff 

at every level. 

The Council, Executive and Committees 

of the Society contribute many thousands 

of hours of work every year toward the 

objectives of the Society – a huge but 

underappreciated value. 

I owe a debt of gratitude to a number of 

people who have stepped up to provide 

public commentary on subjects outside 

my expertise (of which there are many). 

Thanks in that regard go particularly 

to Craig Caldicott, Tony Kerin, Amy 

Nikolovski, Tony Rossi and Greg Howe. 

I have valued the contact and relationship 

with Ian Robertson SC and Mark 

Hoffmann QC, the Presidents of the SA 

Bar Association during the last 12 months. 

I would like to acknowledge the generous 

access extended to me, as with former 

Presidents, by the Chief Justice and the 

various heads of jurisdictions, and senior 

public sector officers. Many thanks 

particularly to the Attorney-General, 

the Hon Vickie Chapman MP who, with 

her staff, has always been available for 

discussion and consultation. 

I conclude with my warmest best 

wishes to our incoming President, Amy 

Nikolovski and President-Elect Tim White 

in their future roles. 

Our profession continues to face many 

challenges ahead. A united and collective 

voice is essential in advocacy, both for 

the interests of the profession and for 

the benefit and advancement of a society 

underpinned by the rule of law and an 

equitable justice system. 

To all of our members, and to the 

broader legal profession, I hope for a 

happy, safe and prosperous New Year for 

you all. B

FROM THE EDITOR 

A time for reflection & rejuvenation 

MICHAEL ESPOSITO, EDITOR 

The end of the year usually invites 

solemn reflection on the past 12 

months. 

Many of us will assess the year based on 

our perceived successes and failures, happy 

and sad moments, and try to make sense 

of it all, or at least learn some lessons to 

take forward. 

There may even have been moments, 

whether personally or professionally, that 

have changed us forever. 

As I reflect on the year just gone, I think 

about whether I have devoted enough 

time and energy to my loved ones amidst 

the relentless grind of day-to-day life. I 

consider whether I have been a good role 

model to my children, one who is about to 

finish her first year at school and a toddler 

who is discovering interesting new ways to 

express himself every day. I have noticed 

my relationship with my children change 

markedly over the course of the year, and 

wonder how I can continue to be a source 

of comfort and reassurance to them during 

the next stages of their lives, and take 

advantage of their growing independence 

to spend more quality time with my wife! 

At a professional level, I look back on 

whether I have accomplished the goals I 

set at the beginning of the year, which are 

not always easy to quantify. I also think 

about the major issues that have consumed 

my work and what they mean in the 

broader context. 

For example, the issue of what we do 

with convicted sex offenders when they 

are ready to be released from custody 

or apply for home detention has been 

a constant media issue which the Law 

Society has been compelled to consider. 

What has been noticeable is the 

eagerness of both sides of politics to 

embark on a game of one-upmanship 

in terms of how tough they can be on 

criminals. Law and order has always, 

regrettably, been a highly politicised issue, 

but the current environment is worryingly 

reminiscent of the rack ‘em, pack ‘em and 

stack ‘em” Rann/Foley era, although I 

doubt we’ll hear that phrase uttered again 

by politicians. 

The cynical populism that characterises 

much of our political discourse 

undermines the development of 

sound, evidence-based policy and 

that is ultimately to the detriment of 

society. Too often the legal profession, 

particularly judges, find themselves in 

the firing line of such rhetoric due to a 

lack of understanding about the role and 

obligations of legal and judicial officers. 

In this vein I commend to readers the 

speech that WA Family Court Chief 

Justice Stephen Thackray delivered at 

the University of Notre Dame Australia 

School of Law on 27 September, 

published in full in this edition of the 

Bulletin. Justice Thackray says: “the true 

measure of a judicial system is not only its 

quality, but the faith the community has 

in the integrity and independence of its 

judges.” 

There certainly have been some 

extraordinary attacks on the judiciary this 

year, as well earnest analysis, such as the 

Financial Review’s measurement of judicial 

productivity in the Federal Court, which 

nevertheless paints an inaccurate picture 

of the work of judges. 

It speaks to our current obsession with 

finding “efficiencies”, ways of doing more 

with less, without sufficient regard for the 

main purpose of the justice system, which 

is to deliver justice. There’s no doubt that 

the speed of justice is a huge problem, 

but we must address this problem without 

compromising the ability of the system 

to remain faithful to legal principles and 

provide just outcomes. 

I sincerely hope the way we debate 

issues of importance is in the spirit of 

a common goal to make society better, 

rather than be weighed down by pettiness, 

bitterness and personal agendas. 

It’s a lot to take in, and as much as we are 

prone to contemplation at this time, the 

year’s end also bristles with the promise of 

clean slates and fresh starts. 

That’s certainly the case at the Law 

Society, when the Presidency of the 

incumbent draws to a close and the 

incoming President readies for a new and 

exciting challenge. 

And there certainly will be plenty 

of challenges. But in the meantime, I 

encourage you to take this opportunity 

to relax, rejuvenate and re-set, primed for 

what I hope will be a fulfilling year ahead. B 

LAW FOUNDATION GRANT FOR ORAL HISTORIES PROJECT 

The Law Society gratefully acknowledges the latest grant from the Law Foundation of SA which will allow the Society to 

continue its Oral Histories project. The grant of $3000 was approved on 5 June 2018 and will go towards five interviews with 

senior members of the legal profession, to be published on the Law Society website, and accessible to members of the public as 

well as the legal profession. View the Oral Histories webpage at: http://bit.ly/LSSAoralhistories 

December 2018 THE BULLETIN 

5

HUMAN RIGHTS 

The Universal Declaration 

of Human Rights at 70 

MATTHEW STUBBS, ASSOCIATE PROFESSOR, ADELAIDE LAW SCHOOL 

On 10 December 1948, Australia’s 

Foreign Minister H V “Doc” Evatt 

was President of the General Assembly of 

the United Nations (UN) when it passed 

Resolution 217, the Universal Declaration of 

Human Rights (UDHR). After the voting 

concluded just before midnight, Evatt 

praised the UDHR as “a remarkable 

achievement”, commenting that it was: 

“a step forward in a great evolutionary 

process … the first occasion on which 

the organized community of nations 

had made a declaration of human 

rights and fundamental freedoms. That 

document was backed by the authority 

of the body of opinion of the United 

Nations as a whole and millions of 

people, men, women and children all 

over the world, would turn to it for help, 

guidance and inspiration.” 1 

WHY A UNIVERSAL DECLARATION OF 

HUMAN RIGHTS? 

The UDHR was the first step towards 

fulfilling the UN Charter’s promise 

to “promote … universal respect for, 

and observance of, human rights and 

fundamental freedoms for all”. 2 A natural 

first step in so doing would be to agree on 

what those rights and freedoms are. 

It quickly became apparent when work 

began on drafting a document setting 

out the agreed human rights that there 

would be advantages to progressing 

first a non-binding statement of general 

human rights principles, which would 

later be supplemented by more detailed 

treaties establishing legally-enforceable 

rules and prescribing an architecture for 

their implementation. Accordingly, the 

UDHR was prepared with the intention 

of having the morally influential but 

legally non-binding status of a Resolution 

of the General Assembly, to be followed 

by two treaties: the International Covenant 

on Civil and Political Rights (‘ICCPR’) and 

International Covenant on Economic, Social 

and Cultural Rights (ICESCR), which 

were eventually adopted by the General 

Assembly in 1966 and entered into force in 

1976 (although Australia did not become 

party to the ICCPR until 1980). 

The purpose of the UDHR, as explained 

Dr Bob Evatt and Anthony Eden, the UK Foreign Secretary, (seated left and right 

respectively) examine documents at a meeting in San Francisco, 1945. United Nations 

photograph. 

in its preamble, was to establish “a 

common understanding” of what the 

human rights and fundamental freedoms 

are that the international human rights 

system is designed to protect. The UDHR 

in this sense is a ground-breaking yardstick 

– an articulation of what human rights we 

have – which would serve as: 

“a common standard of achievement 

for all peoples and all nations, to the 

end that every individual and every 

organ of society … shall strive … 

to promote respect for these rights 

and freedoms and … secure their 

universal and effective recognition and 

observance.” 3 

WHAT THE UDHR CONTAINS 

In its preamble, the UDHR sets out three 

primary justifications for the articulation 

of a set of internationally agreed human 

rights standards to which all nations 

should adhere: 

• Human rights are inherent and 

inalienable, and such an instrument 

respects the: 

º ‘inherent dignity’ and ‘equal and 

inalienable rights of all members of 

the human family’, and 

º ‘dignity and worth of the human 

person’. 

• Respect for human rights is essential to 

social advancement, as human rights: 

º are the ‘foundation of freedom, 

justice and peace in the world’ 

º ‘promote the development of 

friendly relations between nations’ 

º ‘promote social progress and better 

standards of life in larger freedom’, 

and 

º prevent people being ‘compelled … 

as a last resort, to rebellion against 

tyranny and oppression’. 

• An established set of human rights 

would respond to the experience of the 

two world wars, in which: 

º ‘disregard and contempt for human 

rights … resulted in barbarous acts 

which have outraged the conscience 

of mankind’. 

6 

THE BULLETIN December 2018

HUMAN RIGHTS 

The UDHR then identifies the following 

human rights: 

• Non-discrimination (arts 2, 7) 

• Life, liberty and security of the person 

(art 3) 

• Freedom from slavery (art 4) 

• Freedom from torture and cruel, 

inhuman or degrading treatment or 

punishment (art 5) 

• Recognition before the law (art 6) 

• Effective remedy for violation of rights 

(art 8) 

• Freedom from arbitrary arrest, 

detention or exile (art 9) 

• Fair trial of criminal charges (art 10) 

• Presumption of innocence and nonretrospectivity 

of criminal law (art 11) 

• Freedom from arbitrary interference 

with privacy, family, home or 

correspondence, and from attacks upon 

honour and reputation (art 12) 

• Freedom of movement (art 13) 

• Asylum from persecution (art 14) 

• Nationality (art 15) 

• To marry and found a family (art 16) 

• Ownership of property (art 17) 

• Freedom of thought, conscience and 

religion (art 18) 

• Freedom of opinion and expression 

(art 19) 

• Peaceful assembly and association 

(art 20) 

• Participation in government and access 

to public services (art 21) 

• Social security and development (art 22) 

• Just and favourable conditions of work 

(art 23) 

• Rest and leisure (art 24) 

• Adequate standard of living (art 25) 

• Education (art 26) 

• Cultural life and intellectual property 

(art 27). 

CONTEMPORARY LEGAL STATUS 

OF THE UDHR 

When adopted, the UDHR had the legal 

status of a General Assembly Resolution: 

“a recommendation … that would exert 

a moral and political influence on states 

rather than constitute a legally binding 

instrument”. 4 Its stature has subsequently 

grown. It is now, at the very least, “the 

accepted and authoritative statement 

of human rights for the whole world”. 5 

Moreover, substantial portions of the 

UDHR have come to represent customary 

international law, which is binding upon all 

nations (irrespective of whether they are 

party to any of the international human 

rights treaties). The UDHR is, therefore, 

a universal articulation of the rights of 

humankind. 

THE UDHR AND THE INTERNATIONAL 

HUMAN RIGHTS SYSTEM 

The UDHR is the first element of the 

international bill of rights, which was 

completed by the ICCPR and ICESCR. 

Together, these three instruments form 

the normative heart of the international 

human rights system. They have been 

supplemented by the more specific human 

rights treaties, which address in greater 

detail the human rights of particular 

groups in society. Australia is party to 

many (but not all) of the specific treaties, 

including: 

• International Convention on the 

Elimination of All Forms of Racial 

Discrimination 

• Convention on the Elimination of 

All Forms of Discrimination Against 

Women 

• Convention Against Torture and 

Other Cruel, Inhuman or Degrading 

Treatment or Punishment 

• Convention on the Rights of the Child 

• Convention on the Rights of Persons 

with Disabilities. 

The UDHR is a normative document 

which does not concern itself with 

implementation, enforcement or 

monitoring. Like all of international 

human rights law, the UDHR is primarily 

to be implemented and enforced by 

nations through their domestic legal 

systems. 6 At the international level, 

issues of implementation, enforcement 

and monitoring have been addressed 

in two ways. First, each of the treaties 

establishes a committee with competence 

to undertake some form of monitoring 

function. Second, the UN has established 

human rights institutions, in particular the 

Human Rights Council with its Universal 

Periodic Review and its various “special 

procedures” (independent experts or 

expert bodies tasked with addressing 

particular human rights issues or 

situations), to monitor and assist nations’ 

compliance with international human 

rights law. It was never the aim of the 

UDHR to address these issues – its role 

was to provide a normative foundation for 

the international human rights system. 

CONCLUSION 

As the first globally-agreed statement 

of human rights, the UDHR remains 

a monumental achievement. On every 

occasion on which a nation’s conduct 

is inspired by (or measured against) 

international human rights standards, the 

UDHR’s influence is reaffirmed. It is, 

however, not merely an instrument for 

lawyers. The spirit in which we should 

look to the UDHR was captured by its 

principal architect, Eleanor Roosevelt, on 

the 10 th anniversary of its adoption: 

‘Where, after all, do universal human 

rights begin? In small places, close to 

home – so close and so small that they 

cannot be seen on any maps of the world. 

Yet they are the world of the individual 

person; the neighborhood he lives in; the 

school or college he attends; the factory, 

farm, or office where he works. Such are 

the places where every man, woman, and 

child seeks equal justice, equal opportunity, 

equal dignity without discrimination. 

Unless these rights have meaning there, 

they have little meaning anywhere. Without 

concerted citizen action to uphold them 

close to home, we shall look in vain for 

progress in the larger world.” 7 B 

Endnotes 

1 UNGAOR 3rd sess, 183rd plenary mtg, UN Doc 

A/PV.183 (10 December 1948) 934. 

2 Charter of the United Nations art 55. 

3 Universal Declaration of Human Rights preamble. 

4 Henry J Steiner and Philip Alston, International 

Human Rights in Context: Law, Politics, Morals 

(Oxford University Press, 2nd ed, 2000) 138. 

5 Peter Bailey, The Human Rights Enterprise 

in Australia and Internationally (LexisNexis 

Butterworths, 2009) 8. 

6 See, eg, International Covenant on Civil and Political 

Rights art 2(2). 

7 Eleanor Roosevelt, In Your Hands: A Guide for 

Community Action for the Tenth Anniversary of the 

Universal Declaration of Human Rights (1958). 

December 2018 THE BULLETIN 7

ADVOCACY 

A roundup of recent Society 

meetings & conferences 

ROSEMARY PRIDMORE, EXECUTIVE OFFICER, THE LAW SOCIETY OF SOUTH AUSTRALIA 

4 OCTOBER 2018 

Department 

T 

of Correctional Services 

he President, Tim Mellor, Co-Chair 

of the Criminal Law Committee, 

Craig Caldicott and Policy Coordinator, 

Anna Finizio met with the CEO of the 

Department of Correctional Services, 

David Brown and Executive Director 

Better Prisons, Darian Shephard-Bayly. Key 

issues discussed included the Government’s 

recently advised “Better prisons” program 

and the planned privatisation of the 

Adelaide Remand Centre. 

1 NOVEMBER 2018 

Joint Rules Advisory Committee 

At its meeting on 1 November 2018 

the Joint Rules Advisory Committee 

(JRAC) continued its work of developing 

the Forms for the Electronic Court 

Management System; and considered 

the Society’s submissions for a review of 

the Supreme Court Scale. Tim Mellor, 

Alexander Lazarevich (Civil Litigation 

Committee) and Philip Adams attended 

as representatives of the Society. The 

JRAC approved as an interim measure, 

an increase in the Scale based on a ratio 

of the Wages Price Index and Consumer 

Price Index for South Australia; and 

agreed in principle to a two-tiered system 

for solicitor’s fees, inviting the Society to 

submit a further, more detailed proposal 

(in the upcoming months). 


SA Network of Drug and Alcohol 

Services 

Matters discussed at a meeting Tim 

Mellor, Craig Caldicott and Anna Finizio 

held with Michael White, Executive 

Officer and Sam Raven, Senior Policy and 

Project Officer, SA Network of Drug and 

Alcohol Services (SANDAS) included 

SANDAS’s service delivery framework, 

and the concerns of the Society and of 

SANDAS in relation to the Controlled 

Substances (Youth Treatment Orders) 

Amendment Bill, which would permit an 

application to be made to the Youth Court 

for orders in relation to a drug dependent 

young person, including for treatment 

without consent. 


Meeting with the Chief Justice 

Matters discussed at a meeting with 

the Honourable Chief Justice Kourakis 

attended by Tim Mellor, Amy Nikolovski 

(President-Elect) and Stephen Hodder 

included the proposal of the SA Bar 

Association that those appointed Senior 

Counsel be able to apply for letters patent 

to use the title Queens Counsel; the 

Probate Registry’s progress in processing 

hard copy applications in the lead up to 

the commencement of CourtSA (the 

electronic court management system); 

the results of the Society’s Bullying, 

Discrimination and Harassment Survey; 

Mandatory CPD; and the status of the 

courts redevelopment project, initial works 

having commenced. 


Review of the Intergovernmental 

Agreement for Electronic 

Conveyancing 

Theo Kadis, Chair of the Property 

Committee, met with Anne Larkins 

of Dench McClean Carlson, as part 

of that company’s review for the 

Australian Registrars’ National Electronic 

Conveyancing Council (ARNECC) of 

the Intergovernmental Agreement for 

Electronic Conveyancing. ARNECC, on 

behalf of the Registrars in each State and 

Territory participating in the Agreement 

(of which SA is one) is responsible for 

advising on the Electronic Conveyancing 

National Law, Model Operating 

Requirements and Model Participation 

Rules. 

Please note: The Society’s advocacy work is 

reported to Members via the Advocacy Notes 

e-newsletter. B 

Applications now open for the 

Len King Scholarship 

In memory of the late Len King, former 

Chief Justice of South Australia, The 

Don Dunstan Foundation, in partnership 

with the University of Adelaide and 

Flinders University, is encouraging aspiring 

law students to apply for the Len King 

Scholarship. Created to assist individuals 

who may not otherwise be able to attend 

university for financial reasons, the 

$15,000 per annum scholarship supports 

students with their general living expenses 

throughout their law studies for up to four 

years. 

Applications are now open to students 

planning to commence or recommence as 

a full-time student in a Bachelor of Laws 

or Bachelor of Laws and Legal Practice 

at The University of Adelaide or Flinders 

University in 2019. In order to be eligible, 

an applicant will be on a low income or 

facing financial hardship; be an Australian 

resident or hold a Humanitarian Visa; and 

demonstrate an interest in social justice. 

Applications close 25 January 2019. 

For more information, and to apply 

for the Len King Scholarship, visit 

www.dunstan.org.au/projects/lenking.B 

8 


CHARITY PARTNERSHIP 

Society presents first donation 

to RAH Research Fund following 

charity partnership launch event 

The Law Society of South Australia 

and the Royal Adelaide Hospital 

Research Fund (RAH Research 

Fund) recently launched their Charity 

Partnership at a special member event 

at the Royal Adelaide Hospital. The 

event raised $820 for the RAH Research 

Fund and Michelle King, the Society’s 

Manager (Member Services) presented 

the donation cheque to Simon Blight, 

Law Society Member Services manager Michelle King presents a cheque of $820 to 

RAHRF Fundraising Manager Simon Blight 

RAHRF Fundraising Manager at the RAH 

last month. 

The RAH Research Fund is the hospital’s 

very own fundraising arm, raising funds 

to support medical research and enhanced 

patient care. Raising $200 million towards 

medical research at the RAH in the past 

21 years alone, the RAH Research Fund 

is proud of the important role it plays in 

supporting research advancements under 

the roof of the RAH in the heart of the 

biomed precinct on North Terrace. 

Members are encouraged to support the 

vital work of the RAH Research Fund. 

You can support them in a number of 

ways: 

• Purchase a Scrubs teddy bear ($30.00) 

• Arrange a Casual Day workplace giving 

program 

• Host a fundraising event 

• Donate any amount to the RAH 

Research Fund 

To arrange any of the above, please 

contact Gabrielle Cespi at the RAH 

Research Fund on (08) 7074 1443 or 

email gabrielle.cespi@sa.gov.au B 

POET’S CORNER 

Reflection on Dr John Bray 

Ancient craggy visage of an earlier historical time, 

you are still alive to human memory. 

As if that grasp could encompass you, 

which demonstrably, it cannot. 

So we revere you now, in uncertain retrospect. 

Always and now, we read your books, 

and imagine scenes, scenarios of an early poetic life. 

The cool, clean air of Penwortham, the drafts of wine, 

the sensibility of one so wise, so rich in feeling. 

Yet ever drawn back to gruffness. 

As if in some essentials, you grievously were wounded, 

in some way, you were lacking, had missed out. 

Your charm is that you were always out of place, 

as if belonging to an earlier and a happier human race. 

We are amazed by poetic diction, 

that never lacks concision, 

and says exactly and precisely what you meant. 

Your themes were rarely controversial, you kept your role in view, 

Your voice was pagan, male, stoic and enduring, 

the political you eschewed. 

The nous poietikos was alive in you, but restrained to classic 

themes. 

Yours, the epigram and the elegy; 

the form should provide the means. 

Yours to mine the ore of irony, and to bend the classic tropes, 

To mocking of modernity, 

and the horrors it denotes. 

These rendered you acerbic, 

Pithy, shy and out of reach. 

But never, 

did they withhold from you, your day on a suburban beach. 

 

– Christopher Charles 


YOUNG LAWYERS 

SA hosts national Young 

Lawyers conference & 

golden gavel 

YOUNG LAWYERS COMMITTEE 

On 19 October, South Australia played 

host to the National Young Lawyers 

Conference at the Law Society. Attendees 

receive a huge array of information, 

tips and practical advice for practice 

(as well as an always helpful five CPD 

points, including one point in each of the 

mandatory categories). 

Justice Stanley kicked the conference 

off with the topic of “Being a better 

advocate”. His Honour’s wide-ranging 

discussion covered moral and ethical duties 

of advocates, as well as some very direct 

and useful practical tips for appearing 

before the bench. His Honour’s wealth 

of experience and passion for advocacy, 

combined with his principled approach, 

led to a captivating and illuminating 

presentation. 

After morning tea, delegates were 

presented with a panel discussion from 

Tim Graham, Executive Director of 

JusticeNet, Natalie Wade, Principal 

Project Officer with the NDIS Strategy 

& Reform section of the Department 

of Human Services, and Ashum Owen, 

a Ngarrindjeri, Narungga and Kuarna 

woman, and Community Legal Education 

Officer at the Aboriginal Legal Rights 

Movement. The topic for the discussion 

was “Access to justice for all Australians”, 

and was intended to provide a glimpse of 

what it was like working at the coal face of 

the “access to justice” sphere. 

Tim Graham spoke of the steps that 

each of us could take in our everyday 

practice to assist in promoting access to 

justice, both within and outside our firms. 

Natalie Wade spoke about the challenges 

facing people with disability trying to 

access legal services, particularly for 

people with communication difficulties. 

Ashum Owen spoke passionately about 

her experience growing up in several 

different Aboriginal communities, about 

how little most of us know about the 

nuances of Aboriginal culture, and the 

access to justice issues specifically faced by 

Aboriginal people. The panel then fielded 

questions from delegates, who were clearly 

very engaged and interested. 

Carolyn Mitchell, of Cowell Clarke 

presented on “Self-management – 

managing and exceeding expectations”. 

She gave a very useful guide on how to 

keep yourself productive and efficient, 

but also balanced. She offered tips for 

getting more work done more efficiently, 

breaking down the bigger tasks, and 

structuring your day to get the most 

out of it. Her insight into legal practice 

through her previous position as a 

managing partner and current work as a 

mentor and coach, was invaluable, and 

her message to prioritise your own health 

and wellbeing and to set achievable and 

realistic expectations for yourself in the 

workplace was an important lesson for all 

young lawyers. 

After lunch, delegates were treated 

to an interactive ethics hypothetical, 

with commentary from Rosalind Burke, 

Director of the Ethics and Practice Unit 

at the Law Society, Nadine Lambert, 

Solicitor with the Office of the Legal 

Profession Conduct Commissioner, and 

Professor Michael Baigent, Psychiatrist at 

Flinders University. A topic which often 

gets a bad rap from lawyers needing to tick 

off a compulsory CPD - the session was 

both informative and entertaining, with 

young lawyers texting in their responses 

to a variety of ethical dilemmas, and 

watching the responses appear in real time 

to facilitate a lively discussion. The panel 

provided helpful advice to young lawyers 

on a range of issues, and the session was a 

highlight for many! 

Finally, Simone Douglas, CEO of Social 

Media AOK, gave a presentation on 

“Putting your best foot forward: how to 

work a room and make connections at 

networking events.” She explained the 

importance of having strong networks, 

both within the law, and in the wider 

community, and she gave some tips on 

facebook.com/YLCSA 

Natalie Wade speaks at the Young Lawyers 

Conference 

Representatives of Premier Sponsor 

University of Adelaide: Sophie Howe 

(left), Soraya Pradhan, Amelia Cerone, 

Fumiko Baughan, Timothy Porter, Gaida 

Merei, Sean Conneely, and Christina 

Handley. 

ways to make meaningful connections 

that might lead to business opportunities 

later. She also gave some very useful tips 

on making the most of out networking 

events, particularly when you don’t know 

anyone there. 

Delegates were then offered a chance 

to try out their new-found skills at a wine 

tasting and networking event sponsored by 

Wine Direct. 

The conference touched on the critical 

elements of a young lawyer’s practice, 

from practical tips on advocacy and 

business management, to personal 

performance improvements, and on the 

wider topics of ethics and social justice. 

10 


YOUNG LAWYERS 

LAWYERLY DATING ADVICE HAS JUDGES IN STITCHES 

Following the National Young Lawyers 

Conference, South Australia hosted the 

National Young Lawyer’s Golden Gavel, 

for the first time since 2012. The event 

was held at the Adelaide Convention 

Centre hosted by none other than The 

Chaser’s Julian Morrow. 

Prior to the commencement of the 

competition, Morry Bailes, President of 

the Law Council of Australia, presented 

the 2018 Australian Young Lawyer Award, 

which is conducted annually by the Law 

Council of Australia’s Young Lawyers’ 

Committee, recognising excellence 

in young lawyers and young lawyer 

organisations. 

Thirty-two-year-old Melbourne lawyer 

Tamsin Webster took out the award 

for her continuous and outstanding 

contribution to the legal profession and 

the community through her pro bono 

work. Ms Webster, who joined Maddocks 

as a graduate in 2011, immediately 

immersed herself in the pro bono and 

volunteering opportunities offered by the 

firm. Ms Webster has been involved in 

an impressive range of pro bono matters, 

including running a number of judicial 

review cases for asylum seeker clients 

in the Federal Circuit Court and Federal 

Court. She has volunteered at the Asylum 

Seeker Resource Centre, coordinated the 

Refugee Legal program at Maddocks, and 

made a significant contribution to the 

work of the Refugee and Immigration 

Legal Centre. We congratulate Ms 

Webster on her achievement. 

For those who don’t know (or haven’t 

attended South Australia’s annual state 

Golden Gavel competition), the Golden 

Gavel is a comedy public speaking 

competition, where competitors are given 

24 hours to come up with the funniest, 

most entertaining (and sometimes 

painfully accurate) five-minute speech 

they can muster on a randomly assigned 

topic. 

Being the National Golden Gavel, each 

state and territory was represented by a 

single competitor to determine bragging 

rights. 

The evening’s comedic festivities were 

kicked off by James Gullaci of Victoria, 

with the topic “‘It was an administrative 

error, your Honour’ – how to be incompetent and 

successful at the same time”. Many attendees 

were seen taking copious notes. 

Tasmania’s Jessie Sawyer dealt with 

“Help! My principal just found my facebook 

page!”, although perhaps finding my 

Tinder profile might be more concerning! 

Mitch Rawlings did Queensland proud, 

so proud, by giving us “Trump’s Guide to 

Environmentalism: ‘Do it all on Twitter’”. No 

cats were harmed in the making of this 

speech. 

Oliva Ronan, from the Australian Capital 

Territory gave us a scintillating critique on 

modern dating, with “Dropping Briefs and 

Lodging Subpoenas – tips on dating a lawyer”. 

South Australia’s own, Patrick Kerin, 

wowed us with his knowledge of pop 

culture, and in particular his fascination 

with certain dating shows, presenting 

“Reality TV Lessons for the Court: The Honey 

Badger approach to judicial decision making.” 

Magistrate Jackson however observed that 

no matter how much a Magistrate might 

want to award costs against both parties 

to a matter, generally speaking, the ratings 

didn’t justify it. 

Tom Sorrenson from New South Wales 

tried to help us all through “A survivor’s 

guide to the legal-tech AI revolution”, although 

some of the older members of the 

audience didn’t seem to realise that they 

had already been replaced by robots. 

“Religious Nut Clusters, Extra-Marital 

Whirls, and other chocolates you’ll find in 

politics.” Lyle Swithenbank informed us 

just how popular Leadership Brittle and 

Pork Barrel is to the political palate. 

Finally, Melissa Chen gave us “I’m white, 

I’m male, and I’m not yet a partner. What have 

I done wrong.”. Melissa left us in no doubt 

where the sub-partners’ failings lay. 

Julian Morrow kept the evening hopping 

along, and the judges, Magistrate Anna 

Jackson, President of the Law Society of 

South Australia Tim Mellor, and President 

of the Law Council of Australia Morry 

Bailes, gave their witty observations on 

each of the competitors. 

The judges refused to be swayed by pork 

sausages, bribes, practice management 

tips or pop culture references, and instead 

awarded the coveted National Golden 

Gavel to the ACT’s Olivia Ronan’s sidesplitting 

take on dating in the world of 

modern law. 

The Young Lawyers Committee would 

like to thank our major sponsor, the 

University of Adelaide, for its generous 

support of these amazing events. 

SA representative Patrick Kerin delivers 

his Golden Gavel routine 

Melissa Chen, representing the NT, 

attempts to win over judges with a 

strategically placed South Australian icon, 

a stubby of Coopers Pale Ale 

National Young Lawyer of the Year 

winner Tamsin Webster flanked by Morry 

Bailes and Law Council Young Lawyers 

Committee Chair Renee Bianchi 

Law Council President Morry Bailes 

(left) with National Golden Gavel winner 

Olivia Ronan, Law Society President 

Tim Mellor, MC Julian Morrow and 

Magistrate Anna Jackson 

December 2018 THE BULLETIN 

11

HUMAN RIGHTS 

Universal Declaration of Human Rights 

and Self-Determination: Addressing 

incarceration rates of Aboriginal & 

Torres Strait Islander Women in the 

context of family violence 

CELIA MOODIE, QUALITY ASSURANCE PROJECT CO-ORDINATOR, VICTIMS SUPPORT SERVICE SA 

The 70th anniversary of the 

Universal Declaration of Human 

Rights is an opportunity to 

examine the role of selfdetermination 

in recognising 

the dignity of our First Nations 

people, many of whom have 

been both victimised and 

criminalised throughout our 

history. This article considers 

the intersection between family 

violence, intergenerational 

trauma and rising female 

incarceration rates and how a 

strengths-based, human rights 

approach might provide a way 

forward. 

On 10 December, 2018 the world 

celebrates 70 years of the Universal 

Declaration of Human Rights (UDHR) for 

its recognition of “the inherent dignity of 

all members of the human family [as the] 

foundation of freedom, justice and peace 

in the world”. 1 

Through this statement about human 

dignity, the UDHR has influenced the 

development of international human 

rights law on the rights of all people 

to self-determination. Although not 

mentioned explicitly in the Declaration, 

self-determination has informed the UN 

Charter, is defined in various instruments 

and is well embedded in the philosophy of 

the United Nations. 2 

Australia has recently been criticised for 

its failure to properly enact the principle 

of self-determination in its domestic 

law. 3 This anniversary provides pause 

to reflect on our record of facilitating 

self-determination for our first peoples, 

particularly in the context of rates of 

incarceration for Aboriginal people, which 

for women are growing at an alarming 

rate. 4 

INCARCERATION RATES OF ABORIGINAL 

WOMEN: THE LINK TO FAMILY VIOLENCE 

Aboriginal women are the fastest growing 

prison demographic in Australia, if not the 

world. 5 While Aboriginal adults represent 

only 2% of the Australian population, 

Aboriginal women constitute 34% of 

female prisoners. 6 Female Aboriginal 

incarceration rates increased since the 

Royal Commission into Aboriginal Deaths 

in Custody in 1991 by 148% by 2017 7 , with 

a staggering 77% increase since 2007. 8 

In 2017, the Special Raconteur on 

Violence Against Women, Dubravka 

Šimonović visited Australia to assess 

laws, policies and services to prevent 

and combat gender-based violence. 9 She 

observed with concern an increasing 

number of “reciprocal domestic violence 

orders issued [as] one of the consequences 

of the de-gendered application of 

domestic violence legislation in general.” 

She warned “de-gendered application of 

domestic violence legislation punishes 

Aboriginal women in particular.” 

Disproportionately, Aboriginal women 

experience multiple and intersecting 

forms of discrimination, disadvantage and 

violence. Women in violent relationships 

may be subject to domestic violence orders 

despite their victimisation, and where 

breaches occur, face incarceration. For 

Aboriginal women, systemic inequality 10 

and social factors, such as a lack of 

housing may result in breaches of bail 

requirements, or parole and probation. 11 

12 


HUMAN RIGHTS 

2018 research from Queensland, 

examining the intersection between 

domestic violence orders and the criminal 

justice system, and rates of custodial 

sentencing of Aboriginal women where 

orders are breached, concludes the issue 

is broader than “race-based” or “gender 

sensitive discourse”. 12 The research reveals 

a need for urgent changes in approaches 

to legislating, policing and sentencing 13 , 

and proposes alternative approaches to 

addressing Aboriginal over-representation, 

including decolonisation of justice and 

justice re-investment. 14 

Given effects of intergenerational 

trauma, family and sexual violence, child 

removal, mental illness and disability, and 

poverty are well understood, strategies to 

address offending of Aboriginal women 

must take a trauma-informed and culturally 

appropriate approach 15 Criminal justice 

responses to domestic and family violence 

should be developed and delivered by 

Aboriginal women. 16 

SELF-DETERMINATION FOR ABORIGINAL 

WOMEN 

State-centric application of selfdetermination 

has failed to address 

management of the principle within 

Aboriginal communities, especially 

regarding gender equality and violence. 17 It 

has been observed that self-determination 

in Australia to date has been “calibrated 

to the male experience” and as a 

consequence, been detrimental to the 

experience of women, in terms of their 

“wellbeing and bodily integrity.” 18 

An alternative capabilities approach is 

proposed, that 

“requires communities to actually pin 

down what self-determination looks 

like on a community-by-community 

basis. It transforms human rights from 

a narrow focus on legal guarantees 

and entitlements to an approach that 

changes the way in which public policy 

and law view human rights. It shifts the 

focus of rights discussions away from 

legal instruments to the effectiveness 

of laws and how they actually improve 

individual’s capabilities.” 19 

The appointment of June Oscar AO 

as Aboriginal and Torres Strait Islander 

Social Justice Commissioner, the first 

Aboriginal woman appointed to this role, 

is significant. Her work with Aboriginal 

women in their communities, through Wiyi 

Yani U Thangani (The Women’s Voices 

Project), suggests a much-needed change 

in approach to self-determination for 

Aboriginal women. 

Addressing family violence and female 

incarceration rates requires long-term 

prevention and early-intervention 

strategies for which Aboriginal women 

are central to design, implementation 

and evaluation. Such an approach would 

be consistent with principles of selfdetermination. 

In this context Australia “cannot 

afford to see our institutions, laws and 

policies as static, rigidly held in place by 

colonial origins with archaic and violently 

prejudicially conceptions of race.” 20 

Instead there is a need to engage in 

justice reinvestment strategies that respond 

to community needs and strengths. 

These include violence prevention, family 

support and housing and health needs, all 

of which are often linked to offending by 

Aboriginal women. 21 

DIGNITY AND SELF DETERMINATION 

Long-term commitment from Federal 

and State Governments is required in 

the context of justice reinvestment. A 

strengths-based, human rights approach 

which engages Aboriginal women as 

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HUMAN RIGHTS 

stakeholders provides an opportunity 

for the criminal justice system to address 

victimisation of Aboriginal women 

through unintended consequences of 

justice responses to family violence. 

In the words of the Commissioner, “All 

women and girls have the right to live a 

life free of violence, exercise their voice 

and cultural expression, own initiatives to 

improve their law and justice outcomes, 

and live the full respect and dignity of 

personhood that their human rights 

bring”. 22 

The true test of self-determination will 

be “not whether Indigenous peoples 

have their own institutions, legislative 

authorities, laws, police and judges. 

[Rather it] is whether Indigenous peoples 

themselves actually feel that they have 

choices about their way of life. 23 

The UDHR demands Australia 

embrace this opportunity for change 

going forward. B 

Endnotes 

1 UN General Assembly, Universal Declaration of 

Human Rights, 10 December 1948, 217 A (III), 

, 

last accessed 27 October 2018. 

2 United Nations and People’s Organization, 

“Self Determination”, 21 September 2017 

https://unpo.org/article/4957?id=4957; John 

Kilcullen, “Self-Determination and the Right to 

Establish Government”, Macquarie University, 

 

citing Crawford, James,The Creation of States 

in International Law (Oxford: Clarendon Press, 

2 nd edition, 2006) p 112; Relevant instruments 

include, United Nations International Covenant 

on Civil and Political Rights (ICCPR). UN 

General Assembly, Optional Protocol to the 

International Covenant on Civil and Political Rights, 

19 December 1966, United Nations, Treaty 

Series, vol. 999, p. 171, last accessed 27 October 2018>; the 

International Covenant on Economic, Social 

and Cultural Rights (ICESCR), UN General 

Assembly, International Covenant on Economic, 

Social and Cultural Rights, 16 December 1966, 

United Nations, Treaty Series, vol. 993, p. 

3, ,last accessed 27 

October 2018; the United Nations Declaration 

of Rights of Indigenous People (UNDRIP) 

UN General Assembly, United Nations Declaration 

on the Rights of Indigenous Peoples : resolution 

/ adopted by the General Assembly, 2 October 

2007, A/RES/61/295,https://www.un.org/ 

development/desa/indigenouspeoples/ 

declaration-on-the-rights-of-indigenouspeoples.html 

last accessed 27 October 2018 

and the Convention on the Elimination of 

Discrimination against Women (CEDAW) UN 

General Assembly, Convention on the Elimination 

of All Forms of Discrimination Against Women, 

18 December 1979,United Nations, Treaty 

Series, vol. 1249, p. 13, , last accessed 27 

October 2018, all of which Australia has ratified 

or adopted in the case of declarations, and all 

invoke the right to self-determination. 

3 Calla Wahlquist, “Australian could face 

criticism over dismissal of Indigenous voice to 

parliament”, 23 November 2017, The Guardian, 

, last accessed 27 October 2018. 

4 Heidi Keikebosch-Fitt, “Women in Custody is 

everyone’s business, 3 June 2017, The Centre 

for Independent Studies, , 

last accessed 27 October 

2018. 

5 Calla Wahlquist, “Australia must address 

soaring female imprisonment rate – report”, 

15 May 2017, The Guardian https://www. 

theguardian.com/australia-news/2017/may/15/ 

soaring-female-indigenous-imprisonment-rateobstructing-closing-the-gap-targets-report, 

last 

accessed 27 October 2018. 

6 Walters A. and Longhurst S, Over-represented and 

overlooked: The crisis of Aboriginal and Torres Strait 

Islander women’s growing over-imprisonment, Human 

Rights Law Centre (May 2017), 10. 

7 Australian Bureau of Statistics (ABS) 

2017. Prisoners in Australia ABS cat. no. 4517.0. 

Canberra: ABS last accessed 31 

October 2018. 

8 Ibid; Human Rights Commission, 

“Imprisonment Rates of Indigenous women 

a national shame”, 2 May 2018, https:// 

www.humanrights.gov.au/news/stories/ 

imprisonment-rates-indigenous-women-nationalshame, 

last accessed 27 October 2018; Ms. June 

Oscar AO, Aboriginal and Torres Strait Islander 

Commissioner, 2018 Grace Vaughan Memorial 

Lecture, University of Western Australia, 2 May 

2018 https://www.humanrights.gov.au/news/ 

speeches/2018-grace-vaughan-memorial-lectureuniversity-western-australia,last 

accessed 27 


9 Office of the High Commissioner, United 

Nations Human Rights, “Violence Against 

Women,: UN human rights expert launches 

official visit to Australia, https://www.ohchr. 

org/EN/NewsEvents/Pages/DisplayNews. 

aspx?NewsID=21157&LangID=E, last accessed 

27 October 2018. 

10 Stubbs, J, (2011) Indigenous women in 

Australian criminal justice: over-represented but 

barely acknowledged, Australian Indigenous Law 

Review, 15: 47-63. 

11 Walsh, T (2004) InCorrections: Investigating 

prison release practice and policy in Queensland 

and its impact on community safety, Queensland 

University of Technology, , last 

accessed 27 October 2018. 

12 Douglas H and Fitzgerald R (2018) The 

domestic violence protection order system 

as entry into the criminal justice system for 

Aboriginal and Torres Strait Islander people, 

International Journal for Crime, Justice and Social 

Democracy 7 (3),41-57, DOI:10.5204/ijcisd.v7i3.44 

https://www.crimejusticejournal.com/article/ 

view/915 last accessed 27 October 2018; Kerr, 

Aand Shackel, R., Equality with a vengeance: 

The over-incarceration of women [online]. 

Precedent (Sydney, N.S.W.), No. 147, Aug 

2018: 20-25. ISSN: 1449-7719, last accessed 27 

Oct 18. 

13 Ibid, Douglas and Fitzgerald, 49-51. 

14 Ibid, Douglas and Fitzgerald, 52 . 

15 Australian Law Reform Commission, Pathways 

to Justice–Inquiry into the Incarceration Rate 

of Aboriginal and Torres Strait Islander Peoples 

(ALRC Report 133), 28 March 2018, https:// 

www.alrc.gov.au/publications/indigenousincarceration-report133>, 

last accessed 27 


16 Davis, M, Aboriginal Women: The Right to 

Self-Representation, (Delivered at Murrup 

Barak, Melbourne Institute for Indigenous 

Development, University of Melbourne, 8 

November 2012, last 

accessed 27 October 2018, 76. 

17 Ibid, 80. 

18 Ibid, 79. 

19 Ibid, 83; see also Blagg, H., Williams, E., 

Cummings, E., Hovane, V., Torres, M., & 

Woodley, K. N. (2018). Innovative models in 

addressing violence against Indigenous women: 

Final report (ANROWS Horizons, 01/2018). 

Sydney: ANROWS. 

20 Above n. vii, Ms. June Oscar AO. 

21 Above n. xviii, Blagg, H., Williams, E., 

Cummings, E., Hovane, V., Torres, M., 

& Woodley, K. N. (2018) ANROWS. 

22 Above n. vii, Ms. June Oscar AO. 

23 Erica-Irene Daes, former Special Rapporteur 

of the United Nations Working Group on 

Indigenous Populations, “Self-determination - 

the freedom to ‘live well’” HREOC Social Justice 

Report 2002. 

14 


HUMAN RIGHTS 

AI in Criminal Sentencing: 

a risk to our human rights? 

RAFFAELE PICCOLO, HUMAN RIGHTS COMMITTEE 

It is true that judges cannot mechanically apply 

sentencing principles to any given fact scenario 

to achieve the “right outcome”. Unfortunately 

there is no sentencing machine that processes 

all the considerations that judges must take 

into consideration. If there was, judges and 

magistrates could be replaced by the calculating 

machine. This would, no doubt, be a pleasing 

prospect to treasury officials around Australia, 

if not for lawyers. 1 

- The Honourable Justice Connolly, 

Supreme Court of the Australian 

Capital Territory, 11 February 2006 

The late Justice Connolly’s prediction 

that a “calculating machine” might 

one day be developed for use in criminal 

sentencing, and that such a development 

might be welcomed, may have come 

to fruition sooner than his Honour 

anticipated. 2 

Artificial intelligence (AI) might be 

just the calculating machine that Justice 

Connolly had in mind. There is no 

universal definition of AI. 3 At its simplest, 

and for the purpose of this article, AI 

“refers to simulated human intelligence 

performed by computers and machines”. 4 

Algorithms are one method of simulating 

human intelligence. “They are sets of 

codes followed to solve a task. AI results 

when machines perform tasks based on 

algorithms in an ‘intelligent’ manner.” 5 

The benefits of the use of AI in 

criminal sentencing have been spruiked 

in Australia. 6 Abroad, it is already used in 

a number of contexts. It is increasingly 

employed as a tool to calculate a person’s 

likelihood of recidivism, and thereafter, to 

inform decisions on bail, sentence lengths, 

and parole. In the United States, AI is used 

to assess risk, and has been incorporated 

into sentencing guidelines as a factor that 

courts may take into consideration when 

determining sentence. 7 

AI is said to “have the potential 

advantage of making sentencing 

determinations quicker and more 

transparent, predictable and consistent.” 8 

Further, AI is said to hold the potential of 

overcoming distortions within the current 

criminal sentencing process, “such as 

subconscious bias which currently results 

in certain offenders being subjected to 

harsher penalties”. 9 

Despite the purported advantages, 

this article argues that the use of AI in 

criminal sentencing is incompatible with 

international human rights. 

With the assistance of a case study, this 

article will highlight this incompatibility. 

CASE STUDY: ERIC LOOMIS AND COMPAS 

COMPAS (Correctional Offender 

Management Profiling for Alternative 

Sanctions) is a proprietary software. It 

utilises an algorithm to estimate the risk 

of recidivism. The methodology behind 

COMPAS is a trade secret. Only the 

estimated risk of recidivism is reported to 

the court. 10 It assesses a person’s risk of 

reoffending on a scale from 1 to 10. The 


HUMAN RIGHTS 

assessment is based on more than 100 

factors, including age, sex, and criminal 

history. Race is not a factor. COMPAS 

provides a risk of reoffending score by 

comparing the subject person with a 

similar group of people. 11 

COMPAS is an example of the use of AI 

in sentencing. 

The State of Wisconsin charged Eric 

Loomis with offences related to a drive-by 

shooting. He denied participating in the 

offences alleged. The matter was ultimately 

resolved by way of a guilty plea to two 

of the less serious charges. A Wisconsin 

Department of Corrections officer 

prepared a presentencing investigation 

report for the sentencing hearing. 

That report included a COMPAS risk 

assessment. 12 

In sentencing the court referred to the 

COMPAS risk assessment. Based in part 

on that assessment, the court sentenced 

Loomis to six years of imprisonment and 

five years of extended supervision. 13 

Loomis appealed that decision to the 

Wisconsin Supreme Court. He asserted 

that the use of the COMPAS risk 

assessment violated his right to due process 

for three reasons. First, it violated his right 

to be sentenced on accurate information; 

the proprietary nature of COMPAS 

prevented him from assessing the accuracy 

of the information that informed the 

assessment. Second, it violated his right 

to an individualised sentence. Third, it 

improperly used gendered assessments. 

The Supreme Court dismissed the appeal. 14 

Justice Bradley, writing for the Court, 

held that courts must proceed with 

caution when using risk assessments such 

as COMPAS. Her Honour explained 

that such risk assessments may not be 

used to determine whether a person 

is imprisoned, or the severity of any 

sentence of imprisonment. 15 Further, the 

Court prescribed five written warnings that 

presentencing investigation reports that 

contain a COMPAS risk assessment must 

include. The purpose of the warnings was 

“to instill [sic] both general skepticism 

[sic] about the tool’s accuracy and a more 

targeted scepticism [sic] with regard to 

16 

THE BULLETIN December 2018 

the tool’s assessment of risks posed by 

minority offenders”. 16 

However, as has been noted, the 

Court’s attempt to provide a procedural 

safeguard (mandating written warnings 

for presentencing investigation reports 

that contain a COMPAS risk assessment) 

falls short. It is silent on the strength of 

the criticisms of such risk assessments. It 

ignores courts’ inability to evaluate such 

risk assessment tools. More importantly, 

I say, it fails to consider the internal and 

external pressures on courts to use such 

risk assessments. 17 

As such it fails to protect the human 

rights of people before the criminal justice 

system. 

RIGHT TO LIBERTY AND SECURITY OF 

PERSON 

Article 9 of the Universal Declaration of 

Human Rights (UDHR) provides that no 

person is to be subjected to arbitrary arrest, 

detention or exile. 18 Article 9(1) of the 

International Covenant on Civil and Political 

Rights (ICCPR), developed to give effect 

to the UDHR, similarly provides that ‘[e] 

veryone has the right to liberty and security 

of person. No one shall be subjected to 

arbitrary arrest or detention. No one shall 

be deprived of his liberty except on such 

grounds and in accordance with such 

procedure as are established by law.’ 19 

The Human Rights Committee has 

explained that: 

[a]n arrest or detention may be 

authorized by domestic law and 

nonetheless be arbitrary. The notion 

of “arbitrariness” is not to be equated 

with “against the law”, but must be 

interpreted more broadly to include 

elements of inappropriateness, 

injustice, lack of predictability, and 

due process of law, as well as elements 

of reasonableness, necessity, and 

proportionality. 20 

AI has the potential to result in 

arbitrary sentencing, in the sense of 

being inappropriate, unjust, unreasonable, 

unnecessary, or lacking due process. 

The methodology employed to deliver 

a decision, and in the case of COMPAS, 

an opinion of risk is not disclosed to the 

subject person. As a result the subject 

person is practically deprived of the 

opportunity to challenge the veracity or 

accuracy of that assessment of risk; they 

are deprived of their right to due process. 

By extension, this seriously curtails, if 

not fundamentally undermines, the ability 

of the subject person to challenge the 

appropriateness, justness, reasonableness, 

or necessity of any sentence. It becomes 

an irrefutable factor against them. 

RIGHT TO EQUALITY 

Article 1 of the UDHR provides that 

“[a]ll human beings are born free and 

equal in dignity and rights”. Article 7 of 

the UDHR further provides that “[a]ll 

are equal before the law and are entitled 

without any discrimination to equal 

protection of the law”. 

AI, despite its veil of objectivity, is not 

immune from bias. 

Bias is said to be an inescapable trait of 

human decision making. 21 AI proponents 

hold that AI can avoid such a shortcoming. 

That is because we “instinctively think of 

computers as being objective computing 

machines — like calculators that always 

give you a logical result”. 22 Yet studies 

have found AI to perpetuate bias and 

stereotyping. 23 Those studies have found 

that while AI may remove the human 

decision maker, bias remains. This is 

because the decision of the “objective” 

AI is informed by an aggregate of biasinfluenced 

human decisions. AI is left 

emulating human decision making, bias 

intact. 

RIGHT TO A FAIR & PUBLIC HEARING 

Article 10 of the UDHR provides that 

‘[e]veryone is entitled in full equality to a 

fair and public hearing by an independent 

and impartial tribunal, in the determination 

of his rights and obligations and of any 

criminal charge against him.’ 

The Human Rights Committee has 

explained that:

HUMAN RIGHTS 

[a]ll trials in criminal matters or related 

to a suit at law must in principle be 

conducted orally and publicly. The 

publicity of hearings ensures the 

transparency of proceedings and thus 

provides an important safeguard for the 

interest of the individual and of society 

at large. 

… 

Even in cases in which the public is 

excluded from the trial, the judgment, 

including the essential findings, evidence 

and legal reasoning must be made 

public.... 24 

AI may weaken the oral and public 

nature of sentencing, and in turn the 

transparency of such proceedings. 

Moreover, the right to a publicly available 

judgment, which includes evidence, 

essential findings, and reasoning, is 

similarly weakened, if not curtailed, with 

the use of AI. 

In a sentencing hearing using AI, owing 

to the proprietary nature of the algorithms 

relied upon, a person can only expect the 

final opinion, or risk assessment, to be 

publicly available. Neither the information 

that informed that decision, nor the 

process of reasoning that accounts for 

that decision are to revealed to the subject 

person, the court, or the public. Absent 

such information, and lacking such 

transparency, how can the subject person, 

or the public, have any confidence in the 

sentence? 

RIGHT TO REVIEW 

Article 14(5) of the ICCPR provides 

that “[e]veryone convicted of a crime 

shall have the right to his conviction 

and sentence being reviewed by a higher 

tribunal according to law”. 25 

The right to a review of a sentence 

before a higher court is weakened with 

the employment of AI. A person will 

have little, if any, knowledge of the 

methodology and calculations that led 

to any AI-informed opinion. They are 

therefore left with little practical basis on 

which to challenge such an opinion on 

review. 

CONCLUSION 

AI promises objectivity, and consistency. 

Programmes such as COMPAS are 

“designed to help judges make “better” – 

or at least more data-centric – decisions 

in court”. 26 Yet for all the advantage that 

is said to come from removing the human 

from the criminal sentencing process, 

where does that leave our human rights? 

The proprietary nature of much of the 

AI used to date in criminal sentencing, 

and the documented biases, should 

cause concern. The compatibility of 

the use of AI with international human 

rights, particularly equality and nondiscrimination, 

freedom from arbitrary 

detention, open and transparent trials, and 

rights of review, remains questionable at 

best. B 

Endnotes 

1 Terry Connolly, ‘Human Rights Aspects of 

Sentencing’ (Paper presented at the National 

Judicial College of Australia and Australian 

National University Conference, Canberra, 11 

February 2006) 3 . 

2 See, eg, Chris Johnston, Artificial intelligence ‘judge’ 

developed by UCL computer scientists (24 October 

2016) The Guardian . 

3 House of Lords Select Committee on Artificial 

Intelligence, Parliament of the United Kingdom, 

AI in the UK: ready, willing and able? (2018) 14 [9]. 

4 Victorian All-Party Parliamentary Group 

on Artificial Intelligence, Artificial Intelligence 

Primer (March 2018) Parliament of Victoria, 2 

. 

5 Ibid. 

6 Nigel Stobbs, Dan Hunter and Mirko Bagaric, 

‘Can Sentencing Be Enhanced by the Use of 

Artificial Intelligence?’ (2017) 41 Criminal Law 

Journal 261. 

7 John Monahan and Jennifer L. Skeem, ‘Risk 

Assessment in Criminal Sentencing’ (2016) 12 

Annual Review of Clinical Psychology 489, 495; Julia 

Angwin, Jeff Larson, Surya Mattu and Lauren 

Kirchner, Machine Bias: There’s software used across 

the country to predict future criminals. And it’s biased 

against blacks (23 May 2016) ProPublica . 

8 Stobbs, Hunter and Bagaric, above n 6, 262. 

9 Ibid. 

10 Recent Cases, ‘State v. Loomis: Wisconsin 

Supreme Court Require Warning Before Use of 

Algorithmic Risk Assessments in Sentencing’ 

(2017) 130 Harvard Law Review 1530, 1531. 

11 Australian Human Rights Commission, Human 

Rights and Technology Issues Paper (2018) 29. 

12 ‘State v. Loomis’, above n 10, 1531. 

13 Ibid. 

14 Ibid, 1531-2. 

15 Ibid, 1532-3. 

16 Ibid, 1533. 

17 Ibid, 1530-1. 

18 Universal Declaration of Human Rights, GA Res 

217A (III), UN GAOR, 3 rd sess, 183 rd plen mtg, 

UN Doc A/810 (10 December 1948). 

19 International Covenant on Civil and Political Rights, 

opened for signature 19 December 1966, 999 

UNTS 171 (entered into force 23 March 1976) 

art 9(1). 

20 Human Rights Committee, General comment No. 

35: Article 9 (Liberty and security of person), 112 th 

sess, UN Doc CCPR/C/GC/35 (15 December 

2014) 3 [12]. 

21 Eyal Peer and Eyal Gamliel, ‘Heuristics and 

Biases in Judicial Decisions’ (2013) 49(2) Court 

Review 114. 

22 Stephanie Weber, ‘How artificial intelligence is 

transforming the criminal justice system’ (10 

January 2018) ThoughtWorks . 

23 See, eg, David Danks and Alex John London, 

‘Algorithmic Bias in Autonomous Systems’ 

(Paper presented at the 26 th International 

Joint Conference on Artificial Intelligence, 

Melbourne,19-25 August 2017) ; Will Knight, ‘Biased Algorithms Are 

Everywhere, and No One Seems to Care’ (12 

July 2017) MIT Technology Review ; 

Cathy O’Neill, Weapons of math destruction: How 

big data increases inequality and threatens democracy 

(Crown Publishing Group, 1 st ed, 2016); Angwin, 

Larson, Mattu and Kirchner, above n 7. 

24 Human Rights Committee, General Comment 

No. 32: Article 14: Right to equality before courts 

and tribunals and to a fair trial, 90 th sess, UN Doc 

CCPR/C/GC/32 (23 August 2007) 8-9 [28]-[29]. 

25 ICCPR, art 14(5). 

26 Christopher Markou, ‘Why using AI to sentence 

criminals is a dangerous idea’ (16 May 2017) The 

Conversation . 


HUMAN RIGHTS 

Australia, the Universal 

Declaration of Human 

Rights & the Future 

JONATHAN BROHIER, SOLICITOR, DEGARIS LAWYERS 

The United Nations was formed in 

1945 at one of the lowest ebbs in 

world history. From 1914 to 1945 the 

world witnessed 10 years of world war. 

The horror of the western front, the 

ferocity of the Nazi war machine, the 

atrocities of the concentration camps and 

the sheer scale of worldwide conflict left 

the world questioning whether the noble 

Chamberlain refrain of “Peace in Our Time” 

would ever be a reality. 

In 1945 countries met in San Francisco 

to create an international charter that 

would found the United Nations (UN), 

a body aimed at facilitating the peaceful 

and diplomatic resolution of disputes 

across the world. Australia played a critical 

role in the formation of the UN Charter 

which later became the foundation of 

the Universal Declaration of Human Rights 

(UDHR); the first major achievement of 

the UN. The Australian delegation to the 

San Francisco conference was headed by 

Dr Herbert Vere Evatt. 1 

Dr Evatt’s accomplishments bear some 

recognition. At age 31 he was elected to 

the Legislative Assembly of New South 

Wales, became the youngest judge elevated 

to the High Court of Australia at 36, 

before retiring from the bench to run for 

the federal seat of Barton in 1940, rising 

to the position of Attorney-General and 

Minister for External Affairs. It was in his 

capacity as Minister for External Affairs 

that Dr Evatt led the delegation to San 

Francisco. 2 

Under Dr Evatt’s guidance Australia 

made 38 amendments to the UN Charter 

with 20 being accepted. 3 Dr Evatt’s 

amendments centred around his passion 

for creative expression, reasonable working 

conditions and access to education. 4 Many 

of these amendments supported the 

economically disadvantaged of society 

and were adopted into the UDHR. 5 Dr 

Evatt also took the courageous step of 

including Ms Jessie Street in the Australian 

delegation. Ms Street was instrumental 

in drafting the Charter to be inclusive 

of women and this was reflected in the 

drafting of the UDHR. 

Dr Evatt became President of the 

General Assembly for the 1948-1949 

session in New York. Under his guidance 

the UDHR was adopted and ratified. Dr 

Evatt reflected, after the ratification of the 

UDHR, that “millions of people, men, women 

and children would turn to it for help guidance 

and inspiration.” 6 

Dr. Evatt’s statement highlights the 

genius of the UDHR. It is as relevant 

today as it was in 1948. A gaze into the 

crystal ball predicts that this document 

may play an increasingly important role 

in resolving the tension between what I 

will call the ‘right to be’ and the ‘right to 

believe.’ 

A division has emerged in western 

society between rights which are grounded 

in equality, i.e. the right of equality and 

non-discrimination as expressed in Article 

7 of the UDHR and rights grounded in 

belief, i.e. the right of freedom of thought, 

conscience and religion in Article 18 and 

the right of free expression in Article 19. 7 

In short, a tension between “the right to 

be” and “the right to believe” This tension 

has been the subject of recent Supreme 

Court decisions in England and the United 

States. 

Lee (Respondent) v Ashers Baking 

Corporation Ltd and other (Appellants) 

(Northern Ireland) [2018] UKSC 49 

concerned an appeal by Ashers Bakery 

against county court and court of appeal 

decisions that held that Ashers Bakery 

had discriminated against Mr Lee under 

the Fair Employment and Treatment (Northern 

Ireland) Order (FETO) by refusing to bake 

a cake with a pro-gay marriage message on 

it. 8 Ashers Bakery appealed on the basis 

that FETO should be read down to accord 

with articles 9 and 10 of the European 

Convention of Human Rights, namely the 

freedom of thought, conscience, religion 

and expression. The UK Supreme Court 

held that Ashers Bakery’s refusal was not 

discrimination based on sexual orientation 

and instead found that the owners of 

Ashers Bakery were motivated by their 

religious beliefs and would not have baked 

that cake irrespective of whoever asked 

for it. 9 

Masterpiece Cakeshop v Colorado Civil 

Rights Commission 138 S.Ct. 1719(2018) 

(Masterpiece) 10 was handed down by the US 

Supreme Court earlier this year. A baker 

(Phillips) refused to bake and decorate 

a cake for a same-sex couple’s wedding 

because of his religious based opposition 

to same-sex marriage. While the majority 

decided the case on the expressed animus 

of the Colorado Civil Rights Commission 

to Phillips’ religious views, two judges 

found that the baker saw his wedding 

cakes as an expressive statement involving 

his first amendment (free exercise of 

religion/freedom of speech) rights. 

Masterpiece again highlights the distinction 

between refusing to undertake a course 

action because of one’s religious or 

conscientious beliefs and a refusing to 

undertake a course of action based on the 

identity of another person. 

The collision between the right to be 

and the right to believe was seen in the 

Australian context in Christian Youth Camps 

Limited & Ors v Cobaw Community Health 

Service Limited & Ors [2014] VSCA 75 

18 


HUMAN RIGHTS 

Daniel and Amy McArthur, who own 

Ashers Bakery in Belfast, speak at the 

Supreme Court in London. Photo: Simon 

Dawson / Reuters 

(CYC v Cobaw). 11 The case concerned a 

refusal of a Brethren campsite operator 

(CYC) to hire out the campsite for a 

weekend to a group supporting same-sex 

attracted young people (Cobaw). CYC lost 

in the Victorian Civil and Administrative 

Tribunal and appealed. A majority of the 

Victorian Court of Appeal refused the 

appeal, finding that CYC had engaged 

in discriminatory conduct. CYC argued 

that it had not discriminated on the 

basis of a protected attribute (sexual 

orientation), because it was the purpose of 

the camp, i.e. support of conduct which 

was contrary to its religious convictions, 

which led it to refuse Cobaw’s request 

rather than the sexual orientation of 

those who were involved in the camp. 

The majority reasoned that there was no 

difference between discrimination based 

on identity or attribute and discrimination 

based on conduct. Redlich J (in dissent) 

found that religious identity was just 

as much part of a person’s identity as 

sexual orientation and resolved the matter 

by finding that the religious freedom 

exemptions in the relevant legislation 

applied to protect CYC. 12 CYC v Cobaw 

stands in contrast to the recent UK and 

US approach to the tension between 

conduct constituting discrimination and 

conduct in accordance with one’s religious 

or conscientious beliefs. The UDHR and 

its associated conventions principally the 

International Covenant on Civil and Political 

Rights (ICCPR) 13 may be instrumental in 

resolving this tension. 

In Australia, the rights outlined in 

the ICCPR, and hence the UDHR, are 

being legislated into law by means of 

Charters of Rights (as in Victoria and 

the Australian Capital Territory and as 

is being considered in Queensland). 

However, apart from legislation the 

UDHR may become increasingly relevant 

because of the principle of legality. The 

principle of legality states that courts 

interpret legislation on the basis that 

Parliament does not intend to interfere 

with fundamental rights and freedoms 

unless it expresses a clear legislative 

intent to do so by clear and unequivocal 

language. 14 In Victoria, Bell J in Director 

of Public Prosecutions v Kaba held that the 

rights and freedoms outlined in the ICCPR 

could be treated as fundamental Australian 

rights and freedoms, for the principle of 

legality. 15 If that approach finds favour, 

the provisions of the ICCPR, and so 

the UDHR, may play an increasingly 

prominent role in Australian jurisprudence 

in resolving the tension between ‘the right 

to be’ and ‘the right to believe.’ 

The UDHR may be of significant 

assistance in resolving the tension between 

the right to be and the right to believe as 

the UDHR was never intended to create 

a hierarchy of rights where one right 

trumped the other. Rather the UDHR is 

a holistic framework intended at achieving 

a common standard for all peoples and 

all nations. The UDHR should be viewed 

as a composition of articles, that when 

collectively implemented together, creates 

a strong human rights framework. 16 If this 

understanding is adopted in Australian law 

the conflict between the ‘right to be’ and 

the ‘right to believe’ may be resolved. 

Practically this means that as lawyers we 

will need to be increasingly familiar with 

the language and jurisprudence of the 

UDHR and its progeny –for example the 

jurisprudence of the European Court of 

Human Rights. The work of the UDHR in 

Australia may have only just begun. B 

Endnotes 

1 Australian Human Rights Commission, 

Australia and the Universal Declaration of Human 

Rights, 

accessed online 4 November 2018. 

2 G.C Bolton, ‘Evatt, Herbert Vere (Bert) (1894 

-1965), Australian Dictionary of Biography, 

National Centre of Biography, Australian National 

University,< http://adb.anu.edu.au/biography/ 

evatt-herbert-vere-bert-10131/text17885>, 

published first in hardcopy 1996, accessed online 

4 November 2018. 

3 Campbell Rhodes, Dr Evatt Goes to San Francisco 

(25 June 2015) Museum of Australian Democracy 

< https://www.moadoph.gov.au/blog/drevatt-goes-to-san-francisco/> 

accessed online 4 

November 2018. 

4 Ibid. 

5 Ibid. 

6 Evatt Foundation, Doc Evatt < https://evatt.org. 

au/about-us/doc-evatt.html> accessed online 4 

November 2018. 

7 Universal Declaration of Human Rights, GA Res 217A 

(III), UN GAOR, 3 rd sess, 183 rd plen mtg, UN 

Doc A/810 (10 December 1948. See also Steven 

D. Smith ‘Equality, Religion and Nihilism’ (2014) 

Research Paper No. 14 -169 University of San 

Diego. 

8 Lee (Respondent) v Ashers Baking Corporation Ltd and 

other (Appellants) (Northern Ireland) [2018] UKSC 49. 

9 Lee (Respondent) v Ashers Baking Corporation Ltd and 

other (Appellants) (Northern Ireland) [2018] UKSC 49 

[55] (Lady Hale). 

10 Masterpiece Cakeshop v Colorado Civil Rights 

Commission 584 U.S. _(2018); 138 S.Ct. 1719(2018). 

11 Christian Youth Camps Limited & Ors v Cobaw 

Community Health Service Limited & Ors [2014] 

VSCA 75. 

12 Christian Youth Camps Limited & Ors v Cobaw 

Community Health Service Limited & Ors [2014] 

VSCA 75 [545]; [559];[560] &[563] (Redlich J). 

13 International Covenant on Civil and Political Rights, 

opened for signature 23 March 1976, 999 UNTS 

171 (entered into force 13 August 1980). 

14 See Coco v The Queen (1994) 179 CLR 427 [437[ 

(Mason, Brennan and McHugh JJ); Momcilovic v the 

Queen (2011) 245 CLR 1 [46] (French CJ). 

15 Director of Public Prosecutions v Kaba [2014] VSC 52 

[179] (Bell J). 

16 Mary Anne Glendon, ‘Knowing the Universal 

Declaration of Human Rights’ (1998) 73(5) Yale 

Journal of Health Policy, Law, and Ethics 1153, 1162- 

1163. 


HUMAN RIGHTS 

THE UDHR IN 2018: WHAT 

ARE OUR COURTS SAYING? 

GEORGIA HAGIAS, SOLICITOR, WALLMANS LAWYERS 

The Universal Declaration of Human 

Rights (UDHR) is the pinnacle of 

human rights recognition globally. 

The UDHR was adopted by the United 

Nations General Assembly at its third 

session, on 10 December 1948, by 

unanimous vote. 

The document is said to “express the 

essence of humanity” 1 and does so by way 

of a set of common, basic standards for 

the treatment of all human beings. It is the 

first document in history to do this in a 

purposeful, comprehensive manner. 

Although many say the UDHR’s 

prominence and use over time has 

bestowed upon it the force of customary 

international law, the UDHR is not a 

treaty, it cannot be ratified by states, and 

is not legally binding. Since its adoption, 

states have instead ratified international 

treaties which incorporate certain rights 

contained within the UDHR 2 , so as to 

legally enforce those rights. 

This begs the question: do our legal 

leaders and courts recognise the UDHR 

and, if so, what are they saying about it 

today? 

AT FIRST GLANCE 

Typing the words “Universal Declaration 

of Human Rights” into your favourite legal 

search engine will fetch you approximately 

393 cases from seven jurisdictions across 

Australia. You will find three results from 

the Northern Territory, 62 from New South 

Wales, and 188 from the Commonwealth. 

Journal articles are aplenty. The first 

result (sorted by relevance) is a 1998 

article by Justice Young, formerly of the 

Supreme Court of New South Wales. 3 A 

sign of the time, this particular article sits 

alongside one advertisement for “new-age” 

voice recognition software titled “Today, 

talking to your computer will be a sign of 

intelligence, not insanity”, and another, a 

subscription service for the journal GST 

Today, prefaced with the warning “The 

GST clock is ticking”. 

Justice Young provides an example of 

the use of the UDHR in contemporary 

Australia. He refers to the court’s reluctance 

to restrict a person from leaving Australia 

despite certain statutory rights to restrain 

persons, due to the court’s recognition of 

Article 12 of the International Covenant 

on Civil and Political Rights (ICCPR) 

(identical to Article 13 of the UDHR) 

which provides for the right and liberty of 

movement of all people. 

A SNAPSHOT OF CASES 

Unsurprisingly, the UDHR is not 

frequently referred to in relation to general 

commercial disputes. However, by way of 

example, in June this year in the Supreme 

Court of Victoria a non-party (the director 

of the applicant company) sought to rely 

on the UDHR and ICCPR as the basis for 

an argument that a director of a company 

has the right to represent that company 

in Supreme Court proceedings. The court 

found that the applicant’s grounds were not 

made out, and that although the court has 

discretion to allow a director to represent a 

company, there was no authority put before 

the court to support “the proposition that 

a corporation has any rights under the 

(ICCPR) or the (UDHR)” 4 . 

It is not unusual to find references to the 

UDHR in criminal cases. However, some 

judges have been more willing to consider 

the effect of the UDHR than others. 

In a recent decision of the New South 

Wales Court of Criminal Appeal, counsel 

for the appellant sought to rely on the 

presumption of innocence, specifically 

referring to Article 11 of the UDHR 

which states that “everyone charged with a 

penal offence has the right to be presumed 

innocent until proved guilty according 

to law in a public trial at which he has 

had all the guarantees necessary for his 

defense” 5 . Justice Beazley did not consider 

the effect of the UDHR, on the basis that 

“the Declaration is not a binding part of 

Australian domestic law: Kioa v West (1985) 

159 CLR 550 at 570-571 per Gibbs CJ”, 

noting that, nevertheless, the presumption 

of innocence is a “central tenet of the law 

in Australia.” 6 

In 2017 the South Australian Court of 

Criminal Appeal observed a similarity 

between our legislative policy and the 

UDHR when it comes to the need to 

consider the gravity of certain sexual 

offences against children in sentencing. 

In that decision, Justice Hinton referred 

to Article 25(2) of the UDHR, which 

states that “(m)otherhood and childhood 

are entitled to special care and assistance. 

All children, whether born in or out 

20 THE BULLETIN December 2018

of wedlock, shall enjoy the same social 

protection” 7 . His Honour went on to state 

that our legislative policy to give paramount 

consideration to general and personal 

deterrence in cases of this nature 8 , “like 

the Universal Declaration of Human Rights 

[emphasis added] and the Declaration 

of the Rights of the Child, focuses upon 

children for the obvious reason that they 

are vulnerable and in need of protection.” 9 

The South Australian Court of Criminal 

Appeal recognised the UDHR again in a 

2018 decision. The appeal was brought 

against a decision of a Judge of the Court 

to release a person detained on licence; 

a decision made pursuant to the Court’s 

discretion in s 24 of the Criminal Law 

(Sentencing) Act 1988 (SA). Chief Justice 

Kourakis dismissed the appeal, observing, 

inter alia, that “the indefinite detention 

of an offender… is an exceptional 

deprivation of liberty which should 

not continue any longer than is strictly 

necessary.” 10 The Chief Justice referenced 

this fundamental principle as stemming 

from Conventions to which Australia is a 

party, including the UDHR and ICCPR. 

The UDHR also plays a role in family 

law proceedings. By way of example, in a 

recent decision in the Federal Circuit Court 

of Australia, Judge Harman recognised that 

although the Family Law Act 1975 does not 

provide for the rights of parents, parents 

have a general right “to be treated with 

dignity (as provided by Article 1 of the 


1948) and a right of due process” 11 . 

The most recent High Court decision 

referencing the UDHR was handed down 

in 2015. The issue on appeal was whether, 

for the purposes of the Migration Act 

1958 (Cth) (the Act), the “likelihood of 

temporary detention of a person (once 

returned to their country of residence) 

for a reason in the Refugees Convention 

is, of itself and without more, a threat to 

liberty” within the meaning of the Act. 

The High Court considered the 

notion of “threat” and of “liberty” and, 

to assist in their interpretation of the 

Act, observed the similarities and 

differences between the language 

used in the Act 12 and the language used 

in Articles 31 and 33 of the Refugee 

Convention 13 . The court stated that, 

“(a)gainst the background of the 

prominence given in the Preamble to 

the Refugees Convention to the 


(1948) and to the principle that ‘human 

beings shall enjoy fundamental rights and 

freedoms without discrimination’, the 

statutory reference to liberty can be seen 

to reflect a deliberate legislative choice to 

refer to a threat not to freedom at large 

but to the specific fundamental human 

right to liberty of the person” 14 . 

CONCLUSION 

Leaders in our profession continue to 

refer to the UDHR. It not only assists in 

the interpretation of our own statutory 

framework, but provides a convenient 

base-line for human rights standards 

both here and overseas. The UDHR isn’t 

binding, but it is respected and utilised by 

courts in Australia today. B 

Endnotes 

1 Elizabeth Evatt AC, “Meeting Universal Human 

Rights Standards: The Australian Experience”, 

Papers On Parliament No. 33, May 1999. 

2 For Example, Australia has ratified 

the Convention on the Elimination of 

all Forms of Racial Discrimination 1965, 

The Convention on the Elimination of all 

Forms of Discrimination Against Women 1979, 

The Convention Against Torture, and other 

Cruel, Inhuman or Degrading Treatment or 

Punishment 1984, and The Convention on the 

Rights of the Child 1989, 

3 Justice PW Young, ‘Current Issues: Universal 

Declaration of Human Rights’ (1998) 72 

Australian Law Journal 905. 

4 Rossi Homes Pty Ltd V Dun And Bradstreet 

(Australia) Pty Ltd [2018] VSC 314. 

5 Universal Declaration on Human Rights, GA 

Res 217A (III), UN GAOR, 3 rd sess, 183 rd plen 

mtg, UN Doc A/810 (10 December 1948). 

6 Budrodeen v R [2017] NSWCCA 100 [31]. 

7 Universal Declaration on Human Rights, GA 

Res 217A (III), UN GAOR, 3 rd sess, 183 rd plen 

mtg, UN Doc A/810 (10 December 1948). 

8 Criminal Law (Sentencing) Act 1988 (SA) s 10(2)(c). 

9 R v Turvey [2017] SASCFC 28 [126]. 

10 R v Humphrys [2018] SASCFC 69, 1 (footnote 2). 

11 Longford & Byrne & Anor [2017] FCCA 762 

(footnote 11). 

12 Migration Act 1958 (Cth) s 91R(2)(a). 

13 UN General Assembly, Convention Relating to the 

Status of Refugees, 28 July 1951, United Nations, 

Treaty Series, vol. 189, p. 137. 

14 Minister for Immigration and Border Protection v 

WZAPN (2015) 254 CLR 610, 642 [95]. 


HUMAN RIGHTS 

Lowering the Voting Age: A 

Human Rights Perspective 

RAFFAELE PICCOLO, MEMBER, HUMAN RIGHTS COMMITTEE, & MATTHEW 

STUBBS ASSOCIATE PROFESSOR, ADELAIDE LAW SCHOOL 

Thirteen year olds do not have the right 

to vote, but should they? The voting 

age in Australia was lowered from 21 to 18 

back in 1973. 1 Forty-five years later, is now 

the right time to lower it from 18 to 16? 

On 25 June 2018, the Senate referred the 

Commonwealth Electoral Amendment 

(Lowering Voting Age and Increasing 

Voter Participation) Bill 2018 (the Bill) 

to the Joint Standing Committee on 

Electoral Matters for inquiry and report by 

December. 

The Bill proposes to amend the 

Commonwealth Electoral Act 1918 (Cth) 

and the Referendum (Machinery Provisions) 

Act 1984 (Cth). As the title suggests, the 

Bill would lower the minimum age for 

voting in Australian federal elections and 

constitutional referenda from 18 years to 

16 years. It would make voting voluntary 

for 16 and 17-year-olds. 2 

This article evaluates the merits of the 

Bill from a human rights perspective, and 

argues that voting for 16- and 17-year olds 

should be introduced in Australia. 

EXTENDING THE FRANCHISE TO 16 & 17- 

YEAR OLDS 

Article 25 of the International Covenant 

on Civil and Political Rights (ICCPR), which 

Australia ratified in 1980, provides that 

“every citizen shall have the right and 

opportunity (without distinction based 

on race, colour, sex, language, religion, 

political or other opinion, national or 

social origin, property, birth or other 

status) and without unreasonable 


restrictions, to vote and to be elected at 

genuine periodic elections which shall be by 

universal and equal suffrage”. 

The Human Rights Committee 

established to monitor compliance with the 

ICCPR by States has explained that: 

Any conditions which apply to the exercise of 

the rights protected by article 25 should be based 

on objective and reasonable criteria. 

… 

The right to vote at elections and referenda … 

may be subject only to reasonable restrictions, 

such as setting a minimum age limit for the right 

to vote. 3 

As the Committee makes clear, the right 

to vote may be subject to “reasonable 

restrictions”, and a reasonable restriction 

may include setting a minimum age limit on 

the right to vote. However, any restrictions 

must also be based on “objective and 

reasonable criteria”. Is it still reasonable to 

draw the line at 18? 

Article 12 of the Convention on the Rights of 

the Child (CRoC), which Australia ratified in 

1990, enshrines the right of children to be 

heard: 

“States Parties shall assure to the child 

who is capable of forming his or her 

own views the right to express those 

views freely in all matters affecting the 

child, the views of the child being given 

due weight in accordance with the age 

and maturity of the child.” 

The Committee on the Rights of the Child 

has explained the purpose served by art 12: 

“The views expressed by children may 

add relevant perspectives and experience 

and should be considered in decisionmaking, 

policymaking and preparation 

of laws and/or measures as well as their 

evaluation.” 4 

Further, the Committee, in considering 

art 12, has specifically encouraged the 

provision of opportunities for adolescents, 

as part of their development, to engage in 

the political process: 

“The Committee emphasizes the 

importance of participation as a means 

of political and civil engagement 

through which adolescents can 

negotiate and advocate for the 

realization of their rights, and hold 

States accountable. States should adopt 

policies to increase opportunities 

for political participation, which is 

instrumental in the development of 

active citizenship.” 5 

Thus, while setting a minimum age limit 

on the right to vote does not directly 

breach article 25 of the ICCPR, any age 

limit must be based on objective and 

reasonable criteria. Further, the CRoC 

requires Australia to adopt policies 

that increase opportunities for political 

participation by adolescents. Is it 

reasonable, and consistent with Australia’s 

obligation to increase opportunities for 

political participation by adolescents, to 

exclude 16 and 17-year-olds from voting in 

modern Australian society? 

In our view, it is not reasonable to 

impose a voting age of 18. People aged 

under 18 (with some variations across the 

States) are able to: 

• obtain a driver’s licence and/or pilot’s 

licence; 

• engage in consensual sex; 

• marry (with court approval); 

• consent (or refuse consent) to certain 

medical treatments; 

• leave school; 

• become a parent; 

• join the Australian Defence Force; 

• join a political party; 

• undertake full-time employment;

HUMAN RIGHTS 

• be liable for and pay income tax (more 

than 400,000 people aged under 18 are 

in paid employment); 6 

• contribute to superannuation; 

• be sentenced as an adult offender; and 

• purchase or enter into contracts relating 

to property (and pay associated stamp 

duties and taxes). 7 

All of these capacities assume the rights 

holder possesses a certain level of maturity 

and consequently the law permits each of 

them a degree of legal personality. 

Given these myriad ways in which 16 and 

17-year-olds are treated as adults by the law, 

in recognition of their possession of many 

of the hallmarks of maturity, denying them 

the right to vote seems to us unreasonable. 8 

GLOBAL EXPERIENCE 

It might be objected that the 

reasonableness of the current age 

restriction is demonstrated by the fact 

that many countries maintain a similar 

restriction. However, this overlooks 

a growing movement to review such 

restrictions. 

The Bill does not represent a novel or 

radical idea. 9 A number of countries (or 

constituent parts of countries), including 

Argentina, Austria, Brazil, Cuba, Ecuador, 

Germany, Guernsey, Isle of Man, Jersey, 

Nicaragua, Norway, Philippines, Scotland 

and Switzerland have lowered the voting 

age to 16. 10 Scotland first extended the 

electoral franchise to 16 and 17-yearolds 

for the independence referendum in 

2014, 11 and subsequently extended this to 

general elections. 12 

Closer to home, in 2011 the Northern 

Territory set a voting age of 16 for the 

proposed election of a constitutional 

convention, with voluntary voting for 16 

and 17-year-olds. 13 This was the first law 

in Australia that extended the franchise to 

persons 16 years of age and above. 14 

VOLUNTARY ENROLMENT & VOTING FOR 

16 AND 17-YEAR-OLDS? 

Enrolment on the electoral roll, and 

voting in Australian federal elections, 

is compulsory for persons aged 18 

years or older. It is an offence to fail to 

enrol, 15 and an offence to fail to vote. 16 

A person who fails to vote is liable to a 

penalty notice (which imposes a financial 

penalty), and ultimately prosecution for 

the criminal offence of failing to vote 

without a reasonable excuse (if they fail 

to respond to the financial penalty notice, 

or otherwise fail to give the Divisional 

Returning Officer a valid and sufficient 

reason for failing to vote). 17 

The Bill would impose an obligation on 

persons 16 and 17 years of age to enrol 

to vote, 18 but would not make voting 

compulsory for them. This is a curious 

(and perhaps inadvertent) dichotomy – 

the real question being whether 16 and 

17-year-olds should be exempted from 

the legal requirements, backed by criminal 

sanctions, of enrolment and voting. 

On one view, if 16 and 17-year-olds 

possess a level of maturity that warrants 

them being granted the right to vote, they 

should be subject to the same level of 

responsibility that comes with the right to 

vote, including penalties for failing to enrol 

and vote. It might also be noted that 16

HUMAN RIGHTS 

and 17-year-olds are already subject to the 

criminal law in other areas of their life (for 

example, if they drive, they are subject to 

the same traffic offences and expiations 

as adults). It is also true that Australia has 

a proud tradition of compulsory voting 

and there would be a certain incongruity in 

making voting voluntary for those under 

18. On this view, if the privilege of the 

vote is granted to those aged 16 and 17, 

the responsibility of enrolment and voting 

should accompany it. 

However, an alternative view is that these 

arguments fail to give sufficient weight 

to the fact that 16 and 17-year olds, while 

they are adolescents and enjoy some of 

the rights and privileges of adults, legally 

remain children and do not enjoy full adult 

legal personality. This status as children 

is an important and relevant difference 

which is emphasised in human rights law. 

Article 3(1) of the CRoC provides that, 

“[i]n all actions concerning children ... 

the best interests of the child shall be 

a primary consideration”. Moreover, 

principle 1.3 the United Nations Standard 

Minimum Rules for the Administration of 

Juvenile Justice (‘Beijing Rules’) requires 

States to take “positive measures ... for 

the purpose of promoting the well-being 

of the juvenile, with a view to reducing 

the need for intervention under the law”. 

It therefore follows that it is not in the 

best interests of a child, nor is it a proper 

intervention under the law, to render 

them liable to criminal conviction and 

punishment for failing to enrol or vote, 

when they are not otherwise entitled to 

all of the benefits of adult legal status. 

Moreover, it is not necessary to expose 

adolescents to criminal sanctions for 

failing to enrol or vote, either in order to 

promote their engagement in the political 

process (which is promoted by extending 


the right to vote) or to protect the electoral 

process itself (which will not suffer from 

the extended franchise being voluntary). 

CONCLUSION 

It is unclear whether the Commonwealth 

Electoral Amendment (Lowering Voting 

Age and Increasing Voter Participation) 

Bill 2018 will pass during the 45th 

Parliament. However, lowering the 

voting age to 16 is an idea whose time is 

coming – in Australia and globally. From 

a human rights perspective, enfranchising 

16 and 17-year-old Australians is an 

appropriate measure to ensure that we 

hear their views, and promote their 

political participation, in accordance 

with the CRoC. Whether enrolment 

and voting should be voluntary or 

compulsory for 16 and 17-year-olds is a 

more complex question. Nonetheless, a 

human rights perspective would support 

making enrolment and voting voluntary 

for those under 18 years of age – as a 

measure which promotes the rights of the 

enfranchised adolescents to participation, 

but also respects their rights under the 

CRoC to have their best interests and 

wellbeing promoted as they transition in 

legal status from children to adults. B 

Endnotes 

1 The Commonwealth Electoral Act 1973 (Cth) 

amended the Commonwealth Electoral Act 1918 

(Cth). 

2 The Bill would also lower the age for provisional 

enrolment on the electoral roll from 16 years to 

14 years, and permit enrolment to vote up to and 

including on polling day. We do not address these 

matters in this article. 

3 Human Rights Committee, General Comment No 

25: The right to participate in public affairs, voting rights 

and the right of equal access to public service (Art. 25), 

57 th sess, UN Doc CCPR/C/21/Rev.1/Add.7 

(12 July 1996) [4], [10]. 

4 Committee on the Rights of the Child, General 

comment No. 12: The right of the child to be heard, 51 st 

sess, UN Doc CRC/C/GC/12 (1 July 2009) [12]. 

5 Committee on the Rights of the Child, General 

comment No. 20 (2016) on the implementation of 

the rights of the child during adolescence, UN Doc 

CRC/C/GC/20 (6 December 2016) [24]. 

6 Lisa Denny and Brendan Churchill, ‘Youth 

Employment in Australia: A Comparative Analysis 

of Labour Force Participation by Age Group’ 

(2016) 1(2) Journal of Applied Youth Studies 5, 10. 

7 See, eg, Commonwealth, Parliamentary Debates, 

Senate, 21 June 2018, 73 (Jordon Steele-John). 

8 In our view, merely permitting 16- and 17-year 

olds to have their name enrolled on the electoral 

roll in anticipation of voting at 18 (provisional 

enrolment) does little to advance their ability to 

be heard and to participate in political processes, 

to which they are entitled under CRoC. 

9 John Nichols, Lower the Voting Age to 16 (23 

February 2018) The Nation . 

10 National Youth Rights Association, Voting Age 

Status Report (as at 30 July 2018) . 

11 Scottish Independence Referendum (Franchise) Act 2013 

(Scot) asp 13. 

12 Scottish Elections (Reduction of Voting Age) Act 2015 

(Scot) asp 7. 

13 Constitutional Convention (Election) Act 2011 (NT) 

ss 14-15; Explanatory Statement Constitutional 

Convention (Election) Bill 2011 (NT). It 

transpired that the Constitutional Convention 

did not occur, and the Act expired at the end of 

2013. 

14 Northern Territory, Parliamentary Debates, 

Legislative Assembly, 27 October 2011, 1691 

(Paul Henderson). 

15 Commonwealth Electoral Act 1918 (Cth) s 101(4). 

16 Commonwealth Electoral Act 1918 (Cth) s 245. 

17 Ibid. 

18 Because it fails to amend Commonwealth Electoral 

Act 1918 (Cth) s 101(6A), which exempts persons 

under 18 years from the offence created by s 

101(5), to also prevent persons under 18 from 

being capable of committing the offence under 

s 101(4).

The Incorporated Legal 

Practice regime in SA 

WERNER VAN WYK, DEPUTY DIRECTOR, ETHICS AND PRACTICE 

“Get in on the Act” is a regular 

column from the Law Society’s 

Ethics & Practice Unit which 

details practitioners’ statutory 

professional obligations and 

responsibilities. 

The purpose of the article is to provide 

a general overview of the ILP regime 

in South Australia. 

Incorporated Legal Practices 1 (ILPs) are 

relative newcomers to the South Australian 

landscape, making their debut on 1 July 

2014. 

The ILP dispensation is set out as a 

complete code in Schedule 1 of the Legal 

Practitioners Act 1981 (the Act). 

Prior to the arrival of ILPs we had a 

system of company practitioners where 

very much like ILPs the sole purpose was 

to practice the profession of the law. 

The difference was that the company 

practitioner could only have directors 

and shareholders who were either legal 

practitioners (holding a Practising 

Certificate) or prescribed relatives. The 

company could also not practice in 

partnership with any other person without 

authority from the Supreme Court. 

The definition of an ILP states that an 

incorporated legal practice is a corporation 

that engages in legal practice in this 

jurisdiction. 

As with the company practitioners, 

ILPs may not provide any service or 

conduct any business that does not involve 

engaging in legal practice. 

Unlike the company practitioners, ILPs 

may practice in partnership with other ILPs 

or legal practitioners or both provided that 

they gave the required notice. 

Generally, before ILPs may engage in 

legal practice in this jurisdiction they 

must provide the required notice and 

pay the prescribed fee as per Clause 4 of 

Schedule 1. This requirement applies to 

both local and interstate ILPs. 

The ILP must have at least 1 legal 

practitioner director (LPD) but unlike 

the previous regime there is no further 

restriction in the Act with regard to who 

may be directors and shareholders. 

The responsibilities of the LPD are 

contained in clauses 8 and 9 which 

includes but is not limited to the following: 

• Management of the legal services 

provided by the ILP. 

• Putting in place and maintaining 

appropriate management systems. 

• Taking all reasonable precaution to 

avoid breaches of legal practitioners’ 

professional obligations. 

• Taking all reasonable steps to deal with 

any misconduct issues that may arise 

from employed practitioners of the ILP. 

The LPD him/herself may be 

guilty of misconduct in the following 

circumstances: 

• by virtue of the misconduct of a legal 

practitioner employed by the ILP. 

• by virtue of the conduct of any other 

director that adversely affects the 

provision of legal services. 

• the unsuitability of any other director 

to be a director of a corporation that 

provides legal services. 

If the ILP does not have a LPD for 

more than seven days it will be in breach 

of its obligations and may not provide 

legal services in this jurisdiction while in 

default of this requirement – such default 

carries a maximum penalty of $50 000. 

When assessing conflicts of interest, it 

is worthwhile to note that in addition to 

any other interests to be considered, the 

interests of the ILP or any related body 

corporate are also taken to be those of 

the LPD or legal practitioner employee/ 

officer. 

When advertising the ILP, it is important 

that the LPD understands that in case of 

a complaint (for disciplinary purposes) 

the offending advertising material will be 

deemed to have been authorised by each 

LPD of the ILP. 

Despite the seemingly onerous 

regulation, ILPs have become very popular 

and one of the reasons appears to be that 

it allows the sharing of profits arising 

from the practice of the profession of 

the law with unqualified persons (persons 

not entitled to practice the profession 

of the law) - something that is generally 

prohibited under section 23(3)(b) of the 

Act. 

As a result, practitioners can now for 

example share their profits with family 

members should they choose to do so 

(they can even include the in-laws). 

If you have any particular issue or 

question with regard to ILPs please 

contact the Ethics and Practice Unit on 

8229 0229 or email ethicsandpractice@ 

lawsocietysa.asn.au B 

Endnotes 

1 Rosalind Burke, Incorporated Legal Practices: 

The new provisions, Bulletin Article, June 2014. 


HUMAN RIGHTS 

Supported decisionmaking: 

a new approach 

for older clients with 

cognitive impairment 

MARGARET CASTLES, SENIOR LECTURER, ADELAIDE LAW SCHOOL 

There has been a flurry of law reform 

activity around elder rights in the 

last few years. In 2017 the Australian Law 

Reform Commission’s Report “Elder 

Abuse – a National Legal Response” 1 made 

far reaching recommendations. Earlier 

this year the Commonwealth Government 

published the results of its Inquiry into 

the Quality of Residential Aged Care in 

Australia 2 , and has recently announced a 

Royal Commission into Aged Care Quality 

and Safety 3 . 

These initiatives respond to significant 

and often shocking examples of elder 

abuse in our community. Abuse of older 

people can be physical, psychological, 

financial, sexual, and includes abuse by 

neglect. It is defined by the breach of 

trust underlying the abuse – most often 

by family, or paid carers, sometimes by 

professional service providers. 4 

Much publicity surrounds instances of 

criminal abuse, or examples of profound 

systemic failure such as at the Oakden 

facility in South Australia. 5 But elder abuse 

is not always malevolent, or intentional. It 

can be driven by well meaning perceptions 

of what is in the best interests of an older 

person, or by the belief that an older 

person is less able to make their own 

decisions. 

Community perceptions about older 

people – that they are frail, mentally 

incompetent, unable to make decisions 

for themselves, open to abuse by others 

– leads to an easy cultural preconception 

that older people can’t always make 

sensible decisions and need someone to 

take care of their best interests. 6 This wellintentioned 

approach can undermine the 

exercise of independence and autonomy 

by older people – resulting in a thoughtless 

but fundamental breach of human rights. 


There are also more sinister interferences - 

in its submission to the ALRC Inquiry, the 

Law Council of Australia cites examples 

of clients being prevented by relatives or 

carers from seeing their lawyer, making 

an interstate trip, returning home after an 

operation, all on the basis of mis-founded 

understandings of the client’s best 

interests. 7 

Classifying people because of a 

common characteristic – such as age - is 

of course contrary to basic human rights 

principles. 8 Yet it is also true that older 

people do experience a constellation 

of characteristics that can make them 

vulnerable to abuse. Illness, physical 

restriction or frailty, cognitive impairment, 

inability to independently get from place 

to place, dependence upon others, anxiety, 

isolation, financial constraints. 

Community assumptions about 

incapacity can have devastating 

consequences on older people. Autonomy 

is one of the key rights of every human 

being, 9 yet in the elderly, the right to 

make choices, whether large or small, 

can be severely curtailed. 10 Ideas of “best 

interests” can intrude at every level – 

that this choice of food, or activity, or 

medical treatment is best, or that this 

selection of partner, or beneficiary, or 

living arrangements is inappropriate. The 

ubiquitous example comes to mind: that 

an old lady who suddenly makes a will 

leaving all her money to a cat home rather 

than her offspring is assumed to have lost 

her marbles, rather than to have made a 

considered decision that aligns with her 

current values. The increased popularity of 

family care arrangements, where an elder 

person transfers real property (usually their 

home) to family members in return for 

the promise of ongoing care is another 

area where multiple conflicting interests 

and assumptions may pose challenges for 

lawyers engaged to facilitate legal transfers. 

At the same time, undoubtedly there are 

older people who have limited capacity 

to make decisions or who need patient 

support when making them. 

The ALRC report recognises that adults, 

irrespective or age or mental capacity, 

attract fundamental human rights or 

autonomy that cannot be overborne 

without compelling reason. 11 Only when a 

person lacks the mental capacity to make 

a decision can that right be taken away. 

The historical approach in Australia (and 

other common law countries) has been 

to presume mental capacity unless it is 

shown to be absent. This is often referred 

to as an “all or nothing” approach. The 

difficulty with this approach is that once 

legal capacity is found to be lacking, 

maximising an older person’s engagement 

with the decision-making process is no 

longer mandated. 12 A person either has full 

capacity, or none at all. Yet, evaluations 

of legal capacity can be blunt, and do 

not reflect diversity in decision making 

capacity. The South Australian case of 

Dalle Molle 13 in which the Supreme Court 

recognized that a client may be able 

to make decisions about day to day or 

lifestyle issues, but not manage complex 

investment decisions, is a good example of 

this principle in action. 

Recognising the inherent limitation 

of the all or nothing approach, the 

ALRC report makes an innovative 

recommendation. It suggests moving away 

from the concept of “presumed capacity” 

and the resultant binary approach to 

decision making, to a model of supported 

decision-making. It proposes that given 

the fluidity of capacity, there could be

HUMAN RIGHTS 

a sliding scale to enable and empower 

adults to make complex decisions with 

appropriate support. This is a much more 

nuanced approach to understanding and 

working with capacity. It reflects the 

approach adopted in the UK, where the 

2014 Care Act adopted a new regime for 

decision making in the case of adults 

with cognitive or physical difficulties. 

Departing from the historical position 

that a person with diminished capacity 

must be represented by a guardian who 

makes decisions for them (and in their best 

interests) the Act develops a regime aimed 

at supporting adults with diminished 

capacity to make decisions (through a 

range of appropriate third parties, who 

might be carers, doctors, family, friends) 

and to take into account the factors that 

the person would have preferred, drawing 

on evidence of past decisions, preferences, 

and lifestyle choices. The act also specifies 

that in balancing autonomy with best 

interests, there must be compelling and 

evidence-based reasons to depart from 

the expressed wishes of the person in 

question. 14 

Initially developed in its 2014 report 

Equality, Capacity and Disability in 

Commonwealth Laws, 15 the ALRC proposes 

the adoption of “Commonwealth 

Decision Making Principles”. The 

principles explicitly reject the best interest 

approach in favour of determining the 

person’s actual or likely preferences in 

making any decision. They require that a 

person be given access to as much support 

as they need to make decisions, that their 

will and preferences must direct decisions 

that affect their lives. They also direct that 

there must be appropriate safeguards in 

relation to any interventions for persons 

who require decision making support. 16 

This ideally enables the person to continue 

to be involved in shared decision making, 

rather than a substituted decision maker 

being appointed. Any representative of a 

person involved in this process is not only 

required to understand the shifting nature 

of capacity, but to also represent the 

person’s will, preferences and rights. 17 

If implemented, this approach has 

important implications for Australian 

lawyers. When acting for an older person 

through a legal guardian, the lawyer is 

not required to inquire into the older 

person’s views but is only required to be 

satisfied that the guardian is acting in the 

person’s best interests. And whilst lawyers 

can include third parties in the advising/ 

decision making process with the consent 

of their clients, they cannot otherwise do 

so. The Commonwealth Decision Making 

Model potentially shifts the role of lawyers 

into a more facilitative process that will 

and must include other participants in 

the decision-making process. There are 

positives and negatives for lawyers in this 

space. Acting as an agent for the client 

(or their legal guardian) preserves the 

traditional lawyer client relationship with 

the lawyer only having to be satisfied that 

any guardian is acting in the best interests 

of the client. But where a client has 

shifting or doubtful capacity or is perhaps 

being overborne by third parties or in the 

middle of a family dispute around their 

best interests, things can get much more 

complex. In this situation the adoption 

of a supported decision making regime 

will make the lawyer’s job easier in one 

sense but will also require a degree of 

orchestration and additional time that 

may significantly extent the lawyers 

engagement with the process. There are 

also vexing challenges around lawyer client 

confidentiality and the inclusion of third 

parties in any decision-making process. 

Whilst this discussion is in the early stages, 

the ALRC and the Law Council both 

recognise that changes to the traditional 

view of lawyer client confidentiality may 

well be needed where clients require 

additional support or protection. 18 B 

Endnotes 

1 Australian Law Reform Commission, Elder 

Abuse—A National Legal Response, Report No 

131 (2017) 

2 https://parlinfo.aph.gov.au/parlInfo/download/ 

committees/reportrep/024167/toc_pdf/ 

ReportontheInquiryintotheQualityofCarein 

ResidentialAgedCareFacilitiesinAustralia.pdf;file 

Type=application/pdf 

3 https://agedcare.health.gov.au/royalcommission-into-aged-care-quality-and-safety 

4 Rosalind Croucher and Julie MacKenzie 

“Framing Law Reform to Address Elder Abuse” 

18 Macquarie Law Journal (2018) 1 , 6 - 7 

5 https://www.agedcareguide.com.au/talkingaged-care/oakden-report-it-should-not-havehappened-it-must-never-happen-again 

6 Above n. 1, 21 

7 Law Council of Australia Submission to 

Australian Law Reform Commission 17 August 

2016 Inquiry, 9-10 https://www.lawcouncil.asn. 

au/resources/submissions/alrc-elder-abuseissues-paper 

last accessed 1 November 2018 

8 Kelly Purser, Capacity Assessment and the Law: 

Problems and Solutions Springer International 

Publishing, 2017, 6 

9 Above n. 1, 376 

10 Above n 1, 69; Margaret Castles A Critical 

Commentary on the 2017 ALRC Elder Abuse 

Report: Looking for an Ethical Baseline for 

Lawyers 2018 18 Macquarie Law Journal 115 

11 Castles above n10, 121 

12 Castles above n. 10 120-121 

13 DALLE-MOLLE BY HIS NEXT FRIEND 

PUBLIC TRUSTEE V MANOS & ANOR No. 

SCCIV-02-874 [2004] SASC 102 (7 April 2004) 

14 Above n.1 52, 56 

15 Australian Law Reform Commission, Equality, 

Capacity and Disability in Commonwealth Laws, 

Report No 124 (2014). 

16 Ibid 69 

17 Above n.1 200, 202 

18 Castles above n.10 124, 126 


PROTEST RIGHTS 

Brown v Tasmania: How 

the High Court struck down 

Tasmania’s anti-protest laws 

CHLOE WOOD, LAWYER, ASHURST AND EMILY HOWIE, DIRECTOR OF LEGAL ADVOCACY, HUMAN RIGHTS LAW CENTRE 

In the July issue of The Bulletin we 

discussed the submissions made by the 

parties in the case of Brown v Tasmania, 

in which the High Court of Australia 

considered a constitutional challenge to the 

validity of key provisions of anti-protest 

legislation introduced by Tasmania in 2014. 

In October, 2017 the High Court 

handed down its decision in the case, 

with the majority striking down the 

impugned provisions on the basis that 

they violated the implied freedom of 

political communication in the Australian 

Constitution. 1 

The decision sends a powerful message 

in favour of Australians’ right to gather 

together and speak up on issues that they 

care about, particularly when it comes 

to environmental protest. It should also 

sound a caution to any Australian States 

thinking of passing laws that unduly limit 

that right. 

BACKGROUND 

The Workplaces (Protection from Protestors) 

Act 2014 (Tas) (the Act) defines “protest 

activity” as including the expression of 

an opinion on a political, environmental, 

social, cultural or economic issue. The Act 

encompasses a range of provisions which 

prevent protest activity on or around 

business premises, including forestry land. 

Section 6 of the Act provides that a 

protestor must not enter or do an act on 

business premises or a business access 

area that prevents, hinders, or obstructs 

the carrying out of a business activity. 

Section 11 empowers police officers to 

issue directions to leave to persons they 

believe have committed contraventions of 

section 6. Failure to comply with such a 

direction is an offence. Section 8 makes it 

an additional offence to re-enter the same 

area within 4 days of receiving a direction 

to leave. Section 13 sets out powers for 

police officers to make warrantless arrests 

in certain circumstances. 

In January, 2016, former Australian 


Greens leader Dr Bob Brown was arrested 

under the Act whilst walking with three 

others near forestry operations in the 

native Lapoinya Forest in Tasmania. Dr 

Brown was filming a video in the area to 

promote public awareness of the logging 

of the forest and was charged with failing 

to comply with a police direction to leave 

the area. A local nurse and activist named 

Jessica Hoyt was arrested and charged 

under the Act in similar circumstances. 

Dr Brown and Ms Hoyt (the plaintiffs) 

commenced proceedings in the High 

Court of Australia to challenge the 

validity of the Act on the basis that 

it infringes the implied freedom of 

political communication in the Australian 

Constitution (the Implied Freedom). 

The charges against both plaintiffs 

were subsequently withdrawn but the 

proceedings continued. The Human Rights 

Law Centre was granted leave to intervene 

as amicus curiae in support of the plaintiffs. 

The Commonwealth and all Australian 

States except Western Australia intervened 

in support of Tasmania. 

DECISION 

By a majority, the High Court held that 

the impugned provisions impermissibly 

burden the Implied Freedom insofar as 

they apply to protests on forestry land. 

Justice Gordon found that only section 8 

burdened the Implied Freedom and Justice 

Edelman dissented, holding that the Act 

was valid in its entirety. 

A majority of the Court confirmed the 

Lange test for whether a law violates the 

Implied Freedom (reflecting the principles 

developed in Lange v Australian Broadcasting 

Corporation (1997) 189 CLR 520 and 

Coleman v Power [2004] HCA 39): 

• Does the law effectively burden freedom 

of political communication? 

• Is the purpose of the law legitimate, 

in the sense that it is compatible with 

the maintenance of the constitutionally 

prescribed system of government? 

• Is the law reasonably appropriate 

and adapted to advance that purpose 

in a manner compatible with the 

maintenance of the constitutionally 

prescribed system of government? 

If the first question is answered yes 

and either of questions two or three is 

answered no, the law is invalid. 2 

Chief Justice Kiefel and Justices Bell and 

Keane delivered a joint judgment, finding 

that the Implied Freedom was burdened 

to a significant extent by the Act. They 

also noted that the Act was likely to have 

significant deterrent effects on protestors 

and that directions made under the Act 

could mean protesters do not return to 

forestry areas for days or even months. 3 

Whilst they found that the purpose of 

the Act, protecting business from damage 

and disruption occurring as a result of 

protest activity, was compatible with 

the maintenance of the constitutionally 

prescribed system of representative and 

responsible government, they did not 

think the Act was reasonably appropriate 

and adapted to advance that purpose. 4 

In reaching this conclusion, their 

Honours considered arguments as to the 

appropriateness of importing a model 

of assessment of proportionality into 

the third limb of the test set out above, 

as suggested by the plurality of judges 

in McCloy v New South Wales (2015) 257 

CLR 178 (McCloy). Their Honours 

rejected arguments that McCloy should be 

reconsidered and held that the process of 

justification commences with the issue of 

compatibility and continues with enquiries 

as to proportionality. 5 

Their Honours ultimately found that 

there was a lack of rational connection 

between the purpose of the Act (protecting 

business from damage and disruption) and 

the broad-reaching police powers conferred 

in sections 8 and 11, namely powers that 

would prevent people being on public 

land in a “business access area” or would 

exclude a broad group of people returning

PROTEST RIGHTS 

to the area. Those provisions were found 

to be invalid. 6 That left the question of 

whether the remaining provisions could 

be considered “reasonably necessary”, 

one test of which is whether there are 

alternative, reasonably practicable, means 

of achieving the same object which have 

a less restrictive burden on the Implied 

Freedom. Their Honours found that 

such less restrictive means are embodied 

in the Forest Management Act 2013 (Tas) 

(FMA), which empowers forestry officials 

to exclude persons whose presence or 

activities are likely to interfere with forest 

operations. Their Honours concluded that 

the remaining provisions of the Act go far 

beyond what is reasonably necessary for 

its purpose and would create substantial 

deterrence effects of all kinds. Those 

provisions were therefore invalid. 7 

Justices Gageler and Nettle delivered 

separate judgments in which they 

substantially agreed with the conclusions 

of the majority. Justice Gageler found 

that the law required close scrutiny given 

that it targeted political communication 

and imposed a significant burden on a 

particular viewpoint. That meant that 

the provisions must be compelling and 

closely tailored to the achievement of 

purpose. He found that the law was not 

appropriate and adapted because it was 

both under-inclusive and over-inclusive 

– school children could walk through the 

zone disrupting business unaffected by 

the law, whereas environmental protesters 

faced the breadth and severity of criminal 

consequences, including jail time, that went 

well beyond protecting business interests. 

Justice Nettle found that the law was 

not adequate in its balance because it goes 

far beyond what is reasonably perceived 

as justified. The Act placed freedom of 

people to lawfully protest on forestry land 

at the mercy of police officers attempts to 

apply the Act, risking the free exchange of 

political communication. 

Their Honours both examined the utility 

of McCloy proportionality testing, with 

Justice Gageler remarking that it is at best 

a tool of analysis in some circumstances. 

Justice Nettle utilised the proportionality 

criteria in his assessment of the impugned 

provisions, finding that the Act was not 

lacking in necessity but rather failed to 

satisfy the criterion that it be “adequate 

in its balance”. Justice Nettle noted that 

this concept is not yet fully resolved 

in Australian constitutional law and 

emphasised that it should function as an 

“outer limit”, whereby a law will not be 

adequate in its balance if the extent of 

the burden on the Implied Freedom is 

manifestly excessive by comparison to the 

demands of the legitimate purpose. 8 

Justice Gordon delivered a partially 

dissenting judgment, finding that only 

section 8(1)(b) of the Act impermissibly 

burdened the implied freedom. Her 

Honour found that the impugned 

provisions were directed to forms of 

protest that were already unlawful by 

reference to other laws. 9 This meant that 

the nature of the burden the Act imposed 

on the implied freedom was small, and 

the means chosen to regulate the conduct 

were reasonably appropriate and adapted 

to serving a legitimate end. Only section 

8(1)(b), which imposes a blanket four day 

exclusion from a business access area, 

went beyond penalising what was unlawful 

prior to the enactment of the relevant 

provisions. 10 

In his dissenting judgment, Justice 

Edelman focused on the proper 

construction of the Act, holding that the 

preferred construction was that it only 

applies to conduct that is already unlawful 

under the FMA. Although his Honour 

acknowledged that the Act imposed 

“additional consequences” on protestors, 

the essential point was that they were 

imposed on independently unlawful 

conduct. 11 As the Implied Freedom does 

not apply to independently unlawful 

conduct, the Act imposes no burden and 

is valid. 12 

COMMENTARY 

Australia has a strong history of 

successful people’s movements, and 

Tasmania in particular has been the site of 

many important environmental protests 

over the last several decades. The Special 

Case agreed by the parties in Brown 

documented over 30 instances in which 

people had come together on the site of 

environmental damage to successfully save 

Tasmanian wilderness from destruction. 

The Brown decision recognises the 

importance of on-site environmental 

protest insofar as it is necessary to bear 

witness to environmental damage, the 

subject of which is clearly political. 

The decision has potentially important 

implications for the continued 

development of the law relating to the 

Implied Freedom, raising questions as 

to the utility of proportionality testing 

in Australian constitutional law and the 

extent to which the Implied Freedom is 

limited by the existence of other laws. 

The decision comes at a time when other 

Australian States are also seeking to restrict 

protest activity. In 2016 the Western 

Australian Parliament introduced antiprotest 

laws that were not dissimilar to the 

Act. 13 The bill was subsequently withdrawn 

by the McGowan government upon being 

elected. 

However, in 2016 New South Wales also 

introduced laws to make it an offence for 

a person to enter or remain on enclosed 

lands without consent or to interfere with 

business activity on those lands. 14 It will be 

interesting to watch closely whether that 

NSW law is subject to challenge, relying on 

the decision in Brown. The Environmental 

Defenders Office of New South Wales is 

currently seeking legal advice on whether 

to launch a High Court challenge to those 

laws. 15 

The Brown decision marks a shift in the 

ability of States to enact laws that go too 

far in denying people their right to free 

expression on political issues. Hopefully 

we will see a decrease in the willingness of 

states to do the same. 

The full text of the decision can be 

found on the High Court of Australia’s 

website. 16 B 

Endnotes 

1 Brown v Tasmania [2017] HCA 43. 

2 See [104] (per Kiefel CJ, Bell and Keane JJ); [155]- 

[156] (per Gageler J). 

3 [86] (per Kiefel CJ, Bell and Keane JJ). 



6 [135]-[136] (per Kiefel CJ, Bell and Keane JJ). 

7 [144]-[146] (per Kiefel CJ, Bell and Keane JJ). 

8 [290] (per Nettle J). 

9 [304] (per Gordon J). 

10 [440] –[442] (per Gordon J). 

11 [567] (per Edelman J). 

12 [557]- [563] (per Edelman J). 

13 Criminal Code Amendment (Prevention of Lawful 

Activity) Bill 2015 (WA). 

14 Inclosed Lands, Crimes and Law Enforcement Legislation 

Amendment (Interference) Act 2016 (NSW). 

15 Sean Nicholls & Michael Koziol, “Call to scrap 

NSW anti-protest laws after High Court decision” 

SMH Online (19 October 2017) http://www.smh. 

com.au/nsw/call-to-scrap-nsw-antiprotest-lawsafter-high-court-decision-20171018-gz3g7e.html 

16 High Court of Australia, Brown v Tasmania 

[2017] HCA 43, accessible at http://eresources. 

hcourt.gov.au/downloadPdf/2017/HCA/43 


TAX FILES 

Beware Small Business Concessions 

and Share & Unit Sales 

PAUL TANTI, PARTNER, THOMSON GREER 

Amendments were made to the 

Capital Gains Tax Small Business 

Concessions (SBC) by the Treasury Laws 

Amendment (Tax Integrity and Other Measures) 

Act 2018 (Act) which apply from 8 

February 2018. These amendments have 

made it much more difficult for the sale of 

shares and units to qualify for the SBC. 

The Explanatory Memorandum to the 

Act states that the changes were made to 

improve the integrity of the SBC. To some 

degree that is true. However, as is often 

the case with such integrity amendments, 

in the opinion of many, they go much 

further than improving integrity and 

arguably deny the SBC in circumstances 

where many would argue they should 

apply. 

Further, the way in which the 

amendments have been drafted makes 

working through them and the application 

of the SBC extremely difficult and 

complex. 

Advisors must take care to work through 

the amendments, in particular the new 

requirements for shares and units to be 

considered active and whether entities 

satisfy either the Small Business Entity 

(SBE) or maximum net asset value 

(MNAV) requirements. 

Most of the changes are contained in 

amendments to Section 152-10(2) and the 

introduction of new Sections 152-10(2A) 

and (2B) of the Income Tax Assessment 

Act 1997. 

The main changes which have been 

introduced are: 

• The entity in which the shares or units 

are being sold (referred to as the Object 

Entity) must either be a SBE or satisfy 

the MNAV test; 

• Modified rules apply when working out 

whether an Object Entity is an SBE or 

satisfies the MNAV; and 

• Modified rules apply when working out 

whether the shares or units are active. 

The amended provisions look through 

shares and units held by the Object 


Entity to the underlying assets of those 

subsidiary entities (referred to as Later 

Entities). 

Prior to the amendments, if shareholders 

held at least 20% but less than 40% of the 

interests in the Object Entity, satisfied the 

MNAV test and the Object Entity satisfied 

the active asset requirements, the SBC 

were available. It did not matter whether 

the Object Entity was itself an SBE or 

satisfied the MNAV test. Under the new 

rules the Object Entity must satisfy one 

of these requirements. In many cases, 

shareholders with a 20% interest in Object 

Entities will be denied the SBC. 

When working out whether the Object 

Entity is a SBE or satisfies the MNAV test, 

the assumptions in Section 152-10 (2) (c) 

(iii) – (v) apply. These assumptions include: 

• Entities will be connected with each 

other (under the test in Section 328-125) 

if the Object Entity has a 20% interest 

in the Later Entity. Previously a 40% 

interest was required. 

Therefore if the Object Entity owns 

20% or more of a Later Entity and the 

Later Entity does not satisfy either the 

SBE or the MNAV requirements, the 

Object Entity cannot satisfy the SBE or 

the MNAV requirements and the sale of 

the shares in the Object Entity will not 

qualify for the SBC; and 

• Only the turnover and the assets of 

the Object Entity, the affiliates of the 

Object Entity and entities controlled 

by the Object Entity (determined 

under Section 328-125) are taken into 

account when working out whether the 

Object Entity satisfies the SBE or the 

MNAV tests. The main change from 

the previous provisions is that the test 

does not take into account the assets of 

shareholders in the Object Entity. 

Therefore assume an Object Entity has 

2 shareholders, A and B. A has a 20% 

shareholding in the Object Entity and net 

assets of less than $6 Million. B has an 

80% shareholding in the Object Entity 

and net assets of more than $6 Million. A 

can still qualify for the SBC on the sale of 

A’s shares in the Object Entity, even if B 

cannot. 

The new active asset requirements modify 

the active asset test in Section 152-40. 

The key amendments are: 

1. The value of shares and units held by 

the Object Entity in Later Entities is 

ignored (Section 152-10 (2A)(b)); 

2. If the shareholders or the unitholders, 

with their associates, in the Object 

Entity have a Small Business 

Participation Percentage (calculated 

under Section 152-10 (2)(b)), in the 

Later Entity of greater than 20%, all 

of the assets of the Later Entity are 

included for the purposes of working 

out the market value of the active assets 

of the Object Equity under Section 152- 

40 (3)(b) (Section 152-10 (2A(c)); 

3. For Later Entities which are not covered 

by requirement 2 above, all of the 

assets of the Later Entity are taken into 

account when calculating whether the 

Object Entity satisfies the active asset 

requirement. The value of the Later 

Entity’s assets which are taken into 

account is the Object Entity’s interest in 

that Later Entity. 

Example: 

SNOW WHITE 

20 % 

SNEEZY CO 

50 % 

SNOW WHITE 

HOLDING P/L 

40 % 

HAPPY CO 

• SWH’s only assets are its shares in 

Sneezy Co and Happy Co. 

• Sneezy Co’s • turnover - $0.1 Million 

• MNAV - $5.0 Million 

• Happy Co’s • turnover - $1.0 Million 

• MNAV - $7.0 Million

TAX FILES 

Question 1: Does Snow White Holdings (SWH) 

satisfy the SBE or the MNAV requirements? 

SWH is aggregated with Sneezy Co and 

Happy Co as it holds a greater than 20% 

interest in both companies. Therefore 

SWH’s aggregated turnover is $1.1 Million 

(Sneezy Co $0.1 Million and Happy Co 

$1 Million) and its net asset value is $12 

Million. (Sneezy Co $5 Million and Happy 

Co $7 Million). Therefore SWH is an 

SBE but fails the MNAV. Therefore this 

requirement is satisfied. 

Question 2: Are Snow White’s shares in SWH 

active? 

For the assets of Sneezy Co and Happy 

Co to be active, Snow White (not Snow 

White Holdings) must have a Small 

Business Participation Percentage of greater 

than 20% in Sneezy Co and Happy Co. 

Snow White’s Small Business 

Participation Percentage in Sneezy Co is 

10% (50% x 20%) therefore Sneezy Co’s 

assets cannot be active. Snow White’s 

Small Business Participation Percentage in 

Happy Co is 20% (50% x 40%) therefore 

Happy Co’s assets can be active. 

Question 3: Are 80% or more of Snow White 

Holding’s assets active? 

Its active asset percentage is calculated by 

dividing the value of its active assets by the 

value of all of its assets calculated under 

the new provisions. 

Happy Co’s assets of $2.8 Million are 

active (40% x $7 Million). 

SWH’s total assets are $3.8 Million (its 

interest in Happy Co of $2.8 Million and 

its interest in Sneezy Co of $1 Million 

(20% x $5 Million). 

Therefore SWH’s active asset percentage 

is 73.6% ($2.8 Million divided by $3.8 

Million). As this is less than 80%, Snow 

White would not be entitled to the SBC on 

the sale of her shares in SWH. 

The above example illustrates how these 

new provisions can result in the SBC not 

being available where previously they 

would have been and where, at first glance, 

one may have expected the SBC would 

apply. 

It is essential the new amendments are 

worked through in relation to all sales of 

shares and units after 8 February 2018 if 

the SBC are to be applied. 

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

EVENTS 

Justice Keane traces the free speech 

debate back to Socrates in Hellenic 

Lawyers Association address 

LOUIS LEVENTIS, CHAIRPERSON, HELLENIC AUSTRALIAN LAWYERS ASSOCIATION (SA) 

The Fourth Annual SA John William 

Perry AO QC Oration was hosted 

by the South Australian Chapter of the 

Hellenic Australian Lawyers Association 

(HAL), in association with Leventis 

Lawyers, and Serafino Wines, on 24 August 

at The Adelaide Pavillion in Veale Gardens. 

The Perry Oration is an annual dinner 

and oration facilitated by HAL to celebrate 

the life and contribution of the late 

Honourable Justice Perry, who served as a 

judge of the Supreme Court for 19 years. 

Approximately 150 guests enjoyed three 

courses of contemporary Greek cuisine 

paired with McLaren Vale wines kindly 

supplied by Serafino, and accompanied by 

traditional live Greek music. 

Attendees included the Honourable 

Justice Keane of the High Court of 

Australia, the Honourable Chief Justice 

Kourakis, the national patron of HAL, 

judges of the Federal, Supreme, and 

District Courts, current and former 

Ministers of Parliament, and members of 

the profession. 

Keynote speaker, Justice Keane, 

delivered a thought-provoking speech 

entitled “Socrates and the Athenians: 

The Gadfly and Freedoms of Speech 

and Association”. His Honour traced 

the complex tensions that exist between 

the right to freedom of speech and 

association, and the countervailing 

considerations to delimit those freedoms 

in the interests of the community as a 

whole. His Honour drew as an exemplar 

of the social and intellectual gadfly the trial 

of Socrates in 399BC held to determine 

his guilt on two charges namely asebeia 

(impiety) against the pantheon of Athens, 

and corruption of the youth, by his failing 

to acknowledge the gods that the city 

acknowledged and the introduction of 

new deities. 

Socrates’ entirely peaceful conduct was 

contrasted with that in Snyder v Phelps 

562 US 443 (2011) whereby the Supreme 

Court of the United States of America 

Chief Justice Chris Kourakis addresses the crowd 

Judge Leonie Farrell with Member for 

West Torrens Tom Koutsantonis 

protected the content of placards 

displayed by self-proclaimed gadflies at 

the funeral of a marine on the basis that, 

even though outrageous, they were unable 

to found liability in tort in view of the 

First Amendment to the United States 

Constitution. 

The basis of that decision was then 

contrasted with the decision of the 

High Court in Coleman v Power (2004) 

220 CLR 1, in which gadfly Mr Coleman 

had handed out flyers accompanied by 

“insulting words” alleging corruption 

in the Queensland Police Force, and an 

HAL (SA) Chairperson Louis Leventis 

(left) with guest speaker Justice Keane 

analysis of the bases for different results 

in similar cases in Australia. A full copy 

of his Honour’s speech is available from 

https://hal.asn.au/knowledge/. 

Photos of the evening are also available 

from: https://hal.asn.au/galleriesbase/sa-the-john-william-perry-ao-qcoration-24-august-2018/. 

The HAL Committee also reported 

on the success of the 2018 HAL 

International Conference held in Rhodes, 

Greece, in July, and announced that a 

further conference is planned for Rhodes 

in 2020. B 


FAMILY LAW 

Family Law Case Notes 

ROB GLADE-WRIGHT 

PROPERTY – DECISION THAT AN 

APPLICATION FILED AT 7.40 PM BE 

TREATED AS FILED THAT DAY CONTRARY 

TO FLR 24.05(2) SET ASIDE 

In Frost (Deceased) & Whooten [2018] 

FamCAFC 177 (17 September 2018) the 

late husband’s legal personal representatives 

appealed against Cronin J’s decision to 

treat the wife’s property application filed 

electronically at 7.40 pm (where at 11 pm 

the husband died in hospital from injuries 

sustained the previous day) as filed on that 

day, not after his death pursuant to FLR 

24.05(2) which provides that an electronic 

filing after 4.30 pm ACT time is taken to 

have been filed the next day. 

The Full Court (Alstergren DCJ, 

Aldridge & Kent JJ) said (at [8]): 

“His Honour considered that this order 

should be made because otherwise the 

strict application of the Rules would 

deny the respondent the right to litigate, 

which would be an injustice … However, 

this appeal is primarily concerned 

with whether or not the Court had 

jurisdiction to make any order at all and 

not whether the circumstances worked 

an injustice upon her.” 

Having agreed that the application 

properly invoked a matrimonial cause for 

property orders, the Full Court allowed the 

appeal, saying (at [55]): 

“ … [B]y the operation of r 24.05(2) 

the Initiating Application was taken to 

be filed on the day after the deceased 

died (notwithstanding the automatically 

issued note placed on it to the effect it 

was filed the day before). Thus … the 

Court had no jurisdiction to proceed as 

there were then no proceedings between 

the parties to the marriage as one had 

died the day before. ( … ) 

The Court added ([73]) that it could not 

“use the Rules to extend or vary time so as 

to acquire that jurisdiction” as “[t]o do so 

would be to alter the parties’ substantive 

rights … , create a cause of action where 

none then existed [and] subject the 

deceased’s estate to proceedings under s 79 

notwithstanding that the period in which 

those proceedings could be commenced 

… had expired”. 

CHILDREN – RETRIAL SETTLED AFTER 

MOTHER’S BELATED INSPECTION OF 

SUBPOENAED DOCUMENTS LED HER TO 

CONCEDE THAT HER ABUSE ALLEGATION 

AGAINST FATHER WAS MISTAKEN 

In Challis [2018] FamCA 773 (27 

September 2018) a parenting case was 

reheard by Carew J after the father won 

an appeal from another judge’s positive 

finding of child sexual abuse against the 

father, a finding the Full Court said was 

“neither sought by the parties nor was it 

open on the evidence” ([5]). 

The mother alleged that there was an 

unacceptable risk of harm to the children 

spending unsupervised time with the 

father due to allegations of sexual abuse 

made by the mother’s daughter of a 

previous relationship (“Ms D” now 19). 

At the retrial the content of subpoenaed 

documents were put to the mother who 

said she had not seen the documents, 

despite a previous order requiring each 

party to inspect them ([4]). After reading 

them the mother conceded that her 

allegations were mistaken. 

The Court said (from [4]): 

“One particular order that I made 

required each party to arrange a 

time with the Registry to inspect all 

documents produced to Court pursuant 

to subpoena as soon as reasonably 

practicable. ( … ) [R]egularly parties 

do not seem to be aware of all relevant 

evidence or it might be they have closed 

their minds to all but evidence that 

supports their point of view. 

[5] In any event and despite this 

very clear requirement the mother 

conceded during cross-examination 

that she had not done so. Her solicitor 

accepts responsibility for this failure 

but, however it occurred, it was most 

unfortunate and frankly alarming that 

not only one trial but a second trial 

proceeded with the mother being 

apparently oblivious to significant 

relevant evidence. ( … ) 

[12] Today the parties asked for time 

to have discussions and reached an 

agreement [for equal shared parental 

responsibility and equal time]. 

[13] What no doubt became apparent 

to the mother … was that Ms D was 

experiencing significant personal 

issues relating to underage sex with a 

boyfriend, bullying at school, extreme 

stress as a result of being caught in 

the middle of the dispute between 

her mother and step-father, truancy, 

risk taking behaviour etc at the time 

the allegations were first raised by the 

mother. ( … ) 

[26] … [A]dults repeatedly present 

to this Court stating that they make 

allegations … because ‘they believe 

their child’ but in truth it is their own 

interpretation of what a child says that 

they ‘believe’. 

[27] … [T]he mere making of an 

allegation should not impose on 

children a lifetime of supervision. It 

is necessary to carefully consider the 

evidence, assess it and evaluate it, which 

the mother has now done in the full 

knowledge that she finally has all the 

bits of the puzzle. … ” B 


Make your plan to ease 

cognitive overload 

WELLBEING & RESILIENCE COMMITTEE 

The year is nearly at an end. Your 

working memory – the part of 

your brain that consciously processes 

information – may be feeling like it is at its 

full capacity. The saying “time flies when 

you are having fun” remains true but the 

years now seem to go faster than ever. The 

virtue of down time or the opportunity to 

catch up feels non-existent. Overload is real. 

We are all vulnerable to overload. We 

are trying to be many things to many 

people. We want to be stellar professionals, 

outstanding parents, the friend that can 

be relied upon in need and we want our 

relationships to go from strength to 

strength. To do this we are always “on”. 

We are working hours to please others, 

we are returning home to ensure life 

administration is maintained and trying to 

tick all the boxes that we can to be good 

people. 


These behaviours are sometimes 

counter-productive to what we are trying 

to achieve. We are trying to be the best 

person that we can be but in all that 

“noise and activity” we still seem to 

overlook or devalue the self-care in that 

routine. 

Self-care is in fact a driver in 

performance of all the prior activities 

listed, but it likely means you will do it 

with a smile on your face. Google “selfcare 

activities” and you will be inundated 

with simple, effective and creative activities 

– some are two minutes and some are 

hours and no they are not all meditation. 

Self-care requires its own plan and its own 

level of commitment. In a busy world it 

will not just happen. 

When you select activities that you are 

going to commit to, think about what 

might get in the way of me achieving that? 

Do I need to start with different self-care 

strategies that have fewer barriers? Can I 

change the barriers that I have? Start small 

and the long-term gain will be underway. 

Check in with your self-care plan in 

February. Put it in your diary now. What 

worked? What didn’t? A common piece of 

feedback is people don’t stick to the plan. 

Why not make it visual? Stick your plan 

to your fridge so you see it every day, put 

a reminder in your wallet or tell someone 

else so they can hold you accountable 

by asking them to check in with you. By 

having these visual reminders, the habits 

will become routine rather than negotiable 

activity. 

Learning to identify activities and 

practices that support your wellbeing are a 

great objective for the January period and 

will hopefully make 2019 a year of balance 

and perspective.

FROM THE CONDUCT COMMISSIONER 

When practitioners drop the 

ball: The Commissioner’s power 

to issue Schedule 4 Notices 

GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER 

In my article in the June 2015 edition of 

the Bulletin, I described the obligations 

a practitioner has to respond to my office 

when made aware that they are subject to a 

complaint or investigation. 

I included some extracts from a 

Supreme Court and Legal Practitioners 

Disciplinary Tribunal decision that noted 

a practitioner’s professional obligations of 

cooperation and candour, and emphasised 

that it is a fundamental requirement for 

any practitioner to cooperate, and be frank 

and honest, with my office. 

Those decisions of course reinforce 

what is said in rule 43 of the Australian 

Solicitors’ Conduct Rules, which requires 

a solicitor to be “open and frank” in 

dealing with a regulatory authority, and 

to “respond within a reasonable time . 

. . to any requirement of the regulatory 

authority for comments or information 

in relation to the solicitor’s conduct or 

professional behaviour in the course of ” 

an investigation. 

On the whole, most practitioners are 

pretty good at complying with requests 

from my office, whether that is to 

comment on a complaint, to provide the 

practitioner’s file, or to provide other 

relevant documentation etc. 

There are however some who are not so 

good. And there are a few who treat my 

office with complete disregard. 

Accordingly, it is worthwhile reminding 

the profession of the powers of 

compulsion I have under Schedule 4 of 

the Legal Practitioners Act. 

Clause 4(1) provides that I can issue 

a notice to a practitioner requiring the 

practitioner to produce any specified 

document, to provide written information, 

and/or to otherwise assist in or cooperate 

with the investigation in a specified 

manner. 

A formal notice under clause 4(1) 

will always specify a time within which 

the requirements of the notice must 

be complied with (which has to be a 

reasonable time). Schedule 4 does not 

provide me with any ability to extend the 

time within which to comply. 

If I get to the stage of issuing a Schedule 

4 notice to a practitioner, then it is because 

I consider that the practitioner has 

completely “dropped the ball” in dealing 

with my office – for whatever reason. I 

only issue such a notice in fairly extreme 

circumstances, because the consequences 

of a practitioner then failing to comply 

with the notice can also be extreme. 

So, on that basis, it is worth spelling out 

exactly what those consequences might be. 

First, clause 4(3) says that a person 

who is subject to such a requirement 

“must comply with the requirement” 

– with failure to do so bringing with 

it a maximum penalty of $50,000 or 

imprisonment for one year. 

Second, clause 5(6) says that failing 

to comply with a notice “is capable of 

constituting unsatisfactory professional 

conduct or professional misconduct”. 

Third, clause 5(7) provides that the 

Supreme Court may “suspend a legal 

practitioner’s practising certificate while a 

failure by the practitioner to comply with 

the requirement continues”. 

None of that would be a good outcome 

– and that’s just for not responding to 

it, let alone not responding frankly and 

honestly! 

It is also worth noting that clause 5 

contains some protection for practitioners 

in terms of self-incrimination by, and 

liability for, complying with such a notice. 

So, as I said in my earlier article, if my 

office asks you to respond to a complaint, 

or to provide some documents, or to 

produce your file, then I would encourage 

you to do so promptly, fully and frankly. 

And, as I also said in that article, I have 

seen circumstances where the lawyer 

complained of has not done so and has 

been more harshly disciplined for that 

conduct than would have been the case for 

the conduct originally complained of. That 

will almost certainly be the case if that also 

involves non-compliance with Schedule 4 

notice. B 

RILEY DOUGLAS 

CASSANDRA 

SCHUMACHER 

Riley Douglas has joined the WK 

Lawyers team and will be practicing 

from their new Whyalla office from 

December 2018. Riley has made the move 

from Brisbane to come back to his home 

town in Whyalla and re-connect with the 

town and family. Riley has a keen interest 

in the area of criminal law and will also 

be practicing in workers compensation, 

employment law, family law & wills and 

estates. 

MEMBERS ON THE MOVE 

WK Lawyers also welcomes Cassandra 

Schumacher, who graduated from 

Flinders University with a Bachelor of 

Laws and Legal Practice / Bachelor of 

Arts in 2017. Cassandra has participated 

as a volunteer in children’s programs in 

Australia, El Salvador and Guatemala. 

Cassandra is focusing on the areas 

of Employment Law and General 

Protections. 


RISK WATCH 

Critical cases that every wills & 

estates lawyer should know: Part 2 

AMANDA ADAMSON, SENIOR SOLICITOR, LAW CLAIMS 

The commencement of an 

IFP claim requires filing and 

personal service within 6 months 

from Probate. The manner 

of service must be actively 

monitored. A Summons in 

support of an application for an 

extension must be endorsed with 

the request for the extension. 

series of 2018 Full Court judgments 

A dealing with practical problems arising 

out of claims under the Inheritance (Family 

Provision) Act, 1972 (SA) (IFP Act) contain 

important lessons for all practitioners 

working in this area. The judgments are: 

Miller v Miller [2018] SASCFC 40 – 

23 May 2018 

Brooks v Young [2018] SASCFC 81 – 

16 August 2018 

Green v Ellul [2018] SASCFC 100 – 

26 September 2018 

This article discusses Miller v Miller and 

Green v Ellul. Refer back to the November 

Riskwatch for discussion about Brooks v 

Young. 

MILLER V MILLER 

Colin Miller, Cheryl Miller and Robert 

Miller were the adult children of John and 

Elise Miller. John and Elise had mutual 

wills which excluded Colin. Elise died 

on 12 April 2013 and, in this context, 

the parties were already represented by 

solicitors by the time John died on 

1 December 2014. Probate was granted 

to Cheryl in respect of John’s will on 

24 February 2015. 

The solicitors for Colin were instructed 

to make an application for provision 

from the estate pursuant to the IFP Act. 

On 21 August 2015, the application was 


filed. On 24 August 2015, the last day, the 

application was left at the reception desk 

of the firm known to be acting for Cheryl 

(Firm A). 

The Problem 

The file principal for Cheryl was not 

in the office on 24 August 2015. Firm A 

never acknowledged acceptance of service. 

Firm A’s instructions were terminated. 

A Notice of Address for service was 

filed by Cheryl’s new solicitors (Firm B) 

a month later. A Defence was filed two 

weeks after that. Cheryl did not plead that 

Colin’s application was statute barred until 

a Second Defence was filed, 12 months 

later, on 9 September 2016. 

Most of John’s estate had been 

distributed within 6 months of Probate 

and therefore the primary focus was 

not on the extension application but 

instead on whether it could be established 

that service had, in fact, occurred on 

24 August 2015. 

The Attempt to Establish Service 

Section 17(1) of the IFP Act confers 

a power to make rules but no rules have 

been made in respect of service. Section 

17(2) of the IFP Act calls up the Supreme 

Court Rules (SCR). SCR 66(1) requires a 

primary originating process to be served 

personally. SCR 67 sets out how personal 

service is to be effected: 

It was contended on behalf of Colin that; 

1. Firm A had instructions to accept 

service and therefore by delivery to 

Firm A; 

a. service was effected by agent by 

operation of SCR 65; and 

b. Firm A had accepted service by 

operation of SCR 67(1)(c); 

2. Under SCR117, the Court could (and 

should) dispense with the requirement 

within SCR 67(1)(c) that Firm A 

acknowledge acceptance of service. 

3. Firm A was already the solicitor on the 

record in respect of proceedings issued 

in the context of Elise’s estate and Firm 

A accepted service by operation of 

SCR 24. 

4. Cheryl’s delay in raising the time point 

gave rise to an estoppel. 

The Trial Judge found, as a matter of 

fact, that Firm A had instructions to 

accept service but that service had not 

been effected. This decision was upheld 

on appeal by majority (Kourakis CJ, with 

whom Nicholson J agreed). 

In respect of SCR 65, it was reasoned 

that since SCR 65(1) says “[a] document to be 

served…” (emphasis added), an application 

for permission to serve on an agent must 

be made before service on the agent (per 

Kourakis CJ at [13]; per Bampton J at 

[118]). In fact, the Chief Justice went on to 

say that even if SCR 65(1) could generally 

work retrospectively, it could not do so in 

the context of an IPF claim [14]. 

In respect of SCR 67(1)(c), it was held 

that the fact of Firm A’s instructions 

to accept service was in fact irrelevant 

because the rule requires an express act of 

acceptance by the solicitor (per Kourakis 

CJ at [19]; per Bampton J at [122]). Colin’s 

argument in respect of SCR 117 was raised 

only on appeal. In this respect the appeal 

Court was divided. The Chief Justice, 

reasoned that discretion in respect of the 

operation of the rules of Court could 

not undermine the time limit contained 

in section 8(1) of the IFP Act ([21]-[23]). 

Justice Bampton dissented on this issue 

([129]). Justice Bampton also concluded 

the filing of the defence by Firm B cured 

the irregularity ([143]) and that Cheryl had 

submitted to the jurisdiction ([158]). 

In respect of SCR 24, the Court said that 

the presumptive authority to accept service 

under that rule operated only in respect of 

the proceedings on foot and not in respect 

of a new action (per Kourakis CJ at [24]; 

per Bampton J at [114]-[116]).

RISK WATCH 

The Lesson 

The Court was not unanimous in respect 

that attempt to cure irregularities in service 

however Miller v Miller has the weight of 

a Full Court authority and its majority 

conclusions will prevail in respect of the 

operation of SCR 24, SCR 65, SCR 67 and 

SCR 117. 

It remains to be seen what the decision 

might be if there were an attempt 

to use SCR 69 (the power to allow 

presumptive service). Unlike, SCR 65, 

it does not contain the words to be served 

and its expressed words do not exclude 

retrospective operation. It leaves open the 

possibility that a summons delivered within 

time might be the subject of an order for 

presumptive service retrospectively. 

The real lesson, of course, is that 

section 8 of the IFP Act is considered to 

be a code in respect of IFP Act claims. 

Practitioners working in this area should 

be actively managing the issue of personal 

service well ahead of time in order to use 

the rules of Court prospectively where 

there are genuine obstacles to effective 

service. 

GREEN V ELLUL 

Mary Ellul had seven children, six of 

whom survived her when she died on 

18 September 2016. In her will dated 

4 February 2011, Mary appointed 

two children as executors (executor 

beneficiaries) and she left $1,000 of her 

$282,884.73 estate to each of the children 

who were not executor beneficiaries and 

the remainder of her estate to the executor 

beneficiaries. On 12 January 2017, Probate 

was granted to the executor beneficiaries. 

On 10 April 2017, the executor 

beneficiaries received notice from three of 

their four siblings (claimants) that a claim 

was to be made under the IFP Act. 

The executor beneficiaries retained Firm 

A. The claimants retained Firm B. On 20 

June 2017, Firm A told Firm B that it had 

instructions to accept service. On 10 July 

2017, an application for provision was 

filed. The summons was served on 13 July 

2017, one day out of time. 

The Problem 

The summons, although served out of 

time, was not endorsed with an application 

for an extension of time. Between 14 

July 2017 and 26 July 2017, the executor 

beneficiaries, distributed the lion’s share 

of the estate. On 18 September 2017, 

the claimants filed an amended summons 

pursuant to SCR54 which expressly sought 

an extension of time. 

The Attempt to Establish an 

Application for an Extension before 

Distribution 

Section 8(5) of the IFP Act provides 

that distribution of estate before an 

application for an extension of time shall 

not be disturbed. For any real benefit to 

come of an application for an extension 

of time, the claimants had to establish that 

their application had commenced prior to 

14 July 2017. 

It was contended on behalf of the 

claimants that: 

• an application for an extension of time 

had been made on 13 July 2017 because; 

οο 

the summons that had been filed on 

13 July 2017 of itself contained an 

implicit application for an extension 

of time; or 

οο 

the amendment of 18 September 

2017 was operative from 10 July 2017 

under the relation back doctrine. 

In respect of the asserted implicit 

application for an extension of time 

in the first summons, whereas the 

Master at first instance had found in 

favour of the claimants reasoning that a 

summons served out of time must, in the 

circumstances, contain an application for 

an extension, the appeal Court allowed the 

appeal. Justice Stanley explained that: 

i. the scheme of the IFP Act provides 

that an application for an extension is 

a discrete claim from the substantive 

claim and thus both claims are to be 

apparent ([47]-[49]); 

ii. SCR 38(3)(a) provides that an originating 

process must bear any endorsement 

required by statute and SCR 99(1)(d) 

requires any statement of claim to state 

the remedy that is sought ([53]-[ 54] and 

iii. in any event there was nothing on the 

face of the summons from which to 

infer an application for an extension 

of time and given the onus on the 

executors to distribute, they must be left 

in no doubt ([55]-[56]). 

The operation of the relation back 

doctrine was not pursued on appeal ([32]). 

It is speculated that this was because the 

amended summons had not been served 

before 14 July 2017. 

The Lesson 

We again see that the Court was not 

unanimous in its respective attempts to cure 

irregularities in the commencement of IFP 

claims. There was however consensus in 

Full Court and its conclusions will prevail in 

respect of the fact that a summons and its 

supporting document must expressly claim 

any extension of time that is sought. 

It remains to be seen if SCR 54 could 

effectively be used in the circumstances 

that service has occurred prior to 

distribution. The Master had expressly 

referred to High Court authority ([44]) 

which acknowledged the relation 

back principal in the context of the 

endorsement of a summons (albeit 

under other legislation). It leaves open 

whether, and to what extent, any summons 

could legitimately be endorsed with an 

application for an extension of time prior 

to the failure of service. 

The related cost decision, Green v Ellul 

No.2 [2018] SASCFC 105 contains, 

respectfully, an excellent exposition of 

the principles operating in respect to the 

costs of applications to extend time to 

make IFP claims. It suggests that where 

the substantive claim is even possibly 

meritorious, IFP claimants should not be 

discouraged from attempting to make out 

their applications for an extension for fear 

of having to pay the costs of the estate. 


SPEECH 

The Rule of Law and the 

Independence of the Judiciary: Values 

Lost or Conveniently Forgotten? 

The following speech is the 

David Malcolm Memorial 

Lecture, delivered by The 

Honorable Stephen Thackray, 

Chief Justice of the Family 

Court of Western Australia, at 

the University of Notre Dame 

Australia School of Law on 27 

September 2018. 

begin by acknowledging the 

I traditional owners of the land on 

which we meet, the Wadjuk people of 

the greater Noongar clan and by paying 

my respects to their elders past, present 

and emerging. I also acknowledge and pay 

respect to all the other Aboriginal people 

of our country. 

I am honoured to have been invited to 

deliver the fourth David Malcolm Memorial 

Lecture, shortly before the anniversary of 

David’s passing four years ago. I especially 

acknowledge the presence tonight of 

Mrs Kaaren Malcolm, Chief Justice Peter 

Quinlan and many other distinguished 

guests, colleagues and members of the 

faculty of Notre Dame University. 

This university is the place where David 

spent many happy and rewarding and, 

I am sure, more tranquil times after his 

retirement as the 12th and longest serving 

Chief Justice of Western Australia. It is 

fitting therefore that people gather here 

each year to remember one of the greatest 

citizens and certainly one of the greatest 

jurists this State has ever produced. 

The judges who have previously given 

this lecture were, in order of appearance, 

Neville Owen, Robert French and Michael 

Barker of the Supreme Court, High Court 

and Federal Court respectively. Apart 

from their high offices and their brilliance, 

those three judges all had something in 

common with David Malcolm: integrity 

and independence – the essential attributes 

of any judge, most especially a head of 

jurisdiction. 

The three previous lecturers also had 


another thing in common – they all 

had the privilege of knowing David 

much better than I did. As a very 

young lawyer, I worked for a firm of 

solicitors at 524 Hay Street, the modest 

building which then housed the tiny 

Western Australian Bar. David joined the 

Independent Bar in 1980, and I moved 

out of 524 Hay Street in the following 

year, by which time David had already 

taken silk and become President of the 

Bar! The closest I ever came to him in 

those days was when I trekked upstairs 

to Bar Chambers, clutching the $1.50 fee 

required to have an affidavit witnessed. 

Winding the clock forward a quarter of 

a century, the Family Court of Western 

Australia was honoured when David, by 

then Chief Justice, sat on the bench at 

the ceremony at which I was welcomed as 

a judge. He bounded into our chambers 

that morning with that towering presence, 

that sense of energy and that never-ending 

smile which were his trademarks. I was 

grateful for his presence, but I will always 

be indebted for the letter he sent to my 

Chief Judge afterwards, which for me 

characterised the generosity of his spirit. 

This being my last public speech before 

my farewell ceremony, I hope you will 

forgive me for thinking it appropriate that 

it is given in honour of a great man who 

took the time to be there at the start of my 

judicial career. 

As I come to the end of my time as a 

Chief Judge, we have a new Chief Justice 

of Western Australia who is starting his 

journey in David’s footsteps. At the same 

time, the Family Court of Australia, of 

which, until tomorrow, I am the senior 

Appeal Judge, prepares to farewell a 

Chief Justice for the second time in 12 

months. This concurrence of events leads 

me to reflect on the nature of judicial 

leadership, and on David’s example 

and legacy in that role, since judicial 

leadership is inextricably intertwined with 

my main theme, judicial independence. 

An obvious, and regrettably current, 

circumstance in which the role of a Chief 

Justice as leader assumes prime importance 

arises when a court or some of its judges 

are under attack, whether from politicians, 

interest groups, or in the media. The 

leadership needed from a head of 

jurisdiction is now even more critical than 

it was in the past, when it was an accepted 

role of Attorneys-General to defend 

judges from attack, including attack by 

fellow politicians. As many here know, the 

judges of the Family Court of Australia, 

both in its appeal and trial divisions, have 

this year experienced public criticism that is 

ill-informed, inaccurate and unfair. 

David Malcolm recognised the role 

Chief Justices should play in such 

circumstances. In an article in the Southern 

Cross Law Review, he pointed out: 

It is necessary to remind the public and the other 

arms of government that the judiciary is an 

equal and independent arm of the government. 

The Chief Justice must be ready to speak for 

the judiciary of the nation, or of a State 

or Territory, on issues such as those that 

affect judicial independence and attacks on the 

judiciary. 

Recognising the reciprocal nature of the 

obligation, he went on immediately to add: 

The Chief Justice has a responsibility to ensure 

that relations with the legislative and executive 

arms of the government are appropriate, 

mutually respectful and cordial. 

David accepted that the formal powers 

of a Chief Justice “are in fact, quite limited”. 

But he recognised the influential role a 

Chief Justice can and should perform 

in maintaining the delicate balance 

between the three arms of government, 

and also the importance of including the 

community we serve in this important 

discourse. Thus he wrote: 

The role of a Chief Justice is one of 

leadership. The Chief Justice is expected to 

be the spokesperson and representative of the 

judiciary ... in its dealings with the executive 

government and the community.

SPEECH 

In my experience, Chief Justices agonise 

over the choices they must make as 

spokesperson. After all, as Chief Justice 

French emphasised, they are “but one 

amongst equals” and should therefore speak 

– or remain silent – not for themselves 

but for the body of judges. It is essential 

therefore that a Chief Justice develops a 

mechanism by which he or she can share 

information about matters of policy with 

all the judges and gather their views on 

matters of importance to the court. The 

mechanism should ensure there is room 

for a range of views, and a culture where 

judges are able to express opposing views 

in a proper forum. In this way, Executive 

Government can be confident that any 

representations made are indeed the views 

of the judges. 

Representations to government are 

usually best made privately, but there are 

times when a Chief Justice needs to speak 

publicly, especially when views critical of 

the judges have been aired publicly by 

representatives of the government. The 

propriety of doing so is recognised 

by guidelines adopted in 2014 by the 

Council of Chief Justices of Australia 

and New Zealand. Those guidelines 

contemplate comment where, for 

example, proposed laws relate “to the 

abolition of existing courts and the creation of 

new courts” and in respect of laws which 

affect “the jurisdiction and powers of the 

courts”. Unsurprisingly, the guidelines 

contemplate such comments being made 

by the head of jurisdiction, no doubt after 

consultation with the judges. 

Of course one contribution a Chief 

Justice can always make to any debate is 

to ensure that the public has an accurate 

appreciation of the work of his or 

her judges. Chief Justices will have an 

understanding of the day-to-day work 

of the judges because they share in that 

work and have long experience of it from 

the other side of the bar table. As Chief 

Justice Malcolm said: 

So far as I am aware, all Chief Justices 

in Australia regularly sit in Court. It is 

inconceivable that a Chief Justice would act 

entirely as an administrator and never sit as a 

judge. A Chief Justice is chosen and appointed 

to be a judge and is expected to demonstrate 

leadership in that capacity. 

There can be no doubt David Malcolm 

lived up to this expectation. Apart from 

running an efficient court, being the face 

of the judiciary to the West Australian 

community, and making many speeches 

in Australia and overseas, he also sat 

regularly both at first instance and on 

appeal. His reputation spread well beyond 

the borders of our own State, and it was 

therefore no surprise when he was asked 

to preside over a specially constituted 

bench of the New South Wales Court of 

Appeal to hear a case involving a member 

of that court. 

It was said at his farewell that David 

“led from the front, never shirking the difficult 

cases”. The importance of a Chief Justice 

leading his or her judges by example in 

deciding cases cannot be overstated. While 

each individual judge enjoys complete 

independence, a group of judges in my 

experience is no different to any other 

group in a workplace. The tone is always 

set from the top is an adage well worth 

remembering, and fundamental to all 

forms of leadership. 

David Malcolm had amongst his 

many talents those of an outstanding 

sportsman. He would therefore forgive 

me for quoting from Australian cricket 

captain Ian Chappell who played his last 

test match in the same summer that David 

joined the Independent Bar. Chappell said 

this in a speech to the Wanderers Cricket 

Club, which was simply entitled Captaincy: 

Respect is vital to a captain. He must earn it in 

three categories: as a player, as a human being 

and finally as a leader. 

Chappell went on to stress the importance 

of the skipper of the team being good 

enough to hold his place as a player, and 

criticised what he perceived to be the 

English method of selection which he felt 

did not always achieve this result, leading to 

the team playing “virtually one man short.” I 

am sure the judges of the Supreme Court 

of Western Australia never felt they were 

playing one man short under the captaincy 

of David Malcolm. 

I will return shortly to the topic of team 

selection, as it is vital to a consideration 

of the title I have chosen for this talk – 

The Rule of Law and the Independence of the 

Judiciary: Values Lost or Conveniently Forgotten? 

The rule of law and the independence 

of the judiciary were recurring themes in 

David’s writing and work. In fact, I contend 

that the most enduring of his legacies is 

the contribution he made internationally to 

these twin pillars of our democracy. 

Amongst his many roles, David was 

Chair of the Judicial Section of LAWASIA 

and organised the Conferences of Chief 

Justices of Asia and the Pacific, of which 

he also served as Chair. The assemblies 

of those groups were arranged to coincide, 

so when they met in Japan in 2003, 

David gave not one, but two speeches, 

each dealing with aspects of judicial 

independence. 

He commenced his address to the 10th 

Conference of Chief Justices in Tokyo with 

these words: 

It is almost universally acknowledged that 

one of the hallmarks of a democracy is the 

independence of the Judiciary. A Judiciary 

which exists merely to do a Government’s 

bidding or to implement Government policy 

provides no guarantee of liberty. 

Once upon a time, most politicians 

accepted that truth. One in this mould 

was Winston Churchill – a great hero of 

mine. Churchill spent a lifetime opposing 

tyranny in all its forms, some of which we 

now see re-emerging in precisely the same 

insidious ways that occurred in his lifetime. 

Whilst never a lawyer or judge, Winston 

Churchill had a clear understanding of the 

role the judiciary performs in preserving 

our freedom from tyranny. He maintained 

that: 

The independence of the courts is, to all of 

us, the guarantee of freedom and the equal 

rule of law. It must, therefore, be the first 

concern of the citizens of a free country to 

preserve and maintain the independence of 

the courts of justice, however inconvenient 

that independence may be, on occasion, to the 

government of the day. 

As our Chief Justice, David Malcolm was 

similarly unwavering in his commitment 

to judicial independence. He spoke in 

defence not only of his court but of 

all courts and all judges. In my humble 

opinion he was the very model of a good 

Chief Justice who tries to work in harmony 

with the Executive Government, but never 

becomes its servant or mouthpiece. 

David knew that judicial independence 

is indispensable to public confidence in 

the administration of justice. He knew 

also that it is not an end, but a means to an 

end. One of his contemporaries, Chief 

Justice Sir Gerard Brennan, had been at 

pains to point this out when addressing 

the Australian Judicial Conference in 1996: 


SPEECH 

Judicial independence does not exist to serve the 

judiciary; nor to serve the interests of the other 

two branches of government. It exists to serve 

and protect not the governors but the governed. 

David Malcolm did more than just talk 

about judicial independence. He was 

instrumental in the formal adoption by the 

Conference of Chief Justices of the Asia 

Pacific of what is known as the “Beijing 

Statement of Principles of the Independence of the 

Judiciary”. Under his leadership, ours was 

the first region in the world where such a 

set of principles was adopted. His role in 

this regard was acknowledged by Chief 

Justice Wayne Martin in his valedictory 

oration at the sitting of the Supreme Court 

convened after David’s death. 

I will return to the articles of the Beijing 

Statement in a moment. But first, I want to 

develop the topic of team selection, since 

it is central to any consideration of judicial 

independence. 

Winston Churchill certainly understood 

its importance and he understood, in 

particular, how important it is to avoid the 

appearance of the process of selection 

of judges being associated with political 

considerations. After his visit to Italy 

in August 1944 following the fall of 

Mussolini, Churchill sent a message to the 

Italian people in which he emphasised, not 

for the first time, that “the price of freedom is 

eternal vigilance”. In answering the question 

of “what is freedom”, Churchill said that 

there are one or two simple tests by which 

the freedom of a country can be measured 

in the modern world. One of the tests he 

posed for any country was whether “their 

courts of justice [are] free of all association with 

political parties”. 

The same point was made by the Right 

Honourable Beverley McLachlin, the 

former Chief Justice of Canada, who 

coincidentally was appointed Chief Justice 

of British Columbia in 1988, the same year 

David Malcolm became the Chief Justice 

of Western Australia. Mrs Malcolm tells me 

that their paths crossed over the years, and 

their thinking about judicial independence 

certainly coincided. In a speech called 

“The Decline of Democracy and the Rule 

of Law”, Chief Justice McLachlin gave 

some tips about what judges and heads 

of jurisdiction can do to preserve and 

promote judicial independence. She started 

off by saying that, as judges: 

We can educate the public and the politicians 

about what judicial independence means and 

why it is vital to our democracy and our social 

well-being. 


Getting down to the specifics of team 

selection, her Honour went on to say: 

We should support an appointment process 

that appoints judges on merit, and not political 

affiliation. 

And she immediately added: 

We must never allow ourselves to be co-opted by 

governments. 

Delivering much the same message, 

Brennan CJ said to the 1997 Australian 

Legal Convention: 

Treating Courts as political players will lead 

politicians to make political appointments, 

to offer personal or institutional rewards for 

judicial conduct that is politically desirable 

and to impose penalties for decisions that are 

politically unacceptable. Mutual understanding 

of and respect for the functions of each branch 

of government is essential to rebuild and 

preserve an appropriate relationship between the 

judicial and the political branches. 

Through the agency of David Malcolm 

and others, these sentiments now find 

formal expression in the Beijing Principles 

which I mentioned earlier. Articles 11 and 

12 provide as follows: 

11. To enable the judiciary to achieve its 

objectives and perform its functions, it 

is essential that judges be chosen on the 

basis of proven competence, integrity 

and independence. 

12. The mode of appointment of judges 

must be such as will ensure the 

appointment of persons who are best 

qualified for judicial office. It must 

provide safeguards against improper 

influences being taken into account 

so that only persons of competence, 

integrity and independence are 

appointed. 

David provided valuable commentary on 

the Beijing Principles in the 2003 Western 

Australian Law Review, where he wrote, 

echoing sentiments he had expressed in 

Tokyo a little earlier: 

It is necessary that the influence of the executive 

should be kept to a minimum in order to reduce 

potential for improper considerations. In the 

interests of public confidence in the impartiality 

of appointees, the selection process should be 

open and formal. 

This brings me to the critical question 

– “how is Australia measuring up in 

2018 to the Beijing Principles?” Is the 

appointment process “open and formal”? 

Are appointments being made solely 

on the basis of competence and merit as 

we should not only hope but expect and 

demand? Or are some being made on the 

basis of political affiliation or personal 

connection or what the Executive expects 

those appointed will do to further some 

policy agenda? 

After the unfortunate events that 

unfolded elsewhere in Australia a couple 

of years back, we might have had cause 

for optimism that governments would 

appreciate the potential for backlash if a 

perception arose that any person had been 

chosen for office for reasons other than 

suitability. It is therefore troubling that 

statements are now being made openly 

in the media questioning whether some 

appointments have been made on grounds 

other than merit. 

For those who work in the area, it 

is particularly concerning that these 

complaints appear primarily focused on 

appointments to courts and tribunals 

that deal with family law disputes. 

Unfortunately, they bring to mind the 

story told of Lord Halsbury, the former 

Lord Chancellor of Great Britain, who 

was asked whether “ceteris paribus” (i.e. 

all other things being equal), the best 

man would be appointed to a vacant 

judicial position. His Lordship apparently 

responded “ceteris paribus be damned, I’m going 

to appoint my nephew”. 

I have in mind here especially the 

comments made by Professor Patrick 

Parkinson on ABC Radio National 

on 2 June 2018 when asked about the 

constitution of the new court the federal 

government has announced will be created 

to deal with family law matters. He said: 

What happens between now ... and January 

1 st when this new court is meant to occur is 

very, very important, and we have to have a 

dialogue about the right model for this new court 

and ensure that we have expert specialist people, 

who are not just friends of the Prime Minister 

or the Attorney-General, not just Liberal Party 

members, but people who know what they are 

doing who will be appointed to the new bench. 

What was it that moved Professor 

Parkinson to make that statement? To 

give some context, it must be understood 

that Professor Parkinson, who is now 

Dean of Law at the University of 

Queensland, is perceived to be one of 

the more conservative commentators on

SPEECH 

family law. He has often been consulted 

by government, and was described in the 

Sydney Morning Herald of 26 March 2018 as 

“arguably Australia’s most distinguished scholar 

in family law”. Why is it that a person with 

his background feels the need to insist 

publicly upon appointments being made 

on grounds of suitability rather than the 

other considerations he mentioned? 

Professor Parkinson is not alone in 

drawing attention to concerns relating 

to the basis upon which at least some 

appointments have been made. After 

outlining her own concerns, Professor 

Margaret Thornton of the Australian 

National University wrote on 19 April 2017: 

As courts are the bulwark of a democratic 

society, we should not unquestioningly accept 

the absence of transparency. We must put 

pressure on the [Attorney General] and the 

... Government to reinstate formal criteria in 

deciding appointments to all federal courts. 

Another academic and newspaper 

columnist writing in the Melbourne Age 

on 8 June 2018 said this about what 

she described as “some highly unsuitable 

appointments”. 

They were made as grace and favour 

appointments. Now those grace and favour 

appointments will be presiding over the most 

serious family law cases in the country. Cases 

where there are incidents of sexual abuse, of 

child abuse, and of family violence. 

In the same article, Professor Parkinson 

was again quoted as being “desperately 

troubled” by some of the appointments that 

have been made. The quote continued: 

I say this with all seriousness, the government 

and the opposition ... need to come together to 

devise an independent, merit-based and nonpolitical 

appointment process for all judges in 

federal courts or tribunals. 

The first point to make and which must 

be made very strongly is that the concerns 

that have been expressed are not directed at 

all, or even most, judges hearing family law 

cases. Of course, the same would not be 

able to be said in future if we moved away 

from a merit based system of appointment. 

It is not enough, though, for litigants to be 

confident that they have a good chance of 

coming before a competent judge – that 

confidence should be absolute. 

The second point is that none of the 

concerns expressed are related to judges 

or magistrates of our State Family Court. 

In fact, it is fair to say that our Court is 

looked upon around the nation as the 

model of a good family law system, not 

only because of its unique structure but 

also because there can be no perception 

that appointments have been made other 

than on merit. 

Returning then to the calls for changes 

to the appointment process, it should be 

appreciated that family law cases are dealt 

with not only by two separate courts in 

the Eastern States and by our unified State 

court here, but also by the Administrative 

Appeals Tribunal, which deals inter alia 

with the contentious issue of child support. 

Family lawyers and academics therefore 

also take an interest in the way in which 

appointments are made to that Tribunal, 

and I doubt it was by accident that 

Professor Parkinson included tribunals in 

his call for reform. 

Examination of the public record will 

demonstrate why so many judges, lawyers 

and academics agree with Professor 

Parkinson that the time is ripe for a 

careful, bipartisan examination of the 

appointment process. I make no apology 

for saying so in a public forum, and I cite 

no less authority for doing so than the 

man whom we honour tonight. While 

David recognised that “consistently with the 

need for judicial independence there is a general 

restraint on judges expressing views on matters of 

current political controversy”, he was also very 

clear in stating: 

It is my firm belief that a judge should be fully 

entitled to speak out on a matter related to 

the administration of justice, even a matter of 

public controversy, so long as he or she does not 

give people cause for suspecting bias or partiality 

in the cases to be heard in the Court. A judge 

must also refrain from comment on matters of 

political controversy. There are however, matters 

that involve the administration of justice on 

which members of the judiciary may have not 

only a right but a duty to speak out. 

I am further fortified in drawing attention 

to this topic by quoting Chief Justice 

McLachlin: 

Judicial independence, as its history attests, has 

not been won by fiat or by accident. It has been 

won by the vigilance and courage of lawyers and 

judges over the centuries. And it is by that same 

vigilance and courage that it is sustained... 

And no less a person than Sir Gerard 

Brennan spoke out publicly on the same 

topic in 2008 when he drew attention to 

“an increase in the number of anecdotal reports 

of unmeritorious appointments”, leading to 

him to argue that “the time has passed when it 

is possible to have any confidence in the system to 

discover and evaluate the abilities and the character 

of prospective appointees to Commonwealth 

courts”. 

There is much more that could now 

be said about the background to the 

current calls for all appointments to 

Commonwealth courts and tribunals to be 

made on the basis only of merit, but this is 

neither the time nor the place. Examination 

of freely available material, including past 

editions of The Australian and interstate 

daily newspapers going back to at least 

2008, would suffice to give at least some 

indication of the extent of the problem. 

What troubles me is that some people 

associated with the process seem not to 

understand there is a problem at all. 

It is not often that we get an insider’s 

view of how the process sometimes works. 

One exception appeared in The Canberra 

Times in an interview with a former Senator 

who had been appointed to a very senior, 

and highly remunerated, role in a tribunal. 

Having noted that the Senator had lost 

pre-selection after many years in politics, 

the article went on to say that “some of [the 

Senator’s] colleagues in the [Government] felt badly 

about his involuntary departure”. 

I pick up the story with the former 

Senator’s own words: 

“My colleagues had been knocking on my door 

throughout 2014 with offers of various sorts, 

they felt some sort of sense of responsibility to 

see I was looked after so I did have a number 

of offers made... 

“Initially I said no – I’d been working for 

governments one way or the other for close on 

30 years and wanted to get off that treadmill 

for a while and see how I would go working in 

the private sector. 

The Canberra Times article continued: 

Was he offered an overseas post? “Yes ... that’s 

all I can say, sorry.” 

So the offer of the tribunal did not come out of 

the blue but had the added attraction of being 

part of the legal system. 

He was due to go on holiday in Europe with 

his wife, as the appointment was about to be 

announced. 

“I realised I would have to spend some of 

that holiday brushing up on the law so I took 

a couple of text books with me and ploughed 

through them on the trains.” 


SPEECH 

Having thus explained how he had 

prepared himself for this senior role, after 

his long absence from the law, the former 

Senator said this: 

“I wouldn’t have predicted [this appointment] 

at all ... I wouldn’t have said I was an 

outstanding lawyer because I never wanted to 

make it my career. 

“I had always seen it as a vehicle towards 

getting into politics, never as an end in itself. 

So coming back all these years later and 

suddenly finding myself back in the law, is a 

funny type of feeling.” 

Perhaps it is best that I allow that story 

to speak for itself and merely ask how 

many similar stories remain untold. Unless 

the concerns expressed by Professor 

Parkinson and others are entirely 

misplaced, the answer is that there are 

enough to give cause for disquiet. This is 

not to suggest that past political office, or 

political associations or friendships with 

politicians, should be a disqualification to 

holding judicial office. However, the public 

needs confidence that those appointed to 

judicial office owe fidelity to the law, not to 

those who appointed them. 

We pride ourselves on having inherited 

the best of the English legal traditions 

and I suggest the time may have come to 

look to that country for modern guidance 

about how to ensure the public retains 

confidence that those appointed to sit in 

judgment on them are the very best we 

have to offer and that their appointment 

can stand up to scrutiny against the Beijing 

Principles. 

In speaking of fluctuations in the English 

approach to judicial appointments, Sir 

Harry Gibbs, another of our former Chief 

Justices, explained back in 1987 that: 

Political influence continued to play too great a 

part in the making of judicial appointments 

in England until the time of the Second 

World War. However, from 1946 onwards 

both Conservative and Labour governments 

in England have endeavoured to select only the 

best person available for any judicial position 

and to exclude entirely any consideration of 

personal or political influence. The policy 

... is a bipartisan policy, formulated by 

Lord Chancellors who put the public good 

before party interests; it is supported only by 

tradition, and has no constitutional or legal 

foundation. 


This bipartisan policy now has legal 

foundation in the UK, courtesy of the 

Constitutional Reform Act 2005 and the 

independent Judicial Appointments 

Commission. The intent, quite simply, is to 

provide an open and formal procedure for 

appointments. There have been calls for 

something similar here at least as far back 

as 1977 when Sir Garfield Barwick argued 

that appointments should not be left to the 

Executive alone. From his great vantage 

point, as both a former Attorney-General 

and a Chief Justice, Barwick explained 

again in 1995 that: 

Left to politicians, the appointments are not 

always made exclusively upon the professional 

standing, character and competence of the 

appointee. At times, political party affiliation 

... form some of the criteria for choice. 

Sometimes party-political considerations are the 

dominant reason for it... 

Barwick’s views were strongly supported 

in 2008 by Sir Gerard Brennan, who 

spoke of the particular importance of a 

“structured” process of appointment to 

what is now known as the Federal Circuit 

Court. Sir Gerard wrote that: 

Appointments to that Court are likely to 

attract less attention than appointments to 

the higher Commonwealth courts even though 

appointees will be exercising the judicial 

power of the Commonwealth in diverse areas 

including family law, bankruptcy, migration 

and industrial matters—issues which affect the 

vital interests of individuals. 

Barwick was succeeded by Sir Harry 

Gibbs, who wrote in the 1987 Australian 

Law Journal about Australian departures 

from the high standards being set in the 

UK. He said: 

The work of the judiciary is too important 

to entrust it to those of doubtful competence, 

and a bad judge may do irreparable damage, 

since there are some judicial errors which even 

the most elaborate system of appeals cannot 

remedy. The further conclusive reason why 

appointments should not be made on political 

grounds is ... that they are capable of shaking 

public confidence in the judiciary. 

There was a time, not that long ago, 

when an Australian federal government 

developed what appeared to be a 

successful mechanism, falling short 

of a formal Judicial Appointments 

Commission, to recommend appointments 

to the family courts. The approach 

was consistent with the bipartisan 

recommendation of the Senate Standing 

Committee on Legal and Constitutional 

Affairs in 1994. It is unclear why that 

mechanism has been scrapped. Perhaps 

whilst we consider something more 

formal, it might be worth giving it another 

try? 

In the meantime, as Sir Harry Gibbs 

has pointed out, “we must depend 

on the statesmanship of those in all 

political parties”. Inevitably, given the 

comments of Professor Parkinson and 

others, upcoming appointments to courts 

administering family law, in whatever shape 

those courts may take, will be scrutinised 

with more than usual interest for evidence 

of statesmanship. 

I propose to conclude by making brief 

reference to the current debate about the 

future form of the family law system. 

On 30 May 2018, the Commonwealth 

Attorney-General announced his intention 

to create a combined court in the Eastern 

States which would improve the efficiency 

of the “existing split family law system, [by] 

reducing the backlog of matters before the family 

law courts, and driving faster, cheaper and more 

consistent dispute resolution”. 

Those of us who have been around 

for a while could not help but recall on 

hearing these remarks that the Attorney- 

General who created the current “split 

family law system” had, almost 19 years 

earlier, used eerily similar words when 

proclaiming that his new system would 

provide a “quicker, cheaper option” for family 

law dispute resolution. We could also 

not help recalling that the Honourable 

Alastair Nicholson, then Chief Justice of 

the Family Court of Australia, warned in 

1999 that: 

[the] fragmentation of [the Family Court’s] 

closely integrated system … will result in a less 

satisfactory and more expensive service. The 

potential for public confusion, forum shopping 

and waste of resources on shuffling matters 

between courts is high. The funds proposed 

to be spent on the [new court] could be used 

far more effectively by providing Magistrates 

within the framework of the Family Court of 

Australia. 

The appointment of magistrates within

SPEECH 

the framework of “one specialist family 

law court” is what the Semple Review 

recommended in 2008 after wide 

consultation and examination of the 

coherent system in Western Australia. 

Plans to give effect to the Semple Report 

were successfully opposed by those who 

had introduced “the split family law system”. 

The split system has therefore stumbled 

along until 2018 when we are now 

informed, on the basis it seems of a report 

from a firm of accountants, that the flaws 

in the system are not entirely the fault of 

the government that created it, but rather 

the inefficiency of the court whose Chief 

Justice accurately predicted the outcomes 

we now see. 

As our Chief Justice, David Malcolm, 

understood that consultation about change 

is always desirable. Indeed, it is essential 

if we are to avoid decisions about change 

being based on incomplete, inaccurate, 

or misunderstood information. For 

example, that firm of accountants could 

have consulted with experienced trial 

and appellate judges in both courts in 

the Eastern States about what their raw 

data actually meant. And they could have 

consulted with those of us in the West, 

who already have a fully unified system, 

to help explain how the stark differences 

in the data relating to judicial officers 

working at different levels bears no 

relationship to efficiency. 

It would be fair to say there is unanimity 

in supporting some changes to the system 

in the East. It is the form the changes take 

that is important since, in the seeming 

anxiety to rush change, we would not want 

Parliament to throw out the baby with 

the bathwater. After all, with all its faults, 

our system is regarded internationally as 

one of the finest, if not the finest, in the 

world. 

Those who understand the system; 

know its history; and participate in the 

day-to-day work need to be consulted, not 

just about the detail of the Bills before 

Parliament, but about the broader policy, 

including the unprecedented plan to make 

no new appointments to the superior 

division of the proposed new court. This 

plan to slowly abolish the Family Court of 

Australia has profound implications for 

family law and deserves careful scrutiny, 

and proper consultation. Given David 

Malcolm’s focus on eradicating all forms 

of gender bias in the law, I suggest he 

would have insisted that such consultation 

as has occurred to date ought to have 

included women – not just because we are 

dealing with families but because this is 

2018. 

It was, after all, the National Council of 

Women of Australia and its 620 affiliated 

organisations who, in two years of 

consultations leading up to the 1975 Family 

Law Act, strongly advocated for “specialised 

Family Courts” comprising specialist 

judges of superior status, working in one 

unified court alongside judicial officers at 

a lower level “specially appointed and 

trained” for the work. This concept could 

have been achieved in the Eastern States, 

as it has been in Western Australia, had 

the Semple Report been implemented. 

The concept of a two-tiered specialised 

court has been abandoned in the plan 

now presented to the Federal Parliament. 

Ironically, the Semple Report is being 

heavily relied upon as evidence supporting 

that plan! 

Now that the policy has been decided, 

and the Bills have been introduced, 

there is a consultation process underway. 

Notwithstanding the government has 

been unable to secure a majority in the 

Senate on the progress of its Bills, the 

Commonwealth Attorney announced last 

week that: 

In the meantime, I will be discussing with the 

courts the need to advance the development 

of new processes, procedures and operational 

guidelines for the new court. There is no 

reason this important work which will be 

fundamental to establishing the new court 

cannot commence pending the final passage of 

the legislation. 

This announcement is cause for concern 

if the consultation is intended to be 

meaningful. The Family Court of WA and 

the Western Australian legal profession 

are taking a keen interest in the progress 

of the Bills. They affect us because we 

have been informed that the associated 

policy not to appoint any more judges 

of superior status will be applied to 

our Court, thus diminishing the status 

of family law. They affect us because 

the Bills contain provisions relating to 

appeals which diminish the status of our 

specialist Family Law Magistrates. And 

they potentially affect us as there are now 

indications that the proposed merger 

will lead to changes in longstanding 

arrangements between our Court and 

the Family Court of Australia that have 

greatly benefitted Western Australian 

families. 

Quite apart from the fundamental 

question of the structure of the new 

court and whether the Semple model 

would provide a better framework, one 

important issue for the consultation 

process is whether all judges who hear 

family law cases should satisfy the test of 

suitability now laid down for Family Court 

judges in section 22 of the Family Law Act. 

In the context of the argument I have 

made tonight for appointment on merit, 

this would have the distinct advantage 

that Australia’s family lawyers not only 

support that requirement of suitability, but 

that they also have a very good collective 

understanding of who meets it. 

Hopefully there is going to be sufficient 

time for wide community consultation on 

these issues, just as there was prior to the 

1975 Family Law Act. In the meantime, 

we should be wary of law reform being 

driven by statistics produced by firms of 

accountants in the guise of measuring or 

quantifying the productivity of the courts. 

As Chief Justice Murray Gleeson said: 

Nobody has yet devised a satisfactory indicator 

of judicial productivity, probably because 

the concept of productivity of judges is no 

more amenable to measurement than the 

productivity of parliamentarians. It is possible 

to measure some aspects of the performance of 

a judge or a court; and this may have utility. 

Justice, however, is more a matter of quality 

than quantity, and the desired judicial product 

is not a decision, but a just decision according 

to law. 

David Malcolm understood that the true 

measure of a judicial system is not only 

its quality, but the faith the community 

has in the integrity and independence of 

its judges. I have been privileged to have 

held office under his influence, and that 

of his worthy successor. As I prepare to 

leave office, I have confidence that our 

new Chief Justice of Western Australia 

will preserve and build on the legacy of 

the man whose memory we honour this 

evening. A rich legacy that arises from 

David’s powers of intellect, integrity and, 

above all else, independence. B 


GAZING IN THE GAZETTE 

4 October 2018 – 3 November 2018 

Acts Proclaimed 

Children and Young People (Safety) 

(Miscellaneous) Amendment Act 2018 (No 17 

of 2018) 

Commencement: 22 October 2018 

Gazetted: 18 October 2018, 

No. 62 of 2018 

Infrastructure SA Act 2018 (No 16 of 2018) 

Commencement: 26 November 2018 



Late Payment of Government Debts (Interest) 

(Automatic Payment of Interest) Amendment 

Act 2018 (No 19 of 2018) 

Commencement: 1 November 2018 

Gazetted: 1 November 2018, 


Acts Assented To 

Children and Young People (Safety) 

(Miscellaneous) Amendment Act 2018, No. 17 

of 2018 

(amends Children and Young People (Safety) 

Act 2017 and Children’s Protection Law 

Reform (Transitional Arrangements and Related 

Amendments) Act 2017) 



Fair Trading (Gift Cards) Amendment Act 

2018, No. 18 of 2018 



Late Payment of Government Debts (Interest) 

(Automatic Payment of Interest) Amendment 

Act 2018, No. 19 of 2018 



Fair Trading (Ticket Scalping) Amendment Act 

2018, No. 20 of 2018 



Payroll Tax (Exemption for Small Business) 

Amendment Act 2018, No. 21 of 2018 



Terrorism (Police Powers) (Use of Force) 

Amendment Act 2018, No. 22 of 2018 



National Gas (South Australia) (Capacity 

Trading and Auctions) Amendment Act 2018, 




A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS 

AND RULES COMPILED BY MELLOR OLSSON’S ELIZABETH OLSSON. 

Petroleum and Geothermal Energy (Ban on 

Hydraulic Fracturing) Amendment Act 2018, 




Appointments 

Deputy Independent Commissioner 

Against Corruption 

for a term commencing on 26 October 2018 and 

expiring on 31 December 2022 

Michael Ashley Riches 



Rules 

Magistrates Court (Civil) Rules 2013 

Amendment 22 



Magistrates Court Rules 1992 

Amendment 68 



Supreme Court of South Australia 

Probate Rules 2015 

Amendment 1 



REGULATIONS PROMULGATED (4 OCTOBER 2018 – 3 NOVEMBER 2018) 

REGULATION NAME REGULATION NO. DATE GAZETTED 

Development Act 1993 216 of 2018 4 October 2018, Gazette 58 of 2018 

Real Property Act 1886 217 of 2018 11 October 2018, Gazette 60 of 2018 

Children and Young People (Safety) Act 2017 218 of 2018 11 October 2018, Gazette 60 of 2018 

Children’s Protection Act 1993 219 of 2018 11 October 2018, Gazette 60 of 2018 

Family and Community Services Act 1972 220 of 2018 11 October 2018, Gazette 60 of 2018 

Aboriginal Lands Trust Act 2013 221 of 2018 18 October 2018, Gazette 62 of 2018 

Children and Young People (Safety) Act 2017 222 of 2018 18 October 2018, Gazette 62 of 2018 

Advance Care Directives Act 2013 223 of 2018 25 October 2018, Gazette 63 of 2018 

Superannuation Funds Management Corporation of South Australia Act 1995 224 of 2018 1 November 2018, Gazette 64 of 2018 


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LITIGATION ASSISTANCE 

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LAF receives applications for funding 

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LAF funds itself by receiving a relatively 

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