LSB February 2020_DIGITAL_L

THE 

BULLETIN 

THE LAW SOCIETY OF SA JOURNAL 

VOLUME 42 – ISSUE 1 – FEBRUARY 2020 

ONLINE LIVING

ELC -Year 12 Open Night: 

Monday 2 March 2020 

6-8pm 

Learn more about SAC through 

our student mural project, brought 

to life with Augmented Reality! 

Congratulations 

to the Class of 2019! 

24% of our Year 12 students were in the top 10% of all 

Australian ATAR scores. Special congratulations to three of our 

students with an ATAR over 99: Maya (99.1) Nina (99.1) and Kate (99.05). 

These three young women are leaders in every sense of the word, involving themselves 

in a wide range of co-curricular activities and serving our school community with 

distinction. 

A Ministry of Mercy Education Ltd 

Maya Murali 

(99.1) 

Nina Wilcock 

(99.1) 

Kate Roocke 

(99.05) 

53 Wakefield, Adelaide SA 5000 

P+61 8 8217 3200 / registrar@sac.sa.edu.au 

www.sac.sa.edu.au

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

cited as (2020) 42 (1) LSB(SA). ISSN 1038-6777 

CONTENTS 

ONLINE LIVING 

6 What your FOMO has to do with 

e-commerce design – By Thyme Burdon 

10 Consumer of legal services in an 

OnLife world – By Assoc Prof Tania 

Leiman 

14 Report released on social media & 

juries – By Jemma Holt 

16 Consumer data right scheme begins 

roll-out – By Alison Bradshaw 

18 Loot boxes in Australia: Gaming 

or gambling – By Jamie Nettleton & 

Aleksandra Pasternacki 

22 The importance of website accessibility 

for legal services – By Natalie Wade 

24 The regulatory framework around 

Airbnb and other home sharing 

services – By Callum Ritchie 

& Brendan Grigg 

32 How ‘FloatLegal’ will assist in 

providing effective legal services & 

improve access to justice 

By Vanessa Hutchens 

FEATURES & NEWS 

13 Diabetes SA chosen as President’s 

Charity – By Tim White 

21 New judicial appointments 

30 Vale: Mark Griffin QC 

38 OPCAT is coming: time for SA to set 

up monitoring system for places to 

detention – By Laura Grenfell 

REGULAR COLUMNS 

4 From the Editor 

5 President’s Message 

17 Young Lawyers: 2020 calendar 

28 Risk Watch: Cybersecurity issues you 

must address – By Grant Feary 

34 Tax Files: Land Tax Changes: 

Aspects of the Trust Notification 

Provisions & the Ex Gratia Schemes 

By Bernie Walrut 

40 Why Lawyers are more susceptible 

to anxiety & depression 

By Sarah El Sayed 

41 Bookshelf 

44 Gazing in the Gazette 

Executive Members 

President: 

T White 

President-Elect: R Sandford 

Vice President: J Stewart-Rattray 

Vice President: E Shaw 

Treasurer: 

F Bell 

Immediate Past 

President: 

A Nikolovski 

Council Member: S Hooper 

Council Member: V Gilliland 

Metropolitan Council Members 

T Dibden 

M Tilmouth 

M Janus 

A Lazarevich 

T Vozzo 

F Bell 

M Mackie 

M Boyle 

E Shaw 

J Marsh 

C Charles 

Country Members 

S Minney 

(Northern and Western Region) 

P Ryan 

(Central Region) 

J Kyrimis 

(Southern Region) 

Junior Members 

R Piccolo 

Ex Officio Members 

The Hon V Chapman, Prof R Sarre, 

Prof M de Zwart, Prof T Leiman 

KEY LAW SOCIETY CONTACTS 

Chief Executive 

Stephen Hodder 

stephen.hodder@lawsocietysa.asn.au 

Executive Officer 

Rosemary Pridmore 

rosemary.pridmore@lawsocietysa.asn.au 

Chief Operations Officer 

Dale Weetman 

dale.weetman@lawsocietysa.asn.au 

Member Services Manager 

Michelle King 

michelle.king@lawsocietysa.asn.au 

Director (Ethics and Practice) 

Rosalind Burke 

rosalind.burke@lawsocietysa.asn.au 

Director (Law Claims) 

Geoff Thomas 

gthomas@lawguard.com.au 

Manager (LAF) 

Annie MacRae 

annie.macrae@lawsocietysa.asn.au 

Programme Manager (CPD) 

Natalie Mackay 

Natalie.Mackay@lawsocietysa.asn.au 

Programme manager (GDLP) 

Desiree Holland 

Desiree.Holland@lawsocietysa.asn.au 

THE BULLETIN 

Editor 

Michael Esposito 

bulletin@lawsocietysa.asn.au 

Editorial Committee 

A Bradshaw P Wilkinson 

S Errington T Shueard 

D Sheldon J Arena 

G Hagias G Mottillo 

B Armstrong D Misell 

The Law Society Bulletin is published 

monthly (except January) by: 

The Law Society of South Australia, 

Level 10-11, 178 North Tce, Adelaide 

Ph: (08) 8229 0200 

Fax: (08) 8231 1929 

Email: bulletin@lawsocietysa.asn.au 

All contributions letters and enquiries 

should be directed to 

The Editor, The Law Society Bulletin, 

GPO Box 2066, 

Adelaide 5001. 

Views expressed in the Bulletin 

advertising material included are 

not necessarily endorsed by The 

Law Society of South Australia. 

No responsibility is accepted by the 

Society, Editor, Publisher or Printer for 

accuracy of information or errors or 

omissions. 

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FROM THE EDITOR 

Evidence must be 

the basis on which 

decisions are made 

MICHAEL ESPOSITO, EDITOR 

Hello and welcome to 2020. While 

the new year (and in this case, 

new decade) usually brings a sense of 

optimism and promise, the beginning of 

this year has taken a somewhat grave, even 

apocalyptic, feel as Australia has suffered 

through catastrophic fires, followed almost 

immediately by Biblical hail and dust 

storms. 

The environmental disaster has well 

and truly placed climate change at the 

topic of the national agenda. And while 

this is not the forum to be debating 

climate science, it has been rather 

disheartening to see a problem whose 

solution should be based on the scientific 

evaluation of data become a political 

football in the so-called culture wars. 

The trivialisation of evidence in 

favour of ideology and vested interests is 

something that lawyers especially should 

resist. After all, it is evidence (or lack 

thereof) that legal practitioners rely on to 

competently represent their clients. It is 

the dispassionate investigation, scrutiny, 

interrogation and assessment of evidence 

that leads us to truth and justice. 

Law Society President Tim White has 

said he wants to highlight the valuable 

work that lawyers do in pursuing justice 

and supporting the community. Not so the 

profession can bask in self-praise, but to 

challenge misleading perceptions about the 

motives of lawyers and draw attention to 

the role that lawyers play in creating a fair 

society, as idealistic as that might seem. 

Using the recent fires as an example, 

we have seen lawyers from across 

Australia unite in a bid to contribute to 

the recovery effort. In SA, a number of 

lawyers have signed up to provide free 

legal advice to victims of the disastrous 

fires that have ravaged parts of mainland 

4 

THE BULLETIN February 2020 

SA and Kangaroo Island. The obligation 

that most lawyers feel to help the 

community especially those in need, 

should be acknowledged, even if those 

who put their hand up to help never seek 

acknowledgment. 

With a proposal to overhaul the Family 

Court, a Royal Commission into Aged 

Care, a Religious Freedoms inquiry, and 

the myriad legal issues that are likely to 

arise from probable reforms to disaster 

management, it is going to be a year that 

will challenge the country’s legal structures, 

and lawyers will play a vital role in ensuring 

that the Rule of Law and human rights of 

individuals are protected. 

In this edition, we tackle the 

phenomenon of online living, exploring 

the implications of a world where our 

day to day tasks are conducted virtually. 

We examine issues ranging from online 

shopping traps, the relationship between 

online gaming and gambling, how to 

make the internet more accessible, the 

influence of social media in jury trials, and 

pertinently, the rise of legal services being 

delivered online and the impact of this 

technology on the practice of law. B 

HAVE YOUR SAY. In the July 

edition of the Bulletin, you get to 

set the agenda. 

Tell us what issues you think 

the profession needs to know 

about and why. 

Pitch an article that you think 

the profession would be interested 

to read, and we'll aim to publish it. 

Contact the editor, 

Michael Esposito, at 

bulletin@lawsocietysa.asn.au. 

IN THIS ISSUE 

SOCIAL MEDIA & JURIES 

Addressing the risk of juror 

prejudice in the social media age 

PRIVACY PROTECTION 

Rolling out the Consumer Data 

Right Scheme 

14 

16 

30 

VALE: MARK GRIFFIN QC 

Family & friends pay tribute to a giant 

of the profession

PRESIDENT’S MESSAGE 

My 2020 vision: Maximise 

opportunities & improving 

perception of lawyers 

TIM WHITE, PRESIDENT 

am delighted to have been elected as 

I President of the Law Society of South 

Australia and look forward to the honour 

of continuing the work and traditions of a 

number of amazing men and women who 

have previously served in the role. 

It is a group that I feel somewhat 

nervous about joining, but at the same 

time am truly excited by the prospect. 

I decided to nominate for President, 

not with any set political goal or entrenched 

aspiration, but with a view to giving back 

to the profession which has served me so 

very well both personally and professionally. 

The last 23 years practising the law has been 

both enjoyable and rewarding for me. 

This year my focus will be on boosting 

the profile, reputation and work of the 

South Australian legal profession and 

standing up for the Rule of Law. 

The Society has important roles as a 

regulator of the profession, provider of 

essential services to the profession, and 

as the chief advocate on behalf of the 

profession. 

I am hopeful we can improve the 

perception of lawyers and successfully 

challenge some of the misguided 

stereotypes about lawyers by highlighting 

and acknowledging the good work that 

many of our Members do that have a 

positive impact on the State, by fighting 

for the rights of indviduals, helping to 

resolve disputes, facilitating business and 

protecting the fundamental Rule of Rule 

principles that underpin our democracy. 

The key issues I plan to focus on this 

year include: 

INTERACTION AND CONNECTION WITHIN 

THE PROFESSION AND WITH OTHER 

PROFESSIONALS 

One of my main objectives for 2020 is 

to improve the interaction and connection 

between lawyers in SA and other 

professionals. Who an individual obtains 

legal advice from in relation to a business 

or personal matter is often determined by 

personal relationships. People seek advice 

from those they know well. Therefore, 

I aim to host events aimed at assisting 

Members to build relationships with other 

professionals. 

IMPROVING THE PERCEPTION OF THE 

PROFESSION IN THE COMMUNITY 

Another aligned focus of mine in 2020 

is to try and improve the legal profession’s 

credibility and respectability in the 

community. Lawyers are often targets of 

adverse media publicity that is not deserved. 

We need to do more to connect with 

members of the public and communicate 

with them more regularly, openly and 

consistently. We must be more transparent, 

accessible and relatable to members of the 

public. That means broadcasting the good 

news stories and regularly communicating 

with the public about the role of lawyers. 

ASSESS THE MERITS OF SA JOINING THE 

LEGAL PROFESSION UNIFORM LAW 

The profession each year continues to 

become increasingly nationally focused. 

South Australia should embrace the 

opportunities that a national profession 

can create. The Legal Profession Uniform 

Law, which allows solicitors to work across 

State boarders much more readily, was 

adopted in NSW and Victoria in 2015. It 

is being implemented in Western Australia 

in July 2020. The Society will continue to 

watch the developments in WA and assess 

if it is in the best interests of the majority 

of practitioners in SA for us to also join 

that national scheme. 

EXPANDING LEGAL MARKETS FOR SOUTH 

AUSTRALIAN PRACTITIONERS 

The 2018 National Profile of 

Solicitors Report, compiled by the 

law societies from around Australia, 

revealed that solicitor numbers over the 

seven-year period prior to 2018 grew by 

33% in NSW, 32% in Victoria, 39% in 

Queensland and by only 7% in South 

Australia. SA recorded the slowest growth 

in solicitor numbers in the nation over the 

period. 

Are we content with that 

disproportionate growth trend continuing 

in the future? Or do we want to make 

concerted efforts to attract and expand the 

legal markets for practitioners in SA? I am 

aiming for the latter. 

Rapid changes in the business 

industry has created both serious 

challenges and exciting opportunities 

for the profession. This edition of the 

Bulletin focuses on “online living” 

and explores, among other things, 

the implications of the growth in the 

digitisation of legal services. Increasingly, 

potential clients use online sources to 

locate a suitable lawyer, make inquiries 

with a firm to determine if they can 

assist with their specific problem, and to 

determine your credibility and experience. 

Many firms already provide legal products 

and services online direct to clients, often 

never meeting the client in person. To 

remain relevant and useful to our potential 

clients it is clearly vital that we all remain 

informed and utilise technology where 

possible to engage with existing and new 

clients. 

In closing many issues will arise during 

the year that the Society will respond to 

and represent the profession on. I aim 

to be both visible and accessible and to 

work closely with the Members of the 

Society’s Executive and Council, the staff 

of the Society and the members of the 

profession. I am keen to meet with as 

many Members as I can, ascertain your 

views, issues and concerns and do what I 

can to assist in the practice of the law. B 

February 2020 THE BULLETIN 5

ONLINE SHOPPING 

TO MISLEAD OR DECEIVE BY 

DESIGN: WHAT YOUR FOMO HAS 

TO DO WITH E-COMMERCE DESIGN 

THYME BURDON, SENIOR LAWYER, AUSTRALIAN COMPETITION & CONSUMER COMMISSION 

As consumers increasingly shop 

online, online business practices are 

increasingly falling under the regulatory 

spotlight. In particular, certain practices 

employed by e-commerce businesses in the 

designs of their websites and applications are 

coming under increased scrutiny due to their 

potential to mislead or deceive consumers. 

This article provides an overview of 

these practices, often referred to as “dark 

patterns”, with reference to the Australian 

context. 

DARK PATTERNS IN USER INTERFACE DESIGN 

The design of a website or app’s user 

interface (UI) is an important factor in 

determining the success or failure of an 

e-commerce business. UI refers to the 

outward look, feel and interactivity of 

a website or app and UI design choices 

include all the visual and interactive 

elements that a user encounters, including 

copy, typography, colour schemes, layout, 

icons, buttons and imagery. 1 To maximise 

conversion (the number of visits resulting 

in sales) an e-commerce UI aims to 

facilitate seamless browsing, selection and 

purchasing for the user. 2 

Dark patterns are described as 

manipulative elements of UI design that 

aim to benefit e-commerce businesses by 

steering, deceiving or coercing consumers 

into decisions that they might not make 

if fully informed and capable of selecting 

alternatives. 3 Such practices may result in 

consumers purchasing unnecessary goods 

or services or sharing more personal data 

than they would otherwise choose to. 

TAXONOMY 

A recent study of “dark patterns” 

by academics from Princeton University 

examined the world’s top 11,000 Englishlanguage 

shopping websites and found 

that approximately 11% of the sites 

surveyed contained practices falling within 

the categories described below. 4 

• Sneaking: Attempts to misrepresent 

user actions or hide or delay 

information that consumers would 

likely object to. Examples include: 

○○ 

Sneaking products into shopping 

carts, often described as 

○○ 

○○ 

“necessary” or “bonus”. 

Imposing undisclosed and 

unexpected fees at the final stage 

of checkout (also known as “drippricing”). 

Charging a recurring fee under the 

guise of a one-off charge or after a 

consumer provides payment details 

to secure a free trial (also known as 

“hidden subscription”). 

• Urgency: Imposing prominent 

deadlines on sales to accelerate 

purchases, e.g. countdown timers 

and limited-time messages without 

a specific deadline. The Study found 

a high number of fabricated countdown 

timers upon examination of the 

website code. 

• Misdirection: Use of language, visuals 

and emotion to steer consumers away 

from or towards a particular choice 

without actually restricting the choices 

available. For example: 

○○ 

Wording an option to decline 

○○ 

○○ 

an offer in a way that shames a 

consumer into opting-in. E.g., an 

option to decline a discount in 

exchange for receiving marketing 

material worded as ‘No thanks, I 

prefer to pay full price’ (also known 

as “confirmshaming”). 

Making the business’ preferred 

option more prominent and its 

non-preferred less prominent or 

greyed-out to give the impression 

that it is unavailable. 

Using confusing double negatives in 

combination with check boxes, e.g. 

“Uncheck the box if you prefer not 

to receive email updates”. 

• Social proof: Referring generally 

to what other consumers may have 

done or be doing. E.g. testimonials 

of uncertain origin and activity 

notifications (“57 people are looking at 

hotels in Glenelg right now”). Again, 

the Study found a number of examples 

of fabricated activity notifications upon 

examination of the website code. 

• Scarcity: Signalling high demand or 

limited availability to increase perceived 

value and desirability. E.g. low stock 

inventory figures and high-demand 

messages. 

• Obstruction: Making certain actions 

difficult in order to dissuade consumers 

from taking those actions and not 

making the process clear up-front. E.g. 

subscriptions that are easy to sign up to, 

but hard to cancel. 

• Forced action: Requiring consumers 

to take certain additional and tangential 

6 

THE BULLETIN February 2020


ONLY 

1 

REMAINING! 

22 

PEOPLE LOOKING 

AT THIS ITEM 

SALE ENDS IN 

09:59 

*SHIPPING COSTS APPLY 

actions to complete tasks. E.g. requiring 

account creation before consumers 

can view products, which enables 

the business to extract personal 

information from the consumer 

whether they purchase or not. 

HOW DO DARK PATTERNS WORK? 

“Dark patterns” work by exploiting 

common consumer behavioural biases 

including: 5 

• Anchoring effect: excessively relying 

on past information in future decisions. 

• Bandwagon effect: valuing something 

more because others seem to value it. 

• Default effect: sticking with options 

assigned by default due to inertia. 

• Framing effect: reaching different 

decisions based on the same 

information depending on how it is 

presented. 

• Scarcity bias: placing higher value on 

things that are scarce. 

• Sunk cost fallacy: continuing an 

action following investment of 

resources (e.g. time or money) even if 

doing so might make you worse off. 

Sales techniques targeting consumer 

behavioural biases are nothing new, e.g. 

use of the line “while stocks last” to 

invoke a sense of urgency. However, some 

studies have shown that individuals pay 

less attention online than in the offline 

world, 6 and so consumer behavioural 

biases may be easier to exploit online. 

Coupled with this is the complete control 

an e-commerce business has over the 

consumer journey through careful UI 

design. Further, once a website or app 

goes live the collection of granular data 

revealing powerful insights about user 

behaviour and preferences and A/B 

testing (making different versions of a 

website or app available to different users) 7 

allow for continuous refinement of UI to 

further improve conversion. 

Accordingly, the practices described 

above may be more effective pursued 

online than in an offline environment and 

despite being a headache for regulators, 

practices that might be considered “dark 

patterns” may be very attractive to 

e-commerce businesses where they are 

proven to result in higher conversion rates. 

Whilst the focus of this article is 

e-commerce, the ACCC’s recent Digital 

Platforms Inquiry, which predominantly 

examined the practices of Facebook and 

Google, found that these digital platforms’ 

UI may also be designed in a way that 

targets common consumer behavioural 

biases to makes it less likely for users to 

opt-out of privacy-intrusive settings. 8 

LOCAL CONTEXT 

The core provisions of the Australian 

Consumer Law (ACL) 9 are technologyneutral 

and consumers have the same legal 

protections when shopping online as they 

do in brick-and-mortar stores. The ACL 

applies where businesses are found to be 

“carrying on business” in Australia. Courts 

have interpreted this term broadly and 

found that it does not require a business 

to have a physical presence, employees or 

subsidiaries in Australia. 10 

The ACCC has pursued a number 

of practices falling within some of 

the categories identified above that 

could be described as “dark patterns”. 

These cases have been taken under the 

general prohibitions on misleading or 

deceptive conduct and false or misleading 

representations about goods or services. 11 

Examples include: 

• Drip pricing: In 2015, the Federal 

Court found that both Jetstar and 

Virgin had misled consumers by 

drawing them into an online purchase 

process with a headline price that did 

not adequately disclose additional 

fees and charges applied later in the 

checkout process. 12 The same year, the 

ACCC also accepted undertakings from 

accommodation platforms eDreams 

and AirBnB to improve their up-front 

disclosures about mandatory service 

and cleaning fees applying to bookings 

made via their sites. 13 

• Subscription traps: In 2016, online 

retailers Fabletics and Scootprice 

cooperated with the ACCC to change 

their websites to make ongoing 

membership fees clearer and more 

prominent in communications to 

consumers and throughout the 

checkout process following concerns 

that consumers were unaware that they 

had signed up to recurring monthly 

subscription payments and had 

difficulty cancelling memberships. 14 

• Scarcity cues: In April, 2019, the 

Federal Court found that online ticket 

reseller Viagogo misled consumers by 

claiming that tickets to certain events 



were scarce, with claims such as “less 

than 1 per cent of tickets remaining”, 

when the scarcity of the tickets only 

referred to the tickets sold through 

its platform and not those available 

elsewhere, e.g. direct through the 

event organiser. 15 The Court 

additionally found that Viagogo failed 

to adequately disclose significant 

booking fees applied at the end of the 

booking process. 

• Discount erosion: Whilst not a new 

phenomenon, 16 the ease at which 

misleading conduct regarding discounts 

can occur is arguably intensified 

online. The ACCC currently has 

proceedings on foot against Kogan 17 

where it alleges that the online retailer 

increased the price of many products 

by at least 10% immediately before 

commencing a limited time 10% 

discount promotion and then lowered 

prices to pre-promotion prices shortly 

after the promotion ended. It is also 

alleged that the retailer used urgency 

cues such as “48 hours left” and “ends 

midnight tonight” to indicate that time 

to purchase at “discounted” prices was 

limited, when this was not the case. 

The examples outlined above 

involve(d) application of the ACL’s 

general prohibitions where the impugned 

conduct was or is (allegedly) misleading or 

deceptive or created or creates (allegedly) 

false or misleading representations. 

Whilst reliance on general prohibitions 

may require some nuanced argument at 

times, given the range of dark pattern 

typologies identified to date and the 

speed at which e-commerce trends and 

digital technologies develop, there may be 

some challenges for specific regulation in 

this area. 

IN SUMMARY 

Practitioners should keep in mind the 

effects of UI design when advising clients 

on the application of the ACL to their 

websites or applications. It is possible that 

a combination of UI design choices may 

create a false or misleading representation 

or constitute misleading or deceptive 

conduct. 

And for those of you just consumers 

not consumer-law practitioners, perhaps 

the FOMO 18 won’t be quite so strong the 

next time you see that “Richard from Unley” 

just purchased that fancy new cordless 

vacuum you’re considering, there’s only 

three remaining and the sale ends in 10 

minutes. B 

Endnotes 

1 Interaction Design Foundation, User Interface (UI) 

design, 2019 < https://www.interaction-design.org/ 

literature/topics/ui-design> 

2 Forbes Communication Council, Maximise e-commerce 

conversions with these 13 user interface improvements, 

25 April 2018 

3 The term “dark pattern” was first coined in 2010 

by cognitive scientist Harry Brignull. See, Harry 

Brignull & Alexander Darlo (ed.), Dark Patterns 

 

4 Arunesh Mathur, Gunes Acar, Michael J. 

Friedman, Elena Lucherini, Jonathan Mayer, 

Marshini Chetty, and Arvind Narayanan, Dark 

Patterns at Scale: Findings from a Crawl of 11K Shopping 

Websites, Proc. ACM Hum.-Comput. Interact. 3, 

CSCW, Art. 81 (November 2019) 

5 Ibid. 

6 J. Firth et al., ‘The online brain: how the Internet 

may be changing our cognition’, World Psychiatry 

(2019/18, issue 2, pp. 119-129; A. Mangen, B.R. 

Walgermo, & K. Brønnick, ‘Reading linear texts on 

paper versus computer screen: Effects on reading 

comprehension’, International Journal of Educational 

Research, (2013) issue 58, pp. 61-68. 

7 Helen Armour, ‘What is A/B testing?’, Digital 

Marketing Magazine (online), 22 September 2015 < 

https://digitalmarketingmagazine.co.uk/articles/ 

what-is-a-b-testing/2597> 

8 Australian Competition and Consumer 

Commission, Digital Platforms Inquiry – Final Report, 

June 2019, see generally Chapter 7 (pp 374-501). 

9 Schedule 2, Competition and Consumer Act 2010 

(Cth). 

10 Valve Corporation v Australian Competition and 

Consumer Commission [2017] FCAFC 224. 

11 ss 18 and 29 ACL. 

12 Australian Competition and Consumer Commission v 

Jetstar Airways Pty Limited [2015] FCA 1263. 

13 ACCC Media Release, Airbnb and eDreams give 

undertakings to ACCC for improved pricing practices, 13 

October 2015 

14 ACCC Media Release, ACCC warns consumers to 

beware of subscription traps, 22 June 2016 

15 Australian Competition and Consumer Commission v 

viagogo AG [2019] FCA 544. 

16 See, e.g. Australian Competition and Consumer 

Commission v Jewellery Group Pty Ltd [2012] FCA 848. 

17 ACCC Media Release, Kogan in Court for alleged 

false or misleading advertisements, 23 May 2019 < 

https://www.accc.gov.au/media-release/koganin-court-for-alleged-false-or-misleading-discountadvertisements> 

18 For the uninitiated, according to the Macquarie 

Dictionary FOMO is ‘a stressful state of mind induced 

by the fear of missing out on something’. 

8 


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ONLINE LAW 

Consumers of Legal Services 

in a Onlife World 

TANIA LEIMAN, ASSOCIATE PROFESSOR & DEAN OF LAW, FLINDERS UNIVERSITY 

irtually everyone has a smartphone 

“Vin their pockets, connecting 

them to just about every aspect of 

their lives… a device that”s always on 

and always connected” 1 , no longer any 

dichotomy between online and offline. 2 

This “onlife” is our “new experience of 

a hyperconnected reality”. 3 We connect, 

shop, bank, access government services, 

pay tax, socialise, consume news and 

current affairs online. We expect to be able 

to purchase products customised to our 

characteristics and preferences “when [we] 

want, how [we] want”, 4 with “self-service 

tools that empower [us] to find quick 

answers on [our] own,” and “when [we] do 

need more personalised help, [we]”re not 

apt to wait on hold.” 5 We interact regularly 

with automated services (often without 

even being aware they are automated), 

and “major decisions that shape our 

lives – whether or not we are offered 

employment, a mortgage, insurance, credit, 

or a government service” are increasingly 

made via “automated eligibility systems, 

ranking algorithms and predictive risk 

models” with claims of greater efficiency 

and accuracy. 6 Automated tools resolve 

disputes online too. 7 

Each onlife interaction generates 

behavioural data which in turn predicts 

future behaviour and fuels the value of the 

platforms 8 which give us which access to 

each other and make us “legible” or visible 

to those “seeking to market goods and 

services” to us. 9 “Platforms - including 

online marketplaces, desktop and mobile 

computing environments, social networks, 

virtual labor exchanges, payment systems, 

trading systems, and many, many more – 

have become the sites of ever-increasing 

amounts of economic activity and also 

of ever-increasing amounts of social and 

cultural activity [reshaping] work, finance, 

information transmission, entertainment, 

social interaction, and consumption of 

goods and services, and [destabilising] the 

locally embedded systems that previously 

mediated those activities in many different 

types of communities.” 10 We accept 

cookies, divulge personal details, sacrifice 

privacy and agree to detailed terms and 

conditions online (usually without reading 

them) as part of a Faustian bargain 

of convenience enabling our access to 

abundant free information 24 hours a 

day, now raising wide concerns about 

surveillance and privacy. 11 

SEARCHING ONLINE 

A common first step when 

encountering a problem in this onlife 

world is a search online – an estimated 6+ 

billion Google searches were processed 

per day in 2019, 12 each generating yet 

more valuable data. Search engines 

crawl, index and rank via relevance 

all available content on the internet. 13 

Sophisticated search engine optimisation 

(SEO) functions locate and rank content 

as relevant. 14 Messaging applications 

interact with consumers enabling further 

personalisation in information provided. 

Increasingly such applications are powered 

by chatbots working independently from 

humans, responding to human queries 

“based on a combination of predefined 

scripts and machine learning applications” 

via text messages to specific commands 

(“rule-based chatbots”) or to natural 

language queries (“artificial intelligence 

chatbots”). 15 The more sophisticated the 

underlying software and the more data it 

can access, the more complex the chatbot 

can be 16 - and software is developing 

fast, with data gathering increasing 

even faster. 17 Many businesses now use 

scaleable, affordable, cloud-based software 

to provide personalised information or 

auto-filled documents via their websites – 

all conveniently accessible to consumers 

24 hours a day without the need to travel 

or call. Rapid developments in machine 

learning and natural language processing 

tools promise even greater capacity to 

review and compare documents, customise, 

personalise, anticipate needs and desires, 

predict behaviour and suggest solutions. 

THE LANDSCAPE HAS CHANGED 

The legal information landscape has 

“irrevocably changed” too. 18 Introduction 

of electronic resources in 1970s and 

commercialisation of those resources in the 

1980s changed the way lawyers accessed 

the law but remained largely out of reach 

to the public. The arrival of CD ROMs in 

the early 1990s was overtaken by “advances 

in the World Wide Web [which allowed] 

publishers to provide online access to their 

publications.” 19 “Since the mid 1990s, there 

has also been a strong move to unlimited 

free web access to legal materials across 

the globe” (e.g. AustLII, BAILII). 20 Public 

sector agencies and private enterprises 

now routinely provide extensive legal 

information for free via publicly accessible 

websites. Legal tech has blossomed - 

across jurisdictions and across the cost 

spectrum, including “specialised standalone 

technologies, such as legal chatbots, apps 

and virtual assistants; enablers of legal 

advice such as legal automated drafting, 

legal document review and legal algorithms; 

further enablers of legal advice such as 

legal data analytics and predictors, and legal 

artificial intelligence; automation of legal 

advice with truly smart contracts; and sets 

of [automated legal advice technologies] 

enabling NewLaw business models and legal 

technology companies.” 21 Tech-enabled 

tools are fuelling commodization 22 and 

productization 23 - reframing what were 

traditionally services into products sold 

online more cheaply to multiple users 

in high volumes. 24 Services traditionally 

provided by lawyers (e.g. wills, agreements, 

other legal documents) are increasingly 

reframed as customisable products – for 

fixed fees (often low or no cost), available 

instantly. Even courts are moving online. 25 

Despite the hype, so-called “smart 

contracts” hosted on a blockchain, where 

“code is the only valid expression of 

a contractual agreement between the 

parties” 26 are not yet widely in use. By 

contrast, “e-contracts” (with “computable 

parts such as data fields, rules and 

10 


ONLINE LAW 

similar…intended for subsequent contract 

automation operations, such as drafting, 

negotiation, monitoring and enforcing”) 

have led to development of various contract 

automation systems, and the capacity to 

“link contract terms to transactions and 

processes, to increase efficiency and monitor 

the actions of the parties.” 27 Many of these 

tools are proprietary, costly, available to 

high-end users only, and largely opaque; only 

a few are open source and free. 28 

LAW OUT OF REACH? 

All this is happening in a context where 

those needing legal solutions face the “morefor-less 

challenge”: “many business people 

confess that they cannot afford lawyers 

and often have to run the risk of working 

without legal guidance. … although the 

law is central to all of our loves, dramatic 

decreases in public legal aid mean, effectively, 

that only the very rich or the very poor any 

longer have the means to afford the services 

of lawyers.” 29 The Productivity Commission 

has acknowledged this “missing middle” 30 : 

“the cost of legal representation is beyond 

the reach of many, probably most, ordinary 

Australians. … In theory, access to that legal 

system is available to all. In practice, access 

is limited to substantial business enterprises, 

the very wealthy, and those who are provided 

with some form of assistance.” 31 

This is the space in which disruptive 

innovation can flourish. 32 

OPPORTUNITY TO INNOVATE? 

Susskind predicts “[t]he bespoke 

specialist who handcrafts solutions for 

clients will be challenged by new working 

methods, characterized by lower labour 

costs, mass customization, recyclable legal 

knowledge, pervasive use of advanced 

technology and more.” 33 The changing 

landscape briefly described above shows 

this is already well underway, with more 

on the horizon, bringing opportunities for 

increasing access to legal services, but also 

concerns about quality and reliability and 

protection of consumers. 

However much we might argue about 

these or whether providers are reputable 

or appropriately qualified or insured, these 

tech-enabled automated, personalised 

products may be “good enough” for many 

who would not otherwise recognise their 

issue as a one that would benefit from a 

legal solution or who would not make the 

decision to pay for advice from a lawyer 

- an example of the “low end foothold” 

of disruptive innovation. 34 Although first 

iterations of these products may be clunky, 

as adoption becomes more widespread and 

datasets grow there is greater incentive to 

invest in further improving and refining 

quality and finding new applications for 

use (c.f. the multiple iterations of digital 

imagery since Eastman Kodak engineer 

Steve Sasson invented the first digital 

camera in 1975 35 ). However, this also risks 

even further disconnect between those who 

can afford bespoke lawyers augmented by 

high tech tools and those accessing cheaper 

or free “good enough” tools. 

EMPOWERING OR DIVIDING? 

91% of Australians have a smartphone 

device 36 – a gateway with significant 

potential to empower consumers of legal 

services and products. But it can only do 

so where they can identify that a legal 

issue exists, the tools are accessible and 

affordable, any information or advice is 

sufficiently individualised, accurate, reliable 

and relevant. Increasing the level of legal 

literacy in our community will thus be 

critical to inform and equip users to make 

effective use of this opportunity and 

evaluate the products they access. 

Ironically though, for those with limited 

effective internet access or no access 

at all, the “digital divide” can magnify 

already existing disadvantage. 37 Those 

groups identified by the Australian Human 

Rights Commission as most impacted by 

lack of access to the internet and lack of 

confidence engaging online 38 coincide with 

the 13 broad population groups identified 

by the Justice Project Final Report as 

experiencing most disadvantage in accessing 

legal services. 39 As illustrated by the recent 

Robo-Debt example, 40 automated decision 

making tools can even further entrench 

inequality for vulnerable groups. 

While a hyperconnected reality offers 

new possibilities to consumers seeking legal 

solutions, unless it is extended to all and 

concerns are addressed, we risk missing an 

opportunity to substantially increase access 

to justice. B 

Endnotes 

1 Ashley Unitt, “10 Trends Changing Customer 

Expectations” https://www.vonage.com/ 

business/perspectives/10-trends-changingcustomer-expectations/ 

2 Mirielle Hildebrandt, Smart Technologies and the 

End(s) of Law, (Edward Elgar, 2015),42. 

3 Luciano Floridi, “Introduction”, in Luciano 

Floridi (ed), “The Onlife Manifesto. Being 

Human in a Hyperconnected Era” (Springer, 

2015), 1. https://link.springer.com/content/ 

pdf/10.1007%2F978-3-319-04093-6_1.pdf; 

Hildebrandt, above n 2, 42. 

4 Brett T Sullivan, “Packaging Legal Services as 

Products” Lucent Law PLLC, 2016 https://www. 

slideshare.net/GregMcLawsen/packaging-legalservices-as-products 

5 Salesforce Research, State of the Connected 

Customer (2nd ed, 2018) https://www.salesforce. 

com/research/customer-expectations/# 

6 Virginia Eubanks, Automating Inequality. How 

High-tech Tools profile, Police, and Punish the Poor (St 

Martin”s Press, New York, 2017) p. 3 

7 Jeremy Barnett, Philip Treleaven, “Algorithmic 

Dispute Resolution—The Automation of 

Professional Dispute Resolution Using AI and 

Blockchain Technologies”, The Computer Journal, 

Volume 61, Issue 3, March 2018, Pages 399–408, 

https://doi.org/10.1093/comjnl/bxx103; 

8 Shoshana Zubof , Surveillance Capitalism (Profile 

Books, London, 2019) 

9 Julie E. Cohen, “Law for the Platform Economy,” 

U.C. Davis Law Review 51, no. 1 (November 2017): 

133-204, 137 

10 Cohen, above n.9, 136-7 

11 See for example Zuboff above n 8 

12 https://ardorseo.com/blog/how-many-googlesearches-per-day-2019/ 

13 https://moz.com/beginners-guide-to-seo/whysearch-engine-marketing-is-necessary 

14 https://support.google.com/webmasters/ 

answer/7451184?hl=en 

15 https://www.practicalecommerce.com/What- 

Are-Chatbots-and-How-Do-They-Work 

16 https://bigdata-madesimple.com/how-dochatbots-work-an-overview-of-the-architectureof-a-chatbot/ 

17 Zuboff above n 8 

18 Wardell, K 2009, “From caveman to casebase: 


FEATURE 

the evolution of legal research through the 

technological age”, paper presented to the 

Australian Law Librarians” Association (ALLA) 

Evolution Conference, Darwin. NT, 2-4 September. 

Conference paper uploaded with the permission 

of the Convenor of the 2009 ALLA Evolution 

Conference https://epubs.scu.edu.au/cgi/ 

viewcontent.cgi?article=1014&context=lib_pubs 

19 Wardell above n 18, 3. 

20 Wardell above n 18, 4. 

21 See e.g. Judith Bennett, Tim Miller, Julian 

Webb, Rachelle Bosua, Adam Lodders & Scott 

Chamberlain, Current State of Automated 

Legal Advice Tools Networked Society Institute 

Discussion Paper 1 April 2018, 5 https:// 

networkedsociety.unimelb.edu.au/__data/ 

assets/pdf_file/0020/2761013/2018-NSI- 

CurrentStateofALAT.pdf; 

22 Richard Susskind, Tomorrow”s Lawyers. An 

introduction to your future (Oxford, 2 nd ed, 2016)25-31 

23 Aebra Cole, “Why Selling Products May Be The 

Future For Law Firms” Law 360 5 April 2018 

https://www.legalmosaic.com/wp-content/ 

uploads/2018/04/Why-Selling-Products-May- 

Be-The-Future-For-Law-Firms-Law360.pdf; 

Joel Barolsky, “Legal products: A new trick for 

old dogs” Financial Review, 28 November 2019 

https://www.afr.com/companies/professional- 

services/legal-products-a-new-trick-for-old-dogs- 

20191126-p53e32 

24 Barolsky, above n 23 

25 E.g. http://www.courts.sa.gov.au/Pages/default. 

aspx; http://www.sacat.sa.gov.au/; https:// 

civilresolutionbc.ca/ 

26 Governatori, G., Idelberger, F., Milosevic, Z. et 

al. On legal contracts, imperative and declarative 

smart contracts, and blockchain systems. Artif 

Intell Law 26, 377–409 (2018) doi:10.1007/ 

s10506-018-9223-3, 384 

27 Governatori et al, 384 

28 E.g. docassemble https://docassemble.org/ 

29 Richard Susskind, Tomorrow”s Lawyers (Oxford 

University Press, 2 nd ed, 2017) 5 

30 Productivity Commission 2014, Access to Justice 

Arrangements, Inquiry Report No. 72, Canberra, 

641 https://www.pc.gov.au/inquiries/completed/ 

access-justice/report/access-justice-volume2.pdf 

31 Chief Justice of Western Australia, Wayne Martin 

quoted in Productivity Commission above n 30, 6 

32 Clayton M. Christensen, Michael E. Raynor & Rory 

McDonald, “What Is Disruptive Innovation?” 

Harvard Business Review December 2015 https:// 

hbr.org/2015/12/what-is-disruptive-innovation; 

Rebecca L. Sandefur, “Access to What?” (2019) 

148 (1) Winter, Dædalus, the Journal of the American 

Academy of Arts & Sciences, 54 https://www. 

amacad.org/sites/default/files/publication/ 

downloads/19_Winter_Daedalus_Sandefur.pdf 

33 Susskind, above n 29, xix 

34 Christensen et al, above n 32. 

35 Michael Zhang, The World”s First Digital 

Camera by Kodak and Steve Sasson, 

(PetaPixel, 5 August 2010) https://petapixel. 

com/2010/08/05/the-worlds-first-digitalcamera-by-kodak-and-steve-sasson/ 

36 Deloitte, “Mobile Consumer Survey 2019”, 

https://www2.deloitte.com/au/mobileconsumer-survey 

37 Australian Human Rights Commission, 8 A right 

to access the Internet, https://www.humanrights. 

gov.au/our-work/8-right-access-internet 

38 Australian Human Rights Commission above n 38. 

39 Law Council of Australia, The Justice Project 2019 

https://www.lawcouncil.asn.au/justice-project/ 

final-report 

40 https://www.abc.net.au/news/2019-09-17/ 

centrelink-robodebt-class-action-lawsuitannounced/11520338 

A roundup of recent Society meetings & conferences 

ROSEMARY PRIDMORE, EXECUTIVE OFFICER 

20 NOVEMBER 2019 

Meeting 

T 

with the Attorney-General 

he President, Amy Nikolovski, 

President-Elect, Tim White, Chief 

Executive, Stephen Hodder and Policy 

Lawyer, Anna Finizio met with the 

Attorney-General, the Honourable Vickie 

Chapman MP. Matters discussed included 

the appointment of Senior Counsel; the 

appointment of Judges to vacancies on the 

Supreme Court and the Court of Appeal; 

the Legal Profession Uniform Law; and the 

Legal Practitioners (Foreign Lawyers and 

Other Matters) Amendment Bill 2019. 

28, 29, 30 NOVEMBER 2019 

Meetings of Law Society Presidents, 

Chief Executives of Constituent Bodies 

of the Law Council of Australia (LCA); 

Chief Executives of Law Societies; 

the Conference of Law Societies; and 

Directors of the LCA 

Amy Nikolovski (as President and 

also as Society appointed Director of the 

LCA), Tim White and Stephen Hodder 

variously participated in the above quarterly 

meetings, which were held in Canberra. 

Key topics of discussion included the 2020 

Law Council President’s objectives; the 

ongoing review of the Australian Solicitors’ 

Conduct Rules; and various internal 

policies and governance and financial 

matters relating to the LCA. 

2 DECEMBER 2019 

Meeting with Labor Parliamentarians 

re foreign lawyers legislation 

The amendments to the Legal 

Practitioners Act 1981 (SA) to introduce 

regulation for foreign lawyers were 

discussed by Amy Nikolovski and Anna 

Finizio at a meeting with Mr Christopher 

Picton MP and the Honourable Ian 

Hunter MLC. 


Meeting with The Hon. Irene 

Pnevmatikos MLC 

The Society’s concerns with an 

amendment to the Labour Hire Licensing 

(Miscellaneous) Amendment Bill 2019, that 

sought to include “legal practice work” as 

part of the labour hire licensing scheme 

in SA were raised by Amy Nikolovski 

and Anna Finizio at a meeting with the 

Honourable Irene Pnevmatikos MLC. 


Meeting with the Chief Justice 

Matters discussed by Amy Nikolovski, 

Tim White and Stephen Hodder at their 

meeting with the Chief Justice included 

the appointment of Senior Counsel; the 

Society’s proposal for the introduction 

of mandatory Continuing Professional 

Development in Bullying, Discrimination 

and Harassment, and in wellbeing and 

resilience; and setting down fees. B 

MEMBERS ON THE MOVE 

Retired District Court judges David 

Smith and Jack Costello have 

both recently begun practising out of 

chambers on 30 Market St Adelaide. 

Mr Smith is practising as a barrister 

and is available to conduct mediations 

and undertake general consulting work, 

while Mr Costello will focus solely 

on mediation work. Mr Smith can be 

contacted at: Davidwsmith5491@ 

gmail.com or 0402133323. Mr Costello 

can be contacted at: jack@costellojk. 

com.au or 0403795475. 

12 


CHARITY 

Society President explains why Diabetes 

SA is such a worthy charity to support 

TIM WHITE, PRESIDENT, LAW SOCIETY OF SA 

am delighted to welcome Diabetes SA 

I as the President's Charity for 2020 

Each year, the President of the Law 

Society selects a charity partner and this 

year’s President Tim White said that 

Diabetes SA was a charity that was close to 

his heart. 

Mr White has an immediate family 

member who was diagnosed with type 1 

diabetes over 40 years ago and has firsthand 

seen the impact the condition can 

have on a person and their family. 

“It was an obvious choice to choose 

Diabetes SA as this year’s charity partner,” 

Mr White said. 

“I have always wanted to give back 

to this organisation in some way and 

this provided the perfect opportunity. 

I’m really looking forward forward to 

seeing the two organisations work closely 

together this year.” 

Diabetes is a condition that affects 

millions of people in Australia and impacts 

people of all ages. 

As someone who is passionate about 

health and fitness, Mr White is keen to 

spread the message about the importance 

of a healthy lifestyle to reducing the risk 

of complications, as well as the numerous 

other benefits of physical activity. 

“My family life, personal life, and 

Former nurse and St John Ambulance volunteer Rita Handley was diagnosed with type 2 diabetes in 1987. 

Read her story at www.diabetessa.com.au/Web/Media/Story/Rita 

working life have benefitted immensely 

from regular exercise, and I have even 

been fortunate enough to run in 13 

marathons, Mr White said. “Hopefully I 

have another few left in me!” 

Mr White said he hoped that by 

partnering with Diabetes SA it can 

further assist lawyers in being aware of 

the importance of balancing their busy 

and stressful lives with some exercise and 

healthy activities, including healthy eating. 

“Being a lawyer involves long hours 

of being at your desk and basically being 

inactive,” he said. 

Hopefully partnering with Diabetes 

SA will encourage lawyers to maintain 

a regular exercise regime and a healthy 

diet, which will go a long way in 

minimising the chances of being 

diagnosed with diabetes. 

The Law Society and Diabetes SA 

will run a number of initiatives this year 

to raise funds and awareness for the 

important charity. 

“We hope the profession can come out 

and support these initiatives,” Mr White 

said. 

“We are very excited about the year 

ahead and encouraging lawyers to improve 

their health and wellbeing.” B 

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ONLINE LIVING 

Updated and improved juror education 

recommended to address jurors’ use of 

social media and the internet 

JEMMA HOLT, RESEARCH FELLOW & ACTING EXECUTIVE OFFICER (RESEARCH), TASMANIA LAW REFORM INSTITUTE 

This year, the South Australian Law Reform Institutes will 

conduct research into the influence of social media on 

jury trials. Jemma Holt reports on the findings of the 

Tasmania Law Reform Institute’s recent report on the 

issue, as she plans to return to SA after a stint in Hobart 

to work for the Director of Public Prosecutions and assist 

SALRI with it project - The Modern Right to a Fair Trial: 

Juries, Social Media and Suppression Orders 

On 22 January, the Tasmania Law 

Reform Institute released a Final 

Report entitled Jurors, Social Media and the 

Right of an Accused to a Fair Trial. The Report 

is the culmination of extensive research and 

community consultation between 2018 to 

present about jurors’ use of social media 

and the internet during criminal trials. 

JURORS & SOCIAL MEDIA: UNKNOWN, 

UNKNOWABLE AND UNAVOIDABLE. 

There has been one documented 

case in Tasmania in 2015 of juror/s 

accessing online information in the course 

of deliberations. However, the actual 

prevalence of the practice is likely to be 

much higher, something evidenced by 

documented misuse of internet devices 

by jurors in other jurisdictions within and 

outside Australia. Indeed, all indications 

are that the reported cases represent the 

bare minimum of cases of misconduct 

of this kind, and there is no way of 

properly assessing or measuring its actual 

prevalence. 

What does present itself as a constant, 

known quantity is the gravity of the risk: 

the risk that an accused’s fundamental 

right to a fair trial before an impartial 

jury is adversely affected. Every juror 

or prospective juror carries this risk and 

the act of only one of those persons can 

undermine the trial process. This makes 

identifying and managing the risk in the 

immediate sense challenging, but given its 

impacts on the administration of justice 

it is one which must be addressed. That 

is particularly the case given the general 

perception within the legal community and 

public at large is that juror misconduct of 

this kind is prevalent. If measures are not 

put in place to respond to misuse – real 

or perceived – public confidence in the 

criminal process will be undermined. 

JURORS’ NET USE - A MULTI-FACTORED 

AND MULTI-DIRECTIONAL PROBLEM 

Historically, the legal profession 

has been concerned with the so called 

‘Googling juror’. That is, someone who 

intentionally and defiantly uses the internet 

to search for trial related information 

while sitting as a juror in a criminal trial. 

The Institute’s report demonstrates that 

the issue is much broader. 

Juror misconduct may involve both 

”information in” and “information out” 

uses of social media and/or the internet. 

It may also involve wilful disobedience 

to directions but also unintentional acts 

by jurors who believe they are doing the 

right thing. For instance, jurors accessing 

the news, entertainment or social media 

sites via their internet connected devices 

during the trial may inadvertently or 

passively be influenced by information, 

online sentiment and/or unsolicited 

communications relevant to the matter. 

That, in turn, may impact upon their 

ability to perform their role. 

Jurors’ habitual use of social media 

and/or other internet platforms may cause 

jurors to fall into misconduct by way of 

“information out”. That is, the desire to 

continuously share and to be constantly 

connected causing jurors to publish 

material online, without fully appreciating 

the consequences of such behaviour in the 

context of their role and obligations as a 

juror. 

The reasons why a juror may 

intentionally go online are not always 

straightforward either. It may be the product 

of confusion about and/or frustration with 

the trial process and/or a genuine belief that 

their actions are in the pursuit of ‘fairness’ 

or discovering the truth. 

ENSURING A FAIR TRIAL - EDUCATION, 

NOT PUNISHMENT 

In its report the Institute concludes 

that jurors themselves must understand the 

wide range of possible juror misconduct 

involving social media and the internet. 

It subsequently identifies juror education 

as key to addressing jurors’ use of social 

media and the internet during criminal 

trials. This requires changing court 

procedure rather than making substantive 

changes to legislation. 

Prospective jurors receive introductory 

training/information at the courthouse 

before they are chosen as jurors for a 

particular trial and, once they have been 

chosen to sit on a trial, they receive 

instructions – directions - thereafter from 

the trial judge. The Institute recognises 

these as two areas in which significant work 

can be done. 

The report recommends that the 

introductory training/information for 

jurors is improved and updated and that 

standardised directions are introduced, like 

the model directions on this topic that are 

used by judicial officers in Victoria and 

New South Wales. 

The Institute notes that, should properly 

educated jurors ignore such training and 

directions, and breach their duties, then 

punishment may be appropriate. However, 

14 


ONLINE LIVING 

it concludes that current Tasmanian laws 

available are adequate for the small role 

that punitive measures ought to play in 

addressing this issue. 

The Institute’s recommendations and 

the full text of the report is available under 

the ‘Juries & Social Media’ tab at: https:// 

www.utas.edu.au/law-reform/publications/ 

completed-law-reform-projects 

The project was funded by a grant 

from the Law Foundation of Tasmania. It 

benefited from valuable collaboration with 

the South Australia Law Reform Institute. 

In 2020, the South Australian Law Reform 

Institute will conduct research and 

community consultation in South Australia 

on a similar project - The Modern Right to a 

Fair Trial: Juries, Social Media and Suppression 

Orders. 

Jemma Holt has been living and working 

in Hobart, Tasmania, in 2019. During that 

time, she worked part time at the Tasmania Law 

Reform Institute and part time as Crown Counsel 

for the DPP in Hobart. In 2020 she returns 

to practice in Adelaide at the DPP. She will 

continue her ties with the University of Tasmania, 

recently appointed as a Clinical Lecturer with the 

Faculty of Law at the University of Tasmania 

until 2022. In 2020 she will also assist the South 

Australian Law Reform Institute as a Project 

Officer/ Researcher with their related project - 

The Modern Right to a Fair Trial: Juries, Social 

Media and Suppression Orders. B 

CRICOS no: 00603F 


FEATURE 

Consumer Data Right 

Scheme begins roll-out 

ALISON BRADSHAW, CHAIR, BULLETIN COMMITTEE 

In 2017, the Australian Government 

announced it would implement a 

Consumer Data Right (CDR) – a right 

of consumers, including business entity 

consumers, to greater access to data held 

relating to that consumer and an enhanced 

ability to use that data by transferring it 

to accredited providers of products and 

services which may result in a benefit to 

the consumer. 

The CDR is beginning its roll-out in the 

banking industry in an initiative called Open 

Banking. Data under “Open Banking” 

has been available as of 1 February, 2020. 

The Government has stated that the 

initiative will be extended to the energy 

industry and then the telecommunications 

industry. Additional industries may be 

added over time. The CDR arose from 

recommendations made by a number of 

competition, banking and energy (including 

pricing) reviews since 2015 including the 

Harper Review (2015), the Murray Inquiry 

(2015), the Coleman Review (2016) and the 

Finkel Review (2017). 

Under Australian Privacy Principle #12 

(in the Privacy Act 1988), consumers were 

able to access data only about themselves. 

This right did not extend to data about 

what they did as held by the collector. The 

right also did not extend to allow business 

entities to access “personal” information. 

The CDR regime expands on this right 

to allow for broader access by individuals 

and for business entity consumers to also 

participate. It also shifts the operation of 

the regime (from the Privacy Act 1988) to 

the Competition and Consumer Act 2010. 

The CDR covers a number of classes 

of data – consumer usage data (for 

example, how much electricity a consumer 

uses and when it is used), consumer 

payment data (for example, how frequently 

a consumer makes payments to a credit 

card and whether the entire amount is paid 

down in each instance) and a consents 

register so that a consumer can track what 

consents are being provided, in addition to 

personal information about the consumer 

held by a collector. 

The intention is that data sets 

containing these classes of data may, with 

the active (not implied) consent of the 

consumer, be transferred to accredited 

institutions who use that data to provide 

goods or services (such as a comparison 

website which can then use the consumer’s 

actual usage data to provide the best 

possible recommendation). It should 

also make it easier to change suppliers by 

providing a common standard and format 

for a consumer’s data to make it easier to 

port from supplier to supplier without the 

consumer needing to supply all the details 

each time. The suppliers of goods or 

services will also be able to use the (to-be-) 

developed standards for the specified data 

sets to supply detailed information about 

those goods or services that can then be 

used to make comparisons. 

The CDR envisages specific optin 

consents to be provided each time 

a consumer seeks the services of an 

accredited provider. The scope of the 

consent will be kept narrow and more 

detailed consents will need to be sought 

and provided before consumer data sets 

can be taken off-shore or on-sold. 

The CDR will be regulated by the 

privacy regulator, the Australian Office of 

the Information Commissioner (OAIC) 1 

which will be the primary complaints 

handler. The OAIC will also consult on 

privacy rights in any proposal to include 

additional data sets or industry segments 

in the CDR. The Australian Competition 

and Consumer Commission (ACCC) has 

a role in reviewing and proposing which 

industries may be usefully added to the 

CDR and proposing and managing any 

Consumer Data Rules which may apply 

to the CDR 2 . The ACCC will also be 

responsible for managing the accreditation 

register. 

A new Data Standards Body, initially 

housed at CSIRO’s Data61 facility, will 

consult on the standards to be used by the 

CDR, including the technical Application 

Programme Interfaces (APIs) that the 

data sets will need to comply with in order 

to be transferrable between accredited 

institutions. These standards have not 

yet been finalised but version 1.0.0 was 

released in September 2019 for comment 3 . 

The first stage of the CDR – the Open 

Banking initiative – was scheduled to be 

made available by the big four banks by 

1 July 2019, as they already had significant 

and secure infrastructure available and 

the banking licence to which they are 

subject was deemed sufficient to meet 

accreditation requirements. All other 

Australian Deposit-taking Institutions 

will need to comply by 1 July, 2020, again 

relying on the banking licence to meet 

accreditation standards. The initiative 

will be rolled out across the energy and 

telecommunications industries and then 

across the broader economy. B 

Endnotes 

1 https://oaic.gov.au/consumer-data-right/aboutthe-consumer-data-right/ 

2 Information, including the draft rules applying to 

the banking industry, may eb found at https:// 

www.accc.gov.au/focus-areas/consumer-dataright-cdr-0 

3 https://consumerdatastandards.org.au/ 

standards/september-2019-standards-v1-0-0/ 

16 


APR 

JUN 

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OCT 

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SEMINAR SERIES 

Performance Review Seminar 

HEALTHY COOKING CLASS 

GALA NETWORKING EVENT 

PREMIUM DINNER 

STATE GOLDEN GAVEL 

COMPETITION 


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PREMIUM BREAKFAST 


Ethics & Wellbeing Hypothetical 

MAR 

MAY 

JUL 

SEP 

LAWSOCIETYSA.ASN.AU

GAMING 

LOOT BOXES IN AUSTRALIA: 

GAMING OR GAMBLING? 

JAMIE NETTLETON, JOSEPH ABI-HANNA & ALEKSANDRA PASTERNACKI, ADDISONS GAMBLING LAW 

INTRODUCTION 

Loot boxes are a common feature in 

video games. Any person who has 

played a video game online in the last 

decade is likely to have encountered a loot 

box in one guise or another. In essence, 

a loot box is a video game feature which 

enables players to earn randomised virtual 

items which can be used to enhance an 

individual’s game play or experience. 1 

This article will provide a legal insight 

into loot boxes. Globally, gambling 

regulators have reached divergent opinions 

on whether loot boxes fall within the 

scope of gambling. In 2018, the Australian 

Senate conducted an Inquiry on Gaming 

Micro-Transactions for Chance-Based 

Items (the Loot Box Inquiry). 

The single recommendation of the Loot 

Box Inquiry report (the Report) was that 

a comprehensive review of loot boxes in 

video games ought to be conducted. 2 In its 

response to the Report earlier this year, the 

Australian Government did not consider it 

necessary to authorise a formal department 

review of loot boxes at a Federal level. 3 This 

has left the future of loot box regulation in 

Australia in a state of uncertainty. 

WHAT IS A LOOT BOX? 

The term loot box does not have a 

settled meaning. In fact, some academics 

have argued that “the term ‘loot box’ 

and the phenomena it covers are not 

sufficiently precise for academic use.” 4 

In the Report, the concept of “microtransactions” 

was preferred over the term 

loot boxes. Micro-transactions were defined 

as “any model that provides a consumer 

with the option of making small purchases 

within a game or other application.” 5 

Irrespective of terminology, certain 

elements underpin a loot box or a microtransaction. 

A player is required to advance 

18 THE BULLETIN February 2020 

something of value in the context of the 

game, such as game points earned through 

gameplay, or something of real-world value, 

such as money. Once this valuable thing is 

advanced, the game will generate randomly 

the chance to win (or earn) a virtual item 

for the player (a reward). Hence, a loot box 

is inherently a transaction, as the player 

expends something of value in exchange 

for the opportunity to receive something 

that may be of value. 

The virtual items found in loot boxes 

vary from game to game, however, they 

consist generally of items which can be 

used to enhance a player’s game play or 

cosmetic items, being items which do 

not affect game play but which affect 

the aesthetics or appearance of certain 

elements in the game. These cosmetic 

items are sometimes called “skins”. In 

some games, skins may be bought and sold 

on platforms hosted by third parties. 

ARE LOOT BOXES GAMBLING? 

Under Australian Federal law, an 

activity may fall within the scope of 

gambling if it involves each of the 

following three elements: 

1. Consideration – A person must 

provide something of real-world value 

to enter the activity; and 

2. Prize – The player has the opportunity 

to win a prize of tangible value (i.e. 

money or money’s worth); and 

3. Chance – The outcome of the 

activity involves an element of luck or 

“chance”. 6 

When a player uses real-world money 

to purchase, or to acquire an opportunity 

to purchase, a virtual item in a loot box, the 

player has provided something of value. 

If the virtual item can be exchanged for 

money or money’s worth, that virtual item 

may be considered a prize. As the virtual 

items in the context of a loot box are 

randomly generated by the software of a 

game, it may be said that the randomness 

is akin to the notion of chance or luck. 

Therefore, an argument exists that these 

forms of loot boxes amount to gambling. 

Gambling regulators in certain 

overseas jurisdictions have applied their 

existing laws to the concept of loot boxes 

and have arrived at the conclusion that 

certain loot boxes constitute gambling, 

as each jurisdiction has a different legal 

definition of gambling. In 2017, New 

Zealand’s Department of Internal Affairs 

stated that loot boxes did not meet 

the legal definition of gambling. 7 The 

French Gambling Authority, Autorité de 

régulation des jeux en ligne, took a similar 

approach to loot boxes. 8 

In 2018, regulators in Belgium, 9 

Denmark 10 and the Netherlands 11 

determined that loot boxes involving 

the payment of real-world money satisfy 

the elements of gambling under their 

respective laws and, as such, are subject 

to the various prohibitions on gambling 

set out in those laws. More recently, a 

UK House of Commons committee 

recommended that the UK Government 

should regulate loot boxes that can be 

purchased with real-world money under the 

Gambling Act 2005 (UK). 12 

AUSTRALIA AND THE LOOT BOX INQUIRY 

Loot boxes have also been considered 

by the Australian Government and state 

and territory governments. Most notably, 

in 2013, former South Australian Senator 

Nick Xenophon introduced a Bill into the 

Australian Senate which sought to bring 

activities within games involving both 

the purchase of virtual items with realworld 

money and “gambling” with virtual 

items within the scope of the definition

GAMING 

of a “gambling service” under Australian 

Federal law. 13 However, the Bill was not 

passed by the Australian Senate. 

In 2018, the Senate Environment and 

Communications References Committee 

(the Senate Committee) conducted the 

Loot Box Inquiry. The Senate Committee 

was tasked with determining the extent, if 

any, to which loot boxes may be harmful, 

with particular reference to whether the 

purchase of chance-based items, combined 

with the ability to monetise these items on 

third-party platforms, constitutes a form of 

gambling. 14 

In particular, the Senate Committee 

considered whether loot boxes satisfied 

the legal and psychological definitions of 

gambling. 15 Given the diversity of game 

features which may be considered loot 

boxes, the Senate Committee noted the 

difficulty of making definitive statements 

regarding loot boxes. 16 

However, the Senate Committee did 

recognise a broad consensus that, where 

real-world money is exchanged (that is, 

when loot boxes are purchased, where 

virtual items are bought and sold, or where 

both occur), those loot boxes most closely 

meet the definitions of gambling (both 

regulatory and psychological). 17 Players 

may be exposed to risks in this context, 

including the risk that loot boxes may cause 

gambling-related harm. The Committee 

noted the vulnerability of certain groups to 

these risks, including children and people 

with mental health issues. 18 

In the Report, the Senate Committee 

recommended that the Australian 

Government undertake a comprehensive 

review of loot boxes in video games, 

which would have required consideration 

of whether specific regulation is 

appropriate for loot boxes. 19 In March 

2019, the Australian Government 

released its response to the Report. The 

Government decided not to follow the 

recommendation. The Government cited 

the lack of research into gambling-related 

harms as a result of loot boxes as its 

reason for refraining from undertaking a 

comprehensive review, and stated “that 

developing an evidence-based regulatory 

approach to mitigate against any harms 

is challenging until further research is 

complete”. 20 

THE CURRENT REGULATORY FRAMEWORK 

At present, there is no specific 

regulatory framework in Australia 

targeted at loot boxes. Video games, or 

“computer games”, are subject to the 

National Classification Scheme, which 

is administered under the Classification 

(Publications, Films and Computer Games) Act 

1995 (Cth) and a co-operative agreement 

between the Commonwealth, state and 

territory governments. However, the 

National Classification Scheme is focussed 

only on gambling and not on game 

features such as loot boxes. 21 

In the absence of a targeted regulatory 

framework, the Senate Committee 

considered several potential regulatory 

options, including the imposition of a 

MA15+ or R18+ rating for computer 

games containing loot boxes, a mandatory 

descriptor on all video games containing 

loot boxes, self-imposed and/or parental 

controls on interactions with loot 

boxes, compulsory disclosure of odds 

associated with loot boxes and an outright 

prohibition on loot boxes. 22 However, the 

Senate Committee did not recommend 

adopting any of these options based on 

current evidence. 

The Australian Consumer Law 

(ACL) 23 may be a potential avenue for the 

regulation of certain aspects of loot boxes. 

For example, it is possible that certain loot 

boxes could be misleading or deceptive to 

a consumer, particularly loot boxes which 

do not disclose the likelihood (or chance) 

of winning specific kinds of rewards. 

Hence, if the ACL (as an existing law) 

were utilised to regulate these loot boxes, it 

may remove the need for implementing a 

targeted regulatory framework. 

THE FUTURE 

In the absence of formal regulation of 

loot boxes, certain industry participants 

have removed or altered the loot boxes 

they offer, and will continue to do so. 24 

These approaches indicate a move towards 

“self-regulation”. 

Self-regulation is not new to the video 

game industry. For example, following 

recommendations from the Japanese 

authorities as to which types of loot boxes 

should be banned, the Japanese mobile 

gaming industry engaged in self-regulation. 

The Japanese model has achieved a degree 

of success without the imposition of 

formal constraints on loot boxes. 25 

Following the Australian Government’s 

response to the Report, it is unlikely to 

take any further action with respect to 

the regulation of loot boxes in the near 

future. This means that, for the moment, 

self-regulation is the default position in 

Australia. 

However, both the emerging body of 

research on loot boxes and developments 

overseas may cause the Australian 

Government to reconsider its stance in the 

not too distant future; it would surprise no 

one if the Australian Government dipped 

its toe back into the murky waters of the 

regulation of loot boxes in the years to 

come. 

Note: The authors are members of the 

Addisons Gambling Law team. B 


GAMING 

Endnotes 

1 For more on the concept of loot boxes, see 

Brendan Scott, ‘Loot Boxes drawing regulatory 

attention’ (November 2018) Internet Law Bulletin 

124, 124; Sally Gainsbury, ‘Gaming-Gambling 

Convergence: Research, Regulation, and Reactions’ 

(2019) Gaming Law Review 23(2) 80; Edwin Hong, 

‘Loot Boxes: Gambling for the Next Generation’ 

(2019) Western State Law Review 46(1) 61. 

2 Environment and Communications References 

Committee, Parliament of Australia, Gaming 

micro-transactions for chance based items (Report, 

November 2018) (‘Loot Box Inquiry report’) 73. 

3 Parliament of Australia, Government Response to 

the Gaming micro-transactions for chance based items 

inquiry (Government response, March 2019) 

(‘Government Response’). 

4 RKL Nielsen and P Grabarczyk, ‘Are Loot Boxes 

Gambling?’ (2019) 4(3) Transactions of the Digital 

Games Research Association 171, 172. 

5 Loot Box Inquiry report (n 1) 2. 

6 Interactive Gambling Act 2001 (Cth) s 4 (definition 

of ‘Gambling Service’) (‘IGA’). 

7 See, eg, Katherine Cross, ‘New Zealand says 

lootboxes ‘do not meet the legal definition 

for gambling’, Gamasutra (News report, 11 

December 2017) . 

8 See generally Stefanie Fogel, ‘French Regulator 

Criticizes Loot Boxes but Says They’re Not 

Gambling’, Variety (News report, 5 July 2018) < 

https://variety.com/2018/gaming/news/franceloot-boxes-1202865706/>. 

9 See generally Newsbeat, ‘Gaming loot boxes: 

What happened when Belgium banned them?’ 

BBC News (News report, 12 September 

2019) < https://www.bbc.com/news/ 

newsbeat-49674333>. 

10 Danish Gambling Authority, Statement about loot 

boxes / loot crates (Statement, November 2017) 

. 

11 Netherlands Gambling Authority, Press Release 

loot boxes (Press Release, April 2018) . 

12 The Digital, Culture, Media and Sport 

Committee, Immersive and Addictive Technologies 

report (Report, 12 September 2019). 

13 Interactive Gambling Amendment (Virtual Credits) 

Bill 2013. 


15 Ibid Chs 2-3. 

16 Loot Box Inquiry report 71-2. 


18 Ibid. 

19 Ibid 73. 

20 Government Response (n 3). 

21 Marissa Dickins and Anna Thomas, Is it gambling 

or a game? Simulated gambling games: Their use and 

regulation (AGRC Discussion Paper, April 2016) 13. 

22 Loot Box Inquiry report (n 1) 53-68. 

23 Competition and Consumer Act 2010 (Cth) sch 2 

(‘Australian Consumer Law’’). 

24 See generally Connor Cable, ‘Rocket League 

is Removing Loot Boxes Later This Year’, 

25YearsLater (Webpage, August 2019) 

; 

Austin Goslin, ‘PUBG is finally 

ditching random locked loot boxes’, Polygon 

(Webpage, 19 November 2019) https://www. 

polygon.com/2019/11/19/20972315/. pubgpaid-loot-box-system-patch>; 

Kyle Orland, ‘So 

long, supply drops: Call of Duty gets rid of 

randomized loot boxes’, ArsTechnica (Webpage, 

18 October 2019) . 

25 Brendan Sinclair, ‘Who is responsible for loot 

boxes? Voices from around the industry share 

their thoughts on what’s at stake and who should 

be doing what’, gamesindustry.biz (Webpage, 16 

May 2019) .

APPOINTMENTS 

Three District Court judges & judicial 

registrar appointed 

oana Fuller, Michael Burnett QC and Ian 

JPress SC have recently been appointed 

to the District Court Bench following 

the retirement of District Court Judges 

his Honour Paul Rice, his Honour Jack 

Costello, and his Honour Sydney Tilmouth. 

Judge Fuller and Judge Burnett are also 

designated as judges of the Environment, 

Resources and Development Court and the 

Licensing Court. 

Judge Fuller, who commenced her role 

on 10 December 2019, is experienced in 

criminal matters, traffic law, family law and 

animal welfare law. She has also served in 

the RAAF Specialist Reserve for 20 years 

and in March 2019 was appointed by the 

Chief of the Defence Force as a Judge 

Advocate/Defence Force Magistrate. 

Judge Fuller was admitted to practice 

in 1994, joined the independent bar in 

1997 and since then has been practising 

within Bar Chambers. She is also a former 

Chair of the Law Society’s Animal Law 

Committee. 

Judge Burnett commenced his role on 

3 February. His 35-plus years in the law 

have included specialist practice in civil and 

commercial litigation. Prior to joining the 

independent bar in 2004, Mr Burnett QC 

was Counsel and Director of Enforcement 

for the Australian Securities and Investment 

Commission in New South Wales and 

Queensland. 

He worked as a solicitor in various 

private firms both in Adelaide and Sydney 

and until moving to the bench was 

practising at Bar Chambers. 

Judge Joana Fuller Judge Michael Burnett QC Judge Ian Press SC Melanie Burton 

Judge Press, and experienced 

prosecutor, commenced his role on 20 

January. 

While at the the Office of the Director 

of Public Prosecutions, Judge Press served 

as a Managing Prosecutor, a Deputy 

Director, and most recently as Chief 

Counsel for Appeals. 

Prior to that he worked in the Legal 

Services Commission’s criminal practice, 

War Crimes Unit, and as a Duty Solicitor.” 

The Law Society thanks Judge Paul 

Rice, Judge Jack Costello and Judge Sydney 

Tilmouth for their outstanding contribution 

to the justice system. 

INAUGURAL JUDICIAL REGISTRAR 

APPOINTED 

Melanie Burton has been appointed 

South Australia’s first Magistrates Court 

Judicial Registrar. 

Ms Burton is a senior civil litigator 

with over 20 years’ experience in all areas 

of civil law and procedure in all South 

Australian civil jurisdictions, including the 

oversight of long, complex litigation. 

Attorney General Vicki Chapman said 

the appointment of a Judicial Registrar to 

the Magistrates Court would help sitting 

magistrates devote their time to more 

complex matters. 

“By appointing experienced legal 

practitioners as Judicial Registrars, we’re 

giving the courts an alternative way of 

dealing with simple or high-volume 

matters,” Ms Chapman said. 

“Allowing a Judicial Registrar to handle 

these matters will enable Magistrates to 

focus on the more complex or significant 

matters and will aid in the overall 

efficiency of the Court.” 

Ms Burton began her seven-year 

appointment in January. B 

Jason Karas commences as LSC Chairman 

ason Karas has commenced his role 

Jas Chairperson of the Legal Services 

Commission, replacing Michael Abbott AO 

QC whose term ended in January. 

Mr Karas was principal and co-founder 

of Lipman Karas firm. He is a graduate of 

the University of Adelaide and has practised 

law in SA since the early 1990s. 

The Commission’s Director, Gabrielle 

Canny, welcomed the appointment of Mr 

Karas and also acknowledged Mr Abbott’s 

outstanding contribution. 

“Michael’s energy, expertise, leadership 

and dedication have greatly assisted the 

Commission’s development since he joined 

its Board in late 2013,” Ms Canny said. 

“Michael has helped to build and refine 

our operations and the services we provide 

to the community. 

“Jason’s diverse skills will help the 

Commission build on its strong track record 

and meet the challenges of providing legal 

help in the next decade.” 

Mr Karas said :“The Commission’s 

legal assistance ensures South Australians, 

particularly the most disadvantaged members 

of our community, have access to justice.” 

“This is essential work and I look 

forward to supporting the Commission’s 

delivery of those services.” B 


ONLINE ACCESSIBILITY 

I can’t read you! The importance of 

website accessibility for legal services 

NATALIE WADE, PRINCIPAL LAWYER, EQUALITY LAWYERS 

It is well accepted that disability 

access and inclusion from a business 

perspective involves ramps, elevators and 

wider doorways. When designing our 

office spaces and thinking about how to 

deliver legal services to the community, 

we are aware that these features need 

to be embedded into practice. In 1992, 

the Disability Discrimination Act 1992 

(Cth) cemented the legal obligation to 

have these practices and over the last 26 

years, buildings and infrastructure have 

undoubtedly become more accessible. 

However, when designing those core 

features of a legal service or law firm we 

can often forget the website. Websites are 

one of the most common ways in which 

people connect with businesses. When 

facing a legal issue, people will “google 

it” or if they see an advertisement for 

a law firm, may search for the website 

before picking up the phone. If you are 

a person with a disability who is looking 

for a lawyer, clicking on an inaccessible 

website is no different to arriving at an 

office in a wheelchair to find that the front 

door is accessed by a flight of steps. An 

inaccessible website could mean losing 

clients and those clients losing access to 

legal services. Neither is a good outcome. 

Technically, website accessibility means 

“websites, tools and technologies are 

designed and developed so that people 

with disabilities can use them”. 1 The Web 

Content Accessibility Guidelines (WCAG) 

apply to information in a webpage such 

as text, images and sounds but also the 

structure and presentation of a page. 2 

The WCAG should be applied in the 

development or revision of all websites 

for legal services and law firms. Practical 

examples of website accessibility include 

being able to use software to convert text 


into speech or using a keyboard to move 

through content rather than the mouse. 

Intuitively, law firms may realise that a 

WCAG-compliant website would provide 

access to people with vision impairment. 

But website accessibility is much broader 

than that. It can assist people with other 

disabilities including auditory, cognitive, 

neurological, physical and speech. 3 People 

with disabilities make up 20% of the 

Australian population, 4 which makes for 

a significant group of people who may 

be denied access to legal services because 

websites make it impossible to know 

what is on offer and who to contact. That 

presents a serious access to justice issue 

which all law firms must take responsibility 

for. It is critical to the success and integrity 

of our profession to ensure that services 

are accessible and inclusive for all. 

While website accessibility is 

fundamental to access and inclusion 

for people with disabilities, it is worth 

noting that accessible websites present 

other benefits. An accessible website will 

be easier to navigate for people using 

mobile phones, smart watches and TVs, 

those who are trying to view the screen 

in bright sunlight or with a slow internet 

connection. 5 Like the iconic ramp to a 

building, website accessibility makes it 

that little bit easier for everyone. Behind 

the scenes of the website, those which 

are accessible are also easier for search 

engines to read so those Search Engine 

Optimisation (SEO) results which bring 

people to a website when they are looking 

for a particular service (for example, 

searching “family lawyer, Adelaide”) will 

be better for accessible websites. 

In October, 2019, the Royal 

Commission into the Violence, Abuse, 

Neglect and Exploitation of people 

with disabilities (“Disability Royal 

Commission”) was criticised by disability 

advocates as not having an accessible 

website. 6 The advocates pointed out that 

the language, legibility and appropriateness 

of content was not appropriate for use 

by most people with disabilities. Vision 

Australia provided a public statement 

confirming that while they had been 

consulted on the accessibility of a 

draft version of the Disability Royal 

Commission website, they had not been 

asked to conduct a final audit to confirm 

it meets the WCAG. 7 The Disability 

Royal Commission have since provided 

specific information on the accessibility 

of their website. 8 It goes without saying 

that inaccessible features on the Disability 

Royal Commission website are especially 

disappointing given the work they do, but 

it does highlight the importance of why all 

services, public or private, need to ensure 

their websites are accessible. 

Recognising the need for website 

accessibility is one matter, but it is entirely 

another to know how to get it into 

practice. There are several ways to get 

your website compliant and accessible. 

The obvious and easiest way is to engage 

a graphic design company that works to 

the WCAG to make it happen for you. If 

that is not appealing or practical, the South 

Australian Government has launched 

an Online Accessibility Toolkit (www. 

accessibility.sa.gov.au) which provides 

a host of guides, policies and support 

for making your website compliant. 

The Toolkit is a good place to start to 

learn more about what is involved in an 

accessible website and what it looks like. 

The WVAG are also available online (www. 

w3.org) which provide the technical detail 

required for a complaint website.

ONLINE ACCESSIBILITY 

In acknowledging the importance of 

websites to all law firms and legal services, 

the accessible website is 2020’s version of 

“the humble ramp”! B 

Endnotes 

1 Web Accessibility Initiative, Introduction to Web 

Accessibility (5 June 2019) 

2 Ibid. 

3 Ibid. 

4 Australian Network on Disability, Disability 

Statistics (2019) 

5 Web Accessibility Initiative, Introduction to Web 

Accessibility (5 June 2019) 

6 Sam Langford, The Advocate Redesigned the 

Disability Royal Commission website so people with a 

disability can actually use it (1 November 2019) SBS 

The Feed 

7 Vision Australia, Statement from Vision Australia 

on Disability Royal Commission website accessibility (31 

October 2019) 

8 Royal Commission into Violence, Abuse, Neglect 

and Exploitation of People with Disability, 

Accessibility

RENTAL ACCOMMODATION 

NO LONGER UNREGULATED, BUT STILL 

CONTROVERSIAL: THE LAWS AROUND 

HOME SHARING IN AUSTRALIA 

CALLUM RITCHIE, SOLICITOR, WALLMANS LAWYERS AND BRENDAN GRIGG, SENIOR LECTURER 

IN THE COLLEGE OF BUSINESS, GOVERNMENT AND LAW, FLINDERS UNIVERSITY 

In her decision in Swan v Uecker 1 (Swan), 

Member Campana of the Victorian 

Civil and Administrative Tribunal (VCAT) 

described Airbnb’s effect on the residential 

tenancy market as ‘unregulated and 

controversial’. 2 Three years on from Swan, 

and the appeal to the Victorian Supreme 

Court, 3 Australian Governments have 

now taken, or are in the process of taking, 

steps to regulate the short-term rental 

accommodation phenomenon. This article 

presents a snapshot of the status of that 

regulation in each Australian jurisdiction. 

HOME SHARING AND THE ‘SHARING-FOR- 

PROFIT’ ECONOMY 

In the sharing economy, ownership of 

assets is not transferred; people, instead, 

create income from ‘sharing’ their excess 

or under-utilised assets. 4 Home sharing 

platforms enable homeowners or tenants 

to obtain income from their extra space, 

by making it easy for people to book 

short-term accommodation. 5 Through 

Airbnb, for example, a ‘host’ lists an empty 

property (or room) online, and then a 

‘guest’ books a ‘stay’. 6 Airbnb provides 

the platform which connects the parties 

and facilitates payment of the fees, 7 of 

which Airbnb takes a percentage. 8 Other 

platforms like Couchsurfing 9 and Stayz 10 

play a role, however, Airbnb is the most 

prominent home sharing platform: in 

2015–16, over 800,000 Airbnb stays were 

booked for 2.1 million guests in Australia. 11 

Airbnb ‘stays’ vary in form depending 

on whether the host is ‘present,’ 

‘temporarily’ or ‘permanently’ absent. 12 The 

first is where the guest occupies a spare 

room and uses shared facilities in a house. 13 

The second involves the host temporarily 

making the entire property available to a 

guest, 14 whereas a permanently absent host 

does not reside at the property at all, and 


the entire property is available for shortterm 

rental on an ongoing basis. 15 

Some participants in the ‘sharing 

economy’ may aspire to a more 

sustainable use of resources through 

collaborative consumption, 16 but others 

view the short-term rental phenomenon 

as simply commercial short-term letting 

operations conducted via an app. 17 Indeed, 

in 2016, approximately 25% of Sydney’s 

Airbnb listings were for properties 

permanently offered for short-term rental 

and consequently unavailable for longterm 

housing. 18 

COMMERCIAL HOME SHARING AND 

INTENSIFICATION OF USE 

The responses across Australian 

jurisdictions, identified below, reflect 

an intention to regulate commercial 

activities, where a host is absent, rather 

than non-commercial activities. Traditional 

participants in the accommodation industry 

(like hotels), have long been the subject of 

regulation, and have argued that platforms 

like Airbnb are unfairly advantaged if 

they are free from such regulation, despite 

effectively being a commercial operation. 19 

Similarly, the short-term rental 

phenomenon allows people to use their 

home or apartment in a manner and to 

an extent that has not previously been 

possible. This intensification of residential 

use is challenging, because as it takes on 

more of a commercial quality, it conflicts 

with traditional residential land uses. 

Planning laws traditionally seek to separate 

conflicting land uses. 20 This conflict lies 

at the heart of many resident complaints 

about impacts to their amenity from 

neighbours using properties as short-term 

rentals. 21 Responding to intensification of 

use is another key driver of the legislative 

responses to the short-term rental 

phenomenon. 

LEGISLATIVE RESPONSES 

New South Wales 

In 2018, the NSW Government 

announced a framework for 

implementation in 2019 involving a 

combination of measures. 

Firstly, it contemplates clarifying the 

place of short-term rentals in the NSW 

planning system, by defining the concept 

and setting out where approval is required. 

‘Short-term rental accommodation’ will 

be defined as ‘the commercial use of 

an existing dwelling, either wholly or 

partially for the purposes of short-term 

accommodation, but does not include 

tourist and visitor accommodation’. 22 It will 

be an acceptable land use where: the use of 

a dwelling is permissible for the zone; the 

dwelling already has the requisite planning 

approval; and no physical alterations are 

made to accommodate the use. 23 

The NSW framework envisages 

amending the State Environmental Planning 

Policy (Exempt and Complying Development 

Codes) 2008 (NSW) to provide for 

exempt/complying development status 

and associated approval pathways 

depending on the property’s location 

and whether the owner is present. If the 

host is present overnight, the short-term 

rental accommodation will be exempt 

development. 24 The host’s presence 

will mean they can manage impacts on 

neighbours. 25 

Where the host is absent, and the 

property is not on bushfire prone land, 

exempt development status will only apply 

if the property is used for short-term 

accommodation less than 180 days per year 

and is within the Greater Sydney area. 26 

Outside that area, the use is unlimited on 

land not defined as bushfire prone, though 

local councils will be empowered to restrict 

it to 180 days per year. 27 Where a host is


not present on-site in a bushfire prone area, 

the use will require complying development 

approval, in recognition of the increased 

safety requirements. 28 

The Fair Trading Amendment (Short-term 

Rental Accommodation) Act 2018 (NSW) (‘FT 

Amendment’) inserts Division 4A in Part 4 

of the Fair Trading Act 1987 (NSW) and 

establishes a Code of Conduct (‘Code’) to 

apply to all ‘participants’ 29 in the shortterm 

accommodation industry from 

2019. 30 This includes providers of online 

booking services; agents who facilitate 

the agreements; those who provide or 

are given a right to occupy premises; 

and any other person prescribed by the 

regulations who facilitates short-term 

rental accommodation arrangements. 31 

The legislation also prescribes a list 

of matters that the Code may deal with, 

including setting out rights and obligations 

of the participants; 32 establishing a 

registration system for premises used as 

short-term accommodation and when 

they are so used; 33 setting up a complaints 

resolution mechanism; 34 and the ability to 

keep a register of participants who fail to 

comply with the Code. 35 The scheme also 

enables the creation of criminal offences 

and civil penalties for certain breaches. 36 

Amenity impacts from the 

intensification of use caused by home 

sharing are felt acutely in multistorey 

apartments, where disputes have arisen 

between resident owners who complain 

about amenity impacts and over use of 

common property areas 37 and investor 

owners who seek to maximise return from 

their investment. 38 The FTA Amendment 

also amends the Strata Schemes Management 

Act 2015 (NSW) by inserting section 137A, 

which ensures that an owners corporation 

may, via a special resolution, prohibit a 

lot from being used for short-term rental 

accommodation if the lot is not the 

principal residence of the person offering 

the accommodation. 39 The amendment 

also invalidates any existing by-law that 

prohibits short-term rental accommodation 

if the lot is the principal residence of 

the person offering the ‘short-term 

rental arrangement’. 40 ‘Short-term rental 

accommodation arrangement’ is defined as 

‘a commercial arrangement giving a person 

the right to occupy residential premises for 

a period of not more than three months at 

any one time’. 41 Accordingly, the definition 

will only capture commercial arrangements 

and exempts any non-commercial, personal 

arrangement. 

Victoria 

Victoria’s approach does not utilise 

planning laws, rather, it enables the 

private enforcement of rules by owners’ 

corporations. 42 It does not expressly apply 

only to commercial arrangements, but 

in practice such arrangements are more 

likely to be caught by the scheme. The 

Owners Corporations Amendment (Short-stay 

Accommodation) Act 2018 (Vic) commenced 

operation on 1 February, 2019 43 and 

introduced a new scheme into the Owners 

Corporations Act 2006 (Vic), 44 to regulate 

short-stay accommodation arrangements 

within an owners corporation. 45 A ‘shortstay 

accommodation arrangement’ is ‘a 

lease or licence for a maximum period of 7 

days and 6 nights to occupy a lot or part of 

a lot affected by an owners corporation’. 46 

The scheme establishes conduct 

standards expected of short-stay 

occupants and provides for a complaints 

mechanism where those standards are 

breached, 47 including by: 

• Unreasonably creating noise likely to 

substantially interfere with the peaceful 

enjoyment of other lots, other than 

where permission has been given; 48 

• Behaving in a way that is likely to 

unreasonably and substantially interfere 

with the peaceful enjoyment of 

another lot; 49 

• Using or allowing a lot or common 

property to be used so as to cause a 

substantial hazard to the health, safety 

and security of any person; 50 

• Unreasonably and substantially 

obstructing the lawful use and 

enjoyment by an occupier or their 

guest of the common property; 51 or 

• Substantially damaging or altering, 

intentionally or negligently, a lot or the 

common property. 52 

Where a short-stay occupant has 

breached a standard, a lot owner, occupier 

or a manager may make a complaint to 

the owners corporation. 53 The owners 

corporation is empowered to require 

rectification of any breach, 54 or to apply 

to VCAT to resolve the dispute. 55 VCAT 

has the power to order that a person be 

prohibited from using the lot for shortstay 

accommodation where there have 

been at least three complaints within 24 

months; 56 to award compensation for loss 

of amenity 57 (capped at $2,000 for each 

affected occupier); 58 and to award a civil 

penalty against a short-stay occupant. 59 

Any such order can only be imposed by 

VCAT, and cannot be enforced by the 

owners corporation in its by-laws, as 

contemplated by the NSW scheme. 

Queensland 

Queensland’s approach has been 

limited to using planning laws to regulate 

the impacts to neighbours arising from 

commercial short-term rentals that are used 

as ‘party houses’. ‘Party house’ is defined as 

‘premises containing a dwelling that is used 

to provide, for a fee, accommodation or 

facilities for guests’ where: 

a. guests regularly use all or part of the 

premises for parties (bucks parties, 



hens parties, raves, or wedding 

receptions, for example); and 

b. the accommodation or facilities are 

provided for a period of less than 10 

days; and 

c. the owner of the premises does not 

occupy the premises during that 

period. 60 

The Planning Act 2016 (Qld) provides 

that a planning scheme may stipulate that 

a material change of use for a party house 

is development that requires assessment; 61 

specify assessment benchmarks; 62 and 

establish a ‘party house restriction area’ for 

any part of the local government area. 63 

Section 276(2) of the Planning Act 

2016 (Qld) provides that where a local 

government authority establishes a party 

house restriction area, any approval for 

use as a residence does not include use as 

a party house. The requirement that guests 

‘regularly’ use the premises for parties 

likely limits the scheme’s application to 

commercial home sharing. The City of 

the Gold Coast established a party house 

restriction area in 2017. 64 

Western Australia 

The Western Australian Legislative 

Assembly Economics and Industry 

Standing Committee released its report 

into the short-term rental accommodation 

market in September 2019. 65 The 

Committee’s recommendations include: 

creating a new land use definition in the 

state planning scheme that distinguishes 

between ‘hosted’ and ‘unhosted’ short 

term rentals, 66 developing model by-laws 

for strata corporations that would clarify 

the corporation’s powers to prohibit or 

permit short-term rental accommodation, 

67 

and, the establishment of a state-wide 

registration scheme. 68 

South Australia, Northern Territory and 

Australian Capital Territory 

Despite the views of some local 

councils that would like some form 

of regulation, 69 the South Australian 

Government has not taken any steps to 

regulate short-term rentals other than to 

state its position in an Advisory Notice, 70 

a non-binding interpretive aid to the 


Development Act 1993 (SA). 71 It points to the 

silence in the South Australian planning 

scheme about the duration or frequency 

with which a dwelling 72 is occupied, the type 

of occupation, and the mechanism which 

facilitates the occupancy. 73 It concludes that: 

a dwelling will remain a dwelling if it is 

occupied sporadically; let out during holiday 

periods to short-term occupants; let for shortterm 

use; or if the owner lives overseas or 

interstate and uses it occasionally and then for 

relatively short periods. Unless development 

is undertaken to physically alter the dwelling 

such that it is no longer a dwelling, it remains 

a dwelling. 74 

Whether the use of a dwelling for 

short-term rentals might otherwise 

constitute ‘development’ 75 under the 

Development Act 1993 (SA) and require 

approval 76 is determined on a case-bycase 

basis. It appears that the equivalent 

position applies in the Northern Territory 

and the Australian Capital Territory. 

Tasmania 

At the time of writing, a Tasmanian 

parliamentary committee 77 is undertaking 

an inquiry into the short-stay industry. 

The terms of reference place emphasis 

on exploring regulatory options, including 

those involving planning powers. 

CONCLUSION 

The online platforms that underpin 

the short-term rental accommodation 

phenomenon allow those with access 

to property to utilise it to an extent that 

has not traditionally been possible. This 

intensification of use has led to legislative 

responses as some states have recognised a 

need for greater regulation of commercial 

home sharing. 

These regulatory responses focus 

on land use planning laws and laws that 

enable owners’ corporations to enforce 

conduct standards. The primary focus in 

NSW and Victoria, the two jurisdictions 

that have taken the most significant steps 

to regulate short-term rentals, has been on 

home sharing which is undertaken on a 

commercial scale. We are yet to see whether 

the other Australian jurisdictions, including 

South Australia, will follow their lead as the 

intensification of use associated with the 

practice of home sharing continues. B 

Endnotes 

1 [2016] VCAT 483. 

2 Swan v Uecker [2016] VCAT 483, [1]. 

3 Swan v Uecker (2016) 50 VR 74 

4 Iis P Tussyadiah and Juho Pesonen, ‘Drivers and 

Barriers of Peer-to-Peer Accommodation Stay: 

An Exploratory Study with American and Finnish 

Travellers’ (2018) 21(6) Current Issues in Tourism 

703, 703. 

5 Jim Minifie, ‘Peer-to-Peer Pressure: Policy for the 

Sharing Economy’ (Report No 2016–17, Grattan 

Institute, April 2016) 1 . 

6 Daniel Guttentag, ‘Airbnb: Disruptive 

Innovation and the Rise of an Informal Tourism 

Accommodation Sector’ (2015) 18(12) Current 

Issues in Tourism 1192, 1192. 

7 Deloitte Access Economics, Economic Effects of 

Airbnb in Australia: Airbnb Australia (2017) 11. 

8 Ibid. 

9 ‘About Us’, Couchsurfing (Web Page) . 

10 ‘About HomeAway’, HomeAway Stayz (Web Page) 

. 

11 Deloitte Access Economics, Economic Effects of 

Airbnb in Australia: Airbnb Australia (2017) 5. 

12 Alex Lazar ‘Home-Sharing in South Australia: 

Protecting the Rights of Hosts, Guests and 

Neighbours’ (2018) 3 UniSA Student Law Review 

49, 52–3; David Parker, ‘Home-Sharing, Airbnb 

and the Role of the Law in a New Market 

Paradigm’ (2018) 3 UniSA Student Law Review 72, 

73. 

13 Alex Lazar ‘Home-Sharing in South Australia: 

Protecting the Rights of Hosts, Guests and 

Neighbours’ (2018) 3 UniSA Student Law Review 

49, 52–3. 

14 David Parker, ‘Home-Sharing, Airbnb and the 

Role of the Law in a New Market Paradigm’ 

(2018) 3 UniSA Student Law Review 72, 73. 

15 Ibid. 

16 Laura Schatz and Rebecca Leshinsky, ‘Up in the 

Air(bnb): Can Short-term Rentals Be Tamed?’ 

(2018) 7(2) Property Law Review 105, 108. 

17 Laura Crommelin, Chris Martin and Laurence 

Troy, ‘Airbnb Regulation Needs to Distinguish 

between Sharing and Plain Old Commercial 

Letting’, The Conversation (online, 5 June 2018) 

; 

Laura Crommelin, 

Laurence Troy, Chris Martin and Chris Pettit, ‘Is 

Airbnb a Sharing Economy Superstar? Evidence 

from Five Global Cities’ (2018) 36(4) Urban Policy


and Research 429. For other research results in 

relation to Sydney, see also Nicole Gurran and 

Peter Phibbs, ‘When Tourists Move In: How 

Should Urban Planners Respond to Airbnb?’ 

(2017) 83(1) Journal of the American Planning 

Association 80. 

18 Laura Crommelin, Chris Martin and Laurence 

Troy, ‘Airbnb Regulation Needs to Distinguish 

between Sharing and Plain Old Commercial 

Letting’, The Conversation (online, 5 June 2018) 

. 

19 Jacob Kagi, ‘Call for Airbnb Crackdown to Target 

Investors, Holiday Homes in Western Australia’, 

ABC (online, 13 February 2019) 

20 Brian J Preston, ‘The Australian Experience on 

Environmental Law’ (2018) 35(6) Environmental 

and Planning Law Journal 637, 639; Laura Schatz 

and Rebecca Leshinsky, ‘Up in the Air(bnb): Can 

Short-term Rentals Be Tamed?’ (2018) 7(2) Property 

Law Review 105, 107. 

21 See generally ‘Uncensored Airbnb Stories & 

Reasons Not to Use Airbnb’, Airbnb Hell (Web 

Page) . 

22 Department of Planning and Environment 

(NSW), ‘Explanation of Intended Effect: 

Short-Term Rental Accommodation Planning 

Framework’ (October/November 2018) 

5 , 9. 

23 Ibid. 

24 Ibid at 11. 





5 , 11. 





5 , 11. 





5 , 11. 

28 Department of Planning and Environment (NSW), 

‘Explanation of Intended Effect: Short-Term Rental 

Accommodation Planning Framework’ (October/ 

November 2018) 5 , 11. 

29 Fair Trading Amendment (Short-Term Rental 

Accommodation) Act 2018 (NSW) sch 1 s 54B(1) 

(‘Fair Trading Amendment Act’). 

30 ‘New Rules for Short-Term Holiday Rentals’, 

NSW Government (Web Page, 15 August 2018) 

. 

31 Fair Trading Amendment Act sch 1 s 54A (definition 

of ‘short-term rental accommodation industry 

participant’). 

32 Fair Trading Amendment Act sch 1 s 54B(2)(a). 

33 Fair Trading Amendment Act sch 1 s 54B(2)(c). 

34 Fair Trading Amendment Act sch 1 s 54B(2)(f). 

35 Fair Trading Amendment Act sch 1 s 54B(2)(g), (i). 

36 Fair Trading Amendment Act sch 1 s 54C. 

37 Cathy Sherry, ‘Recent Developments in Strata Law: 

By-Law Making Power and Short-Term Letting’ 

(2016) 90(12) Australian Law Journal 853, 853. 




39 Fair Trading Amendment Act sch 2. 






43 Linda Dessau, ‘Acts of Parliament: Proclamation’ 

in Victoria, Victorian Government Gazette, 

No S 380, 14 August 2018. See also Jim Malo, 

‘Victorian Airbnb Unit Owners Can Now Be 

Fined and Banned, Houses Unaffected’, Domain 

(online, 31 January 2019) ; 

See generally Tim Graham 

and Leila Idris, ‘Legislative and Regulatory 

Updates: Owners Corporations Amendment (Short-stay 

Accommodation) Act 2018 and Mornington Peninsula 

Shire Council’s Short Stay Rental Accommodation Local 

Law 2018’ (2019) 34(4) Australian Property Law 

Bulletin 50. 

44 Owners Corporations Act 2006 (Vic) pt 10 div 1A 

(‘Owners Corporations Act’). 

45 Owners Corporations Amendment (Short-stay 

Accommodation) Act 2018 (Vic) s 1. 

46 Owners Corporations Act s 3 (definition of ‘short-stay 

accommodation arrangement’). 

47 Owners Corporations Act s 159A(1). 

48 Owners Corporations Act s 159A(2)(a). 

49 Owners Corporations Act s 159A(2)(b). 

50 Owners Corporations Act s 159A(2)(c). 

51 Owners Corporations Act s 159A(2)(d). 

52 Owners Corporations Act s 159A(2)(e). 

53 Owners Corporations Act s 159A(1). 

54 Owners Corporations Act ss 159D(1), (2)(a). 

55 Owners Corporations Act ss 159D(1), (2)(b), 159E(1). 

56 Owners Corporations Act s 169D. 

57 Owners Corporations Act s 169E(1). 

58 Owners Corporations Act s 169E(3). 

59 Owners Corporations Act s 169G. 

60 Planning Act 2016 (Qld) ss 276(5)(a), (b) and (c). 

61 Planning Act 2016 (Qld) s 276(1)(a). 

62 Planning Act 2016 (Qld) s 276(1)(b). 

63 Planning Act 2016 (Qld) s 276(1)(c). 

64 ‘Planning Act 2016: Council of the City of Gold 

Coast Public Notice Repeal of Temporary Local 

Planning Instrument No 3 (Party Houses) 2017 for 

the City of Gold Coast Adoption Temporary Local 

Planning Instrument No 4 (Party Houses) 2018 for the 

City of Gold Coast’ in Queensland, Queensland 

Government Gazette, Vol 377, No 20, 2 February 

2018, 82. 

65 ‘Inquiry into Short-Stay Accommodation’, 

Parliament of Western Australia (Web Page) 


Parliament of Western Australia (Web Page) http:// 

www.parliament.wa.gov.au/Parliament/ 

commit.nsf/(EvidenceOnly)/5A2D93940D 

DF1D254825833800277F1C?opendocument, vi. 



www.parliament.wa.gov.au/Parliament/ 

commit.nsf/(EvidenceOnly)/5A2D93940D 

DF1D254825833800277F1C?opendocument, vii. 



www.parliament.wa.gov.au/Parliament/commit. 

nsf/(EvidenceOnly)/5A2D93940DDF1D 

254825833800277F1C?opendocument viii-x. 

69 Eugene Boisvert and Claire Campbell, ‘Adelaide 

Council Calls for Airbnb Accommodation to Be 

Regulated Like Hotels’, ABC (online, 13 June 2018) 

. 

70 Advisory Notice: Building, Development Act 1993 

(SA), No 04/16, March 2016 . 


(SA), No 04/16, March 2016 .. 

72 A ‘dwelling’ is defined as ‘a building or part of 

a building used as a self-contained residence’: 

Development Regulations 2008 (SA) sch 1 (definition 

of ‘dwelling’). 

73 Development Regulations 2008 (SA) sch 2. 


(SA), No 04/16, March 2016 

2. 

75 Development Act 1993 (SA) s 4. 

76 Development Act 1993 (SA) s 32. 

77 ‘Legislative Council Select Committee Short- 

Stay Accommodation in Tasmania’, Parliament 

of Tasmania (Web Page, 2010) . 


RISK WATCH 

Living online/working online: 

cybersecurity issues you must address 

GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS 

Online communication using mobile 

devices (phones/tablets/laptops) is 

so convenient and seductive it has become 

almost ubiquitous. Similarly, the use of 

email has become so common it is now 

almost certainly the most used mode of 

communication in the vast majority of 

businesses, including legal practices. The 

dangers of email and the use of mobile 

devices have been well documented both 

in these pages and in the general media 

in recent years. Fraudsters who target 

money transactions or data are clever and 

resourceful and will almost always be one 

or several steps ahead of those they are 

targeting. 

The Society has recently sent out a 

survey to SA legal practices to ascertain 

the level of implementation of mitigation 

strategies to maintain good levels of 

cybersecurity. The results of this survey 

will assist the Society in planning relevant 

Risk Management education sessions and 

will be the subject of a further article in 

the coming months. 

The survey questions were designed 

in conjunction with the PII Scheme’s 

underwriter and were based on the 

“Essential Eight” cybersecurity strategies 

published by the Commonwealth 

Government. Being able to answer “Yes” 

to these questions is an indicator of good 

cybersecurity, both from the point of view 

of minimising risk to your clients and your 

own practice. Even if you didn’t respond 

to the survey it is well worth a few minutes 

of your time reflecting on how your 

practice would answer the questions. 

The survey questions were as follows: 

• Does your Practice require a password 

to access all computers and other 

devices (e.g. laptops, tables, phones 

etc.)? 

• If yes, is there a policy in place 

requiring password complexity and 

periodic changing of passwords? 

• Does your Practice require multifactor 

authentication for remote access to the 

Practice’s computer systems? 

(Note: multifactor authentication means 

the requirement to provide two or more 

methods of verification to be granted 

access.) 

• Does your Practice restrict 

administrative privileges and application 

usage based on user duties? 

• If yes, does your Practice regularly 

review the need for those users 

with such privileges to retain those 

privileges? 

• Do all your Practice’s computer systems 

have antivirus protection? 

• Does your Practice conduct regular 

(minimum monthly) updates / patching 

of software systems – including any 

antivirus protection? 

• Does your Practice conduct a daily 

backup and have recovery procedures 

for all clients’ and business data? 

• If yes: 

Is the backup data stored: 

• Remotely and disconnected from 

the Practice’s computers? 

• For at least 3 months? 

• Is the proper restoration of the 

Practice’s computer systems from 

the backup data tested annually? 

• Does your Practice have a hardware 

firewall protecting your network? 

• Does the Practice have Application 

Whitelisting implemented? (This 

is where only approved / trusted 

programs can run, and nonapproved 

applications (including 

malware) are automatically prevented 

from executing.) 

• Do you have a secure method of 

sending and receiving confidential 

client documents electronically? 

(Note: email is not a secure method.) 

• Does your Practice encrypt all 

confidential and sensitive data? 

• Is USB access disabled on all 

computers used in your Practice? 

Judge Joana Fuller 

• Do you have a practice to verify 

client instructions as to monetary 

transactions? 

• Does the Practice conduct 

penetration testing of the Practice’s 

computer systems? 

• Does the Practice actively monitor 

network traffic to regularly identify 

and assess new threats? 

Whilst there is no guarantee that your 

practice will always be safe—after all the 

hackers and fraudsters have compromised 

the computer systems of government 

agencies and multinational companies— 

getting your practice into a position where 

you can answer “Yes” to these questions will 

be of tremendous benefit because the bad 

guys will most likely move on to an easier 

target. 

Another important point relating 

to cybersecurity and the use of mobile 

devices outside your office is that it has 

to be recognised that public/free Wi-Fi is 

not secure. For example, we understand 

that most airport Wi-Fi systems have been 

hacked or are easily hackable. Despite the 

convenience, it is not recommended that 

any confidential client-related matters 

be conducted using public/free Wi-Fi 

connections, such as that available in 

airports, coffee shops and the like—you 

never know who has hacked into the 

connection. 

Living and working online comes with 

its own set of risks which should never be 

ignored. 

28 


OCHRE RIBBON WEEK 

Ochre Ribbon Week raises awareness of 

shocking impacts of family violence 

CELIA MOODIE, SENIOR PROJECT & POLICY OFFICER, VICTIM SUPPORT SERVICE 

Ochre Ribbon Week occurs each year 

between the 12th - 19th February. 

The Ochre Ribbon Campaign raises 

awareness of the devastating impacts of 

family violence in Aboriginal and Torres 

Strait Islander communities and calls 

for action to end the violence against 

Aboriginal and Torres Strait Islander 

people – especially our women and 

children. 

Research shows that Aboriginal and 

Torres Strait Islander women across 

Australia are 32 times more likely to be 

hospitalised for family violence, and 10 

times more likely to die from a violent 

assault than other women in this country. 

Worse still, 90% of family violence is not 

reported. 

The effects of this victimisation 

flow on to Aboriginal and Torres Strait 

Islander children, with family violence the 

primary driver for the removal of those 

children from their families into out-ofhome 

care, contributing to the cycle of 

intergenerational trauma and victimisation. 

Aboriginal and Torres Strait Islander 

children removed from their families and 

placed in out of home care are 16 times 

more likely to be in the youth justice 

system than those who are not. 

Self-determination is key to change. 

The Aboriginal and Torres Strait Islander 

Social Justice Commissioner, June Oscar 

AO has recently completed the first stage 

of the Wiyi Yani U Thangani (Women’s 

Voices) Project. 

Throughout 2018, the Commissioner 

led and completed a national consultation 

process with around 2,300 Aboriginal 

and Torres Strait Islander women and 

girls across 50 communities throughout 

Australia. The broad-ranging consultations 

explored their sense of identity, health 

and wellbeing, safety, economic and 

education participation, representation 

in leadership, and the way that women 

and girls connect to land and country. 

While different issues were raised across 

locations, there were consistent calls for 

action around child removal, incarceration, 

housing, mental health, wellbeing and 

employment, all of which are often linked 

to family violence. 

Services like ours eagerly await the 

Commissioner’s final report, due in 

March, 2020. This report is expected to 

provide guidance for all governments, 

non-government organisations and 

communities to better support Indigenous 

women and girls as agents of change. We 

consider this will be an opportunity to 

lead us forward in supporting families and 

communities to address family violence, 

and this will provide us an opportunity to 

reflect on what our role can be in effective 

change. B 

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IN HONOUR 

Vale: Mark Griffin QC 

The following is an abridged version of the eulogy for 

Mark Griffin QC delivered by his brother, Paul Griffin. 

Mark Griffin attended school at St 

Ignatius College, Norwood and later 

Athelstone from 1966 to 1974. 

He was a feisty kid with a shocking 

temper, something that he learnt to control 

as he grew older. He never got in any real 

trouble at school, it was more about being 

very strong willed and going into battle for 

the kids who may had been getting a hard 

time. His support of the underdog started 

early. 

He was a good student who worked 

very hard and involved himself in 

everything at school from sport to debating 

and even theatre. 

He was a natural leader. He captained 

numerous school football and cricket teams 

and was appointed School Captain in his 

final year in 1974. 

He commenced at Adelaide University 

in 1975, was articled to John Goldberg in 

1979 and graduated the same year along 

with his great friends John Connelly 

and Michael Doyle. He was admitted on 

December 17, 1979. 

This was also the year he first became 

A LETTER TO DAD 

To Dad, 

It is hard to put into words my love for 

you. 

You are my father - my idol - my best 

friend - and my greatest support. 

Although our time together on this Earth 

has come to an end, I have never felt 

luckier than I do now. To have grown into 

a young man with you by my side; when 

our time together could have been so much 

less; I am, and always will be grateful. 

I know how much it meant to you that you 

saw the end of my schooling, and it was 

your bravery that helped get me through 

such a difficult year. 

All our conversations; the laughs; the 

unwell when what was initially thought to 

be a simple case of appendicitis turned out 

to be something far more serious. Mark was 

diagnosed with the very rare autoimmune 

condition that was to chart the course of 

his health for the rest of his life. 

Fortunately his condition could be 

managed, and once he recovered he set 

about establishing his career as a lawyer. 

He absolutely loved the law and by 

the early 1980s had married and with the 

support of Celine, M A Griffin & Co was 

established. The practice quickly grew 

and some years later he merged with Kym 

Elston and Brian Gilchrist. 

In the early 1990s Mark moved 

to Boston and worked in the Public 

Defender’s Office which he loved, 

representing some of the most 

disadvantaged and troubled in the 

community. 

In the three years Mark lived in Boston 

he made some wonderful friends, in 

particular Fr Frank Herrmann, a Jesuit 

Priest and Law Lecturer at Boston College 

Law School. 

lectures; the stories you always repeated; 

your constructive criticism from the 

sidelines of my footy matches – these 

moments we shared will be burnt into my 

memory forever. 

I would say goodbye, but I know you well 

enough now to know that you will never 

truly leave me. 

You are a part of me; I promise to carry 

you with me every day; and because of 

this, I do not fear what lies ahead. 

Until we see each other again – I will miss 

you. 

I love you with all my heart. 

Your son, 

Matthew 

He returned to Adelaide in the mid 

1990s. After a short period with the 

Director of Public Prosecutions he joined 

the Bar and has thrived on the challenges, 

demands and workload of life as a 

Barrister for the past 25 years. 

Mark loved sport. The Old Ignatians’ 

Football and Cricket Clubs were a big part 

of his early life, in particular the Football 

Club. He was a Best and Fairest winner, 

A-Grade Captain, Coach, President and 

was a Life Member. 

He was a talented sportsman blessed 

with skill, speed and courage as well as 

fair bit of aggression which could see him 

bowl a series of very quick short-pitched 

balls towards a loud-mouthed batsman or 

release a humiliating tirade released against 

an opposition hit-man. Once he lost it, he 

completely lost it. 

He was the legal representative for 

the Port Adelaide Football Club which 

kept him quite busy at times dealing with 

an array of both on-field and off-field 

incidents, usually at very short notice. 

In Round 2 this season, Port Adelaide 

will play Adelaide in the Showdown 

and Port Adelaide will be wearing black 

armbands in memory of Mark. 

Family was hugely important to Mark. 

He was as excited as Edwina and I had 

ever seen him when Nicholas and William 

were born and he became a proud uncle 

for the first time. 

However this was quickly surpassed 

when Matthew was born and he and 

Leslee became proud parents. 

He was a great dad, totally devoted to 

Matthew, helping with homework, hours 

on sidelines barracking, trips to Melbourne 

for the tennis and sharing the joy and often 

despair of life as a Port Adelaide supporter. 

Barracking, he’d be yelling out to a 

very young Matthew telling him to quickly 

“get back on your feet as you won’t get 

your next kick lying on the ground.” 

This was the way Mark approached his 

own life. Once an obstacle had presented 

itself he accepted it, digested it and dealt 

with it without complaint 

He was more than happy to share his 

30 THE BULLETIN February 2020

IN HONOUR 

opinion of selected politicians, journalists, 

umpires, the Australian Football League, 

lawyers and, God forbid, even some 

members of the judiciary. 

His analysis was always colourful and 

unfiltered and, if challenged, repeated. 

Mark was a highly disciplined person. 

He had an enormous capacity for work 

and committed himself totally to each and 

every case. 

He was a great storyteller and had a 

brilliant sense of humour - one of those 

annoying people who in a group situation, 

one by one, others would eventually 

stop talking and everyone would end up 

listening to him. 

He was engaging and genuine and was 

fiercely loyal to his friends and family. 

He loved a good fight and he was the 

person you wanted in your corner. 

Underlying health issues have been a 

part of Mark’s entire adult life. He took 

them very seriously, ensuring that he 

was always in the best possible physical 

condition that he could be to give himself 

every chance of a long life. 

His liver transplant in 2006 was a 

blessing that he was always grateful for and 

while the news that was delivered to him 

twelve months ago was devastating, he 

accepted it and did what he could to keep 

it at bay. 

He had the highest admiration for 

all of the medical staff involved in his 

treatment over years in particular Libby 

John and the entire team on the Liver 

Transplant Unit at Flinders Medical 

Centre. 

Equally as important has been the 

love, care and support shown by Leslee 

throughout Mark’s illness which has been 

truly remarkable and has made all the 

difference. 

On Sunday November 24, two weeks 

before he died, he was determined to get 

to Matthew’s Valete Dinner at St Ignatius 

and he did. This is the final official 

occasion in which the parents and the 

graduating students come together to 

celebrate the completion of their time at 

the school. 

The effort that was required and the 

energy that it consumed left nothing in 

reserve but he got there and loved every 

minute of it. 

He had a truly remarkable life that 

has impacted a wide and diverse group of 

people who will all remember him fondly 

for many different reasons. 

Mark leaves behind people whose 

fears were eased with some simple legal 

advice. He leaves behind people for 

whom he has advocated. People whose 

innocence he has been able to prove. 

People who, thanks to him got a second 

chance and with it the opportunity to turn 

their lives around. 

He leaves behind colleagues who he 

loved and engaged with over four decades 

and a host of younger lawyers who have 

benefited from his knowledge, wisdom 

and experience as well as friends, some 

lifelong, others more recent who will 

always remember him with great affection. 

But above all, after 62 short years of 

a life lived at full throttle, Mark Griffin 

leaves behind a family who loved him very 

dearly and always will. B 

Marie pays tribute to her dear, committed friend 

At the funeral of Mark Griffin QC, 

Marie Shaw QC spoke of her 

generous, dedicated, courageous friend of 

over 30 years who she affectionally knew as 

“Griff ”. 

“No better friend could anyone 

have,” Marie said. “He knew when I was 

struggling, and he was always there for me. 

And not once in those 30 years did Mark 

ever let me buy my own cup of coffee” 

Marie said that Mark routinely took 

on the most difficult cases as a barrister 

and always defended his clients fearlessly. 

She also described a different kind of 

courage she saw when Mark knew that his 

time on earth was nearing an end, but was 

determined to see his beloved son Matthew 

graduate from high school. 

Last year Marie organised a surprise 

event to honour Mark, telling Mark that 

the event in question was to pay tribute to 

Frank Moran QC. 

After Mark had spoken about the 

entertaining antics of Frank Moran, Michael 

Abbott AO QC put his arm around Mark 

and said: “We love you Mark. You’re one of 

the bravest men I’ve ever met, and tonight, 

we want to tell you what you mean to us.” 

The first speaker was the Chief Justice 

Chris Kourakis, who concluded his remarks 

about Mark by saying: “Of course, Mark is 

always welcomed when he appears before 

the Court of Criminal Appeal.” 

Without skipping a beat, Mark 

interjected with his wicked sense of 

humour: “You wouldn’t think so from the 

judgments I get”. 

Judge Liesl Chapman and Craig 

Caldicott also paid tribute to Mark, telling 

him what a great lawyer, father and friend 

Mark was. 

“We knew we were the ones who were 

richer for the tears we shared that night, 

for the enduring memories we now have 

of Mark, and for the opportunity we had 

to show Mark how much we loved him,” 

Marie said. 

February 2020 THE BULLETIN 

31

FEATURE 

How ‘FloatLegal’ will assist in providing 

effective and efficient legal services and 

improve access to justice 

VANESSA HUTCHENS, LAW STUDENT, UNIVERSITY OF SOUTH AUSTRALIA 

The following essay was awarded first place in a 

competition run by the Law Society and University of 

Adelaide’s GDLP program, which invited students from all 

South Australian-based law schools to submit an essay 

of 500 to 1500 words addressing the question “How an 

application or an existing/emerging technology will 

assist in providing effective and efficient legal services.” 

Winning author Vanessa Hutchens, a University of SA 

student, was awarded $1500, while the second-place 

prize of $500 went to University of Adelaide student 

Nicholas Arundel. 

Australians have access to premium legal 

services. Yet, many Australians choose 

to not seek legal advice. There is a perceived 

notion that the financial liability associated 

with seeking advice, may outweigh the 

burden of the legal predicament. Access 

to justice is a pertinent issue in the legal 

profession, and there are many projects that 

aim to promote inclusiveness, particularly 

for those who are vulnerable in our society. 1 

This paper proposes that technology 

can be used to enhance communication 

between clients and lawyers, through the 

use of an online platform where clients can 

present their legal queries to qualified legal 

practitioners. As such, clients are granted 

access to relevant information that can 

allow them to make more informed choices 

as to how to proceed with their query 

outside of the platform. 

CURRENT USE OF TECHNOLOGICAL 

PLATFORMS IN THE LEGAL SECTOR 

Taking the first step towards seeking 

legal advice doesn’t need to be expensive 

and complicated. Technology has 

advanced access in many ways already 

in the legal profession. Education in the 

law is facilitated by learn online sites, that 

provide students with a portal in which 

to access academic material. Databases 

are warehouses for cases, legislation and 

journal articles – all accessible at our 

fingertips. Websites act as portals of 

information for governments, law firms, 

published media materials, and more. 

Professional networking platforms such 

as LinkedIn 2 allow legal professionals to 

gain access to job opportunities, make 

connections with others in the profession, 

share accomplishments and promote 

and endorse their interests. Yet, the legal 

profession could get better at being more 

accessible to clients, particularly those who 

can’t afford legal services. 3 Technology 

should be harnessed to close the gap that 

exists between legal practitioners’ ability to 

assist on legal matters, and client’s ability 

to reach out and ask for help. 

TECHNOLOGY: A HELP OR HINDRANCE FOR 

THE VULNERABLE? 

There is some debate around whether 

the use of technology helps or hinders 

people who are particularly vulnerable in 

our communities in their quest to access 

justice. 4 Living in a remote location, 

homelessness, or being a refugee for 

example can render people unable to 

access technology. It is true that this is 

often the case, but not always. Often 

people living remotely benefit from the 

use of technology, as it can increase access 

to information and reduce travel costs. 5 

Having FloatLegal as a resource that is 

available provides an extra possible route to 

a solution, should these individuals manage 

to gain access to the internet. Community 

centres often offer free internet services, 

and access to the platform would be free 

Essay competition winner Vanessa Hutchens (left) 

with then Law Society President Amy Nikolovski 

of charge. Moreover, the platform will 

encourage a cultural shift, encouraging an 

increase in lawyers wanting to offer their 

services pro bono. If the legal profession 

saw a surge in lawyers taking cases on pro 

bono, this would be hugely beneficial to 

those who are vulnerable and in need of 

legal assistance. 

THE RIGHT TO ACCESS JUSTICE; THE 

RIGHT TO A PIECE OF MIND 

As noted by the Hon Michael Kirby 

AC CMG in his paper ‘Law and Justice in 

Australia: Room for Improvement’: 

Law is not just an ordinary occupation. 

It is not a mechanical job. It is a 

vocation committed to justice. It is one 

fundamentally dedicated to the principles 

of human dignity and human rights. 6 

There is some debate around whether 

legal services are in fact a right or a 

service. 7 However, access to legal services 

should be as accessible as advice from a 

doctor. It need not be the legal equivalent 

of a life-threatening condition, to have 

a professional provide you with some 

piece of mind. The legal system has been 

described by the Hon Mr Kirby as a ‘rolls 

royce system of law’, 8 however there needs 

to be some offering that accommodates 

for people with smaller claims. 9 Everybody 

has an equal right to receive advice 

about their health. Similarly, everybody 

has a right to justice and a solution to a 


FEATURE 

legal complaint. 10 As is in the healthcare 

profession, the law fundamentally exists to 

assist and protect people against potential 

injustices. FloatLegal aims to increase 

the amount of cases that are handled by 

lawyers. Lawyers can identify prospective 

clients on the platform, and opt to take the 

client on bro bono, if they wish. The shift 

to lawyers to take on more work pro bono, 

is something that has been encouraged 

within the profession. 11 Even a simple 

identification that there is merit to a legal 

query in which to warrant a face to face 

meeting, is often what people are wanting 

to find out. On the contrary, a referral to 

a government website, or another relevant 

online resource could provide sufficient. 

The issue is that often people simply don’t 

know where to start. 

In our current technological climate, 

platforms are being introduced to more 

efficiently address client needs. Uber 12 is an 

example of utilising technology to throw 

a request for a service into the cloud, and 

wait for a response. In Uber’s case, the 

service costs. The platform being proposed 

by this paper - FloatLegal, similarly ‘floats’ 

legal queries and waits to see if there 

might be bite in the form of answers 

from qualified legal practitioners. People 

can post their legal concerns up into the 

‘cloud’, and see if the legal weather system 

reacts, which could lead to the formation 

of a formal and paid (or pro bono) legal 

relationship. It gives some control back 

to the people who are seeking the service, 

and increases transparency in the legal 

profession between lawyers and clients. 

Lawyers have a reputation for being 

conservative, intimidating and expensive. 13 

However, the most effective lawyers 

are approachable, honest, transparent 

and inclusive. Technology can be used 

to enhance inclusiveness in the legal 

profession through the of FloatLegal, that 

serves as a mode of communication for 

prospective clients and legal professionals. 

Clearly, advice provided through this online 

mechanism cannot constitute formal 

legal advice, however it can act as a first 

point of call, a guide and a useful tool to 

primitively diagnose legal issues. Moreover, 

it aids to combat issues for clients seeking 

some immediate guidance, however cannot 

attain this due to their physical proximity 

to legal services, for example people living 

in remote locations. 14 Legal practitioners 

can ease the mind of someone who is in 

distress with a legal concern by identifying 

merits to the query, and distinguishing 

whether they have a potential case. Is there 

scope for a legal practitioner to take the 

case on bro bono? What law firms could 

be recommended for them to visit if they 

have a case that needs further advising? 

What websites can they be referred to, 

what forms can be completed, or where 

can they be directed to read more about 

their particular concern? These things 

seem simple to qualified legal practitioners 

– however in many cases the crux of the 

issue when it comes to access to justice is a 

reluctance, or inability for a client to make 

an appointment with a lawyer. 

BENEFITS TO LAWYERS 

The creation of a platform such as 

FloatLegal offers obvious benefits to 

clients. However, there are substantial 

advantages for lawyers who engage with 

the platform. It recognises lawyers who go 

above and beyond to assist people in need 

of advice. The platform sets a stage where 

lawyers can share their knowledge and 

expertise, with the transparency of allowing 

other practitioners as well as clients to 

view and benefit from that information. 

It showcases altruistic qualities which can 

enhance standing in the profession, as well 

as in the wider community. As has been 

encouraged by His Honour Chris Kourakis 

CJ, it should be the duty of everyone in 

the legal profession to assist those less 

fortunate than ourselves. 15 

FloatLegal can also act as a platform 

from which educational and governmental 

resources can be pooled together in one 

place. Additionally, it allows qualified and 

admitted, yet non-practising lawyers an 

opportunity to remain engaged with the 

legal community on a professional and 

client basis. 

CONCLUSION 

The fundamental goal of FloatLegal 

is to promote inclusiveness in the legal 

profession. It’s to advance the legal 

profession through the use of technology, 

to open itself up to people suffering the 

burden of legal concerns. FloatLegal allows 

the sharing of information and educates 

clients about what services are available to 

them in their communities, as well as outside 

of their communities. The opportunity 

to seek answers to legal questions from 

lawyers is as much a of a right as seeking 

advice about your health from a doctor, 

or as a right to education. FloatLegal uses 

technology to encourage clients to reach 

out, and commence a journey toward 

seeking resolution of their issue. B 

Endnotes 

1 The Law Council of Australia, Access to Justice, The 

Justice Project . 

2 < https://www.linkedin.com>. 

3 Monash University, Taking the Next Steps to Improve 

Access to Justice, An Interview with Dr Warren Mundy, 

Presiding Commissioner on the Productivity Commission’s 

Access to Justice Inquiry (December 2014) Monash 

University . 

4 See, eg, Marja Elizabeth, ‘Does Technology 

Help or Hinder Access to Justice for Vulnerable 

People?’ (2017) 39 Bulletin (Law Society of South 

Australia) 8-9. 

5 Caroline Hart and Adrian Hallewell, ‘The Regional 

Route to Online Law and Justice: Challenges and 

Opportunities for Rural Lawyers’ (2018) 38 Proctor 

18-20. 

6 Hon Michael Kirby, ‘Law and Justice in Australia: 

Room for Improvement’ (2004) 4.2 Queensland 

University of Technology Law and Justice Journal 289. 

7 See, eg, Steven Rares, ‘Is Access to Justice a Right 

or a Service?’ (2015) 89 Australian Law Journal 777. 

8 Melissa Coade, Legal Experts Speak Up For the 

Future Prospect of Online Courts (7 August 2017) 

Lawyers Weekly . 

9 Ibid. 

10 See, eg, Penni Pappas, Chris Kourakis: Right Place, 

Right Time (23 November 2012) NeosKosmos 

. 

11 Rares, above n 7, 790 [89] 

12 < https://www.uber.com>. 

13 See, eg, Felicity Nelson, Why Do People Hate 

Lawyers So Much (17 February 2015) Lawyers 

Weekly . 

14 See, eg, Caroline Hart, ‘’Better Justice? Or 

Shambolic Justice?: Governments Use of 

Information Technology for Access to Law and 

Justice, and the Impact on Regional and Rural 

Legal Practitioners’ (2017) 1 International Journal of 

Rural Law and Policy 1-21. 

15 Michael Esposito, ‘Luck of the Draw: Lawyers 

Reflect on Their Privileged Legal Position at New 

Legal Year Celebration’ SA Law Society Bulletin 

(online), March 2019 . 


TAX FILES 

The Land Tax Changes: Aspects 

of the Trust Notification Provisions 

and the Ex Gratia Schemes 

BERNIE WALRUT, MURRAY CHAMBERS 

After much public debate and 

discussion, the 2019 State Budget 

proposal to rewrite significant aspects of 

the land tax laws in South Australia was 

completed on 5 December. 2019 with 

the Governor assenting to the Land Tax 

(Miscellaneous) Amendment Act 2019 (SA) 

(LTMA). Whilst the transition provisions 

permit the lodging of some notices 

prior to midnight on 30 June, 2019 the 

operation of the substantive provisions 

of the LTMA do not commence until 

midnight of 30 June, 2020. 1 

The changes effected by the LTMA 

can be broadly described as fourfold: 

significant rate reductions; a two staged 

taxation of commonly owned land, the 

first stage assesses the common ownership 

land and the second stage assesses each 

owner with an aggregation of all land 

interests of the owner or deemed owner at 

this stage with a credit for the tax already 

paid; 2 a specific regime for the taxation 

of trusts with some trusts suffering a 

surcharge; and the grouping of commonly 

controlled companies for the purposes of 

assessing the land tax on an aggregated 

basis. 

In addition, three ex gratia schemes 

and their details were announced by 

Treasurer during the course of the 

passage of the Bill through the Legislative 

Council. 3 The first of those ex gratia 

schemes is the land tax transition fund 

that is available to provide relief to 

persons who suffer an increase in their 

land tax over three years by reason of 

the aggregation of the properties owned 

by them on the introduction of the Bill. 

It does not apply to those suffering an 

increase by reason of the trust surcharge 

or the company aggregation provisions. 4 

The second is to provide developers of 

affordable housing land with a land tax 

concession for 12 months. The third is to 

provide affordable community housing 

land tax relief for up to 100 properties 

commencing from 1 March, 2020 


where the property is rented under an 

arrangement with a registered community 

organisation at less than 75% of the 

current market rent. 5 

NOTIFICATIONS IN RESPECT OF TRUSTS 

Once the provisions commence there 

is a plethora of notices that are required 

to be given to the Commissioner in 

connection with trusts, usually within one 

month of the occurrence of a particular 

event. In the case of administration 

trusts, 6 it must be lodged within one 

month of a grant of probate or letters 

of administration. 7 The notices to be 

lodged must be in the form, contain the 

information and be accompanied by the 

documents required by the Commissioner. 8 

The transition provisions of the LTMA do 

not allow for such notices to be given prior 

to the commencement of its provisions. 9 

In the case of an implied, constructive 

or resulting trust the provisions are simply 

not clear as to whether a notice ever needs 

to be lodged with the Commissioner. The 

definition of trust provides that it does 

not extend to such trusts, 10 except where 

expressly provided. The only provisions 

that expressly deal with such trusts are 

sections 13E and 13F and neither require 

the provision of a notice. 11 

The notices required to be lodged 

by trustees include: where a person is a 

trustee of land in South Australia at the 

commencement of the legislation; 12 where 

a person becomes a trustee of land in 

South Australia or as a trustee acquires 

land or further land; 13 a trustee of land 

in South Australia who disposes of land 

must notify the Commissioner of the 

disposal; 14 if a person is trustee of a trust 

that owns land in South Australia and the 

nature of the trust changes (i.e. from one 

of the following, as defined, to another 

of the following: a fixed trust, a unit 

trust, a discretionary trust, an excluded 

trust or a public unit trust); 15 if a trustee 

of fixed or unit trust has lodged a notice 

with the Commissioner specifying the 

beneficiaries or unitholders 16 and there 

are changes of such persons, then the 

trustee must notify the Commissioner of 

such change; 17 if the trustee of a fixed 

or unit trust is a corporation and another 

corporation (or related corporations) 

acquires more than 50% of the interests 

in such trusts or already has such an 

interest at the commencement of the 

provisions, the Commissioner must be 

notified; 18 where a person is the trustee of 

an administration trust 19 that includes land, 

on the completion of the administration 

the Commissioner must be notified of 

such completion. 20 

There is no obligation on a trustee to 

notify the Commissioner of the existence 

of a trust owning land in South Australia 

in two situations. One exception is where 

at the commencement of the LTAM the 

trustee has notified the Commissioner 

of that fact for the purposes of the Act. 

Under the current section 13(3)(a) of the 

Land Tax Act 1936 (SA) a trustee of a 

trust can notify the Commissioner of the 

existence of the trust. 21 Where such notice 

is given, the taxable value of the land of 

the trust is not aggregated with other land 

owned by the same taxpayer, other than 

land in trust for the same beneficiary. It 

appears that where such notifications have 

been provided it will be unnecessary to 

provide the Commissioner with a further 

notice. 

The other notification that may satisfy 

this situation is where the trustee has 

already lodged with the Commissioner a 

notice of the beneficial owners, unitholders 

or a designated beneficiary as provided for 

by sections 12, 13 and 13A of the LTA. 

It is not clear whether it is intended that a 

notification under those provisions prior 

to the commencement of the remaining 

provisions of the LTMA would be 

sufficient for all purposes. It would appear 

to involve unnecessary duplication if that

TAX FILES 

is not the case. After the commencement 

of all of the provisions of the LTMA 

one would expect a single notification and 

nomination process will be possible. 

The other situation where a 

notification is not required is where at the 

commencement of the LTMA the land the 

subject of a trust is “excepted or exempted 

from land tax by the Commissioner”. 22 

That expression can be interpreted in 

one of two ways. The first is that there is 

no need to give notice of the trust either 

where the land is excepted, as provided 

by section 4 of the LTA, or where the 

Commissioner has exempted the land 

under section 5 of the LTA. Under section 

5, the Commissioner may exempt land 

without an application from the land 

owner for an exemption. 23 

The second possible interpretation of 

that expression, is that the phrase “from 

land tax by the Commissioner” qualifies 

both “excepted or exempted” rather than 

simply “exempted”. If that view is adopted 

then the situation will be anomalous. On 

that interpretation trustees of trusts with 

primary production land will not come 

within the notification exclusion as that 

land is excepted 24 (i.e. they will be required 

to notify the Commissioner of the 

existence of the trust) whilst trustees of 

land that is a principal place of residence 

will come within the notification exclusion 

because it is exempted from land tax by 

the Commissioner. 25 Having regard to the 

structure of the LTA one may suggest that 

this is not the intended interpretation. 

Further, if the second possible 

interpretation is correct, then trustees of 

land in the State that is excepted under 

section 4 of the LTA will commit an 

offence if they fail to give notice of the 

trust as required by section 13D of the 

LTA. 26 There appears to be no general 

power for the Commissioner to relieve 

taxpayers from such obligations, unless the 

lodgement obligation may be the subject 

of a special arrangement for lodging of 

returns by a class of taxpayers under 

Part 6 of the TAA. 27 If it can be the 

subject of such an arrangement, then the 

Commissioner may provide an exemption 

(or a partial exemption) for taxpayers from 

specified provisions of a taxation law to 

which it applies (i.e. lodging of a notice). 28 

As already described, where the trustee 

of a fixed or unit trust is a corporation 

and another corporation (or related 

corporations) acquires more than 50% of 

the interests in such trust or already has 

such an interest at the commencement 

of the LTAM there is an obligation on 

the corporate trustee of that trust to 

notify the Commissioner of the trust or 

any changes. This provision appears to 

compliment the corporate aggregation 

provision in section 13G(5). Under those 

provisions, fixed trusts and unit trusts 

that have corporate beneficiaries (either 

a single or grouped corporations) with 

more than a 50% interest are intended to 

be aggregate with the corporate group for 

land tax purposes, notwithstanding they 

are trusts. 29 

A further difficulty with that 

notification requirement is that it is not 

limited to fixed or unit trusts owning land 

or land in South Australia. 30 The provision 

applies to any fixed or unit trust with such 

corporate holdings of more than 50% 

and a corporate trustee. 31 The failure by 

the corporation, that is such a trustee to 

give the notice, constitutes an offence. 

Once again, one may query whether the 

Commissioner has any power to relieve the 

corporate trustee from such obligations 

under Part 6 of the TAA. 

NOTICES IN RESPECT OF TRUSTS THAT 

ALTERS THE INCIDENCE OF LAND TAX 

In addition to those notices the 

trustees of certain trusts with land may 

lodge with the Commissioner notice of 

the beneficial owners, unitholders or a 

designated beneficiary. As described, 

the transition provisions of the LTMA 

allow for such notices to be given prior 

to the commencement of its substantive 

provisions. 32 

The lodgement of a notice in those 

situations has a number of effects, one is 

that the trustee is then assessed at the base 

rate (i.e. no trust surcharge). Another is 

that the beneficial owners, unitholders or 

a designated beneficiary have aggregated 

with their land holdings certain interests 

in the respective trusts land holding for 

assessment purposes and are assessed on 

their aggregated holdings at base rate. They 

also receive certain credits for the tax paid 

by the trustee of the trusts. 

In the case of the fixed trust, 33 the 

trustee may lodge a notice at any time, 

but once a notice is lodged, if withdrawn, 

which it may be, no further notice may 

be lodged thereafter. 34 In the case of a 

unit trust 35 the provisions are much the 

same as the fixed trust. 36 In the case of a 

discretionary trust 37 the notice can only 

be lodged up to 30 June, 2021. Where 

such a notice is lodged the rate reduction 

and aggregation with the designated 

beneficiaries holdings only applies in 

respect of land owned by the trustee of the 

discretionary trust as at the introduction of 

the LTMA into the House of Assembly. 38 

The notice in respect of the 

discretionary trust may specify only one 

natural person who must consent to 

being nominated and 100% of the land 

owned by the trustee of that trust as 

at the introduction of the LTMA into 

the House of Assembly is attributed to 

that designated nominee. 39 There are 

restrictions on who may be the nominee. 40 

If withdrawn no further notice can be 

lodged. The nominee can withdraw the 

consent with the consequence that the 

notice is deemed to be withdrawn by the 

trustee. 41 The nominee can be replaced in 

the event of death, incapacity, relationship 

break down or on the occurrence of other 

events prescribed by regulation. 42 


TAX FILES 

EX GRATIA PAYMENTS 

Complementing the land tax 

changes are three ex gratia schemes. 

One provides relief for those adversely 

affected by the new aggregation rules 

and the others provide relief for those 

providing affordable housing. Under 

most ex gratia schemes and ad hoc ex 

gratia arrangements in the past in South 

Australia, the Treasurer has paid the 

tax to the Commissioner, relieving the 

taxpayer of the obligation to pay the tax. 

The amount was not usually paid to the 

taxpayer, though it is possible that in some 

situations the tax may have been refunded 

under such arrangements. One assumes 

that a similar direct payment arrangement 

will apply to each of these proposed ex 

gratia schemes. 

An issue that has been raised, in 

connection with the operation of these 

schemes, is what are the income tax 

consequences under the Income Tax 

Assessment Act 1997 (Cth) (ITAA97) for 

those benefiting from such payments 

under. A starting point is to identify 

whether it is ordinary income. If it is 

ordinary income then it will be taxable. 

Such amounts are likely to be ordinary 

income where the taxpayer is conducting a 

rental property business. 43 

If it is not ordinary income then is the 

amount a recoupment for a deductible 

expense for the purpose of Subdivision 

20-A of ITAA97. An amount is a 

recoupment of a loss or outgoing and an 

assessable recoupment if the taxpayer can 

deduct an amount for the loss or outgoing 

for the current year or has deducted or 

can deduct an amount for the loss or 

outgoing for an earlier income year under 

a provision listed in section 20-30. Item 

1.2 of the table in section 20-30 lists rates 

and taxes, so far as section 8-1 allows the 

taxpayer to deduct such rates and taxes. 44 

Section 20-25(2) also provides that if some 

other entity pays an amount on behalf 

of the taxpayer (e.g. the Treasurer in this 

situation) in respect of a loss or outgoing 

that a taxpayer incurs, the taxpayer is taken 


to receive the amount as a recoupment of 

the loss or outgoing. It is not an assessable 

recoupment if it is ordinary income or 

statutory income. 

Section 8-1 allows a taxpayer to 

deduct rates and taxes, provided there is a 

sufficient connection with the taxpayer’s 

income producing activities (i.e. incurred 

in gaining or producing the income or 

necessarily incurred in the conduct of a 

business) and they are not of a capital, 

private or domestic nature. Land tax 

has long been accepted as a tax that is 

deductible when incurred in connection 

with income producing activities. 45 

It is therefore suggested, that where 

an ex gratia payment is actually paid 

to the taxpayer it is likely to constitute 

either ordinary income or an assessable 

recoupment. Where it is paid direct by 

the Treasurer on account of the land tax 

liability or part of it, the payment will still 

constitute an assessable recoupment by 

reason of the operation of section 20- 

25(2) of ITAA97. If it is not paid to the 

taxpayer but has the effect of reducing the 

amount actually payable by the taxpayer, 

it does raise the question as to whether it 

effects a reduction of the amount incurred 

or in some way a non-cash business 

benefit to which section 21A of the Income 

Tax Assessment Act 1936 (Cth) applies. 

These are matters that will require further 

consideration in each individual situation. 

BENEFICIARY ENTITLEMENT TO INCOME 

TAX DEDUCTION OF LAND TAX 

As described, where a notice is 

given by the trustee of a fixed trust, unit 

trust or discretionary trust notifying the 

Commissioner of the beneficiaries of 

the fixed trust, the unit holders of the 

unit trust or a designated beneficiary of a 

discretionary trust there are two particular 

land tax consequences. The trustee of 

the trust is thereafter taxed at base rate 

and the beneficiaries, unit holders and 

designated beneficiaries have aggregated 

with their land holdings certain interests in 

the respective trusts land holding for their 

assessment purposes subject to receiving 

certain credits. 

A non-land tax consideration in 

deciding whether to lodge such a notice is 

whether the beneficiary who will become 

liable to pay the land tax will be entitled 

to a deduction for such payments under 

the ITAA97. Once again this requires 

consideration of section 8-1 of ITAA97. 

Is the amount incurred in deriving 

assessable income or necessarily incurred 

in the conduct of a business? As will be 

briefly described, it is likely to be easier to 

demonstrate that a taxpayer has incurred 

such an outgoing in gaining or producing 

assessable income in the case of a fixed 

trust or unit trust. 

Further, in the case of a fixed trust it 

may be easier to demonstrate if the trustee 

is a bare trustee with no active duties, 46 

but even where there are active duties it 

is still possible that the land tax liability 

of the beneficiary has been incurred for 

the purpose of gaining or producing 

income where the purpose of the trust is 

the derivation of income for the benefit 

of the beneficiaries. In the case of a unit 

trust, with fixed rights to income, once 

again where the activities of the trustee are 

directed at deriving income for the benefit 

of unitholders it is possible that it can be 

demonstrated that the land tax obligation 

was incurred in the gaining or producing 

assessable income. In the end it will be 

necessary, in each situation, to establish 

that the essential character of the outgoing 

incurred was to gain or produce assessable 

income. In determining the essential 

character of such outgoing, ultimately 

regard must be had to its connection with 

the income producing activities of the 

taxpayer. 47 

The situation is much more difficult 

in the case of a discretionary trust. In 

TD 2018/9 Income Tax: deductibility of 

interest expenses incurred by a beneficiary of a 

discretionary trust on borrowings on-lent interestfree 

to the trustee the Federal Commissioner 

has determined that a beneficiary of a 

discretionary trust who borrows money,

TAX FILES 

and on-lends all or part of that money 

to the trustee of a discretionary trust 

interest-free, is usually not entitled to 

a deduction under section 8-1, for any 

interest expenditure incurred by the 

beneficiary in relation to the borrowed 

money on-lent. 

The Federal Commissioner further 

states in that TD that It is only where the 

beneficiary is presently entitled to income 

of the trust estate at the time the expense 

is incurred and the expense has a nexus 

with the income to which the beneficiary 

is presently entitled that some part of the 

expense might be deductible. The Federal 

Commissioner continues that such an 

expense is likely to have been incurred in 

the pursuit of one or more objectives, 48 

other than the derivation of assessable 

income by the beneficiary and will not 

be deductible to the extent of any nonincome 

producing objective or objectives. 

The Federal Commissioner also 

indicates, that whilst the determination is 

concerned with interest deductibility, the 

principles described will apply to other 

expenses incurred by a beneficiary of a 

discretionary trust where it is asserted 

the expense is deductible by reason of its 

connection to an expected receipt of a 

trust distribution. 

As described, in the case of 

discretionary trusts the consent of the 

beneficiary is required. Any beneficiary 

consenting to such a nomination will need 

to consider whether any excess land tax 

payable (i.e. after the credit for the land tax 

paid by the trustee at base rate) will be tax 

deductible without anything more. One 

may also question whether, if the price for 

the consent of such a beneficiary is that 

the trustee of the discretionary trust will 

keep the beneficiary indemnified against 

any land tax payable, will that be adequate 

for both? 

By Bernie Walrut, Murray Chambers. 

Tax Files is contributed on behalf of the South 

Australian based members of the Taxation 

Committee of the Business Law Section of the 

Law Council of Australia. B 

Endnotes 

1 Section 2(1) and Schedule 1 of the LTMA. 

2 In many situations, the tax paid at the common 

ownership level or by a trustee at the level 

immediately above the other owner then being 

assessed. 

3 The details of those arrangement are described in 

Hansard (Legislative Council). 

4 The scheme will require that the land tax increase 

exceeds $2,500, is limited to a percentage of the 

increase and is scaled back over the three years. 

It is capped in each of those years and does not 

apply to increases in excess of $102,500. 

5 Each of these arrangements has additional 

requirements as to their availability which have 

not been described in this article. Hansard should 

be consulted for further details, as at the date of 

the preparation of this article, Revenue Rulings 

describing the operation of these arrangements 

had not been published. For a discussion as to 

the rights of taxpayers under such arrangements 

see Chubb Electronic Security Australia Pty Ltd v 

Commissioner of State Taxation [2012] SASC 164. 

6 The holding of assets of a deceased person by 

a legal personal representative during the period 

described by the definition of such trusts in 

section 2(1). 

7 Section 13D(10) of the Land Tax Act 1936 (SA) as 

amended by the LTMA (LTA). 

8 Section 13D(11) of the LTA. 

9 Section 2 and Schedule 1 of the LTMA. 

10 See section 2(1) of the LTA. 

11 In some situations, section 19 of the LTA 

may require information to be provided to the 

Commissioner or the Commissioner notified 

where an assessment is incorrect. If there is 

no assessment of the trustee of a constructive, 

implied or resulting trust, there is a question as 

to whether the taxpayer is required to inform the 

Commissioner under section 19(2)(a)(v) of that 

fact. The section simply refers to a “trust” and not 

explicitly to a constructive, implied or resulting 

trust as required by section 2(1). 





16 See sections 12 and 13 of the LTA. 

17 Sections 13D(6) and 13D(7) of the LTA. 

18 Section 13D(8) of the LTA. There are further 

difficulties with this provision as discussed below. 

19 The holding of assets of a deceased person by 

a legal personal representative during the period 

described by the definition of such trusts in 

section 2(1). 

20 Section 13D(9) of the LTA 

21 The notification is to be made in the manner 

prescribed by the Regulations. 


23 Section 5(5) of the LTA. 

24 Section 4(1)(l). 

25 Section 5(10)(a). 

26 See section 57 and the definition of “return” in 

section 3(1) of the Taxation Administration Act 1996 

(SA) (TAA). 

27 There has long been a discussion about whether 

Part 6 is indeed broad enough to support the 

Commissioner’s online systems and practices 

as they have developed. It has been suggested 

that after nearly 24 years since its adoption, the 

TAA needs a general review as to its operation. 

This is one of the areas that needs significant 

improvement with the change in practices, systems 

and information technology. 

28 Section 35(2) of the TAA. 

29 There is a possible inconsistency in the working of 

this provision with sections 12 and 13 where the 

trustee gives a notice under one of those sections. 

30 Unlike the other notification provisions in section 

13D that require the trustee owns land. 

31 This provision was not in the Consultative Bill. 

Whether it is intended to operate as broadly, 

is uncertain. It appears unnecessarily broad. A 

further query is whether it applies where the 

company holding more than 50% is itself a trustee. 

32 Section 2 and Part 1 of Schedule 1 of the LTMA. 

33 As defined in section 2(1) of the LTA. It should be 

noted that the fixed trust definition is the default 

class, in other words, if the trust does not satisfy 

the definitions of a unit trust, discretionary trust or 

an excluded trust (and by implication an implied, 

constructive or resulting trust) then the trust is a 

fixed trust for the purposes of the LTA. 

34 Sections 12(1) and 12(4) of the LTA. 

35 See definition of a unit trust scheme in section 

2(1) of the LTA. 

36 Sections 13(1) and 13(4) of the LTA. 

37 See definition in section 2(1) of the LTA. 

38 That was 16 October 2019. 

39 Section 13A. 

40 Section 13A(13). 

41 Section 13A(3). 

42 Section 13A. 

43 Section 20-20 of ITAA97. 

44 See discussion in R Deutsch et al The Australian 

Tax Handbook 2019 (Thomson Reuters 2019) [6 

580] (2019 Tax Handbook). 

45 2019 Tax Handbook [9 400]. 

46 Notwithstanding past practices of the Federal 

Commissioner of looking through such 

arrangements, there appears to be doubts raised by 

some officers of the Federal Commissioner, as to 

whether this practice is still appropriate for income 

tax purposes. 

47 FCT v Smith (1981) 147 CLR 578, 586. 

48 There appears to be no description as to what 

those other objectives may be or examples of them. 


FEATURE 

OPCAT is coming - and now is the 

time for SA to set up its monitoring 

system for all places of detention 

DR LAURA GRENFELL, ASSOCIATE PROFESSOR IN LAW, UNIVERSITY OF ADELAIDE 

The belief that torture or cruel, 

inhumane or degrading treatment is 

something that happens elsewhere, in third 

world countries perhaps, but not here in 

South Australia, is misguided. As many in 

the legal profession know, particularly those 

who regularly visit places of detention, 

wherever people are being held in such 

places, there is a risk that they may be 

subjected to such treatment. 

Take for example the case of a South 

Australian prisoner Jacqui Davies, who 

(according to the investigation of the SA 

Ombudsman) in 2011-12 was restrained for 

eight months for around 22 hours per day, 

hand cuffed to a bed via each hand while 

lying on her back. 1 While this was to prevent 

the prisoner from self-harming, institutions 

need to take seriously the requirement that 

restraints must be applied for the minimum 

time necessary and subject to regular review 

and approval. Institutions need to come 

up with smarter means of addressing these 

problems, in accordance with national and 

international standards, without subjecting 

a person to degrading treatment, which 

was the Ombudsman’s finding in the 

case of prisoner Davies. A system for the 

monitoring of all places of detention is 

important to prevent this risk. 

In New Zealand, the use of “tie down 

beds” (where prisoners are restrained 

by their legs, arms and chest) to prevent 

self-harming led to a perfect media storm 

in 2017 when it came to light that one 

prisoner was restrained in this manner, 

often naked, for almost 600 hours (16 

hours per day for 37 consecutive days) due 

to prison understaffing. 2 This prolonged 

period of mechanical restraint was 

based on one approval. In another case, 

a prisoner was kept in a waist restraint 

(with their hands cuffed behind their 

back) almost continuously for more than 

three months. These cases were reported 

by NZ’s detention monitoring body, the 

National Preventive Mechanism (NPM) 

which indicated that despite the intention 


Photo of SA OPCAT Roundtable participants at Adelaide Law School, 4 December, 2019 

to maintain the prisoners’ wellbeing, 

the cases constituted cruel, inhumane 

or degrading treatment, contrary to the 

UN Convention against Torture. 3 This report 

initially led to some push-back from the 

NZ Corrections Department but two years 

later it announced that tie down beds had 

been removed and banned and a prison 

mental health unit would open. Ultimately 

such cases have the potential to assist 

institutions to secure more resources so as 

to deal more humanely with those being 

held in places of detention. 

In December, 2017, the Federal 

Government voluntarily ratified OPCAT 

(the Optional Protocol on the Convention 

against Torture) which is an international 

instrument to assist state parties to set up 

monitoring mechanisms to prevent torture 

and cruel, inhuman or degrading treatment 

in all places of detention. Given our federal 

system, each Australian jurisdiction is 

committed to setting up these mechanisms 

and this includes South Australia. The 

Federal Government has nominated the 

Commonwealth Ombudsman as the NPM 

to coordinate these mechanisms across 

Australia but each jurisdiction must set 

up its own preferred NPM system which 

complies with OPCAT. 

So far, the South Australia Government 

has not indicated which body/bodies will 

undertake this monitoring role. It has until 

December, 2020 to have a functioning 

NPM. In Western Australia, two bodies – 

the Office of the Custodial Inspectorate 

and the State Ombudsman – have been 

nominated to together undertake the 

monitoring role in that state. Other 

jurisdictions, like South Australia, are in the 

process of working this out, some more 

actively than others. 

The SA Government will need to 

decide whether to take a centralised or 

decentralised approach to SA’s NPM. A 

centralised NPM would mean a single 

body to monitor all places of detention 

in SA with the help of teams of experts 

depending on the place of detention. A 

decentralised NPM would mean a group 

of state monitoring bodies. Regardless 

of which is chosen, the SA Government 

would need to ensure that the functions 

of the monitoring body are not mixed 

up with the other functions of the 

chosen body/ies. NZ, for example, 

has a decentralised model wherein the 

Ombudsman is one of four NPM bodies. 

This means that the Ombudsman must 

separate its complaints handling functions 

from its monitoring functions by ensuring 

that the two sets of staff are separated and 

use different data bases. 

In December, 2019, a SA Roundtable 

on OPCAT (co-hosted by Adelaide Law 

School) brought together relevant SA

FEATURE 

bodies and civil society to hear from 

the Commonwealth Ombudsman and 

Australian Human Rights Commissioner 

about what South Australia needs to do to 

prepare. The Roundtable included experts 

from New Zealand where a NPM has been 

operating for a decade. It also included an 

expert from the European mechanism, the 

Committee on the Prevention of Torture 

which has been operating for 30 years. 

Hearing about and learning from these 

monitoring experiences was invaluable. 

A key takeaway from the international 

speakers was that adequate monitoring is 

resource-intensive, and there was general 

consensus among participants from 

existing state bodies that they could not 

absorb OPCAT-type functions without 

significant additional resources. 

THE SCOPE OF ’PLACES OF DETENTION’ 

To most people, SA’s nine prisons, 

its youth detention centre and its locked 

psychiatric wards will come to mind when 

we think of places of detention but we 

should not forget that OPCAT covers all 

places of detention, whether or not they 

are intended to be places of detention. 

This means that we need to consider places 

where people are not able to leave, such 

as locked units of residential aged care 

facilities, regardless of whether they are 

privately run. 

MONITORING BY INDEPENDENT BODIES 

WITH RELEVANT EXPERTISE 

There is a strict requirement that 

independent bodies (ie those bodies not part 

of government) undertake the monitoring 

function and that these teams include 

those with relevant expertise in areas such 

as human rights standards, prisons, youth 

justice, geriatric care and mental health 

care. In SA, the detention of children and 

young people is already monitored by such 

a body but this monitoring does not extend 

to detention outside of the Youth Training 

Centre (YTC) so as to cover, for example 

transport to and from the YTC and court. 

For our nine prisons, SA currently lacks a 

system of monitoring by paid, independent 

inspectors with the relevant expertise. It 

has not followed Western Australia and 

other jurisdictions in setting up a statutory 

custodial inspector. In regard to SA’s locked 

mental health facilities, the Community 

Visitor Scheme (CVS) currently involves 

inspections but they are not necessarily 

conducted by teams with the relevant 

expertise. This was demonstrated by 

the CVS reports relating to the Oakden 

Older Persons Mental Health facility 

which did not mention the inappropriate 

and excessive use of restraints which 

later became a focal point of the Chief 

Psychiatrist’s Oakden inquiry. 

HOW DOES MONITORING COMPARE WITH 

COMPLAINT HANDLING? 

Under OPCAT, monitoring takes place 

via unannounced and announced visits 

to places of detention. SA already has 

bodies that handle individual complaints 

relating to places of detention, taking a 

reactive approach. The monitoring system 

is by contrast preventive and while it 

does involve speaking to those held in 

places of detention, it is not a mechanism 

to advance individual complaints or to 

make legal findings of torture or cruel, 

inhuman or degrading treatment. Instead 

the monitoring system seeks to assist 

institutions in proactively improving 

detention conditions so as to minimise 

any risk of torture or cruel, inhuman 

or degrading treatment. Monitors have 

access to all places of detention and to 

data systems. The NPMs are aimed at 

complementing existing oversight bodies 

rather than replacing them. Many people in 

places of detention are not in a position to 

initiate complaints, hence the need for this 

proactive, preventive monitoring approach. 

OPCAT has an international dimension 

in addition to its national approach. This 

entails visits by the UN’s Subcommittee 

on the Prevention on Torture (SPT) which 

engages with government and civil society 

and conducts monitoring visits alongside 

the NPMs. Given that the SPT’s limited 

resources, it is likely that it will visit about 

every eight years, which means that the 

NPM system is front and centre. The SPT 

has announced its first visit will take place in 

2020 but the places of detention it chooses 

to visit is kept confidential. This should 

motivate SA’s government into action. 

The UN Working Group on Arbitrary 

Detention has also announced a 2020 visit. 

Both international bodies will be keen to 

understand how Australia monitors places of 

detention and whether there are any persons 

who are being unlawfully detained in facilities 

regulated and/or funded by the government, 

regardless of whether they are privately 

run. Both international bodies will visit every 

Australian jurisdiction and it is likely that they 

will be interested in SA’s places of detention. 

Going forward, the SA Government 

needs to determine: which body/bodies 

will monitor places of detention; how these 

bodies will be properly resourced in order 

to monitor all places of detention under 

state jurisdiction and; whether legislation 

is required to ensure that these monitoring 

bodies can access all relevant data and 

places. B 

Endnotes 

1 SA Ombudsman, Correctional Services, Department 

for – Treatment of a prisoner - Final Report [2013] 

SAOmbRp 17 (24 April 2013). Available 

from http://www.austlii.edu.au/cgi-bin/ 

sinodisp/au/other/SAOmbRp/2013/17. 

html?stem=0&synonyms=0&query=jacqui%20 

davies 

2 NZ Chief Ombudsman. A question of restraint. 

Care and management for prisoners considered to be at 

risk of suicide and self-harm: observations and findings 

from OPCAT inspectors. Wellington: Office of 

the Ombudsman; 2017. Available from https:// 

www.ombudsman.parliament.nz/sites/default/ 

files/2019-03/A%20question%20of%20 

restraint%20March%202017.pdf This was one of 

44 incidents where prisoners were restrained via a 

tie-down bed for a period of more than 12 hours. 

3 NZ Chief Ombudsman. A question of restraint. p5. 


WELLBEING & SUPPORT 

Why Lawyers are more susceptible 

to Anxiety and Depression 

SARAH EL SAYED, SOLICITOR, SOLOMON HUMBLE COMMERCIAL LAWYERS 

It is no myth that anxiety and depression 

appear to be more prevalent in the 

legal profession with one in three legal 

practitioners diagnosed with mental illness 

at some stage in their career. Research 

indicates that Australian lawyers also 

suffer from higher than average rates of 

psychological distress compared to the 

general population. This disproportionate 

statistic begs the question why are lawyers 

more susceptible to anxiety and depression. 

ONE THEORY TO EXPLAIN THIS 

PHENOMENON IS THE PREVALENCE IN 

LAWYERS TO CULTIVATE A “PESSIMISTIC” 

PERSONALITY STYLE 

Research suggests that pessimism is 

maladaptive in most endeavours and in 

most professions the personality trait of 

pessimism will lead to poor performance. In 

contrast however, pessimism has strangely 

been described as a virtue for lawyers and 

equips lawyers to perform their job at a 

higher standard as a result of the inherent 

prudence within pessimism. 1 As a lawyer, 

prudence allows you to identify perils and 

pitfalls that may conceivably occur in any 

given transaction and therefore protect your 

client in any given scenario (whether the 

event is likely to occur or entirely remote). 

The ability to foresee risk that nonlawyers 

do not see is therefore highly adaptive for a 

practising lawyer. 

SO WHY IS PESSIMISM SO BAD? 

Although pessimism may be beneficial 

for practice as a lawyer, the qualities that 

make for a good lawyer do not necessarily 

bode well with happiness. As lawyers are 

able see how bad things may be for their 

clients, they are often burdened with 

the tendency to translate those thoughts 

into their own lives. The problem with 

pessimism for lawyers is the inability for 

lawyers to switch off their pessimism 

when they leave the office. After years of 

fostering this style of thinking, it is likely 

to spread to your daily life, whether that’s 

personal relationships, financial decisions, 

or career planning. As a lawyer, you may 

find yourself with constant thoughts 

such as “I will not make partner” or “I 

will lose my job”. The long-term effects 

of this pessimistic personality style can 

be seriously damaging to your general 

wellbeing and carries the risk of an 

increase of depression and/or anxiety. 

SO HOW CAN LAWYERS MANAGE THEIR 

‘PESSIMISTIC’ PERSONALITY STYLE AND 

PROFESSIONAL PRUDENCE? 

An effective solution to pessimism 

is adopting an optimistic approach. 

Optimism is the ability to dispute 

recurrent catastrophic thoughts effectively 

and this is a skill that can be learned. 2 

Learned optimism recommends that 

individuals use a three-stage disputing 

technique to identify and dispute negative 

thoughts to control their negative 

emotions. 3 

1. Learn to identify catastrophic thoughts 

and the circumstances under which 

they occur. 4 

“I don’t know what I am doing. I bet I 

missed something important. I should have 

read that document again. I’m going to be 

sued for negligence” 

2. Learn to treat those thoughts as if they 

were comments uttered by an external 

person or a rival.5 

“That’s not really my thoughts - that’s my 

negativity speaking” 

3. Learn to marshal contrary evidence 

against the catastrophic thoughts. 6 

“No, actually I am an exceptional lawyer, 

I have reviewed the document thoroughly, 

diligently and provided well researched and 

thorough advice” 

Of course, adopting a blind approach 

to optimism can be dangerous and 

therefore an effective technique for 

lawyers to learn and adopt is flexible 

optimism; a technique that enables 

people to determine how and in what 

situations one should use optimism and/ 

or pessimism. By learning the technique of 

flexible optimism as a lawyer you will be 

able to use optimism in your personal life, 

and maintain adaptive pessimism in your 

professional life. 

Endnotes 

1 Martin E.P. Seligman, Paul R. Verkuil, Terry H. 

Kang, ‘Why Lawyers are Unhappy’ (2001) 23 

CARDOZO Law Review 33, 41. 

2 Ibid 43. 

3 Ibid. 

4 Ibid. 

5 Ibid. 

6 Ibid. 

40 


BOOKSHELF 

J Boughey, E Rock & G Weeks 

LexisNexis Butterworths 2019 

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GOVERNMENT LIABILITY: PRINCIPLES AND REMEDIES 

Abstract from LexisNexis 

The first book in Australia to draw 

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and remedying harm caused by government 

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readers with some of the complexities 

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remedies, private law remedies, and statutory 

remedies...dedicated coverage of public law 

remedies (judicial review), private law remedies 

(tort, contract, equity and restitution), and 

statutory remedies (merits review, human rights 

legislation, ombudsmen, investigative agencies 

and discretionary compensation regimes). 

David Millhouse 

LexisNexis Butterworths 2019 

PB $110.00 

CORPORATE GOVERNANCE IN NON-BANK FINANCIAL ENTITIES 


This ground-breaking book provides a 

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non-bank financial sector. It analyses and 

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entities (including managed investment schemes 

and superannuation funds), which largely have 

not been examined in the recent Banking Royal 

Commission and other inquiries. 

The author quantifies and explains the 

causes of systemic and cyclical failure of the 

law in the sector, bringing together the various 

sources of law applicable to the various types 

of legal entity, and also explains the difficulties 

and choices faced by directors and trustees of 

these entities. In doing so, he positions current 

regulation in the business context. 

A Hemming, F Feld & 

T Anthony 

2 nd ed LexisNexis 

Butterworths 2019 

PB $131.00 

CRIMINAL PROCEDURE IN AUSTRALIA 


This book provides a comprehensive 

analysis of the law relating to policing, criminal 

prosecutions, pre-trial and trial issues, sentencing 

and criminal appeals. The book is unique in its 

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a unified and comprehensive analysis of the 

law relating to policing, criminal prosecutions, 

pre-trial and trial issues, sentencing and criminal 

appeals. In addition, the book examines the 

extensive Commonwealth and state legislation 

and case law in the fields of police investigation 

and Crown prosecutor’s powers and duties 

across all jurisdictions. 

JRS Forbes 

5 th ed The Federation 

Press 2019 

JUSTICE IN TRIBUNALS 

Abstract from Federation Press 

Justice in Tribunals, now in its 5th edition, 

deals with the law relating to quasi-judicial 

authorities of government, professions, 

sporting organisations, industrial, political and 

commercial associations and their supervision 

by the regular courts. By no means confined to 

general principles, it treats in detail due process 

before proceedings commence, urgent action, 

proper notice of issues to be decided, the right 

to legal representation, procedure in hearings, 

the right to reasons, internal appeals and bias 

(actual and apprehended). It includes a chapter 

on Royal Commissions and commissions of 

inquiry, which, technically at least, do not 

determine legal rights and obligations. This 

edition refers to numerous judicial decisions 

since the 4th edition appeared in 2014, and 

many references to statutes have been updated. 


LEGALSUPER 

Putting Members’ Interests First Act 

ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER 

Default insurance cover for many 

young super fund members and 

people with low super account balances 

will be changed as of 1 April, 2020. 

More changes are coming for the 

default insurance cover of young super 

fund members and members with low 

super balances under new laws passed by 

the Federal Parliament in September of 

this year. 

The Treasury Laws Amendment (Putting 

Members’ Interests First) Act 2019 1 means 

that as of 1 April, 2020: 

• On joining a super fund, automatic 

insurance will no longer be provided to: 

° 

° 

People aged less than 25 years 

New accounts with a balance less 

than $6,000, and 

• Existing accounts with insurance 

and balances less than $6,000 on 

1 November, 2019 will have that 

insurance cancelled – unless the 

member opts to retain the insurance 

cover by 1 April, 2020. 

• A dangerous occupations exception 

may apply whereby members will 

remain “opted-into” insurance if the 

member’s occupation is in the riskiest 

quintile of Australian occupations 

or they are defined as an emergency 

services worker. 

Currently, most new members joining 

a super fund are typically automatically 

provided death and total and permanent 

disability insurance. Some super funds 

also automatically provide members 

salary continuance insurance (or income 

protection). 

Under the new laws, members aged 

under 25 with account balances less than 

$6,000 will only be provided insurance 

if they opt-in to the insurance offered 

by their super fund or take out insurance 

outside super. 

BENEFITS OF THE CHANGES 

The key benefit of the changes is 

younger super fund members and members 

just starting to build their super savings will 

no longer have their balances reduced by 

insurance premiums (fees). As a result, they 

will more quickly build their super balance. 


A further potential benefit is the 

removal of insurance for younger members 

is appropriate given they are less likely 

to need the type of cover provided by 

death and total and permanent disability 

insurance. 

POTENTIAL DOWNSIDES 

While there are views that younger 

members may be less likely to need 

insurance, these views may be open to 

question. 

What cannot be questioned, however, 

is that deciding to not take out or continue 

with suitable levels and types of insurance 

carries with it some very real and possibly 

significant risks. 

Any young super fund member or 

member with a low account balance with 

no insurance who suffers a misfortune will 

find themselves without the protections, 

supports and financial benefits provided 

by these types of policies. 

Writing in the Australian Financial Review 

on 14 May, 2018, the Chief Executive of 

the Association of Superannuation Funds 

of Australia (ASFA), Dr Martin Fahy, said 

of the then proposed changes: “It will 

be the families and dependants of young 

Australians suffering misfortune who 

will be left to pick up the pieces if the 

measures pass.” 2 

THE BENEFITS OF TAKING OUT INSURANCE 

VIA YOUR SUPER FUND 

Young super fund members and 

members with low balances who want to 

take out insurance will need to actively 

choose between cover offered by their 

super fund or retail insurers. 

In considering these options, keep in 

mind that premiums for insurance via your 

super fund, in most instances, will be lower 

compared to retail insurers as super funds 

can offer insurance on a “group” basis 

across many members. 

Many super funds automatically accept 

you for cover without requiring a health 

check and you can vary the amount for 

which you are covered or cancel the cover 

entirely. 

Taking out insurance via your super 

fund is usually easier and more convenient 

to manage. Insurance premiums are 

automatically deducted from your super 

account rather than your hip pocket. 

Most super funds will also pass on the tax 

benefit of the deduction for premiums. 

Automatic deduction of premiums 

ensures you avoid a time of crisis of not 

having cover as payment of premiums was 

overlooked. 

NEXT STEPS 

Pursuant to the Treasury Laws 

Amendment (Putting Members’ Interests First) 

Act 2019, by 1 December, 2019 all super 

funds must write to members with a less 

than $6,000 balance as at 1 November, 

2019, informing them any insurance they 

have via their super fund will be cancelled 

on 1 April, 2020 unless the member 

elects to opt-in and continue their cover. 

The 1 April, 2020 date replaces an earlier 

proposed date for this (and the other 

changes covered in this column) of 1 

October, 2019. 

Super fund members who will 

be affected by these changes should 

contact their fund for more information. 

Employers may also wish to contact their 

super fund to arrange a workplace visit to 

explain the changes to their staff. 

This information is of a general nature 

only and does not take into account 

your objectives, financial situation or 

needs. You should therefore consider the 

appropriateness of the information and 

obtain and read the relevant legalsuper 

Product Disclosure Statement before 

making any decision. 

ANDREW PROEBSTL is Chief 

Executive of legalsuper, Australia’s industry 

super fund for the legal community. He can 

be contacted on ph 03 9602 0101 or via 

aproebstl@legalsuper.com.au. B 

Endnotes 

1 See https://www.aph.gov.au/Parliamentary_ 

Business/Bills_Legislation/Bills_Search_Results/ 

Result?bId=r6331 

2 See https://www.afr.com/opinion/columnists/ 

federal-budget-2018-changing-super-cover-meansless-insured-for-a-higher-price-20180513-h0zzwe

LEGALSUPER 

We manage one of SA’s largest 

social media accounts. 

boylen.com.au 

P 08 8233 9433 

A Level 3, 47 South Tce, Adelaide SA

GAZING IN THE GAZETTE 

3 NOV 2019 – 2 JAN 2020 

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, 

REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH 

OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA 

ACTS PROCLAIMED 

Liquor Licensing (Liquor Review) Amendment 

Act 2017 (No 49 of 2017) 

Commencement remaining provisions: 

18 November 2019 

Gazetted: 7 November 2019, 

Gazette No. 53 of 2019 

Statutes Amendment (SACAT) Act 2019 (No 

14 of 2019) 

Commencement Parts 2; 5; 9; 10; 13-15; 

18; 27-30: 2 December 2019 



Statutes Amendment (Vehicle Inspections and 

South Eastern Freeway Offences) Act 2017 (No 

54 of 2017) 

Commencement 

ss 4; 5; 6; 9; 11: 21 November 2019 



Legal Practitioners (Miscellaneous) Amendment 

Act 2019 (No 27 of 2019) 

Commencement 

except s5: 1 December 2019 



Landscape South Australia Act 2019 

(No 33 of 2019) 

Commencement except ss 8-10; 15(4)-(5); 

16; 17; 25-33; 36-222; 224-241; 243; 244; 

249; Schedules 2-4; 5, Parts 1-29; 

5 clause 89(2)-(6); 

5 clause (3)9-(6): 19 December 2019 

Gazetted: 19 December 2019, 


ACTS ASSENTED TO 

Legislation (Fees) Act 2019, No. 30 of 2019— 



Surrogacy Act 2019, No. 31 of 2019— 

(amends Assisted Reproductive Treatment Act 

1988, Births, Deaths and Marriages Registration 

Act 1996 and Family Relationships Act 1975) 



Flinders University (Remuneration of Council 

Members) Amendment Act 2019, No. 32 of 2019 



Landscape South Australia Act 2019, 

No. 33 of 2019 

(repeals Natural Resources Management Act 

2004) 



Controlled Substances (Youth Treatment Orders) 

Amendment Act 2019, No. 34 of 2019 



Statutes Amendment and Repeal (Classification 

of Publications, Films and Computer Games) 

Act 2019, No. 35 of 2019 

(amends Classification (Publications, Films and 

Computer Games) Act 1995 and Summary 

Offences Act 1953; repeals Classification of 

Theatrical Performances Act 1978) 



Criminal Law Consolidation (False or 

Misleading Information) Amendment Act 2019, 

No. 36 of 2019 



Local Government (Administration of Councils) 




Land Tax (Miscellaneous) Amendment Act 

2019, No. 38 of 2019 



Statutes Amendment (South Eastern Freeway 

Offences) Act 2019, No. 39 of 2019 

(amends Motor Vehicles Act 1959 and Road 

Traffic Act 1961) 



Architectural Practice (Continuing Professional 

Development) Amendment Act 2019, No. 40 

of 2019 



Lotteries Act 2019, No. 41 of 2019 



Gambling Administration Act 2019, 

No. 42 of 2019 



Crown Land Management (Section 78B Leases) 




Statutes Amendment (Gambling Regulation) Act 

2019, No. 44 of 2019 

(amends Authorised Betting Operations Act 

2000, Casino Act 1997, Gaming Machines Act 

1992, Liquor Licensing Act 1997, Problem 

Gambling Family Protection Orders Act 2004 

and State Lotteries Act 1966) 



Supreme Court (Court of Appeal) Amendment 

Act 2019, No. 45 of 2019 



Statutes Amendment (Legalisation of Same 

Sex Marriage Consequential Amendments) Act 

2019, No. 46 of 2019 



Retail and Commercial Leases (Miscellaneous) 


(amends Retail and Commercial Leases Act 

1995 and Landlord and Tenant Act 1936) 



Married Persons (Separate Legal Status) Act 

2019, No. 48 of 2019 

(amends Law of Property Act 1936) 



Legal Practitioners (Foreign Lawyers and 

Other Matters) Amendment Act 2019, 

No. 49 of 2019 



Land Acquisition (Miscellaneous) Amendment 

Act 2019, No. 50 of 2019 



APPOINTMENTS 

Director of Public Prosecutions 

for a term of 7 years commencing on 

18 November 2019 and expiring on 

17 November 2026 

Adelaide, 14 November 2019 

Martin Gerard Hinton QC 

44 


GAZING IN THE GAZETTE 



Legal Services Commission 

Chairperson: from 20 January 2020 until 19 

January 2023 

Member: from 20 January 2020 until 19 

January 2023 

Jason Karas 

Member: from 1 December 2019 until 30 

November 2022 

Lucinda Kirsty Byers 

Debra Ann Contala 

Catherine Ann Nelson 

Jason Karas 



Magistrates Court Judicial Registrar 

for a term of seven years commencing on 13 

January 2020 and expiring on 12 January 2027 

Melanie Kate Burton 



Magistrate of the Youth Court of 

South Australia 

for a term of 1 year 

Luke Anthony Davis 



Judge of the District Court of South 

Australia 

Judge of the Environment, Resources 

and Development Court of South 

Australia 

from 10 December 2019 

Joana Maria Fuller 



Licensing Court of South Australia 

Conferral of authority on District 

Court Judge 

from 10 December 2019 

Her Honour Judge Joana Maria Fuller 




Australia 



Australia 

From 3 February 2020 

Michael Robert Burnett, QC 





Court Judge 

From 3 February 2020 

His Honour Judge Michael Robert Burnett 



Parole Board of South Australia 

Member: 

from 18 December 2019 until 17 December 2022 

Eleanor Frances Nelson 

Belinda Jane Powell 

Nora Ann Bloor 

Garth Dodd 

Susan Joan MacDonald 

Deputy Member: 


Kevin John Hill (Deputy to Bloor) 

Presiding Member: 


Eleanor Frances Nelson 

First Deputy Presiding Member: 


Belinda Jane Powell 




Australia 



Australia 

from 20 January 2020 

Ian Douglas Press 





Court Judge 

from 20 January 2020 

His Honour Judge Ian Douglas Press 



South Australian Civil and 

Administrative Tribunal 

Deputy President 

for a term of five years commencing on 19 


Barbara Ellen Johns 

Full-time Senior Member 

for a term of three years commencing on 19 


Department of the Premier and Cabinet 

Jacqueline Mary Rugless 

Part-time Senior Member 

for a term of three years commencing on 19 


Mark Alan Stevens 

Sessional Ordinary Member 

for a term commencing on 5 February 2020 and 

expiring on 15 March 2023 

Kathleen Patricia McEvoy 



Magistrate on an auxiliary basis, 

for a period commencing on 19 January 2020 and 

expiring on 30 June 2020 

Barbara Ellen Johns 



RULES 

Magistrates Court (Civil) Rules 2013 

Amendment 27 



Magistrates Court (Civil) Rules 2013 

Amendment 28 



Magistrates Court Rules 1992 

Amendment 80 



DISALLOWAL OF REGULATIONS 

Genetically Modified Crops Management 

Act 2004, No 220 of 2019 

From 27 November 2019 



Planning, Development and Infrastructure 

Act 2016, No 172 of 2019 

From 4 December 2019 




CLASSIFIEDS 

VALUATIONS 

MATRIMONIAL 

DECEASED ESTATES 

INSURANCE 

TAX REALIGNMENT 

INSOLVENCY 

FURNITURE 

ANTIQUES, COLLECTIONS 

BUSINESS ASSETS 

MACHINERY 

MOTOR VEHICLES 

CARS, BOATS, PLANES 

CITY & COUNTRY 

ROGER KEARNS 

Ph: 08 8342 4445 

FAX: 08 8342 4446 

MOB: 0418 821 250 

E: auctions@senet.com.au 

Certified Practising Valuer NO.346 

Auctioneers & Valuers Association 

of Australia 

FIRE & EXPLOSION 

INVESTIGATION 

Over 6 years forensic experience 

on behalf of the Insurance 

Industry and Legal Profession 

throughout Australia. 

Mr Ben Cox B.E. (Chem) 

Grad. Cert. (Fire Investigation) 

Ben Cox & Associates 

PO Box 205, Marden, SA 5070 

Phone: 0437 325 112 

E: ben@bcafireforensics.com.au 

www.bcafireforensics.com.au 

VALUER 

Commercial & Residential 

Real Estate 

Matrimonial 

Deceased Estates 

Rentals etc. 

Experienced Court 

Expert Witness 

Liability limited by a scheme approved under 

Professional Standards Legislation 

JANET HAWKES 

Cert. Practising Valuer, AAPI 

0409 674 122 

janet@gaetjens.com.au 

Forensic 

Accounting 

Simple, clear, 

unbiased advice, 

without fear or 

favour. 

Hugh t. +61 McPharlin 8 431 80 82FCA 

d m. +61 +61 8401 8139 712 1130 908 

m +61 419 841 780 

e. ahi@andrewhillinvestigations.com.au 

e hmcpharlin@nexiaem.com.au 

w nexiaem.com.au 

Consulting Engineers 

Australian Technology Pty Ltd 

for expert opinion on: 

• Vehicle failure and accidents 

• Vehicle design 

• Industrial accidents 

• Slips and falls 

• Occupational health and safety 

• Statistical analysis 

W. Douglass R. Potts 

MAOQ, FRAI, FSAE-A, FIEAust, 

CPEng, CEng, FIMechE 

8271 4573 

0412 217 360 

wdrpotts@gmail.com 

Andrew Hill Investigations 

Investigating: 

ABN 68 573 745 238 

• workplace conduct 

• fraud 

• unprofessional conduct 

• probity 

Support services: 

• forensic computing analysis 

• transcription services 

• information sessions, particularly 

for HR practitioners on the 

investigative process 

• policy development. 

PO Box 3626 

Andrew Hill 

Andrew Hill 

Investigations 

NORWOOD SA t. 5067 +61 8 431 80 82 

m. +61 401 712 908 

e. ahi@andrewhillinvestigations.com.au 

Fellow AIPI 

Licensed Investigation Agents 

& Process Servers 

Servicing the Mid North, Yorke & 

Eyre Peninsula`s and Outback of 

South Australia with: 

• Process Serving 

• Property Lockouts 

• Investigations 

• Missing Persons 

OUTBACK BUSINESS SERVICES 

P.O. Box 591, 

PORT AUGUSTA. 5700 

P: 0418 838 807 

info@outbackbusinessservices.com.au 

LITIGATION ASSISTANCE 

FUND 

The Litigation Assistance Fund (LAF) is a 

non-profit charitable trust for which the 

Law Society acts as trustee. Since 1992 

it has provided funding assistance to 

approximately 1,500 civil claimants. 

LAF receives applications for funding 

assistance from solicitors on behalf of 

civil claimants seeking compensation/ 

damages who are unable to meet the 

fees and/or disbursements of prosecuting 

their claim. The applications are 

subjected to a means test and a merits 

test. Two different forms of funding exist – 

Disbursements Only Funding (DOF) and 

Full Funding. 

LAF funds itself by receiving a relatively 

small portion of the monetary proceeds 

(usually damages) achieved by the 

claimants whom it assists. Claimants who 

received DOF funding repay the amount 

received, plus an uplift of 100% on that 

amount. Claimants who received Full 

Funding repay the amount received, plus 

15% of their damages. This ensures LAF’s 

ability to continue to provide assistance 

to claimants. 

LAF recommends considering whether 

applying to LAF is the best course in the 

circumstances of the claim. There may be 

better methods of obtaining funding/ 

representation. For example, all Funding 

Agreements with LAF give LAF certain 

rights including that funding can be 

withdrawn and/or varied. 

For further information, please visit 

the Law Society’s website or contact 

Annie MacRae on 8229 0263. 

LawCare 

The LawCare Counselling 

Service is for members of 

the profession or members 

of their immediate family 

whose lives may be adversely 

affected by personal or 

professional problems. 

If you have a problem, speak 

to the LawCare counsellor 

Dr Jill before it overwhelms you. 

Dr Jill is a medical practitioner 

highly qualified to treat social 

and psychological problems, 

including alcoholism and drug 

abuse. 

The Law Society is pleased to 

be able to cover the gap 

payments for two consultations 

with Dr Jill per patient per 

financial year. 

All information divulged to the 

LawCare counsellor is totally 

confidential. 

To contact Dr Jill 08 8110 5279 

8am-8pm, 7 days a week 

LawCare is a member service 

made possible by the generous 

support of Arthur J. Gallagher 

Family Law - Melbourne 

Marita Bajinskis 

formerly of 

Howe Martin & Associates 

is a Principal at 

Blackwood Family Lawyers 

in Melbourne 

Marita is an Accredited Family 

Law Specialist and can assist with 

all family law matters including: 

• matrimonial and de facto 

• property settlements 

• superannuation 

• children’s issues 

3/224 Queen Street 

Melbourne VIC 3000 

T: 03 8672 5222 

Marita.Bajinskis@ 

blackwoodfamilylawyers.com.au 

www.blackwoodfamilylawyers.com.au 

CONSULTING 

ACTUARIES 

FOR PROFESSIONAL 

ACTUARIAL ADVICE ON 

- Personal Injury - 

- Workers Compensation - 

- Value Of Superannuation - 

Contact 

Geoff Keen or Bruce Watson 

08 8232 1333 

contact@brettandwatson.com.au 

Ground Floor 

157 Grenfell Street 

Adelaide SA 5000 


DANCE / FRANCE 

Lyon Opera 

Ballet 

Trois Grandes Fugues 

6 – 7 Mar 

★★★★★ 

The Guardian 

★★★★★ 

The Times 

THEATRE / UK 

The Doctor 

Almeida Theatre 

Starring Juliet Stevenson 

27 Feb – 8 Mar 

A young woman fights for her life. A priest arrives to save 

her soul. Her doctor refuses him entry. 

In a divisive time, in a divided nation, a society takes sides. 

★★★★★ 

The Guardian | The Telegraph | Financial Times 

18 DAYS | 19 AUSTRALIAN EXCLUSIVES | 74 SHOWS 

adelaidefestival.com.au

For the fastest and most accurate response, 

our Australian-based LiveChat team are here to help. 

Our LiveChat team consists of accounting professionals, 

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LSB February 2020_DIGITAL_L

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