LSB September 2021 LR

THE
BULLETIN
THE LAW SOCIETY OF SA JOURNAL
VOLUME 43 – ISSUE 8 – SEPTEMBER 2021
IN THIS ISSUE
Pandemic highlights
extent of Executive Power
The problem of
delegated legislation
Compulsory
acquisition of land
PLUS
How the
merged
family court
will work
EXECUTIVE POWER:
HOW DO WE PROTECT DEMOCRACY
WHEN THE STATE FLEXES ITS MUSCLE?

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This issue of The Law Society of South Australia: Bulletin is
cited as (2020) 43 (8) LSB(SA). ISSN 1038-6777
CONTENTS
EXECUTIVE POWER FEATURES & NEWS REGULAR COLUMNS
6 The march of executive authority
highlights fragility of democracy
By Morry Bailes AM
10 The problem of delegated legislation
in South Australia
By Assoc Prof Lorne Neudorf
12 Covid-Safe check-in: use beyond
contact tracing? – By Raffaele Piccolo
16 The exercise of emergency powers
by the executive in COVID-19
times: What recent cases say about
constitutional protection of our
freedoms – By Sue Milne
24 Compulsory Acquisition of Land:
Navigating the intersection between
executive powers and individual
property rights – By Don Mackintosh
22 Harassment in the legal industry:
Cultural change requires a movement,
not a mandate – By Alexia Bailey &
Marissa Mackie
28 Introduction of the Federal Circuit
and Family Court of Australia
By The Hon Chief Justice Will Alstergren
34 Event report: Country Conference on
Kangaroo Island – By Alan Oxenham
36 The venerable common law forfeiture
rule and suggestions for reform
By Dr David Plater & Dr Sylvia Villios
42 Steering statutory unconscionability
out of a jam at last: Stubbings v Jams
2 Pty Ltd – By Dr Gabrielle Golding &
Dr Mark Giancaspro
4 President’s Message
5 From the Editor
9 From the Conduct Commissioner:
Poaching clients from your former
firm – By Greg May
19 Wellbeing & Resilience: R U OK? U R
are not alone – By Zoe Lewis
20 Young Lawyers: Dancing privileges
embraced at pre-lockdown Young
Professionals’ Gala
32 Tax Files: Loan accounts: trouble?
By Stephen Heath
33 Members on the Move
39 Bookshelf
40 Risk Watch: Time to tame your inbox
By Mercedes Eyers-White
45 Family Law Case Notes
By Craig Nichol & Keleigh Robinson
46 Gazing in the Gazette
Executive Members
President:
R Sandford
President-Elect: J Stewart-Rattray
Vice President: A Lazarevich
Vice President: V Gilliland
Treasurer:
F Bell
Immediate Past
President:
T White
Council Member: M Mackie
Council Member: M Tilmouth
Metropolitan Council Members
T Dibden
M Tilmouth
A Lazarevich M Mackie
M Boyle
E Shaw
J Marsh
C Charles
R Piccolo
M Jones
Country Members
S Minney
(Northern and Western Region)
P Ryan
(Central Region)
J Kyrimis
(Southern Region)
Junior Members
vacant
Ex Officio Members
The Hon V Chapman, Prof V Waye,
Prof T Leiman
Assoc Prof Peter Burdon
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)
Kiley Rogers
krogers@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 D Sheldon
J Arena D Weekley
B Armstrong D Misell
M Ford
The Law Society Bulletin is published
monthly (except January) by:
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Email: bulletin@lawsocietysa.asn.au
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FROM THE EDITOR
Buoyant mood as profession
celebrates peers
MICHAEL ESPOSITO, EDITOR
In a Herculean feat of logistics and
planning, the Law Society held its Legal
Professional Dinner on Friday 27 August,
hosting a buoyant congregation of 300
guests.
While immense credit must go to the
organising staff of the Society and SkyCity
for putting on such a successful event,
especially after the disappointment of
last-year’s lockdown-induced cancellation,
particular gratitude must go to practitioners
who attended the event in such high spirts.
Despite a number of restrictions being
imposed on guests, including compulsory
mask wearing, a strict no dancing policy,
and a ban on that most time-honoured
of social custom – vertical consumption
– it was so heart-warming to see such an
enthusiastic response to the event.
It was also a privilege to honour the
nominees and award winners on the
night, and particular to hear about their
incredible achievements.
The Women’s Domestic Violence
Court Assistance Service was the
highly deserving winner of the Justice
Award. The staff who work at the
service help women who have been
exposed to domestic violence navigate
the justice system. They provide advice
about intervention orders and tenancy
disputes, and have guided thousands of
clients through the process, including all
throughout the pandemic. The importance
of this cannot be overestimated. One
particularly moving note from a client
read: “Thank you for giving us our freedom and
safety back. My kids are now growing up in a
home free of DV abuse because of your help.”
The four Young Lawyer of the Year
nominees showed that the future of the
law is indeed in good hands. In a hotly
contested field, Antonella Rodriguez was
named Young Lawyer of the Year. The
family lawyer excelled in her first role as
Associate to Justice Berman in the Family
Court of Australia and has continued to
impress at current firm Tolis & Co. As an
associate, Antonella was heavily involved in
the Judicial Council on Cultural Diversity’s
efforts to improve services to culturally
diverse participants in the justice system.
Antonella has also been volunteering
with the Red Cross Emergency Services,
assisting people to access shelter,
resources, and emergency funds and
reuniting families following last year’s
bushfires.
She volunteers in numerous other
environmental organisations, in yet
another example of practitioners making
time to give back to the community.
The Mary Kitson Award winner,
for outstanding contribution to the
advancement of women in the profession,
was presented to the trailblazing Justice
Trish Kelly.
Justice Trish Kelly’s exceptional legal
career alone is a source of inspiration
for women in the profession. In her
roles as prosecutor at both State and
Federal level, a senior legal officer at the
Equal Opportunity Commission, and of
course judicial officer culminating in her
appointment as the inaugural President
of the Court of Appeal, Justice Kelly has
been a purveyor of the law par excellence,
and her contribution to protecting the
rights of victims of crime has been
particularly noteworthy. In addition,
Justice Kelly has been a Member of the
Intellectually Disabled Services Council of
South Australia and a member of the Rape
Crisis Centre Board.
It’s pleasing to see gender equity
become an important issue for the
judiciary, and Justice Sam Doyle’s
considered article “The path to gender
equality requires removing cultural &
structural barriers in the profession”
reflects the heightened awareness and
commitment to the cause. His article won
the “Bulletin Article of the Year - Special
Interest Category” on Friday Night. The
Attorney General, The Hon Vicki Chapman MP,
flanked by Danielle Stopp (left) and Bianca Paterson
of the Women's Domestic Violence Court Assistance
Service, which won the Justice Award.
Young Lawyer of the Year winner Antonella Rodriguez
(second from left) with (from left), Young Lawyers
Committee Co-Chair Patrick Kerin, Law Society
President Bec Sandford, and Young Lawyers
Committee Co-Chair Bianca Geppa.
Bulletin Article of the Year, among a
field of exceptional articles, went to
Dr Philip Ritson for his article “Supreme
Court decision highlights pitfalls of raising
money for charitable purposes”.
There are so many members of the
profession who may never win awards but
are equally deserving of commendation,
despite never seeking praise for their
outstanding contributions to the
community. Let me take this opportunity to
thank all of those who serve the profession
and broader society in their own way.
A more detailed wrap-up of the Legal
Profession Dinner will be published in the
October edition of the Bulletin. B
4
THE BULLETIN September 2021

PRESIDENT’S MESSAGE
Emergency powers must not
lead to long-term immunity
from checks & balances
REBECCA SANDFORD, PRESIDENT
Terms like ‘rule of law’ and ‘separation
of powers’ are often thrown around,
but some of us may not have had cause to
think about those concepts in much depth
in our day to day lives after finishing law
school - at least, not until last year. The
pandemic, and the state of emergency
it ushered in, resulted in huge changes
to the way the law affects our lives, and
to executive power being exercised in
previously unanticipated ways.
By way of brief reminder for those
of us whose attendance at legal theory
tutorials may feel like a distant memory,
the separation of powers allows us to
have confidence that in our system of
responsible government, each of the
Parliament, Executive and Judiciary will
balance the power able to be exercised
by each other ‘arm’ of that triad. Our
Members of Parliament are elected to
represent us and make decisions on our
behalf, and if they don’t do that in a way
which is appropriate or responsible, the
consequences may include court action to
strike down invalid laws, or the voting in
of a different representative at the next
possible opportunity.
Ordinarily, decisions which generally
affect the lives and liberties of citizens vest
in the Parliament or in the Government.
Those bodies make use of consultative
processes which can enable adverse
consequences to be identified and
addressed, prior to the implementation
of any new legal regime. The Law Society
plays a role in that process, including
through the making of submissions
and public comment on legal matters.
The decisions made by Government,
and implemented through laws made by
Parliament, are the subject of scrutiny in
a number of respects, including by way of
judicial review.
In emergency situations, it makes
sense to consolidate more of the decision
making power in a central or singular
location, and to remove for a short time
some of the checks and balances that
would otherwise exist to prevent improper
use of that power, recognizing that an
extraordinary situation is at play and
that the exercise of those accountability
processes may prevent the ability of
the Government to deliver support or
assistance, or regulate behaviour, as needed
to keep things functioning despite unusual
circumstances. However, that ordinarily
occurs only for a limited time, and a return
to ‘normal’ processes occurs as promptly
as possible. The pandemic has seen a
number of unprecedented approaches to
the use of executive power, and potentially
demonstrated the need for a refreshed
look at how executive power is managed in
an emergency situation.
In SA, the Parliament was initially
responsible for the creation of the
Emergency Management Act, under
which a state of emergency can be
declared. If that occurs, responsibility
for managing that emergency falls to
the State Coordinator, a position held
by the Commissioner of Police - an
unelected position, but perhaps the one
best suited to coordinate a rapid response
to an emergency. It is via the powers
provided for by that Act and in relation
to that position that the Commissioner
of Police, in the last 18 months, has
issued directions which have required us
to isolate or quarantine, get covid-tested,
check in with QR codes wherever we
go, and restrict attendance at businesses,
weddings, funerals and other gatherings.
It has become apparent, as a result of
the state of emergency declared in SA
last March (and refreshed on a monthly
basis since then) that the current regime
when used in practice actually vests a
significant amount of executive power in
the State Coordinator. I certainly don’t
envy our Commissioner of Police that
responsibility, and whilst the consultative
and collaborative approach taken in
the exercise of that power to date is
commendable, we must still be mindful
that consultation is not required, and it is
a lot of power for any individual to have
- especially one who is appointed, rather
than elected.
The situation in SA is a little different
from that in some other states, where
directions have been issued by Health
Ministers under Public Health Acts.
Some of the steps taken by the Federal
Government have also been unexpected,
including the convening of the ‘National
Cabinet’ - a body whose powers, and
decisions, have started to come under
scrutiny, with the Administrative Appeals
Tribunal recently finding that the body is
not in fact a committee of federal cabinet.
That decision has consequences not
only in the context of the Freedom of
Information matter in which it was made,
but may have broader ramifications on the
impact of decisions made by that body.
Limits on liberties and democratic
principles will generally be accepted as
a short term measure and where they
are reasonable and proportionate, but
all around the country, many are now
beginning to query whether current
approaches to managing public movement
in light of the pandemic are, or are still,
the right ones. Emergency Management
legislation is a useful and necessary
tool, but - as is also the case with other
legislative regimes - it’s appropriate to
regularly check if it is serving its intended
purpose, or indeed, whether its current
use is in accordance with that aim. The
question now being asked by increasingly
more people is at what point should we say
that the situation has stabilized enough for
us move away from a state of ‘emergency’,
and return to a system where proper
scrutiny and accountability is applied to
decisions made by our elected officials,
rather than delegated authorities? B
September 2021 THE BULLETIN 5

EXECUTIVE POWER
THE MARCH OF EXECUTIVE
AUTHORITY HIGHLIGHTS
FRAGILITY OF DEMOCRACY
MORRY BAILES AM, SENIOR LAWYER & BUSINESS ADVISOR, TINDALL GASK BENTLEY
As lawyers we spend a lot of time
talking up the importance of the
independence of the judiciary. It is indeed
critically important, so we are not wrong
in our obsession with it. An erosion of
independence in the judiciary is often the
first sign a democracy has lost its way. Take
Hong Kong as a current example. How
long can eminent foreign judges continue
to sit comfortably on its Apex court, when
it is now quite clear that there is political
interference in the selection of the judiciary
at other levels.
However, at times we dwell perhaps
too exclusively on this admittedly most
vital of building blocks, perhaps at the
expense of scrutinising our other arms of
government.
Our parliament is fairly easily
understood fulfilling its legislative
role. However executive government
remains shrouded in a bit of mystery. It
is opaque in a way the United States of
America’s system is not, where executive
power is so singularly concentrated in
the office of President. Here executive
power is wielded by some of the same
parliamentarians that pass law, including
the Attorney-General.
The parliamentary convention in the
British Parliament is that the Attorney-
General of England and Wales has no
position in Cabinet creating a degree of
separation, answerable to the parliament
rather than the cabinet. Not so in our
country or in our state. The Attorney-
General is at the heart of executive power.
What is not at first apparent in the use
of executive power is just how much is
delegated through subordinate legislation.
Parliament is responsible for delegating
a great deal of its function, by necessity,
to ministers who in turn rely on their
agencies. The ‘trickle down’ effect is
not widely understood nor is the extent
of such delegations. All of a sudden,
decisions are being made that parliament
didn’t know about or hadn’t necessarily
contemplated. Enter the era of rule by the
executive, and a foreboding sense that the
executive arm of government may have
spread its tentacles so far that it is difficult
to entirely comprehend or reign in.
A current example arises from the
Return to Work Act, introduced by the
former ALP government and passed by
the then parliament. It gave certain powers
to the Minister for Industrial Relations, to
makes changes to the Act’s impairment
assessment guidelines.
Following some judicial decisions
involving interpretation of the Act and
guidelines, the perception was that things
had gone against the interests of Return
to Work SA. The Minister for Industrial
Relations indicated an intention or interest
in changing the guidelines, perhaps to take
away the disadvantage for Return to Work
SA created by those judicial decisions,
although that was not his stated intention.
Instead, his intent was cloaked in more
beguiling words:
“to deliver greater clarity, consistency,
and transparency, and to reflect relevant
clinical developments. There are also
corrections and clarifications proposed.”
In spite of a sense of inequity about
what the Minister for Industrial Relations
may do, and opposition from parts of the
legal profession and medical profession,
the powers delegated to the Minister were
not contained in a disallowable instrument.
When parliamentarians had a look at what
they had enacted, they discovered that
as the powers were not contained in the
disallowable instrument, parliament had no
role; it could not move a motion to prevent
the minister using his delegated power.
Despite Labor’s attempt to rectify a situation
(which it largely created) by introducing
a Bill to mandate that such changes be
made via Regulation, the Minister recently
gazetted the changes with all but the stroke
of his pen. All because parliament gave
away its power to a member of executive
government, and lost control.
Needless to say that example is one of
thousands upon thousands of delegations
by way of subordinate legalisation to the
executive arm.
No example though better illustrates
the true power of the executive than
what has happened from the start of the
COVID pandemic. Parliament has quite
literally allowed our freedom of movement,
our freedom of association, our liberty, and
an accounting of our daily whereabouts
to be decided by government agencies.
The Commissioner of Police has certain
6
THE BULLETIN September 2021

EXECUTIVE POWER
powers as does the Chief Public Health
Officer. Through a matrix of primary and
subordinate legislation and instruments we
are captured and controlled by unelected
largely unaccountable people. None of this
should take from their efforts. Additionally,
it is parliament that did this and we elected
its members. Yet the fact remains that the
power delegated to the executive is vast.
Analysing bills before parliament these
days is a three part process. What is in the
primary bill, what is in the regulations and
then the real devil in the detail, what is in
the delegations? Often it is there that one
realises a minister can do whatever she or
he wishes.
Back to COVID, the use of executive
power can be argued to be a necessity due
to the speed with which decisions need to
be made. On the other hand the control
over our daily lives by government agencies
and their leaders is extraordinary. It goes
without saying that the power must be
exercised with bona fides and the courts
stand by to curtail these uses of power if
they are beyond power. Yet it is a very big
ask for a private citizen at personal expense
to test such pervasive executive decrees.
Odds are that they are lawful anyway.
Moreover, the raison d’être behind an
executive use of power may be singular
(for instance to quell a disease) and have
no regard for any consequential loss of
rights. So it was when Western Australians
were compelled to use QR codes after
receiving assurances from their Premier
and Health Minister that the data would
be sacrosanct and used exclusively for
health purposes, only to have police
unapologetically seize the data as evidence
in a murder investigation. So much for the
oft employed lines of self justification, ‘if
you only knew what we knew’ and ‘trust
the system’.
For the executive the ends so often
justify the means, whereas the judicial arm
of government is much more likely to
take exception to that approach. However
good faith immunities have made it
difficult or impossible to resort to the
courts for remedies.
What the growth of executive power
has meant for the legal profession has been
profound. Administrative law has become
a growth area. Administrative tribunals
proliferate, and statutory interpretation is
what the law is now mostly about.
It has become necessary for superior
courts to analyse what species of executive
power is being utilised, and its validity.
Traditionally we have had two sources
of executive power in our country, by
prerogative or by statute. Edmund Barton
in Adelaide in 1897 explained executive
power as:
‘primarily divided into two classes:
those exercised by the prerogative ...
and those which are ordinary Executive
Acts, where it is prescribed that the
Executive shall act in Council.’ 1
Born from those constitutional
conventions was S61 of the Australian
Photo: REUTERS / Sandra Sanders - stock.adobe.com.
Constitution which seeks to describe the
executive powers of the Commonwealth
(though not exhaustively as remarked upon
by Sir Anthony Mason), excluding those
still held by the states. S61 reads as follows:
‘The executive power of the
Commonwealth is vested in the Queen
and is exercisable by the Governor-
General as the Queen’s representative,
and extends to the execution and
maintenance of this Constitution, and
of the laws of the Commonwealth.’
Particularly at the Federal level the
development of jurisprudence about
executive power has been evolving since
Federation. The use of executive power
in borders cases has been central to that
evolution including the Federal Court in
Ruddock v Vadarlis. 2
Former Chief Justice Robert French
AC summarised the recent state of
executive power in Australia in a paper for
the University of Western Australia Law
Review in this this way:
‘There are, no doubt from an academic
perspective, many unanswered questions
about the scope of Commonwealth
executive power in Australia and
perhaps also the scope of the executive
power of the States. Some of them
may give rise to anxiety about future
directions. The judiciary is unlikely to
provide a comprehensive answer in any
one case. The development of principle
will proceed case-by-case.’ 3
September 2021 THE BULLETIN 7

EXECUTIVE POWER
However, for most Australians the
evolution of executive power in our
country is not likely very well understood.
What is understood are the daily
experiences citizens have with the myriad
of executive decisions that are made, daily
impacting their lives.
If we go back to Hong Kong for
a moment, the real problem there has
been an executive doing the bidding of
Beijing. The Legislative Council there is
really wall paper. The power is held by a
Beijing appointed executive, and now that
Beijing has started to flex muscle it is really
the end of a democratic, self-governing
territory. It brings meaning to
Sir Owen Dixon’s words,
‘History and not only ancient history,
shows that in countries where
democratic institutions have been
unconstitutionally superseded, it has
been done not seldom by those holding
the executive power.’ 4
In the case of our close ally the United
States, President Obama governed largely
by executive decree as did President Trump
and President Biden appears to be going
down the same route. Executive power
is necessary but to what extent is it being
used to navigate around the legislature?
In spite of the fears of many the U.S.
has managed perfectly well to keep its
Presidents acting constitutionally, so the
exercise of executive power, however hard
it may be to define at times, must also be
seen to operate within the constraints of a
society that respects the rule of law and is
ring-fenced by the judiciary.
Thus in spite of the awesome power
of the executive during COVID it has
been utilised with the best intentions in a
country that is underpinned by the rule of
law. It would create greater comfort for
many however if the parliament would not
take, at times, such a ‘hands off ’ approach.
That said, executive power is critical to
governance of Australia, and of each of
its States, and is as ancient in origin as it is
illusive to define.
As our populations grow, as governance
becomes more complex, and as our
parliaments grapple with globalisation in
the modern age, one certainty is the growth
of the executive arm of government.
It is critically important that this not go
unchecked. For much of the opening
chapters of COVID, parliaments were in
recess. The Biosecurity Act was used to
wield far reaching executive power, as was
our State’s Emergency Management Act,
together with a raft of COVID specific
primary and subordinate legislation. In
a head nod to these unparalleled powers
the Chief Public Health Officer let slip
last year that she may wish to retain QR
tracking for reasons other than COVID.
The infection of unfettered power might
be the lasting legacy of COVID long after
the virus itself has been quelled.
It is necessary to remind ourselves,
the citizenry, and most importantly our
parliamentarians, that executive power
used at these ‘shock and awe’ levels is
extraordinary and not the norm. For
parliament to be at times incapable of
controlling the power it has delegated
does not rest easily with our concept of
the separation of powers. Not only do the
powers require independence they also
require balance. When police and military
are in charge and able to detain us and
restrain us, the grant of those powers must
be temporary or we tempt the creation of
a society long rejected by Australians.
The march of executive supremacy,
as some have described, has reached an
interesting juncture in Australia. It is vital
that we vigilantly measure that march
and ensure supremacy remains firstly
vested with parliaments. As lawyers our
understanding of these concepts, central
to our stable democracy and grounding
the rule of law, mean that we have a
responsibility greater than others to
protect and guard the fragility of a system
that should not be permitted to tilt to far
toward rule only by executive order. B
Endnotes
1 Official Report of the Australasian Federal
Convention Debates, Adelaide, 19 April 1897
2 Vol 43(2)
3 [2001] FCA 1329
4 Australian Communist Party v Commonwealth
(1951) 83 CLR 1
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FROM THE CONDUCT COMMISSIONER
Poaching clients from
your former firm
GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER
It is of course common for a lawyer to
move from one firm to another. The
question often arises as to whether it is
appropriate for a lawyer to attempt to
“poach” a client from his or her former
firm – that is, to get the client to terminate
the instructions of the former firm and
to instead instruct the lawyer’s new firm.
Indeed, that will often be a substantial
reason for the new firm employing the
lawyer – because of the likelihood that
at least some of the lawyer’s clients will
follow him or her to the new firm.
So, how proactive can the lawyer be in
attempting to induce a client to follow? I
think everyone would accept that a client
who finds out about the lawyer changing
firms from, for example, a promotional
advertisement in the paper, and who
unilaterally decides to change firms, is
entitled to do so and the lawyer cannot
be criticised. But what happens when
the lawyer starts contacting clients to
encourage them to change firms?
This issue was considered many years
ago in a Supreme Court decision by
Justice Perry 1 . While the case itself dealt
with disciplinary proceedings against a
chiropractor, Perry J made the following
observations in relation to the legal
profession (at [51] to [53]):
In the context, for example, of the legal
profession, it is unlikely that a charge of
unprofessional conduct would these days be
sustained simply on the basis that a practitioner
had endeavoured to induce customers to engage
him or her, rather than remain a client of
another practitioner.
There is much movement of practitioners in
and out of legal firms, and it is a common
occurrence for practitioners who leave a firm to
take up practice elsewhere, to draw with them
clients of the firm which they have left. This is
an unexceptional and everyday experience.
Even the regular monthly Bulletin published
by the Law Society of South Australia
makes public announcements of movements
of practitioners from one practice situation to
another. No doubt clients of a former practice
who may read such publications may be induced
to follow a practitioner to a new practice.
And that was 17-plus years ago – if
Perry J thought then that there was “much
movement of practitioners in and out of
legal firms”, there can be no doubt that
that is the case now!
Having said that, from a conduct
point of view there is still a right way and
a wrong way to go about attempting to
induce a client to move firms. Professor
Dal Pont says 2 that the following
requirements apply to any such contact:
• the departing lawyer should first
inform the firm of her or his proposed
departure, so that it may meet with
and/or write to clients informing
them of any new arrangements for the
conduct of their matters;
• any contact by the departing lawyer
should not deprecate the firm or its
members;
• the departing lawyer should in no way
suggest or indicate that clients are
obliged to instruct the new firm, nor
should the departing lawyer undermine
existing lawyer-client relationships
between the firm and its clients;
• if a client expresses a wish to transfer
instructions from the firm to the
departing lawyer, the departing lawyer
should inform the client of his or her
responsibility to negotiate the terms of
the transfer, including the requirement
either to pay all outstanding costs
and disbursements or to secure the
firm’s entitlements to costs and
disbursements.
He goes on to say that the firm should
then facilitate the transfer of files, subject
to the payment of any such firm’s fees and
disbursements.
In my view, particularly if the
departing lawyer is a partner at the old
firm, he or she should not contact any
clients in this way until after having left the
firm, unless his or her old firm consents
to that contact prior to departure. Until
the departing lawyer has left the firm,
he or she has certain duties to the firm
that in my view would be breached if the
departing lawyer is attempting to induce a
client to leave that firm while still at that
firm.
Importantly, Professor Dal Pont also
says that “any valid contractual restriction on
solicitation of a client contained in the departing
lawyer’s contract of employment or partnership
agreement with her or his former firm must be
adhered to”.
The UK Supreme Court has recently
ruled 3 that a type of non-compete
undertaking of a solicitor was not given
in the course of practice because it was a
business arrangement. The Court made
the following observations at [122]:
A business arrangement between two law
firms is not the sort of work which solicitors
undertake as part of their ordinary professional
practice. It is a business matter, even if the
business in question relates to the provision of
professional services.
It was therefore held that the inherent
supervisory jurisdiction of the Supreme
Court to regulate the conduct of solicitors
did not govern its enforceability. The
Court was of the view that the contractual
law doctrine of restraint of trade would
apply to such agreements so that only
reasonable restraints could be enforced.
Another interesting aspect of
the judgment is the finding that the
supervisory jurisdiction does not apply
directly to corporate law firms as they
are not officers of the court. This creates
difficulties in relation to undertakings
given on behalf of corporate firms, and
the Court expressed the hope that the UK
Parliament might address this lacuna. B
Endnotes
1 Judge v Chiropractors Board of South Australia [2004]
SASC 214.
2 Dal Pont, Lawyers Professional Responsibility,
7 th edition at [20.65]
3 Harcus Sinclair LLP v Your Lawyers Ltd [2021]
UKSC 32
September 2021 THE BULLETIN 9

FEATURE
Time to take lawmaking seriously:
the problem of delegated
legislation in South Australia
ASSOCIATE PROFESSOR LORNE NEUDORF, ADELAIDE LAW SCHOOL, UNIVERSITY OF ADELAIDE
The Parliament of South Australia plays
a key constitutional role as the state’s
lawmaker-in-chief, operating as the forum
for the exercise of legislative power in a
democratic society founded on the rule
of law. Since its establishment in 1857,
the South Australian Parliament has been
at the cutting edge of some of the most
important political and social changes in
Australia and indeed the world. It enacted
legislation that made South Australia the
first colonial government to grant women
both the right to vote and stand for
election (1895) and the first Australian state
to decriminalise sexual activity between
consenting males (1975), for which the
criminal law had previously prescribed
severe punishments including death, life
imprisonment in solitary confinement, hard
labour and whipping.
Because of the important interests
at stake in lawmaking, the parliamentary
process is designed to help lawmakers
appreciate the implications of proposed
legislation. Significant measures of
accountability and transparency are part of
the legislative process that must be followed
before a bill can become law. The process
requires public readings, the publication of
draft legislative text, open debate by elected
members that represent constituencies
across the state, committee study where
the views of experts and citizens are
expressed, and the recorded votes of all
members in each of the two Houses. The
legislative process not only helps lawmakers
better understand their legislative choices,
it safeguards the legitimacy of Parliament
as lawmaker for a diverse society. It also
enhances the quality of legislative outcomes
by subjecting policy and legislative text to
multiple rounds of scrutiny from diverse
perspectives, including those of members
of different political parties that collectively
represent a cross-section of the community.
Over the past few decades, there has
been a shift away from parliamentary
lawmaking to an alternative lawmaking
process. This trend threatens parliament’s
role as lawmaker-in-chief and undermines
democratic values and institutions. It
can be seen throughout Australia and in
other Westminster parliaments including
those in Canada, the United Kingdom and
New Zealand. This alternative form of
lawmaking side-steps the parliamentary
process by having the executive branch of
government make laws directly. Such laws
have the same legal force as legislation
enacted by parliament. It occurs through
the parliamentary delegation of legislative
powers. Almost all bills include significant
delegations that permit the executive to
make delegated legislation directly. These
delegations may allow the executive to
fill in the details of a statutory scheme,
but they can also be drafted in sweeping
terms that authorise the executive to
make and implement significant policy
choices. Bills often allow the executive to
make laws that are ‘necessary or expedient
for the purposes of this Act’, providing
little guidance on the kinds of delegated
laws that might later be made and little
opportunity for a reviewing court to
impose meaningful limits on the scope of
the delegated power.
South Australia is no exception to the
general trend. Delegated legislation is the
principal way that new law is made in the
state. Last year, 88% of all new laws made
were delegated laws. 1 While the pandemic
has prompted an even greater reliance on
delegated legislation to respond quickly
to changing circumstances, the number
of delegated laws overshadowed that of
primary legislation in South Australia
well before COVID-19: over the past
three years, 86% of all new laws made in
the state were in the form of delegated
legislation. In terms of the total number
of pages of legislative text, delegated
legislation comprised nearly 70% of the
statute book over the same period of time.
To be made, delegated laws need to
follow only a cursory process set out in the
Subordinate Legislation Act 1978. The Act
imposes none of the robust accountability
and transparency measures found in
the ordinary parliamentary process: for
delegated legislation, there is no public
reading, no publication of draft legislative
text, no open debate, no committee study
to hear from experts and citizens, and no
recorded vote. In fact, there is no vote at
all because lawmaking decisions are made
in secret, behind closed doors. Discussions
and deliberations by the cabinet relating
to delegated legislation are confidential
and protected by legal privilege. The Act
imposes no requirements for consultation
of any kind before new delegated laws are
made. Details of any consultation carried
out are not published. It is not possible to
see what information was relied upon by
the executive in making legislative choices
or who might have influenced them. Was
the information fair and accurate? Which
individuals and groups were consulted?
Were any concerns raised? If so, were
the concerns addressed? Under the Act,
none of these questions need to be
answered. In making delegated legislation,
the executive is not required to publish a
statement to explain the purpose of the
new law, or even explain why a change
to the law might be desirable. Without
this context, it is sometimes difficult to
work out whether a delegated law has a
rational purpose and whether its text is
connected to that purpose. And despite
the Act imposing a default rule of four
months’ commencement for delegated
legislation, almost all new laws invoke an
exemption that permits them to come
into force immediately, on the very day on
which they are made. In South Australia,
delegated legislation is made by the
government as a fait accompli.
The only parliamentary oversight
of delegated legislation takes place in
the over-burdened and under-resourced
Legislative Review Committee. 2 Consisting
of six members drawn from both Houses,
the Committee scrutinises all ‘rules,
regulations and by-laws’ that are required
to be tabled in Parliament – a Herculean
task if there ever was one. Last year, more
than 1,400 pages of delegated legislation
were made in 324 different instruments,
which does not include all the new bylaws
made by the state’s 68 local councils or
rules of court that are also scrutinised
10
THE BULLETIN September 2021

FEATURE
by the Committee. With the support of
one secretary in relation to its scrutiny
function, the Committee is expected
to examine each and every line of this
morass of often highly technical legislative
text against 38 different considerations,
including: whether it infringes the
separation of powers; is inconsistent with
the rule of law; is in accordance with its
enabling legislation and the requirements
of any other Act; has certainty of meaning
and operation; fails to protect privacy;
authorises the use of force, detention
or search and seizure; has retrospective
effect; imposes strict or absolute liability;
reverses the evidential burden of proof;
abrogates privileges including the privilege
against self-incrimination; interferes with
property rights; intends to bring about
radical changes in relationships or attitudes
of people in an aspect of the life of the
community; has unforeseen consequences;
is inconsistent with natural justice; has
costs that outweigh the benefits; imposes
excessive fees and charges; authorises
excessive discretionary decisions; provides
adequate notice to persons who may be
affected; and restricts independent merits
review of discretionary decisions affecting
rights, interests or obligations.
In effect, the Committee is tasked
with carrying out the entire parliamentary
process for all delegated legislation subject
to scrutiny, giving it one of the most
critical roles in upholding democratic
values for most laws made in South
Australia. Inevitably, it is snowed under
by a ceaseless flurry of new delegated
legislation. While the Committee does
what it can within its situational and
operational constraints (including
occasionally introducing notices of motion
to disallow delegated legislation), it is
ultimately hamstrung by the Subordinate
Legislation Act 1978’s paper-thin process for
making delegated legislation that fails to
impose adequate and meaningful controls
on executive lawmaking. Under the Act’s
framework and with few resources, it is
not possible for the Committee to achieve
the minimum levels of accountability
and transparency for lawmaking that are
expected in a democratic society.
Three changes are urgently needed to
address this problem. First, the scheme
for making delegated legislation in South
Australia under the Subordinate Legislation
Act 1978 needs a major overhaul to beef
up the standards and requirements for
making delegated laws. The delegated
lawmaking schemes at the Commonwealth
and in other jurisdictions provide useful
comparative guidance on these necessary
reforms. Second, a specialist bills committee
is needed to identify and challenge
inappropriate delegations of legislative
power. Parliament must reassert itself as the
chief lawmaking institution and prevent the
continued erosion of its legislative powers
and role. If Parliament is not willing to act,
courts may have to. In a recent judgment
of the Supreme Court of Canada, Justice
Côté would have held certain legislative
delegations unconstitutional on the basis
that they conferred ‘inordinate discretion in
the executive with no meaningful checks’
on their use. 3 The statute at issue in that
case ‘knows no bounds’ as it ‘set forth a
wholly-unfettered grant of broad discretion’
to the executive. 4 In Justice Côté’s view,
the delegations infringed the constitutional
principles of parliamentary sovereignty, the
separation of powers and the rule of law
and were ‘so inconsistent with our system
of democracy that they are independently
unconstitutional’. 5 Third, the Committee
is in desperate need of additional staffing
resources to allow it to effectively provide
parliamentary oversight of the most
significant source of law in South Australia.
Again, comparative benchmarking against
the Commonwealth and other jurisdictions
will indicate the appropriate level of
resources that are needed.
The Parliament of South Australia’s
traditional role of providing a democratic
forum for the contestation of ideas
and perspectives is at risk because of
an alternative lawmaking process that is
used to make the vast majority of laws
outside Parliament. While the trend toward
delegation may be unstoppable, reforms
can establish an appropriately robust
delegated lawmaking process that meets
requisite standards of accountability and
transparency for lawmaking in a democratic
society. Effective parliamentary oversight
through an appropriately resourced
committee is also essential to maintain
the constitutional role of Parliament as
lawmaker-in-chief and ultimately the
legitimacy of delegated laws. Unfortunately,
the Parliament of South Australia has fallen
behind other jurisdictions. The erosion
of Parliament’s place must be reversed. It
must reassert itself and reinvigorate the
process by which delegated legislation
is made and scrutinised. But why strive
for the bare minimum or merely seek to
catch-up with others? Parliament should
restore its once-proud tradition to lead
the way in the promotion of democratic
values. Two inquiries presently underway
– the inquiry of the Effectiveness of
the Current System of Parliamentary
Committees parliamentary committee
and the South Australian Productivity
Commission’s inquiry into the reform of
the state’s regulatory framework – have the
potential to initiate the process of bringing
about positive change. While important,
the challenges of delegated legislation are
unlikely to be fully addressed by the reform
recommendations of any single inquiry. To
show leadership, more fundamental change
is needed. It will require a wholesale reconceptualisation
of how we make laws. B
Endnotes
1 See Lorne Neudorf, ‘Strengthening the Scrutiny
of Delegated Legislation’ (Presentation to the
South Australian Legislative Review Committee,
2 February 2021) slides and Hansard transcript
available at https://www.parliament.sa.gov.
au/Committees/lrc (located in the sub-folder
‘1 Committee Information’ / ‘Committee
Performance’).
2 It should be noted that the Committee is
restricted by the Subordinate Legislation Act 1978
to the kinds of instruments that it can scrutinise.
Such instruments must be called a ‘regulation,
rule or by-law’: s 4 ‘regulation’.
3 References re Greenhouse Gas Pollution Pricing Act,
2021 SCC 11 at [223].
4 Ibid, [230], [240].
5 Ibid, [241].
September 2021 THE BULLETIN 11

FEATURE
COVID SAFE CHECK-IN: USE
BEYOND CONTACT TRACING?
RAFFAELE PICCOLO, BARRISTER, ANTHONY MASON CHAMBERS
Since December, 2020 the use of COVID
SAfe Check-In has been mandatory at
most venues in South Australia. Venues are
required to display posters with a unique
QR code (which links to COVID SAfe
Check-In). In turn, patrons are required
to register their attendance at such venues
using COVID SAfe Check-In (accessible
via the QR code displayed). 1 Refusal or
failure to comply with this requirement
constitutes an offence, and if prosecuted,
attracts a maximum penalty of a fine or
imprisonment. 2
The stated purpose for mandating
the use of COVID SAfe Check-In is to
improve contact tracing efficiency, so that
contact tracers, ‘can immediately, 24/7, go
straight to that database instead of waiting until
the next day to get hold of a business and to get
those details’. 3
Since the introduction of COVID
SAfe Check-In, the State Government has
repeatedly given a number of assurances
regarding the data collected via COVID
SAfe Check-In. These assurances have
included the following. First, the data
collected is stored in a government secured
and encrypted database. Second, the data is
only to be retained for a period of 28 days,
and will only be released to SA Health for
official contact tracing purposes. Third,
if the data is used for contact tracing, the
data is only to be retained for as long as
necessary for those purposes, and no longer
than the COVID-19 pandemic remains. 4
The mandatory use of COVID
SAfe Check-In is a reasonable and
proportionate means to facilitating
efficient contact tracing. This is not
disputed. However, given the potential
for the use of the data collected via
COVID SAfe Check-In for purposes
other than contact tracing (to lessen the
transmission of COVID-19), more than
simple assurances are required. Legislative
safeguards to the same effect are necessary.
The need for legislative safeguards
remains, despite the refusal of SA Health
to disclose similar information when
requested by police in November, 2020.
At this time, police were investigating an
allegation that a person had lied during
12
THE BULLETIN September 2021
an initial interview with SA Health about
his employment at Woodville Pizza Bar
(the information the subject of this
interview was ‘central’ to the decision to
impose the ‘circuit breaker’ lockdown in
South Australia in November, 2020). 5 SA
Health reportedly refused to disclose any
information regarding the interview on the
basis of ‘patient privilege’ (also described
as ‘patient-doctor confidentiality’). 6
Little comfort can be taken from this
example. First, the information collected
via COVID SAfe Check-In is stored in a
database maintained by the Department of
the Premier and Cabinet (not SA Health).
SA Health is only provided access to data
as and when necessary to undertake contact
tracing. 7 Second, the refusal on the part of
SA Health was reported to be in response
to a request from police, rather than under
compulsion of a warrant or subpoena (with
which non-compliance might amount to
contempt). The basis upon which such a
warrant, or subpoena, might be resisted, are
discussed further below.
In any event, concerns regarding the
lack of legislative safeguards are evermore
paramount now, approximately nine
months after the introduction of COVID
SAfe Check-In, for three reasons. First,
recent reports that law enforcement
authorities in other jurisdictions have
accessed, or attempted to access, similar
data for purposes other than contact tracing
(using a warrant). 8 Second, moves by
other jurisdictions to introduce legislative
safeguards to better ensure that such data is
not used for any purpose other than contact
tracing. 9 Third, the recent expansion of the
use of COVID SAfe Check-In to public
transport, with the implication that a greater
amount of data will be collected. 10
POWER TO ISSUE DIRECTIONS
Pursuant to the Emergency Management
Act 2004 (SA) (‘Emergency Management Act’),
a declaration of a major emergency (‘the
declaration’) in relation to the COVID-19
pandemic has been in effect in South
Australia since 22 March, 2020. 11 The effect
of the declaration is to vest in the State
Co-ordinator (the Commissioner of Police)
a number of responsibilities and powers,
including the power to direct or require
persons to do or cause to be done any of
a number of things. 12 Most relevantly, the
State Co-ordinator can require a person
to furnish such information as may be
reasonably required in the circumstances. 13
REQUIREMENT TO REGISTER ATTENDANCE
USING COVID SAFE CHECK-IN
During the period of the declaration,
the State Co-ordinator has issued a number
of directions. On 1 December, 2020,
the State Co-ordinator issued Emergency
Management (Public Activities No 13)
(COVID-19) Direction 2020 (‘Public Activities
No 13 Direction’). Unlike predecessor
directions, 14 Public Activities No 13 Direction
included a requirement that any person
attending at a relevant place had to
use their ‘best endeavours in all of the
circumstances’ to ensure that their ‘relevant
contact details’ 15 were captured by the
approved contact tracing system 16 (defined
as COVID SAfe Check-In, or ScanTek, or
another system approved by the State Coordinator).
17 The requirement that a person
register their attendance at a venue using
COVID SAfe Check-In has remained a
component in replacement directions since
issued by the State Co-ordinator. 18
INADEQUACY OF CURRENT PROTECTIONS
When issued, Public Activities No 13
Direction did not include any provision
which restricted the use or disclosure of
the information collected by COVID
SAfe Check-In. It was not until 8 April,
2021, that provisions were implemented
regarding the use of data collected via
COVID SAfe Check-In. These provisions
provide the following. First, any data
collected pursuant to any directions issued
under the Emergency Management Act is only
allowed to be used for the purpose of
contact tracing in relation to COVID-19,
or managing the COVID-19 pandemic.
Second, any data retrieved from the
database and given to SA Health for the
purpose of contact tracing is taken to be

FEATURE
information protected by the Health Care
Act 2008 (SA) (‘Health Care Act’). 19
It might be inferred that the purpose
of these provisions was to purportedly
respond to concerns regarding the
potential use of the data collected via
COVID SAfe Check-In for purposes other
than contact tracing. 20 In any event, as
outlined below, the provisions contained
in the directions appear to be ineffectual in
meeting any such objective.
DISCLOSURE REQUIRED BY A COURT OR
TRIBUNAL OR AUTHORISED BY LAW
First, while the State Co-ordinator
can issue directions to require a person to
furnish information it is not clear that the
State Co-ordinator thereafter has a power
to restrict the use of that information
(such as data collected via COVID SAfe
Check-In) by others for other purposes.
Moreover, regardless of the effectiveness
of such provisions, any purported
restriction is clearly in conflict with the
provisions of the Emergency Management
Act regarding disclosure of information
(with the effect that the provisions of the
Act will prevail over the directions to the
extent of any inconsistency).
Section 31A of the Emergency
Management Act prohibits the disclosure
of information relating to the personal
affairs of another that was obtained
in the course of the administration or
enforcement of that Act. Contravention
of this prohibition constitutes an offence.
It is this provision (along with the
aforementioned assurances) on which the
State Government has relied to assert that
data collected via COVID SAfe Check-In
is adequately protected from disclosure. 21
However, reliance on this provision is
misplaced; the provision explicitly allows
for disclosure of information if required
by a court or tribunal constituted by law. 22
Thus, for example, the disclosure might
be compelled pursuant to a subpoena,
or a warrant. Failure to comply with a
subpoena without lawful excuse constitutes
a contempt of court, and is punishable by a
fine or imprisonment (or both). 23
A person might attempt to resist
a subpoena, by seeking to have the
subpoena set aside, 24 or asserting a claim
to public interest immunity. 25 In relation
to any claim of public interest immunity,
the court is required to consider two
conflicting aspects of the public interest:
the harm that would be done by the
production of data on the one hand, as
against a consideration of whether the
fair and efficient administration of justice
would be frustrated or impaired by the
non-disclosure on the other. 26 Similarly,
in relation to a warrant, public interest
immunity might be raised as basis for
resisting seizure. 27 Moreover, a defendant
might seek to convince a court to exercise
the discretion to exclude lawfully obtained
evidence on the basis of fairness (that
admitting the evidence would be unfair
to the defendant in the sense that the trial
would be unfair). 28 Whether a subpoena
is set aside, a claim for public interest
immunity is upheld, or such data is
otherwise excluded as evidence in any trial,
will depend on the circumstances of the
particular proceeding before a court; it will
be decided on a case by case basis.
Second, the inclusion of the reference
to the Health Care Act does not appear to
take the purported restriction regarding
the disclosure of data collected via
COVID SAfe Check-In much further.
This Act prohibits the disclosure of
personal information which was obtained
in connection with the operation of
this Act except to the extent a person
is authorised or required to disclose
that information. Contravention of this
prohibition constitutes an offence. Again,
however, the provision explicitly allows for
disclosure of information as required or
authorised by or under law. 29
It’s noteworthy that the Western
Australia State Government expressed
similar concerns regarding the effectiveness
of issuing directions to restrict the
disclosure of information collected via
SafeWA (an analogue of COVID SAfe
Check-In). 30 These concerns served as a
basis for the implementation of further
legislative safeguards (as discussed below).
ADMISSIBILITY OF DATA AS EVIDENCE IN
ANY CIVIL PROCEEDING, OR CRIMINAL
PROSECUTION
Moreover, while the Emergency
Management Act and the Health Care Act
generally prohibit and criminalise the
disclosure of information, such as data
collected via COVID SAfe Check-In, this
legislation does not render the information
inadmissible as evidence in any civil
proceeding, or criminal prosecution. Thus,
even if information is disclosed to a law
enforcement authority in contravention of
the prohibition, the information remains
admissible as evidence in any proceeding
before a court notwithstanding that the
disclosure might be illegal or unlawful,
unless otherwise excluded by a court.
In deciding whether to exercise the
discretion to exclude illegally obtained
evidence the court has to consider and
weigh against each other two competing
requirements of public policy. On the one
hand there is the public interest in bringing
to conviction those who commit criminal
offences, and on the other hand there is
the public interest in the protection of
the individual from unlawful and unfair
treatment. 31 Whether such information is
excluded as evidence will depend on the
circumstances of the particular proceeding
before a court; it will be decided on a case
by case basis.
In summation, this legislative
framework makes it difficult for South
Australians to have absolute confidence
in the assurances provided by the State
Government regarding the storage, use
and disclosure, of the data collected via
COVID SAfe Check-In.
Moreover, the potential access by
law enforcement authorities to such data
for purposes other than contact tracing
(for general law enforcement activities) is
not merely theoretical. Law enforcement
authorities in Queensland, and Western
Australia, have accessed such data, and in
Victoria have requested access (but were
refused, and advised to obtain a warrant). 32
Moreover, the Acting Minister for Police
in Victoria has publicly expressed his
September 2021 THE BULLETIN 13

FEATURE
reluctance to implement any legislation to
guard against law enforcement authorities
obtaining access to such data for use for
purposes other than contact tracing. 33
FORM OF ANY LEGISLATIVE SAFEGUARDS
The legislation adopted by the
Commonwealth, and Western Australia,
serve as useful examples, of the form of
legislative safeguards required in South
Australia.
At the Commonwealth level, there is
the Privacy Amendment (Public Health Contact
Information) Act 2020 (Cth). 34 This legislation
regulates the collection, storage, use and
disclosure of the personal information
of persons captured by the use of the
application COVIDSafe. The legislation
criminalises the unauthorised collection,
use or disclosure of data obtained via
COVIDSafe. The same legislation provided
that the collection, use or disclosure of such
data was, relevantly, only permitted for the
purpose of, and only to the extent required
for the purpose of: (i) investigating possible
non-authorised collection, use or disclosure
of data obtained via COVIDSafe; or
(ii) prosecuting a person for an offence
regarding the non-authorised collection,
use or disclosure of data obtained via
COVIDSafe. 35
More recently, Western Australia has
enacted the Protection of Information (Entry
Registration Information Relating to COVID-19
and Other Infectious Diseases) Act 2021 (WA).
This Act provides protections similar to
those outlined above in relation to Privacy
Amendment (Public Health Contact Information)
Act 2020 (Cth). 36 However, further, this Act
explicitly provides that ‘entry registration
information’ 37 is not admissible in evidence
in any criminal or civil proceedings other
than proceedings for an offence relating to
compliance with an obligation under the
Act, or the recording or disclosure of entry
registration information. 38 As was explained
during the Second Reading Speech:
This bill will introduce a strong, clear
and comprehensive legislated framework
for regulating the use of entry registration
information. …This is in recognition of the
critical importance of this information in our
public health response to this pandemic and the
need to maintain public confidence in our entry
registration arrangements. 39
The legislation adopted by the
Commonwealth and Western Australia
address some of the concerns which
remain with the current legislative
framework in South Australia. However, the
legislation adopted by the Commonwealth
and Western Australia is not without issue.
For example, the legislation adopted by the
Commonwealth does not explicitly state
that data obtained via COVIDSafe is not
admissible as evidence in criminal or civil
proceedings unrelated to contact tracing
(although it can be inferred). Further, the
legislation adopted by Western Australia
does not address what other use can be
made of ‘entry registration information’.
The legislation does not explicitly protect
against the use of such information
(regardless of how obtained) to uncover
other evidence against the individual who
provided the information. This is what
might be described as a prohibition on
‘indirect use’ or protection from ‘derivative
use’. 40 An example of such indirect or
derivative use is using data collected via
COVID SAfe Check-In to obtain a search
warrant (which in turn is used to obtain
other evidence against the individual in
question). 41
CONCLUSION
Assurances that the data collected
via COVID SAfe Check-In will not be
used for any purpose other than contact
tracing are insufficient given that they are
without legislative basis. To the contrary,
the Emergency Management Act makes
specific provision for the disclosure of
information, such as the data collected via
COVID SAfe Check-In.
As outlined above, this lack of
legislative safeguards remains concerning
for a number of reasons. To remedy the
situation, and consistent with the assurances
given, the State Government should
introduce legislation which addresses and
prohibits disclosure, use (including as
admissible evidence), and derivative use, of
data collected via COVID SAfe Check-In
(or any other electronic platform), for any
purpose beyond contact tracing in relation
to COVID-19. Put simply, not only is the
data collected via COVID SAfe Check-In
of critical importance in our public health
response to this pandemic, but so too is the
trust and willingness of South Australians
to provide such information so long as
called upon.
This article is based upon legislation as in
effect as at 2 August 2021. B
Endnotes
1 Acknowledgements: The author wishes to thank
Associate Professor Matthew Stubbs, and others,
for valuable feedback regarding earlier drafts of
this article. Any errors are the author’s own.
Eugene Boisvert, ‘South Australia coronavirus
cluster grows again as pizza bar link confirmed’,
ABC (Web Page, 26 November 2020) ;
‘SA to roll out mandatory
QR check-ins for venues’, Sky News (Web Page,
27 November 2020) ; Emergency
Management (Public Activities No 13) (COVID-19)
Direction 2020, cl 10.
2 Emergency Management Act 2004 (SA), s 28(1)
(‘Emergency Management Act’).
3 Boisvert, ‘South Australia coronavirus cluster
grows again as pizza bar link confirmed’ (n 1); ‘SA
to roll out mandatory QR check-ins for venues’
(n 1). See, also, Emily Cosenza, ‘South Australia
shuts out Victorian travellers from midday on
Saturday’, The Australian (online, 17 July 2021)
; Steven
Marshall MP and Stephen Wade MLC, ‘Operation
COVID Shield Begins’ (Media Release, 22
February 2021) .
4 ‘QR codes are being rolled out in venues across
South Australia — here’s what you need to know’,
ABC (Web Page, 1 December 2020) ;
Andrew Hough and Kara
Jung, ‘Contact tracing in SA: What you need to
know’, The Advertiser (online, 17 November 2020)

FEATURE
news-story/9aa67e8c9ed436669771cdecc7cdce
3f>; Stephanie Richards, ‘Law Society warning
over COVID QR check-in data privacy’, InDaily
(Web Page, 6 January 2021) ;
‘COVID SAfe
Check-In: Frequently asked questions for the
community’, Government of South Australia (Web
Page, 7 June 2021) .
5 Emily Olle, ‘Woodville Pizza Bar worker’s
COVID interview with SA Health officials
“privileged”’, 7NEWS (Web Page, 2 December
2020) .
6 Patrick James and Lynton Grace, ‘Prof Spurrier
says interview with Woodville Pizza Bar worker
came under patient confidentiality’, The Advertiser
(online, 4 December 2020) .
7 Andrew Hough and Gabriel Polychronis, ‘SA
Police Commissioner warns against QR code
complacency’, The Advertiser (online, 6 February
2021) ; Andrew
Hough, ‘Covid-19: SA Health uses QR code
data in state first to trace coronavirus contacts
of infectious miner Adam Ryan’, The Advertiser
(online, 7 July 2021) ;
Emergency Management (Activities – General No 3)
(COVID-19) Direction 2021, cl 7.
8 Cam Wilson, ‘Who’s been looking at your check-in
data? We asked the states and territories to “fess
up”’, Crikey (Web Page, 1 July 2021) ;
Evidence to Public
Accounts and Estimates Committee, Parliament
of Victoria, Melbourne, 21 June 2021, 3-4 (Shane
Patton, Chief Commissioner of Police), 6 (Danny
Pearson, MP, Acting Minister for Police and
Emergency Services); Eliza Laschon, ‘Check-ins to
SafeWA app unaffected after WA Police accessed
data as part of criminal investigations’, ABC
(Web Page, 19 June 2021) ;
Michael Ramsey,
‘Privacy infringement fears after police access data
from SafeWA contact tracing app’, 7NEWS (Web
Page, 15 June 2021) .
9 Protection of Information (Entry Registration Information
Relating to COVID-19 and Other Infectious Diseases)
Act 2021 (WA); Melissa Coade, ‘WA Police murder
investigation using QR contact tracing data
prompts law reform’, The Mandarin (Web Page,
16 June 2021) .
10 7NEWS Adelaide (Facebook, 20 July 2021,
10:57pm ACST) ; Andrew Hough, Brad
Crouch, Dixie Sulda, and Paul Starick, ‘Double
Jeopardy: High alert as cluster doubles’, The
Advertiser (Adelaide, 22 July 2021), 4; see Emergency
Management (Activities – General) (COVID-19)
Direction 2021, cl 7(6)-(7).
11 Declaration of a Major Emergency, State
Coordinator, 22 March 2020; Approval of
Extension of a Major Emergency Declaration
under section 23, Approval of the Governor, 22
July 2021.
12 Emergency Management Act (n 2) s 25(1).
13 Ibid s 25(2)(ka).
14 See, eg, Emergency Management (Public Activities No
12) (COVID-19) Direction 2020, cl 10(4), 15(1),
which required a person to make and retain
contact tracing records for persons attending the
activity. Such records had to include certain details
in relation to each person attending.
15 ‘relevant contact details’ means a person’s name,
telephone number and the time at which the
person entered at the relevant place. See Emergency
Management (Public Activities No 13) (COVID-19)
Direction 2020, cl 10(7) (definition ‘relevant contact
details’).
16 Emergency Management (Public Activities No 13)
(COVID-19) Direction 2020, cl 10(4).
17 Ibid cl 10(7).
18 See, eg, Emergency Management (Activities – General
No 3) (COVID-19) Direction 2021, cl 7. The use
of ScanTek was later discontinued as means of
registering attendance at a venue with effect from
17 February 2021 (see Emergency Management (Public
Activities No 19) (COVID-19) Direction 2021, Sch
3, cl 1(5) (definition of ‘approved contact tracing
system’)).
19 Emergency Management (Public Activities No 22)
(COVID-19) Direction 2021, Sch 3, cl 1(6)-(8).
20 Richards, ‘Law Society warning over COVID QR
check-in data privacy’ (n 4); Eugene Boisvert,
‘Privacy concerns about SA Government’s mySA
GOV QR code coronavirus contact tracing
app’, ABC, (Web Page, 27 November 2020)
;
Bension Siebert, ‘Privacy
concerns as South Australia becomes latest state
to flag QR code contact tracing’, ABC (Web Page,
3 November 2020) .
21 South Australia, Parliamentary Debates, House
of Assembly, 2 February 2021, 3705 (Vickie
Chapman). The State Government has also
cited the Information Privacy Principles Instruction
(‘Instruction’) as governing the disclosure of
collected via COVID SAfe Check-In. However,
the Instruction does not further assist in addressing
the concerns raised; the Instruction explicitly
provides that personal information can be used
by an agency (or disclosed by an agency to a third
person) if, relevantly, the use/disclosure is ‘required
or authorised by or under law’ or ‘reasonably
necessary for the enforcement of the criminal law’.
22 Emergency Management Act (n 2) s 31A(e).
23 See, eg, Supreme Court Criminal Rules 2014 (SA), r
78, Ch 14; Uniform Civil Rules 2020 (SA), r 156.13,
Ch 17, Pt 5; Mahaffy v Mahaffy [2013] NSWSC
245, [105].
24 Australian Federal Police v XYZ (2015) 123 SASR
274, 281-2 [40].
25 Milisits v South Australia (2014) 119 SASR 538.
26 Regina (C’Wealth) v Baladjam & Ors [No 29] [2008]
NSWSC 1452; Roberts-Smith v Fairfax Media
Publications Pty Limited (No 14) [2021] FCA 552.
27 Jacobsen v Rogers (1995) 182 CLR 572, 589.
28 R v Lobban (2000) 77 SASR 24.
29 Health Care Act 2008 (SA), s 93.
30 Western Australia, Parliamentary Debates, Legislative
Council, 15 June 2021, 1408a (Matthew Swinbourn).
31 R v Rockford (2015) 122 SASR 391.
32 Wilson, ‘Who’s been looking at your check-in
data? We asked the states and territories to “fess
up”’ (n 8); Evidence to Public Accounts and
Estimates Committee, Parliament of Victoria,
Melbourne, 21 June 2021, 3-4 (Shane Patton,
Chief Commissioner of Police).
33 Evidence to Public Accounts and Estimates
Committee, Parliament of Victoria, Melbourne,
21 June 2021, 6 (Danny Pearson, MP, Acting
Minister for Police and Emergency Services).
34 Privacy Amendment (Public Health Contact Information)
Act 2020 (Cth) which inserted Part VIIIA (titled
‘Public health contact information’) into the
Privacy Act 1998 (Cth).
35 Privacy Act 1998 (Cth), s 94D(2)(e).
36 Protection of Information (Entry Registration Information
Relating to COVID-19 and Other Infectious Diseases)
Act 2021 (WA), s 6(1), (4)-(5).
37 ‘entry registration information’ is the information
collected via SafeWA, the Western Australian
equivalent of COVIDSAfe Check-In.
38 Protection of Information (Entry Registration Information
Relating to COVID-19 and Other Infectious Diseases)
Act 2021 (WA), s 6(2).
39 Western Australia, Parliamentary Debates, Legislative
Council, 15 June 2021, 1409a (Matthew
Swinbourn).
40 Queensland Law Reform Commission, The
Abrogation of the Privilege against Self-Incrimination
(Report No 59, December 2004), 19; X7 v
Australian Crime Commission (2013) 248 CLR 92,
106 [17].
41 See, eg, Commonwealth Director of Public Prosecutions v
Leach (No 3) [2020] QDC 42.
September 2021 THE BULLETIN 15

EXECUTIVE POWER
The exercise of emergency powers by
the executive in COVID-19 times: What
recent cases say about constitutional
protection of our freedoms
SUE MILNE, LECTURER, PHD CANDIDATE, JUSTICE AND SOCIETY, UNIVERSITY OF SOUTH AUSTRALIA
The Covid-19 pandemic has seen
both our Commonwealth and state
governments respond to restrict the
movement of people. The Commonwealth
has placed restrictions on leaving or entering
our national borders, and there are ongoing
state restrictions on movement between
and within states. These restrictions are part
of the new normal of rapid lockdowns,
border closures, capped numbers in public
gatherings, contact tracing and social
distancing protocols that continue to impact
the daily lives of every person in Australia.
Recent legal challenges, on
constitutional and administrative grounds,
to the restrictions on the international, 1
interstate 2 and internal 3 movement of
people have failed. It is not difficult to
see why. The precautionary restrictions
are considered proportionate and justified
measures necessary to reduce the risk of
the spread of infection and protect the
public health of the community. As Nicola
Spurrier has so pictorially observed, the
virus does not have legs. But our human
legs ably facilitate the spread of the Covid
virus rendered ever more potent by its
mutating strains.
The measures have relied on
Commonwealth and state emergency
management, biosecurity and health powers.
These areas of law-making authority have
in turn enabled the delegation of extremely
broad discretionary powers to our
Executive governments, as it is this arm of
government that is considered ‘capable and
empowered to respond to a crisis’. 4
However, these broad executive powers
have jurisdictional limits. The magnitude
and urgency of the Covid-19 pandemic
is determined on technical and medical
advice. This provides for the exercise of
discretionary authority, in conjunction
with the relevant crisis or emergency
management plans, at both Commonwealth
and state levels. The executive must be
satisfied of the existence of a state of
emergency and that extraordinary measures
are required. The finite period of the
declared crisis or emergency provides a
further temporal limit.
Upon technical and medical advice,
the Commonwealth Government was able
to respond quickly to declare a human
biosecurity emergency under the Biosecurity
Act 2015 (Cth) on 18 March 2020. This
rolling declaration has granted the Health
Minister special emergency powers to make
determinations to address requirements
necessary to prevent or control the
“emergence, establishment or spread” of
Covid-19 within, or in a part of, Australian
territory, or to another country. 5
Similar declarations at the state level
of a “major emergency” or “state of
emergency” trigger delegated powers
to issue the necessary directions. 6 The
Victorian lockdown directions issued
under the emergency powers of the Public
Health and Wellbeing Act 2008 (Vic), and
the Western Australian border closure
directions issued under the Emergency
Management Act 2005 (WA), have been
subject to constitutional challenge in
the High Court. Both matters relied on
arguments that the executive failed to
observe the relevant constitutional limits
in their exercise of powers.
These decisions demonstrate that
in stark counterpoint to identification
of the source and enablement of
executive authority, lies the problem of
the identification and protection of our
rights. including the right to freedom
of movement. Without a Bill of Rights
this problem is ever present. However,
the ACT, Victoria and Queensland have
all enacted human rights statutes that,
although may not entrench important
rights, do operate to provide a standard
by which their governments must account
to justify any intrusions upon these rights.
The High Court challenge to the Victorian
lockdown directions did not engage the
right to freedom of movement under
s 12 of the Charter of Human Rights and
Responsibilities Act 2006 (Vic) but sought
the operation of a constitutional right to
limit the emergency powers. 7
But in Gerner v Victoria the High Court
unanimously and comprehensively rejected
argument that a new implied constitutional
right to freedom of movement operated
as a limit on the Victorian lockdown
directions. 8 No such constitutional freedom
existed. It did not arise by implication from
the nature of federation; nor was it founded
under the implied right to freedom of
political communication, as the lockdown
directions were not of a political nature.
Nor, being intrastate in operation, was the
16
THE BULLETIN September 2021

EXECUTIVE POWER
The High Court decision in Clive Palmer’s border ban challenge was significant in applying structured proportionality
with regards to limiting the constitutional right to travel between borders. AAP Image/Mick Tsikas
lockdown constrained by the constitutional
freedom of interstate trade, commerce and
intercourse under s 92 of the Constitution.
The challenge to protect our rights
and freedoms is even greater when
measures are supported by legislative
characterisation of executive authority as
being necessary to address and prevent
“unprecedented” and “catastrophic”
outcomes. 9 In Palmer v Western Australia,
Clive Palmer, who has business and
political interests in Western Australia but
resides in Queensland and was refused
entry into WA, challenged the WA
border closure direction as an unjustified
infringement of s 92. The High Court
did not agree and found that the relevant
provisions of the Emergency Management
Act 2005 (WA) complied with s 92 and the
border closure directions were valid. 10
The case is constitutionally significant
in its approach to construction of s
92. The majority (Kiefel CJ and Keane
J, and Edelman J) respectively found
that the “powerful public protective
purpose” 11 and “extreme circumstances” 12
addressed by the WA border closure
required a proportionality approach in the
application of s 92.
Proportionality is an analytical tool
by which the necessity and reasonable
justification of measures that breach our
constitutional freedoms may be determined.
Our few constitutional freedoms are neither
personal nor absolute rights, but instead
operate as limits on legislative and executive
powers. Cole v Whitfield developed the
modern approach to s 92 that invalidates
laws imposing a discriminatory and
protectionist burden on activities that
engage with interstate trade and commerce.
This approach first enquires into the
purpose of the law that if found to be
protectionist will offend s 92 and cannot
be saved. The purpose of the WA border
closure direction was not protectionist
of interstate trade and commerce but
sought to protect public health. A second
then looks to the reasonable necessity of
the burdens that flow from the border
closure, including that there are no other
more obvious and compelling alternatives
to address the problem of stopping the
Covid-19 virus from spreading into WA.
The majority in Palmer have now added
a further step in determining if the s 92
freedoms have been unjustifiably breached.
This is through the adoption of structured
proportionality, an approach previously
only applied to the implied constitutional
freedom of political communication.
Structured proportionality considers
the extent of the burden affected by the
law upon the constitutional freedom,
described in the three stages of the inquiry
into the law being suitable, necessary and
adequate in its balance. While the suitable
and necessary steps share some overlap
with the usual approach to s 92 outlined
above, it is the last step of “adequate in its
balance” that is a cause of judicial dissent.
This is because it is a value judgment that
seeks to identify if a proportionate balance
has been achieved between the importance
of the purpose and the means adopted to
achieve it, as measured against the extent
of the restriction on the freedom.
Justice Gageler has been critical of the
adoption of structured proportionality
to constitutional freedoms and with
Justice Gordon rejected the adoption of
structured proportionality to s 92. In Palmer,
he championed instead a more explicit
approach to statutory construction of the
empowering statute and the application of
the constitutional freedom. This approach
is that constitutional freedom is only to be
applied to limit the statutory power and not
to the actual exercise of executive discretion
itself – therefore, the s 92 limit does not
apply to construction of the border closure
direction. That limit is only to be applied
to the Act under which the direction was
made. This approach was accepted by
the court in Palmer in applying Wotton v
Queensland. 13
As Gageler J observed,
Where executive action purporting to
be taken pursuant to statute imposes
a burden argued to infringe… [a
constitutional freedom]… two distinct
questions accordingly arise: one
constitutional, the other statutory.
The statutory question is whether the
executive action is authorised by the
statute. The constitutional question is
whether the statute complies with the
constitutional guarantee if, and insofar
as, the statute authorises the executive
action. 14
September 2021 THE BULLETIN 17

EXECUTIVE POWER
This distinction drawn between
the operation of a constitutional limit
on the statutory power and not upon
the discretionary exercise of statutory
authority converges administrative
and constitutional approaches to the
construction of the exercise of statutory
powers. Problematically, the exercise of
a statutory power may need to be read
down or “disapplied” instead of rendered
constitutionally invalid, 15 and there is
certainly room for further analysis in this
area.
But statute itself might pre-empt
a determination on the whether the
executive measures are a necessary and
justified response by requiring that
the executive apply a proportionality
standard in making determinations. This
proportionality standard then operates as
a legislatively (rather than constitutionally)
“significant limitation” 16 on executive
powers. This is the case with s 477 of
the Biosecurity Act 2015 (Cth) under which
the Health Minister, Greg Hunt, made a
Determination in 2021 to temporarily ban
travellers returning from India entry into
Australia. The ban was a response to the
reported 300,000 COVID-19 infections
per day in India and the magnified risks of
travellers carrying the virus on their return
to Australia.
The requirements of s 477 include
that the Minister must be satisfied the
determination is effective and appropriate
and adapted to its purpose, and no more
restrictive or intrusive than circumstances
require, and applies for only as long as
necessary. This standard seeks to balance
the necessity of the measures taken
against the restrictions and intrusions
placed on our lives. It also enables the
identification of intrusion upon rights –
in this instance, the right of Australian
citizens to enter Australia.
A legal challenge to the temporary
ban being an improper exercise of
power that failed to satisfy the legislative
proportionality standard was dismissed
by the Federal Court in May this year. 17
In Newman v Minister for Health and Aged
Care Justice Thawley found, inter alia, that
the Minister had properly considered the
necessity and effectiveness of the ban, and
that it was no more intrusive than necessary.
But the case also illustrates the
recurring problem of identification and
protection of our rights, in this instance
the right of Australian citizens to enter
and reside in Australia. His Honour
found that the common law right of
entry to the state (a right that was
conceded by the Commonwealth) had
been lawfully limited, as it conformed
with the broader contextual scope and
purpose of the Biosecurity Act 2015 (Cth)
that concerned the entry to and exit from
Australia, combined with the necessity to
enable rather broad powers to deal with
emergencies. This interpretation then
rebutted the operation of the principle of
legality to restrict the power.
What is left unanswered is the extent
to which the right is constitutionally
protected. A challenge on this ground was
stood over but the short timespan of the
India travel ban rendered the challenge
obsolete. Under Australian law the
recognition of admission to the state (often
expressed as a right to return and enter)
is a common law right thought to operate
as a limit on the exercise of public power
rather than as a freestanding right. But its
boundaries and limits are yet to be properly
tested. It is a right also recognised under
international law arising as an incident of
nationality. On a technical level it would
be fascinating to examine the interplay of
the right as constitutionally protected in its
application to s 477 of the Biosecurity Act
2015 (Cth) and adoption of the structured
proportionality test, measured against the
statutory construction of the legislative
proportionality standard within s 477 itself.
But the imperatives of a human biosecurity
emergency may still prevail. B
Endnotes
1 Newman v Minister for Health and Aged Care [2021]
FCA 517 (10 May 2021); LibertyWorks Inc v
Commonwealth [2021] FCAFC 90 (1 June 2021).
2 Palmer v Western Australia [2021] HCA 5; (2021)
95 ALJR 229.
3 Gerner v Victoria [2020] HCA 48; (2020) 95 ALJR
107.
4 Pape v Federal Commissioner of Taxation (2009) 238
CLR 1, [233].
5 Biosecurity Act 2015 (Cth) s 477.
6 In SA authority to then take the ‘necessary
action’ and issue directions as required resides
with the SA Commissioner of Police: Emergency
Management Act 2004 (SA) ss 14 and 25 and
the Emergency Management (Public Activities No 6)
(COVID-19) Direction 2020 (SA).
7 Section 12 provides, ‘Every person lawfully
within Victoria has the right to move freely
within Victoria and to enter and leave it and has
the freedom to choose where to live.’
8 Gerner v Victoria [2020] HCA 48; (2020) 95 ALJR
107.
9 Palmer v Western Australia [2021] HCA 5; (2021)
95 ALJR 229, [21], [79] and [280].
10 Palmer v Western Australia [2021] HCA 5; (2021)
95 ALJR 229.
11 Palmer v Western Australia [2021] HCA 5; (2021)
95 ALJR 229, [59]-[60] (Kiefel CJ and Keane J).
12 Palmer v Western Australia [2021] HCA 5; (2021)
95 ALJR 229, [291] (Edelman J).
13 Wotton v Queensland (2012) 246 CLR 1.
14 Palmer v Western Australia [2021] HCA 5, [154];
(2021) 95 ALJR 229, [119] (Gageler J).
15 Palmer v Western Australia [2021] HCA 5, [154];
(2021) 95 ALJR 229, [226]-[228] (Edelman J).
16 Palmer v Western Australia [2021] HCA 5, [154];
(2021) 95 ALJR 229, [154] (Gageler J).
17 Newman v Minister for Health and Aged Care [2021]
FCA 517 (10 May 2021) and Biosecurity (Human
Biosecurity Emergency) (Human Coronavirus with
Pandemic Potential) (Emergency Requirements – High
Risk Country Travel Pause) Determination 2021 (Cth)
18
THE BULLETIN September 2021

WELLBEING & RESILIENCE
R U Ok? U R not alone
and U R not a robot…
ZOE LEWIS, CHAIR, WELLBEING & RESILIENCE COMMITTEE
This year on “R U Ok? Day” (9
September) you might like to consider
that the answer to this question is not a
simple “yes” or “no”. Nor is the answer
the same across time.
Some days the words of an angry or
aggressive client are like water off a duck’s
back. Other days they feel like quicksand
in which we become stuck.
Working with people who are facing
some of the biggest challenges of their
lives is a privilege. But we must also
recognise that it is a burden too. It can
drain you, leave you worried about the
welfare of your client, even worried about
your own safety when dealing with that
person.
We must have individual and workplace
strategies for prevention and protection
as well as mechanisms which kick in when
things R not ok.
We know this is important because
nearly 40% of us recently reported that
working in the legal profession has a
negative impact on our mental wellbeing
and the same percentage reported feeling
unable to cope at work within the last year. 1
Why might the answer be “no”?
It is certainly true that one client
may be more distressed or demanding
than another. And some content is more
confronting than average. But most often
I find that if I am struggling to manage
something at work, it is more about other
circumstances.
Did I sleep poorly the night
before? Had I already dealt with several
challenging situations that day that left my
reserves low? Had I been physically unwell
lately and so feeling more fragile? Were
there stressors at home?
(Side note: The reality is that 70% of
us identify non-work factors which have a
significant impact on our mental wellbeing
– family and caring responsibilities top the
list followed by perfectionist personality
traits and financial stress.)
And of course, things can get into a bit
of a vicious cycle: 75% of us experienced
disrupted sleep due to work during the
last year and poor sleep can reduce our
resilience especially if it is a chronic issue.
There is no shame in our humanness.
Rather, it is what enables us to connect
with our clients and colleagues. But until
we can admit to each other that today is
not an ok day, we are left to struggle on
our own.
If someone asks you, “R U Ok?”
Remember, U R not a robot. This isn’t
a “computer says no” auto-pilot moment.
Sometimes the answer to the question
is a resounding “no”. When things
continue to be not ok day after day, and
when we feel alone and as though we
are a burden for not being ok… Well,
that is when we are most at risk of doing
something we cannot bounce back from.
And this is a reality we must get better
at talking about since we know that each
day eight Australians die by suicide 2 . Yes,
that is more than double the road toll.
Research suggests that lawyers are
at even higher risk than the general
population. So, if you’re having a hard
time U R certainly not alone.
In the recent Law Society Wellbeing
Survey, 17 of our peers admitted to having
suicidal thoughts and nearly half admitted
to having negative or depressed thoughts.
If U R not OK today…
• Can you find a colleague, family
member or friend to talk to?
• Are there some self-care activities you
could step up like getting an early night
or making time for a lunchtime walk?
(75% of us picked exercise as one of
our most effective coping strategies)
• Could you delegate or reschedule some
of your commitments to cut yourself
some slack?
If U R not OK, and that feeling has
been lingering, it might be time to contact
one of the many support services available
to you such as:
• Law Care – free and confidential
counselling available through the Law
Society
• Your GP or psychologist
• Your Employee Assistance Program (if
you have one)
• Lifeline (13 11 14) or Beyond Blue
• The Suicide Call-back Service
We must learn that this doesn’t make
us weak. It doesn’t make us incapable of
being good lawyers. It just means we are
humans and not robots.
Unfortunately, these ideas persist.
A huge number of survey respondents
reported varying concerns they would
have about disclosing any struggles to their
employer ranging from not being believed
through to fear of it negatively impacting
upon their career.
So maybe this year, when we ask
each other “R U Ok?” we can start a
bigger conversation, one that continues
throughout the year as life takes us on its
inevitable ups and downs.
If you are interested in hosting an
event at your work, or want to learn more
about having R U Ok? Day conversations,
you can check out the R U Ok? Day
website.
Endnotes
1 Law Society of South Australia Individual
Lawyer Wellbeing Survey 2021.
2 https://www.health.gov.au/health-topics/
mental-health-and-suicide-prevention/suicide-inaustralia
September 2021 THE BULLETIN 19

YOUNG LAWYERS
Dancing privileges embraced at
pre-lockdown Young Professionals’ Gala
After months of gathering restrictions,
postponed events and dance floor
bans, the young lawyers of South Australia
were eager to dust off their dancing shoes
and light up the dance floor.
The 2021 Young Professionals’ Gala
was held on Friday 4 July in the prestigious
John Halbert Room at the Adelaide
Oval. A group of 220 young lawyers and
professionals enjoyed a night of dancing,
networking and fine food.
A highlight of the evening was being
greeted upon entry with a long train of
wait staff offering a vast array of South
Australia’s finest beverages; although for
some it raised the tough question: “Where
do I start?”
The night was accompanied by the
smooth tunes of DJ St Patrick, also
a young lawyer himself. As the night
progressed, he succumbed to the countless
requests to play Cardi B’s latest tune - a
decision loved by many but hated by some.
The Young Lawyers’ Committee would
like to thank our major sponsor, Burgess
Paluch Legal Recruitment and supporting
sponsor PEXA for their continued
support. A special thanks also goes to
the Adelaide Oval for their incredible
hospitality on the night.
Sarah Wedding (left), Georgina Irving, Ben Clarke, Belinda Alcock, Jason Leonardis, and Russell Jones
Nathan Smart (left), Maria Harris, Shannon
McMenamin, Oktawia Guz, and Diane Delumen
Madi McCarthy (left), Libbee Coulter, Rebecca
Scarabotti, and Daniel Copley
Tom Hendrick (left), Steven Ellis, Bentley Anderson
and Alex Hamam
Claudia Boccaccio (left), Libbee Coulter, Katie Walsh, Daniel Copley, Jake Kriticos, Azaara Perakath, Astrid
Gillam, and Samuel Leeson
Ondine Baker (left), Marcus Walker, Katie Evans, and
Alice Connelly
20 THE BULLETIN September 2021

YOUNG LAWYERS
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Caitlin Surman (left) and Bec Sandford Philippa Ewens and Patrick Kerin Jim Coffey (left), Audrey Lian, Tom Powell and
Sara Dobbyn
Emma Green and Matt Kelly
Ali Gunning and Daniel Bartlett
Meghan Fitzpatrick and Lauren Willgoose
Clare Mingorance (left), Tyson Leung, Kassandra
Girolamo, Ciara Fanning-Walsh and Ella Cameron
Lachlan Chuong (left), Jessica Le, Zoe Vaughan,
and Nicole Mead
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September 2021 THE BULLETIN
21

FEATURE
Harassment in the legal industry:
Cultural change requires a
movement, not a mandate
ALEXIA BAILEY AND MARISSA MACKIE, WOMEN LAWYERS’ COMMITTEE
Sexual harassment in the legal profession
has been in the media spotlight this
year following the Equal Opportunity
Commission’s Review into harassment. 1
The Review found that some 42 percent
of respondents had experienced sexual
or discriminatory harassment at work,
while 69 percent of respondents did not
report the harassment due to fear of
the repercussions. The Review suggests
that patriarchal culture, lack of cultural
diversity and gender bias were some of the
drivers of harassment.
The only thing more shocking than
the findings of the review is that they
do not come as a shock to many in the
profession.
CULTURAL CHANGE
It is evident that there is a culture of
sexual harassment and gender inequality
within the legal industry. But how do we
actually drive the cultural change needed
to address this? Culture is like the wind.
It is invisible, yet its effect can be seen
and felt. It is the actions and attitudes of
all members of the profession that must
unite to change the direction the wind is
blowing.
Since the Review, various representative
bodies have implemented action plans to
tackle the recommendations. The Chief
Justice of the Supreme Court convened
the Respectful Behaviour Working Group
which has met multiple times over the last
year. The Law Society of South Australia,
South Australian Bar Association and
Women Lawyers Association of South
Australia have also worked tirelessly to
develop strategies to give effect to the
recommendations particularly in areas of
education and policies. This alone is not
enough. The actions of all workplaces
within the legal industry will be crucial to
changing our culture.
22 THE BULLETIN September 2021
WHAT CAN WORKPLACES DO?
The Law Council of Australia has
committed to developing a national model
policy and guidelines which is currently
underway.
In the meantime, firms should take
the opportunity to review their current
workplace policies.
In September, 2020, 2 the Women
Lawyers’ Committee provided some
guidance for firms in preparing or
revising existing policies. The Committee
recommended policies should:
• be clear and transparent about the
consequences for perpetrators;
• provide a confidential complaints
mechanism for both complainants and
bystanders;
• have a trauma-informed approach for
complaints;
• set out grievance resolution processes
and steps that the firm will take to
investigate and resolve complaints; and
• provide internal and external support
avenues for complainants and
bystanders.
Longer term, the Law Council’s
national model policy and guidelines,
when finalised, will provide a solid
basis upon which firms will be strongly
encouraged to model their harassment
policies on.
Crucially, the Equal Opportunity
Commission’s Review highlighted
examples of where clients may be
perpetrators of harassment and bullying.
Firm policies and guidelines need to
address how they will deal with reports
of such conduct, remembering their
obligations to their staff to provide safe
workplaces, both within the office and
when attending work-related events and
functions. The LCA national model policy
materials will contain guidance in these
regards.
Equitable recruitment and briefing
Underpinning the findings in the
Review was an acknowledgment that gender
and cultural bias has been a key driver for
harassment in the legal profession.
Firms can work towards removing this
bias in numerous ways, including by:
• implementing transparent recruitment
policies and pay scales
• promoting flexible working practices
for both men and women
• signing up to the Law Council of
Australia’s Equitable Briefing Policy 3
MANDATORY CPD
South Australia is the first jurisdiction
to tackle the issue of harassment within the
legal profession by introducing mandatory
training. Legal practitioners must now
complete one mandatory CPD unit on
bullying, discrimination and harassment.
A survey conducted as part of the
International Bar Association’s (IBA)
Report ‘Us Too? Bulling and Sexual
Harassment in the Legal Profession’ 4
illustrated that those who received training
in their workplace were ‘significantly less
likely to have been bullied or sexually
harassed…’. The introduction of this
mandatory training will help to drive the
cultural change needed, but it is imperative
that we get the training right. How many
practitioners have slept through an ethics
unit just to meet their CPD obligations
and walked away without taking anything
from the session? It is not enough to
simply provide attendees with an overview
of the legislation along with obvious and
unmistakable examples of harassment.
The Law Society of South
Australia has been offering a free and
comprehensive workshop called ‘Sexual
Harassment – Changing Workplace
Culture’ which includes recorded scenes
in the workplace using professional actors

FEATURE
to aid learning and understanding of these
issues. We encourage all practitioners to
attend one of these seminars.
What does a good CPD look like?
If firms intend to offer their own
in-house training then it is crucial that
it achieves the desired outcomes and
contributes to changing the culture of our
profession.
Any training being offered on bullying,
discrimination and harassment should
be interactive and provide hypothetical
scenarios to assist in identifying
inappropriate conduct and harmful
workplace culture. Upon completion all
attendees should have gained knowledge
and understanding in respect of:
• what constitutes sexual harassment
(and not just the obvious examples);
• how individuals’ behaviours impact
workplace culture;
• the predominant traits and culture in
legal workplaces, such as unconscious
bias and inequality, that may act as
catalysts for harassment and bullying
behaviours;
• the role of bystanders in changing
culture;
• the role of leadership in modelling
positive behaviour in legal workplaces;
• the importance of appropriate sexual
harassment and bullying policies and
training processes in legal workplaces;
• the options and appropriate responses
to manage an incident experienced or
observed; and
• the options available for further and
ongoing support for those dealing
with incidents of sexual harassment or
bullying.
ACTIONS SPEAK LOUDER THAN WORDS
We’ve paid lip service to the issues of
bullying, discrimination and harassment in
the legal profession for far too long. We
have seen some tangible change over the
last twelve months and we need to keep
the momentum going.
Whether it’s calling out bad behaviour,
supporting those who have experienced
bullying or harassment, or walking with
our feet from toxic workplaces or clients,
we can all play a part, no matter how
small, to eliminate harassment from our
profession once and for all. B
Endnotes
1 https://www.eoc.sa.gov.au/documents/Final-
Report-of-the-Review-of-Harassment-in-the-
South-Australian-Legal-Profession.pdf
2 LSB September 2020, Sexual harassment in the
workplace: Make it your business to make sure
it’s not in your business.
3 https://www.lawcouncil.asn.au/policy-agenda/
advancing-the-profession/equal-opportunitiesin-the-law/national-model-gender-equitablebriefing-policy.
4 International Bar Association, Us Too? Bullying
and Sexual Harassment in the Legal Profession
(2019) https://www.ibanet.org/bullyingandsexual-harassment.aspx;
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September 2021 THE BULLETIN 23

COMPULSORY ACQUISITION
Compulsory Acquisition of Land:
Navigating the intersection
between executive powers and
individual property rights
DON MACKINTOSH, SENIOR SOLICITOR, COMMERCIAL, ENVIRONMENT & NATIVE TITLE SECTION, CROWN SOLICITOR’S OFFICE
The compulsory acquisition of land
provides a particularly acute example
of the intersection of the powers of the
executive arm of government with the
rights of property of the citizen. The
subject is particularly topical at present,
given the substantial number of current
government infrastructure projects that
require the acquisition of land. 1 Most
prominent amongst these is the North-
South Corridor Project, which, when
completed, is intended to provide a
continuous 78km non-stop link from Old
Noarlunga to Gawler. The acquisition of
land for infrastructure projects regularly
attracts media attention. 2
This paper will sketch a brief outline
of the compulsory acquisition process and
identify the principal rights and obligations
of persons whose interest in land is
proposed to be or has been divested or
diminished by an acquisition. The paper
will focus exclusively upon the relevant
South Australian legislation and will not
touch upon the acquisition of land by the
Commonwealth. It will not discuss the
acquisition of native title.
POWER TO COMPULSORILY ACQUIRE LAND
There is no common law power for
the Crown to take land compulsorily. 3 It
follows that the power must be conferred
by Parliament. Compulsory acquisition
and the entitlement to compensation are
therefore entirely creations of statute. 4
The Land Acquisition Act 1969
(SA) (LAA) does not itself confer the
power to compulsorily acquire land. It
assumes that the power exists and that all
conditions precedent to its exercise have
been satisfied, and simply furnishes the
statutory procedure for the exercise and
consequences of that power. The actual
24 THE BULLETIN September 2021
power to acquire land must be authorised
by what the LAA describes as a “special
Act”. 5 The LAA is therefore purely a
machinery Act. Its first purpose is to
provide a mechanism by which the State
can compulsorily acquire land that is
required for the purposes of a statutorily
authorised purpose in the broader public
interest. 6 The rights of parties who held an
interest in the acquired land are converted
into an entitlement (subject to the
operation of the Act) to be compensated
for certain losses that are suffered by
reason of the acquisition. 7
Numerous South Australian statutes
confer a power for the compulsory
acquisition of land. Examples include s
20(1)(a) of the Highways Act 1926, s 23 of
the Passenger Transport Act 1994 and s 6 of
the Education and Children’s Services Act 2019.
A special Act that authorises the
compulsory acquisition of land is taken
to authorise the acquisition of “land” as
defined by the LAA: s 7(1a) of the LAA.
That definition is broad, extending to rights
that would not constitute an interest in land
for the purposes of the general law. 8
THE STATUTORY PROCEDURE
Service of a Notice of Intention to Acquire: ss
10 and 10A
The person that is authorised by a
special Act to acquire land is referred
to in the LAA as the Authority. When
an Authority proposes to acquire land
(other than native title and underground
land), it must serve a Notice of Intention
to Acquire (NOI) upon each person
whose interest in the land is subject to
acquisition. 9 The service of the NOI
commences the statutory process.
The NOI must define the land that is
proposed to be acquired with reasonable
particularity, set out the operation of s 26B
of the Act (to be referred to shortly) and
otherwise be in the form prescribed in the
Land Acquisition Regulations 2019. The NOI
does not bind the Authority to acquire the
Land.
An owner of land (or an interest
in land) to whom a NOI is given must,
no later than 14 days after receiving
the notice, notify the Authority of any
person who, to their knowledge, has an
interest in the land, and the nature of the
person’s interest. A refusal or failure to
do so without reasonable excuse commits
an offence, with a maximum penalty of
$5,000.
Entry of a Caveat: s 14
When the land that is the subject of
the proposed acquisition is under the Real
Property Act 1886 (as will usually be the
case), the Authority must cause a copy of
the NOI to be served upon the Registrar-
General. 10 The Registrar must then enter
a caveat over the certificate of title for
the land, forbidding all dealings with the
land without the written consent of the
Authority.
Right to Seek an Explanation of the Reasons for
the Acquisition: s 11
The service of an NOI upon a person
whose interest in the land is subject to
acquisition fulfills several purposes, but
relevantly triggers a number of rights
in the recipient. First, s 11 of the LAA
provides that a person who has been
served can, within 30 days after the notice
was given to the person, require the
Authority to give an explanation of the
reasons for the acquisition of the land and
provide reasonable details of any statutory
scheme in accordance with which the land
is to be acquired.

COMPULSORY ACQUISITION
An artist's impression of the Darlington Upgrade Project. Source: Department for Infrastructure & Transport
Right to Object: s 12
A person who has been served with
a NOI can, within 30 days after the NOI
was given or, if an explanation had been
sought under s 11, within 30 days after the
explanation was provided, request:
• that the Authority not to proceed with
the acquisition; or
• that the boundaries of the land the
subject of the proposal be altered; or
• that a particular part of the subject land
not be acquired or that further land be
acquired. 11
The grounds upon which an objection
can be made are specified in s 12(3) of
the LAA. They include that the land (or a
particular part thereof) is not necessary for
the undertaking to which the acquisition
relates, or some other ground stated in the
request.
The Authority must consider and
determine the objection within 14 days of
its receipt.
Right of Review by SACAT: s 12A
A person who made an unsuccessful
objection under s 12 can apply to the South
Australian Civil and Administrative Tribunal
(SACAT) for a review of the Authority’s
decision: see s 12A of the LAA. The
application must be made within 7 days
of the service on the person of notice of
the Authority’s refusal of the objection. 12
SACAT must then complete its review
within 21 days of the application being
made. Importantly, a review cannot call into
question the merits of the undertaking to
which the proposed acquisition relates. 13
Acquisition of Title: ss 15, 16 and 17
At any time after the service of the
NOI, and before the land is compulsorily
acquired, the Authority can acquire the
land by agreement with the owner: see s 15
of the LAA. Typically (but not in all cases)
the Commissioner of Highways will write
to the land holder and offer to purchase
the land for an amount that has been
assessed by an independent expert land
valuer. If agreement is reached in this way,
a standard contract of sale will be entered
into and the transfer will be affected in the
same way as an ordinary transfer of land.
Assuming that no agreement is reached
for a negotiated acquisition, the Authority
can publish a Notice of Acquisition
(NOA) in the Government Gazette at least 3
months after the first occasion on which
any NOI was given, but before the period
of acquisition comes to an end (18 months
after the NOI was given, unless a longer
period has been agreed by the parties or
fixed by the Court 14 ): see s 16 of the LAA.
On publication of the NOA:
• the land and interest (for example, an
unencumbered fee simple) specified
within the NOA vests in the Authority;
and
• a mortgage, charge, encumbrance, trust
or other interest affecting the land
(except native title) is, to the extent
that it affects the land subject to the
acquisition, discharged.
The Authority must then serve a copy
of the NOA upon the Registrar-General,
who will withdraw the caveat that had
previously been entered under s 14, cancel
the existing certificate of title and issue a
new certificate or certificates of title. So,
for example, if the acquisition is of the
whole of the land in a title, a new title for
the entirety will be issued in the name of
the Authority. If, however, only portion of
an existing title is acquired, the Registrar
will issue 2 titles: one for the acquired land
in the name of the Authority, the other for
the residual (unacquired) land in the name
of the proprietor.
Notice of the acquisition must also be
given by the Authority to each person who
had received the NOI. 15
Taking Possession of the Acquired Land: ss 24
and 24A
Since 2 July 2020, an Authority gains
an entitlement to enter into possession
not by agreement, but by the unilateral
executive act of issuing a possession
notice to the occupier of the land,
specifying the date on which it will enter
into possession and (subject to minor
exceptions) the arrival of that date: ss
24(1) and (10). 16 The possession notice
must be issued as soon as is reasonably
practicable after the publication of the
NOA in respect of the land. The date
specified in the notice must be not less
than 90 days after the date on which the
NOA was published, unless the land
relates to a “declared acquisition project”,
in which case the possession date can be
a date on or after the date on which the
possession notice is given. 17 An occupier
can apply to the Authority to fix an earlier
or later possession date.
Occupiers that remain in possession
after the date the land was compulsorily
acquired are taken to occupy the land
pursuant to a tenancy, the terms of
which are as determined by the Authority
from time to time. Mandatory terms and
conditions are prescribed by r 8 of the
Land Acquisition Regulations 2019. Unless
the Authority determines otherwise, rent
is payable from 90 days after the date the
NOA was published in the Gazette.
Either the Authority or the recipient of
a possession notice can (except where the
acquisition relates to a declared acquisition
project) refer into the Supreme Court
a refusal by the Authority to fix a later
possession date, a dispute as to the rent
September 2021 THE BULLETIN 25

COMPULSORY ACQUISITION
that is payable, or a matter relating to any
other term or condition of the deemed
tenancy. Importantly, however, a refusal by
the Authority to fix a later possession date
can only be referred to the Court within
60 days after the NOA is published or the
date that the possession notice was given
(whichever is the later).
Special provision is made for the taking
of possession of land that is vacant as at
the date the NOA is published.
If the Authority is entitled to enter into
possession under s 24 and the occupier
remains on the land, the Authority can
apply to the Supreme Court for an order
ejecting the person from the land.
COMPENSATION
A person (claimant) who has an
alienable interest in land as at the date of
its acquisition is entitled to compensation
if that interest is either divested or
diminished by the acquisition, or the
enjoyment of the interest is adversely
affected by the acquisition: see s 22B of
the LAA. 18 In effect, each alienable interest
in the land is converted into an entitlement
to compensation. So, for example, a
former owner in fee simple, a mortgagee,
a tenant and the holder of an easement
over the acquired land will each be entitled
to compensation if their interest in the
land has been divested, diminished or
discharged by the acquisition.
Section 25 sets out the principles
by which compensation is determined.
The fundamental principle is that the
compensation is to adequately compensate
the claimant for any loss that he or she
has actually suffered by reason of the
acquisition of the land. Compensation can,
depending upon the circumstances of the
case, encompass the actual (market) value
of the acquired land, disturbance and,
in the case of the acquisition of portion
of a parcel only, any loss occasioned by
reason of what is known as severance and
injurious affection to any non-acquired
land retained by the claimant. A substantial
body of case law exists in connection with
each of these concepts.
26 THE BULLETIN September 2021
The determination of compensation
typically involve matters of statutory
construction, the application of case
law and the obtaining and assessment
of both lay and expert evidence (for
example, valuation, accounting, road
traffic engineering, planning, horticultural,
acoustic and so on). Issues of causation,
remoteness and mitigation of loss can be
relevant to some heads of compensation.
Although compensation is primarily
monetary, the Authority can offer nonmonetary
compensation, such as the
transfer of land or (in the case of an
acquisition of portion of a parcel) the
performance of accommodation works to
a claimant’s residual land. 19
Section 25A provides for the payment
of solatium by the Authority. This is a
new payment that was introduced on
2 July 2020. It is capped at the lesser
of either 10% of the market value of
the land or $50,000, and is only payable
upon the final resolution of the claim for
compensation. Eligibility for the payment
is confined to a person who was an owner
and occupier of the acquired land as at the
date that the NOI was served and whose
principal place of residence was acquired
as a consequence of the acquisition. The
purpose of the payment is to compensate
a person for non-financial disadvantage
or loss resulting from being compulsorily
displaced from his or her home.
OFFER AND PAYMENT OF COMPENSATION
When the Authority gives notice
of the fact that land has been acquired,
it is required to make an offer to the
persons whom it believes to be entitled to
compensation, stating the amount that it
is prepared to pay. 20 An offer need not be
made if the Authority considers that the
amount of compensation is unable to be
determined at that time. 21 In this latter case,
the Authority must make an offer as soon
as reasonably practicable after the amount
of compensation is able to be determined. 22
The amount that is offered must be
paid into the Supreme Court Suitors
Fund within 7 days. 23 The claimant can
then apply for the funds to be paid out,
supported by an affidavit and written
consents from those parties who held an
interest in the land (such as a mortgagee or
chargee) as at the date of the acquisition. 24
Until paid out, the funds earn interest. 25
Provision exists for the Authority
to increase or apply (to the Court) to
decrease its offer of compensation. 26
A claimant must respond to the
Authority’s offer of compensation within
6 months of the date of the offer of
compensation (or such longer period that
the Authority agrees). 27 If a response is
not made, any compensation paid into the
Suitors Fund that has not already been
withdrawn by the claimant is to be repaid
to the Authority. This does not affect the
claimant’s entitlement to compensation,
but interest ceases to be payable.
Compensation paid into the Suitors
Fund by the Authority reverts to the
Authority if it has not been withdrawn
by the claimant within 2 years of the date
of payment into Court. 28 Again, this does
not affect the claimant’s entitlement to
compensation, but interest ceases to be
payable.
NEGOTIATIONS FOR COMPENSATION
The LAA places significant emphasis
upon negotiations for compensation:
• the Authority and the claimant must
negotiate in good faith in relation to
compensation: s 23(1);
• the Authority can (and must, if
requested by the claimant) convene a
conference of valuers to determine (1)
if a land value can be agreed, and (2)
those matters of fact and opinion that
are agreed and those that are disagreed
(with reasons for the disagreement): ss
23(7), (8), (9), and (10);
• as already explained, there is a
requirement for the making of
statutory offers of compensation and
responses by the claimant;
• the Authority can (and must, if
requested by the claimant) convene a
formal settlement conference: s 23BA.
The holding of such a conference

COMPULSORY ACQUISITION
is an essential prerequisite before a
claimant can refer a matter concerning
compensation into the Supreme Court
for adjudication. 29
OTHER PAYMENTS
A range of other payments (excluded
from the definition of compensation) may
be available under the LAA, depending
upon the circumstances. These include:
• The Authority may make an upfront
payment to a fee simple proprietor of
land who has been served with an NOI
of an amount up to $10,000, towards
payment of professional fees (which
includes legal and valuation costs): s
26B and r 13;
• The Authority may pay to residential
tenants an amount up to $10,000
towards payment of relocation costs
after service of the notice of intention
but before the acquisition of the land: s
26C and r 14; and
• The Authority may pay the transfer
costs (including stamp duty and
Lands Titles Office registration fees)
of a registered proprietor of land
which has been acquired in relation
to the purchase of replacement land.
This payment is only available for
acquisitions of the whole of the land in
a particular certificate of title and the
purchase of the replacement property
must satisfy the conditions set out in
section 26D and r 15.
DETERMINATION OF COMPENSATION BY
THE COURT
Either a claimant or the Authority
can refer a question arising in the course
of negotiations for compensation into
the Supreme Court. 30 As noted above,
a claimant can only take this step after
applying for and taking part in a formal
settlement conference.
UNDERGROUND LAND
Part 4A of the LAA was introduced on
2 July 2020 and contains special provisions
for the acquisition of underground
land. 31 These modify the application
of the standard processes that apply to
normal acquisitions. So, for example,
the requirement for the service of an
NOI, and the provisions for seeking an
explanation of the reasons for a proposed
acquisition, objecting to it and seeking a
review of the disallowance of an objection
have all been excluded from the acquisition
of underground land. 32
Briefly, by s 26F:
• The Authority can publish a NOA of
underground land in the Gazette;
• The publication of the NOA has the
effect of vesting the underground land
in the Authority and discharging any
other interest immediately;
• The Authority must then notify the
former proprietor of the acquired land
as soon as reasonably practicable after
the acquisition; and
• The Authority enters into possession
of the underground land on the date
specified in the NOA or (if none is
specified) the date of publication of
the NOA.
Generally, no compensation is
payable in relation to the acquisition of
underground land under section 26F. 33
However, persons who own a lawful well
or are entitled to take underground water
from a lawful well may have a limited
entitlement to compensation pursuant to
the process set out in section 26H.
A copy of the NOA must be lodged
with the Registrar-General, who will issue
new certificates of title for the acquired
land and for the unaquired land.
Part 4A was specifically enacted to
facilitate the acquisition of substratum
land to enable the creation of road tunnels
for the North-South Corridor Project. B
Endnotes
1 The Department for Infrastructure and
Transport currently has approximately 28
current infrastructure projects that involve the
compulsory acquisition of land.
2 For example: The Advertiser 11 June 2021 p 8, 7
July 2021 p 1, 8 July 2021 p 3, 5 June 2021 p 1,
29 June 2019 p 1, to name but a few.
3 ICM Agriculture Pty Ltd v Commonwealth (2009)
240 CLR 140 at [181]; R & R Fazzolari Pty Ltd
v Parramatta City Council (2009) 237 CLR 603
at [41] and Walker Corporation Pty Ltd v Sydney
Harbour Foreshore Authority (2008) 233 CLR 259
at [29]. Query the power to requisition property
under the “war prerogative”.
4 Mandurah Enterprises Pty Ltd v Western Australian
Planning Commission (2010) 240 CLR 409 at [32];
R & R Fazzolari Pty Ltd v Parramatta City Council
(2009) 237 CLR 603 at [41]; Walker Corporation
Pty Ltd v Sydney Harbour Foreshore Authority (2008)
233 CLR 259 at [29]-[30].
5 See s 7 of the LAA.
6 Anderson v Commissioner of Highways [2019]
SASCFC 119 at [25], [55], per Stanley J.
7 As above.
8 The definition appears in s 6(1) of the LAA.
9 See s 10 of the LAA.
10 See s 14(2) of the LAA.
11 See s 12 of the LAA.
12 But see s 66 of the South Australian Civil and
Administrative Tribunal Act 2013 for the possible
extension of this period.
13 See s 12A(4) of the LAA.
14 See s 16(1) and footnote 2 to that section, and ss
15(4) and 15(4a) of the LAA
15 See s 16(5a) of the LAA.
16 Hansard (HA) 25 September 2019 pp 7561-7562
Hon V. Chapman.
17 The expression “declared acquisition project” is
defined in s 24(15) of the LAA.
18 The requirement for alienability does not apply
to native title: see s 22B(2) of the LAA.
19 See ss 23(4), (5) and (6) of the LAA.
20 See s 23A(1) of the LAA.
21 A typical example would be the case of a
commercial tenant carrying on a business, in
circumstances where the value of the business is
unknown and it is not known if the business can
reasonably be reinstated elsewhere.
22 See s 23A(1a) of the LAA.
23 However, if the amount does not exceed
$10,000, it can be paid directly to the claimant:
see s 26A of the LAA and r 12 of the Land
Acquisition Regulations 2019.
24 See s 26 of the LAA, the Land and Valuation
Division Rules 2014 and the Uniform Civil Rules
2020.
25 See s 23A(4) of the LAA.
26 See s 23A(5) of the LAA.
27 See s 23AB of the LAA.
28 See s 23AC of the LAA.
29 See s 23C(1a) of the LAA.
30 See s 23C of the LAA.
31 Those provisions do not apply to an acquisition
of underground land in which native title exists:
see s 26DA of the LAA.
32 See s 26E of the LAA.
33 See s 26F(5) of the LAA.
September 2021 THE BULLETIN 27

FAMILY LAW
Introduction of the Federal Circuit
and Family Court of Australia
THE HON WILL ALSTERGREN, CHIEF JUSTICE OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
It is hard to fathom that, approximately
18 months since COVID-19 hit our
shores, we are continuing to be impacted
by the severe effects of the pandemic on
individuals and the Australian community
in general. As I write this report, many
parts of the country are experiencing
Government imposed restrictions of
varying levels.
As you would all attest to, the impact
on families and individuals has been
very stressful and no doubt, as legal
practitioners, you would have seen the
consequences of that stress in your own
workplace and perhaps through your
clients, especially in the area of family law.
In respect of family law, now, more
than ever, we must do all that we can to
continue to identify risk to vulnerable
parties and children at the earliest
opportunity, and ensure that our processes
respond to that risk. The new Court
and modern technology can assist us to
conduct safer, and earlier, hearings in
high-risk cases. We must and will continue
to do all that we can as a Court to assist
those at risk, and diminish the horrifying
level of family violence in our community.
I continue to be in awe of the amazing
work lawyers do in this area, especially
those working in Women’s legal and
support services, Men’s legal and support
services, Community Legal Centres, Legal
Aid and those working in refuge shelters.
They remain an outstanding example to
the community for their hard work and
dedication.
At the same time, we must also remind
separated or separating couples to focus
on what is important, what is in the best
interests of the child, and encourage
them to engage in dispute resolution
opportunities as a preferred way of
resolving their disputes, if it is safe and
28 THE BULLETIN September 2021
appropriate to do so. An example of what
can be achieved, was the establishment and
operation of the COVID-19 List (which
was originally the idea of Angela Lynch
AM and supported by other experts in my
advisory group. If disputes have arisen due
to circumstances related to the pandemic,
the Court’s national COVID-19 List
continues to operate to provide litigants
access to urgent family law assistance from
anywhere around the country within 72
business hours.
The new Court provides an
opportunity to change the conversation
about family law litigation in particular.
The architecture of that conversation
includes asking litigants if there is a
smarter, better way for them to separate
without the impact, stress and expense of
protracted family law litigation.
It means, however, that we need
to do things differently. We now have
a system where identifying risk and
safety at the very beginning of every
case is a priority, where parties will be
given ongoing opportunities for dispute
resolution where it is safe to so, and if
cases cannot be resolved, they will be listed
for a trial before a Judge much earlier than
previously experienced.
For those cases that do need to
proceed to litigation, the new Court
provides a modern, transparent and more
efficient system of justice which is aimed
at getting these parties through the process
as safely, quickly and fairly as possible
without undue delay.
It has been an extraordinarily busy year
for the Court. As well as adapting to deal
with much of the workload electronically
and adjusting to those challenges, we have
been working diligently to establish the
new Federal Circuit and Family Court
of Australia (FCFCOA) by 1 September
Chief Justice Alstergren
2021. This has included a rejuvenation
of all areas of the Court, including areas
set out below such as rules, forms, case
management, appeals management and
resources.
The FCFCOA comprises two divisions,
Division 1 (formerly the Family Court
of Australia) and Division 2 (formerly
the Federal Circuit Court of Australia).
Division 1 deals only with family law
matters (including family law appeals),
while Division 2 deals with family law,
migration and general federal law matters.
The profession and the litigants can
have faith that there is no diminution of
specialist family law experience and skill
in the new Court. Both Divisions of the
Court will continue to have judges with
specialist knowledge, skill and experience
in family law. Division 1 has 35 specialist
family law judges hearing both trials and

FAMILY LAW
appeals (the highest number of judges
since 2009) and Division 2 now has a total
of 76 judges, 55 of which are specialists in
family law. Importantly, specialist Judges
with expertise in family law will continue
to be appointed, with the FCFCOA Act
requiring that, by reason of knowledge,
skills, experience and aptitude, all Judges
exercising family law jurisdiction must be
suitable to deal with family law matters,
including matters involving family violence.
Members of the profession are
encouraged to familiarise themselves with
the many changes to Court operations,
details of which are accessible from the
new Court website, www.fcfcoa.gov.au.
The Court’s new website has been
designed to provide users with simplified
access to, and navigation of, the Court’s
information. Instead of having two
separate websites, the single website
will make it easier for the profession,
litigants and the public to source specific
information about family law, migration
and general federal law. There are also
three professionally created videos
published on the new website. One is
aimed at assisting parties, before they
commence litigation, to consider better
ways to separate and encourage the use of
dispute resolution. The other two videos
provide details about the new FCFCOA,
and a step-by-step guide on what parties
can expect when they come to court.
What to expect with the
commencement of the new Federal
Circuit and Family Court of Australia
The Federal Circuit and Family Court
of Australia provides a new structure that
is innovative, fair and efficient and focuses
on risk, responsiveness and resolution, by:
• Improving early risk identification
and safety of children and vulnerable
parties
• Encouraging smarter ways to separate
with less acrimony, less cost and more
dispute resolution, where it is safe to
do so
• Expecting compliance with court
orders
• Enhancing national access to justice
for vulnerable parties and regional
communities through the use of
technology, and
• Aiming to resolving up to 90 per cent
of cases within 12 months.
The legislative changes have enabled
the Court to undertake major structural
changes which feature:
• A single point of entry for all family
law matters
• A new case management pathway
• Specialist lists
• Harmonised family law rules
• New family law practice directions
• Focus on dispute resolution and an
increase in internal dispute resolution in
parenting and financial matters
• Enhanced and effective child expert
reporting process
• An informative and modernised
website
• Appellate jurisdiction exercised in
Division 1 through a Full Court model
rather than an Appeal Division
Please note, there will always be cases
which, because of their complexity cannot
resolve in 12 months. Some of those case
will take time and the Court will continue
to utilize its supervisory functions to assist
parties through these challenging times.
FAMILY LAW JURISDICTION OF THE FCFCOA
The overarching purpose
(ss 67, 68, 190 and 191)
The FCFCOA has a legislative
overarching purpose that is resolution
focused, and can carry costs consequences
if not complied with. The overarching
purpose of the family law practice and
procedure provisions is to facilitate the
just resolution of disputes: (a) according to
law; and (b) as quickly, inexpensively and
efficiently as possible.
All practice and procedure, and any
powers or duties imposed, are to be
carried out in the way that best promotes
the overarching purpose. Parties have
a duty to conduct proceedings in a way
consistent with the overarching purpose,
and lawyers must assist their clients to
comply with that duty.
Harmonised Rules and Practice
Directions
Following extensive consultation
with the legal profession and other
stakeholders, the harmonised family law
Rules commenced 1 September 2021.
A central practice direction, which sets
out guidelines for the management of
family law proceedings in the FCFCOA,
also commenced from 1 September. To
accompany the harmonised family law
rules, a suite of 14 new practice directions
have been developed and are available on
the new Court website.
Forms
A comprehensive review of all
existing forms has been conducted to
align with the new FCFCOA. Most
form changes involved updating
references to legislation, names and
terms where required. In addition, where
possible, some forms have undergone
more substantive changes to improve
functionality and usability. It is important
for practitioners to note, however, that a
90 day grace period allowing the use of
old forms commenced from 1 September
2021, but after this period the old forms
will not be accepted.
September 2021 THE BULLETIN 29

FAMILY LAW
FIRST COURT
EVENT
INTERIM HEARING
(if required)
DISPUTE
RESOLUTION
COMPLIANCE AND
READINESS HEARING
TRIAL
MANAGEMENT
HEARING
(if required)
TRIAL
New case management pathway in
family law
In the general course, matters filed
in the new Court will follow a nationally
consistent case pathway, which is set out in
general terms in the above diagram:
The First Court Event takes place
within 6-8 weeks of filing. Parties should
undertake mediation or other dispute
resolution within 6 months of filing, before
they have spent too much money and have
become too entrenched in the system. If
they are still unable to settle, they will be
sent to trial which is to commence where
possible within 12 months.
A diagram and further information
on the new case management pathway is
available from the new website.
Enhanced Judicial Registrar resources
Integral to the new case management
model is the increased involvement
of Senior Judicial Registrars, Judicial
Registrars and Court Child Experts early
in the process to undertake the triage and
case management of all matters filed. As
far as possible, duty lists will be conducted
by Judicial Registrars and interim hearings
will be conducted by Senior Judicial
Registrars. This will alleviate the front
end case management burden on Judges
and ensure that they are able to hear and
determine trials and deliver judgments in
the matters that require judicial attention
as quickly and efficiently as possible.
Note that Registrars have different
titles. Senior Registrars are now known as
Senior Judicial Registrars, Registrars are
30 THE BULLETIN September 2021
Judicial Registrars, and Assistant Registrars
are Deputy Registrars. It should be
emphasised that these titles do not change
the powers or role of Registrars, noting
also that the previous Judicial Registrar
position, being a statutory appointment,
ceased to exist when the new legislation
came into effect on 1 September.
Significant government funding, of
more than $100 million, has enabled
the Court to undertake an extensive
recruitment drive to secure the services of
experienced family law practitioners to add
to the already expansive and highly-skilled
team of Judicial Registrars.
Pre-action procedures
The pre-action procedures previously
contained in Schedule 1 to the Family Law
Rules have been retained and enhanced.
They apply across both Divisions of
the FCFCOA and will be enforced.
Parties should not file proceedings until
they have exhausted the pre-action
requirements, including engaging in
dispute resolution, exchanging documents
and correspondence and making a genuine
attempt to settle the dispute, with the usual
exceptions for genuine urgency or where it
is not safe to undertake these steps.
In addition to the requirement to
comply with section 60I of the Family
Law Act and file a certificate or seek an
exemption when parenting orders are
sought, both the Applicant and Respondent
to an application for final orders are now
required to file a Genuine Steps Certificate,
certifying that they have complied with the
pre-action procedures and made a genuine
attempt to resolve the dispute.
Dispute resolution in the new case
management pathway
The FCFCOA’s new case management
pathway places significant emphasis on
providing dispute resolution opportunities
to litigants to assist them in resolving, or
better identifying, the issues in dispute.
The Court’s expectation is that, where it is
safe to do so, parties will avail themselves
of every opportunity to participate in
dispute resolution – whether that be a
court-based Family Dispute Resolution
conference or Conciliation Conference,
privately funded dispute resolution,
mediation or arbitration (in property cases
only), or conferences through the legal aid
commissions.
Appeals in family law
The FCFCOA Division 1 retains
jurisdiction to hear family law appeals.
However, there is no separate Appeal
Division. All Division 1 Judges can hear
appeals either as a single Judge or as part
of a Full Court. All appeals of FCFCOA
(Division 2) and Family Law Magistrates
of Western Australia decisions will now be
heard by a single Judge, unless the Chief
Justice considers it appropriate for the
appeal to be heard by a Full Court. There
are no changes to the rights to appeal as
provided for under the Family Law Act
1975. A single national appeals filing
registry has been introduced to provide
a centralised and nationally consistent
method of filing an appeal.

FAMILY LAW
Child Dispute Services and Court
Child Experts
The Court’s specialist service formerly
known as Child Dispute Services is now
known as the Court Children’s Service
(CCS), and Child Dispute Services staff
are now known as Court Child Experts.
This reflects the additional responsibilities
that CCS staff conduct in addition
to their roles as Family Consultants,
including undertaking confidential dispute
resolution events with Judicial Registrars
and confidential risk screening as part
of the Lighthouse Project. There are
also changes to assessments and reports
provided by the CCS. The section 11F
assessment has been replaced by a more
fulsome report known as a Child Impact
Report which will be designed to assist
the parties in parenting matters to reach
agreement wherever possible, and to
provide expert guidance to the Court for
interim hearings. For matters that proceed
to the trial preparation phase, the family
report model will remain available, with
additional options available, including
reports in relation to specific issues, and
addendum reports building on the original
Child Impact Report. Further details
on the CCS are available from the new
website.
MIGRATION AND GENERAL FEDERAL
LAW JURISDICTION OF DIVISION 2 OF
THE FCFCOA
The migration and general federal law
jurisdiction continues to be conducted by
Division 2 of the FCFCOA.
Other than some minor changes to
Court Rules and forms, there are no
substantial changes to the previous (FCC)
pathway or appeal process involving
migration and other general federal law
matters.
General Federal Law Rules and
Practice Directions for Division 2
The Federal Circuit Court Rules 2001
(FCC Rules) were made pursuant to the
Federal Circuit Court of Australia Act 1999
(Cth). As the Federal Circuit and Family Court
of Australia (Consequential Amendments and
Transitional Provisions) Act 2021 repealed the
Federal Circuit Court of Australia Act 1999
(Cth) in its entirety, all rules of court made
under that Act lapsed on 1 September
2021. Consequently, the FCC Rules that
relate to general federal law proceedings
as well as the FCC Bankruptcy Rules have
been updated and remade. It should be
noted that there will not be a great deal of
difference in the new Rules at this stage
for general federal law cases.
Two central practice directions have
been developed for migration proceedings
and general federal law proceedings in the
FCFCOA. These, as well as other details,
including a cross-reference table comparing
the previous Federal Circuit Court rules
with the new GFL and Bankruptcy rules,
are available on the new FCFCOA website.
Winter Callovers
The information above relates to
the new Court and its case management
systems. However, there is a legacy of
cases that have been in our family law
system for some time, often too long
and at too much expense and stress to
the parties involved. To help reduce the
backlog of this legacy of cases, prior to
the commencement of the FCFCOA, the
Family Court and Federal Circuit Court
conducted a Winter Callover in Adelaide,
Brisbane, Melbourne, Parramatta, Lismore
and Sydney. Approximately 7000 cases
were bought before the Courts across all
locations (by electronic means) to assist
parties to identify, narrow and resolve
matters in dispute with appropriate cases
being referred to mediation and family
dispute resolution. Many of these have
been provided by the Court’s in-house
experts, and some by retired Judges who
volunteered to conduct private settlement
conferences on a pro bono or limited cost
basis. I thank those former Judges, and
also the many barristers and solicitors who
made themselves available to parties to
provide private mediations.
I appreciate that this initiative may
have presented some challenges but I
wish to re-iterate the Court’s focus on the
benefits to the parties who can resolve
their issues without protracted and
acrimonious litigation. Whilst the process
is continuing, the Winter Callover has
already seen many long standing cases
settle, others continuing to negotiate
towards settlement, and in others, the
issues in dispute are being narrowed.
I am, on behalf of the Court, extremely
grateful for the support that has been
provided by the local Bar Associations,
Law Societies, as well as legal aid and other
community legal assistance services.
Conclusion
I invite the profession to join me,
and the Court, in our endeavour to
make the most of this opportunity and
to improve access to justice for the
Australian community. We can achieve
this by streamlining the family law system
and making it far easier for the public to
navigate and engage with. Importantly, we
need to focus on safety and minimising
acrimonious and expensive litigation
by encouraging and providing dispute
resolution opportunities. Critically, in
family law, we need to change the culture
and conversation and work towards
providing a world-leading family law
system that places children, litigants and
their safety at the heart of the process. B
September 2021 THE BULLETIN 31

TAX FILES
Loan accounts: Trouble?
STEPHEN HEATH, PARTNER, WALLMANS LAWYERS
As time marches on, the matters across
my desk more frequently give rise
to difficult commercial and technical
issues associated with related party
loans and unpaid present entitlements
(UPEs). Circumstances not infrequently
encountered include:
1. private companies carrying related
party debit loans;
2. differences of opinion between family
members as to the true character of
related party credit loans;
3. lack of clarity in financial statements
(trusts in particular) as to the
distinction between UPEs and loans;
4. a desire of controllers of companies
and trusts to forgive debts.
My suspicion is that there will be
increased disputation and litigation relating
to such matters in the years to come. The
tension points can arise in a number of
circumstances: insolvency, matrimonial
property disputes, estate disputes and
disputes with the Australian Taxation
Office, all being examples.
The difference between a loan and a
UPE, which usually arises in the context
of trust financial statements, often causes
confusion. There is no lender / borrower
relationship in the context of a UPE
which arises when a trust makes a taxable
distribution to a beneficiary which remains
unpaid.
The prevalence of these issues may
be connected with the “baby boomer”
generation fast approaching their latter
years and with many trust and private
company structures being saddled with
legacy issues resulting from the adoption
of tax optimisation strategies over
extended periods.
PRIVATE COMPANIES AND DEBIT LOANS
It is common to sight private company
balance sheets carrying significant retained
32 THE BULLETIN September 2021
earnings coupled with debit loans to
shareholders/associates of shareholders.
Strictly, these loans generally require a
seven year loan agreement to be struck on
terms meeting strict Tax Act guidelines
so as not to result in adverse deemed
dividends under Division 7A of the Tax
Act. These guidelines are well overdue for
legislative overhaul but are nonetheless
continuing to attract rigorous enforcement
by the Australian Taxation Office.
In that regard, my experience is
that many private company proprietors
are walking a tightrope between not
wanting to pass on the “problem” to the
next generation and the incurrence of
unwanted tax liabilities.
DIFFERENCES OF OPINION BETWEEN
FAMILY MEMBERS
Where advisers (legal and accounting)
have been accustomed to acting for
a family group over a long period of
time succession planning gives rise to
professional conflict issues since it is
not possible to serve the interests of
all parties. This is not aided by the lack
of understanding by family members
of why a conflict arises as well as lack
of enthusiasm for the appointment of
multiple advisers. Moreover, involvement
of multiple legal advisers does have a habit
of resulting in points of contention which
were not of concern to the parties in the
first instance.
A simple factual scenario can
demonstrate the point:
Land owner owns Farm A and Farm
B and wants to implement an inter vivos
succession plan to migrate Farm A and
Farm B to the control of child A and child
B respectively.
In my experience, child A and child B
can be prone to remembering all aspects
of the plan apart from the vendor finance.
VENDOR FINANCE
FARM A
TRUST A
(controlled by
child A)
LAND
OWNER
OWNS
TRANSFER AT
MARKET VALUE
FARM B
TRUST B
(controlled by
child B)
VENDOR FINANCE
Nevertheless, there may be good
reason to keep the vendor finance on foot:
1. protection of child A and child B from
future creditor / matrimonial property
claims;
2. landowner is likely to have future
financial needs and therefore a bona
fide need to call on the debt, at least in
part at some future point;
3. there may be other siblings, and to
achieve equity in an overall succession
plan, Trust A and Trust B may need to
pay out some of the purchase price of
the land;
4. tax advisers will always say that credit
loans are invaluable and should be
retained on the balance sheet.
CLARITY IN TRUST FINANCIAL
STATEMENTS
Clarity and accuracy in financial
statements should also not be
underestimated. All too often, trust balance
sheets are cluttered up with debit and
credit loans/UPE entries which can readily
be subject of set-off. Another common
observation is to sight “related party” items

TAX FILES
in a balance sheet without any reference to
who the related party is. Good accounting
practice does entail clear description of the
true character of all related party dealings.
Where a trust is carrying both
beneficiary loans and UPEs, the accounts
should carry separate items between each
beneficiary and as between the loan and
UPE items.
Where there are UPEs with companies,
separate items should be recorded as
between any pre and post 16 December,
2009 UPEs. This enables tax advisers to
best manage any Division 7A deemed
dividend risks.
DEBT FORGIVENESS
One of the common themes in my
formative years as a tax lawyer was to
avoid the forgiveness of debts and to be
awake to the consequences which follow
whenever a debt might be forgiven. This
was before the introduction of value
shifting and commercial debt forgiveness
rules in the tax legislation which only serve
to compound the potential complications.
Issues which come to mind include:
1. the forgiveness of a company loan
(other than to another company) being
a deemed dividend;
2. the forgiveness of a company to
company loan resulting in one
company carrying the retained earnings
and the other company carrying the
associated franking credits;
3. the risk of forgiveness of a trust loan
resulting in the insolvency of the trust;
4. the non-payment of trust UPEs in
consequence of forgiveness or trust
insolvency attracting enquiry from the
Australian Taxation Office;
5. application of the commercial
debt forgiveness rules to any debt
forgiveness; the greatest risk arising
where the debtor has a “busy” balance
sheet coupled with the lender being
entitled to claim a capital loss for
taxation purposes.
OTHER MATTERS
Matters which are likely to arise in the
course of future litigation include:
1. remedies being sought in connection
with promises made between family
members “around the kitchen table”;
2. questions about loans becoming statute
barred;
3. whether mere accounting records
substantiate the existence of loans as a
primary record;
4. whether utilisation of inchoate
instruments such as promissory notes
make any difference;
5. how are the terms of a loan to be
construed when not reduced to
writing;
6. is the forgiveness of a loan in a Will
or bequest capable of challenge
under the Family Inheritance Provision
legislation;
7. what constitutes an effective
assignment of debt and what are the
revenue ramifications;
8. a family member having become legally
incapacitated followed by actions of a
donee under power of attorney being
challenged.
CONCLUSION
In my opinion, all legal advisers
providing commercial advice are well
served to consider the multiplicity of
practical and technical issues arising from
lending arrangements between family
members. Well advised families will benefit
from good advice with mitigation of
dispute risk. One suspects nevertheless
no shortage of the need for good dispute
resolution support where and when
inevitable hostilities break out. B
MEMBERS ON
THE MOVE
ERIN FREEBAIRN
PETER BEREKALLY
Adelaide based Commercial & Legal is
pleased to announce the promotion
of two staff, Erin Freebairn and
Peter Berekally, to Senior Associates.
Commercial & Legal, Principal Partner,
Elias Farah was delighted to announce
these promotions, a reflection of both
Erin and Peter being valued members of
the firm
Erin joined the firm in 2019, working
in C&L’s property and projects team and
as well as being experienced advising
on all aspects of transactions relating to
property acquisition and development.
Erin specialises in the negotiation and
documentation of property acquisitions
and disposals and associated due diligence
processes.
Peter joined the firm in 2019 and
practises across commercial property law,
contracts and advisory, small and medium
sized business advisory and dispute
resolutions.
September 2021 2020 THE BULLETIN
33

EVENTS
Successful country conference
held on Kangaroo Island
ALAN OXENHAM, MEMBER OF THE COUNTRY PRACTITIONERS COMMITTEE
The disastrous bush fires that occurred
on Kangaroo Island in early 2020 are
still fresh in the memories of all South
Australians.
The bushfires burned over 211,000
hectares; almost the entire western half of
the Island.
When the fires were finally contained
on 21 January, 2020, two people were
dead, as were 59,000 head of livestock.
Many hundreds of thousands of native
animals also perished. Over 400 buildings
were destroyed along with thousands of
kilometres of fencing.
The flow-on effects to the Kangaroo
Island economy were equally disastrous.
With that memory to the fore and with
a view to doing something to assist with the
economic recovery on Kangaroo Island,
the Country Practitioners’ Committee of
the Law Society decided to hold its 2021
Country Conference on the Island.
The Conference was convened at the
Aurora Ozone Hotel, Kingscote from 12
to 14 March, 2021 and was sponsored by
Leap, Legalsuper and BankSA.
The Conference was attended by about
50 participants from as far afield as Mount
Gambier, Port Pirie and the Riverland,
together with their accompanying persons
such as spouses and children. As always,
the Conference was a great social event
commencing with welcoming drinks and
dinner at the Ozone Hotel from 6.30pm
on Friday, 12 March. This was a welcome
respite, particularly for those who had
travelled long distances to attend.
The Conference was officially opened
the following morning by the longtime
chair of the Country Practitioners’
Committee, Phil Westover of Tindall Gask
Bentley.
34 THE BULLETIN September 2021
The first session was chaired by Phil
Westover and presented by the Honourable
Justice David Berman of the Family Court
of Australia. His Honour gave a paper
entitled “Unpaid Present Beneficiary
Entitlements and Credit Loan Accounts”,
in which he expanded upon some of the
issues that the parties to a matrimonial
property dispute would need to consider in
situations where parts of the matrimonial
asset pool are held by a company or a trust.
Those issues include whether or not to
bring any post separation income stream
into account and the consequences of the
transfer out of an asset from a company
or trust to one of the parties.
His Honour went on to give a useful
summary, by reference to recent case
law, on the manner in which the Family
Court and the High Court have dealt with
unpaid present beneficiary entitlements
and credit loan accounts in the context of
determining family law property settlement
disputes.
The next session was chaired by Alan
Oxenham and presented by Rachael
Shaw of Shaw Henderson Criminal and
Commercial Lawyers. Rachael addressed
the Conference on the topic of “Bail –
Home Detention”. Rachael’s paper was
expansive.; she provided participants
with a summary of the types of bail
arrangements available and provided
some useful tips in relation to contested
bail applications and on negotiating bail
agreements with the prosecution.
Following a short morning tea, Paul
White chaired the next paper, which
was presented by Brian Austin of Shell
Chambers. Brian spoke to his paper
entitled “Unfair Dismissal v Redundancy
in the COVID-19 Climate”.
Brian provided a summary of
the COVID legislative arrangements
(particularly relating to amendments to
the Fair Work Act and industrial awards)
which were swiftly instituted to deal with
the threats that the pandemic posed to
employment, health and wellbeing.
Brian reviewed the current legal tests
in relation to genuine redundancy as
opposed to unfair dismissal disguised as
a redundancy, noting that once a case of
genuine redundancy has been established,
a dismissal cannot be unfair. He also
looked at issues relating to the standing
down of employees, the jurisdiction of the
Fair Work Commission in relation to the
high income threshold for the hearing of
unfair dismissal claims, and wage theft.
The final session of the day was
chaired by Peter Westley. Enzo Belperio of
Bar Chambers presented his paper entitled
“Minority Interest Holders - Companies
and Real Estate”.
Enzo’s paper looked at what the court
would consider when adjudicating an
application for oppression of a minority
shareholder in a company. Oppression
is said to be conduct by the majority
shareholder consisting of a lack of probity
and fair dealing, however such conduct
need not be illegal of itself.
Examples of oppressive conduct
include withholding information from the
minority shareholder and excluding the
minority shareholder from involvement in
the affairs of the company.
Remedies available to the court include
making orders to bring the oppressive
conduct to an end and to compensate
the minority shareholder. The court
could order that the company be wound
up, its constitution be amended or that

EVENTS
the majority shareholder be required
to purchase the shares of the minority
shareholder. In extreme cases, the court
could order the winding up of the
company or the appointing of a receiver
and manager.
In relation to real estate, Enzo
reviewed the options of the minority
to bring an application to the court for
partition and sale of the land concerned.
At the conclusion of Enzo’s paper,
participants were addressed by the
Society’s President Elect, Justin Stewart-
Rattray on the current and foreshadowed
activities of the Law Society on behalf of
the South Australian legal profession.
Afterwards, lunch was served following
which conference participants had the
afternoon free to join their spouses and
children and explore all that Kangaroo
Island has to offer.
Many travelled to the fire ground
to the west of the Island to remark at
what must have been some superhuman
efforts of the fire fighters to combat the
fires and to observe that, 12 months on,
although the areas burned were still readily
discernible, the native vegetation at least is
well on the way to a full recovery.
Others took advantage of the fine but
breezy weather to have a swim at some of
the Island’s lovely beaches, such as Stokes,
Pennington, Emu and Vivonne Bays.
Inevitably, the brewery and distillery
did a roaring trade, with many conference
participants taking the opportunity to
sample the offerings available at both
places.
On Saturday night the conference
dinner was held; again, at the Ozone Hotel,
where conference participants had a further
opportunity to socialise and relax together.
It has often been remarked that
the first session at 9.15am on a Sunday
morning, following the dinner the night
before, is a particularly difficult gig,
both for the presenter and the audience.
Unfazed by that difficulty, Maria
Demosthenous presented her paper
entitled “Loss of Life – Legal Entitlements
and Consequences, Rural Accidents and
Other”. John Kyrimis chaired the session.
Maria’s paper focussed on fatal motor
vehicle accidents; many of which occur in
country and regional areas, and the legal
consequences which flow from those
accidents, with particular emphasis on
nervous shock and loss of dependency
claims.
Maria expanded on the subject to
note that nervous shock (defined as a
recognised psychiatric illness) is only
available where a person suffers a physical
injury in the accident, was present at
the scene at the time that the accident
occurred, or is a parent, partner or child of
the person killed, injured or endangered in
some way in the accident.
Maria indicated that a loss of
dependency claim was available only to
a spouse, parent sibling or child of the
deceased, with the action to be brought
usually by the estate of the deceased as a
single action for all claimants.
The next paper was presented by
Graham Edmonds-Wilson QC on the
topic “The Conflicted Legal Personal
Representative – Acting in Different
Capacities – What you Can and Cannot
Do”. Paul Boylan of Boylan Lawyers
chaired the session.
In his paper, Graham reviewed some
of the problems that can arise where there
are conflicts of interest and duty in the
case of legal personal representatives of
deceased persons.
Graham noted that conflicts or
potential conflicts generally arise as a
result of the legal personal representatives’
personal interests as opposed to their
duties to beneficiaries or from their dual
role as both legal personal representative
and beneficiary.
Graham identified some of the
situations that can arise and discussed a
number of options for dealing with them,
by reference to case law.
The final paper of the conference was
presented by David Hopkins of Brown
and Associates on the topic “Commercial
Leases – An Update”. The session was
chaired by Peter Ryan of Rudall and Rudall.
David reviewed the changes to
landlord and tenant law that had been
put in place in response to the pandemic
as well as the changes to the Retail and
Commercial Leases Act, which amendments
came into force on 1 July last year.
The Conference then closed with
concluding remarks from Phil Westover.
The Conference was considered a
success overall. It was apparent to all that
the Country Practitioners’ Committee
had worked hard to ensure the variety
of papers and their relevance to country
practitioners. Our thanks go to all who
presented papers.
The Committee also wishes to
acknowledge the efforts of Rebekah Cole
and other staff members of the Law
Society for undertaking the considerable
logistical exercise to ensure the success of
the Conference. Our sincere thanks.
We also thank the conference
sponsors, Leap, Legalsuper and BankSA
for their continued support. B
September 2021 THE BULLETIN 35

SUCCESSION LAW
Thou Shall Not Kill and Inherit: The
venerable common law forfeiture
rule and suggestions for reform
DR DAVID PLATER, DEPUTY DIRECTOR, SOUTH AUSTRALIAN LAW REFORM INSTITUTE,
DR SYLVIA VILLIOS, SENIOR LECTURER, ADELAIDE UNIVERSITY LAW SCHOOL
The Attorney-General, the Hon Vickie
Chapman, has recently foreshadowed
her intention to introduce a standalone
Forfeiture Act in South Australia to reform
the vexed common law forfeiture rule
in unlawful homicide in response to the
major 2020 Report 1 of the independent
South Australian Law Reform Institute
(SALRI) based at the Adelaide University
Law School. The forfeiture rule stems from
a longstanding premise of public policy
— that no person should benefit from his
or her wrongdoing. As Evans P observed
in the famous case of Crippen: ‘It is clear
law that no person can obtain or enforce
any rights resulting to him from his own
crime…The human mind revolts at the
very idea that any other doctrine could be
possible in our system of jurisprudence.’ 2
SALRI concluded that, whilst the premise
of the rule remains sound, its scope and
operation are uncertain and problematic
in various respects and the rule is in need
of statutory clarity and reform. The famed
words of Winston Churchill have been
used to characterise the current extent and
application of the common law forfeiture
rule in unlawful homicide as ‘a riddle
wrapped in a mystery inside an enigma’. 3
The forfeiture rule dates back to
Jewish and Roman law and various
medieval English doctrines that were only
formally abolished in 1870. 4 However,
the modern rule can be traced to the
celebrated English case of Florence
Maybrick 5 in the late 1800s. Mrs Maybrick
was an American woman convicted of
the murder of her older husband, James
Maybrick, through the administration
of poison. This controversial 6 case was
to become the modern source of the
common law forfeiture rule. The Court
of Queen’s Bench held that Mrs Maybrick
was precluded by public policy from
receiving any benefit arising from her
husband’s untimely death. 7 Lord Esher
36 THE BULLETIN September 2021
held that it is contrary to public policy for
a person who commits murder to benefit
from their crime. Fry LJ elaborated that
as a principle of public policy ‘no system
of jurisprudence can with reason include
amongst the rights which it enforces rights
directly resulting to the person asserting
them from the crime of that person.’ 8
The forfeiture rule was extended in
1914 to both murder and manslaughter
in Re Hall. 9 This principle was approved
and the forfeiture rule effectively endorsed
by the joint judgment of the High Court
of Australia in Helton v Allen 10 of Dixon,
Evatt and McTiernan JJ (though the status
and effect of this decision is still debated
and unresolved). 11
The forfeiture rule has no statutory
force, 12 but has drastic effect and provides
that any person who has unlawfully
caused the death of another is precluded
from taking any benefit that arises as
a result of the victim’s death. The rule
arises regardless of the degree of moral
culpability or the punishment imposed by
the criminal court. 13 It also arises regardless
of any hardship to the killer. 14 It has been
held to preclude a killer from acquiring
a benefit via a will 15 or distribution on
intestacy, 16 other benefits such as insurance
policies 17 or even a statutory pension. 18 The
killer is also barred from making a claim
under family provision laws. 19 Where the
killer and deceased held property as joint
tenants, the rule will prevent the killer from
acquiring the deceased’s interest, either by
severing the joint tenancy, 20 or through a
constructive trust. 21
The rule has application to murder, 22
manslaughter, 23 manslaughter by unlawful
and dangerous act, 24 manslaughter on
the basis of provocation 25 or diminished
responsibility 26 (even in the context of
a victim of family violence), 27 defensive
homicide or manslaughter on the basis of
excessive self-defence, 28 manslaughter by
gross negligence 29 (including the use of a
motor vehicle), 30 assisted suicide 31 and the
subject of a failed suicide pact. 32
The forfeiture rule has apparent
absolute operation in South Australia
to any example of murder and
manslaughter. 33 South Australia has
followed the majority approach of the
NSW Court of Appeal in Troja v Troja 34
(though note Kirby P’s spirited dissent)
and there is no discretion to modify the
operation of the rule, notwithstanding the
harshness or unfairness that might result. 35
However, even post Troja, it is
‘unsettled’ 36 what offences or situations of
unlawful homicide fall within the forfeiture
rule or not. The continuing confusion and
uncertainty of the scope of the forfeiture
rule, even post Troja, is illustrated by
the Victorian case of Edwards. 37 Jemma
Edwards had pleaded guilty to defensive
homicide on the basis of excessive selfdefence
in relation to the death of her
abusive husband after a prolonged mutual
history of family violence. All four judges
who heard her civil case acknowledged
that there were mitigating circumstances
(notably the context of family violence),
but Mrs Edwards’ deliberate use of
violence with lethal intent to cause death or
serious harm precluded any relaxation of
the modification rule in her case. However,
three very different views as to the scope
of the forfeiture rule were advanced and
what types of manslaughter it covered or
did not cover and whether there is any
discretion to modify the operation of the
rule. There was no consensus.
The forfeiture rule may also operate
unfairly because of its apparent inflexible
or ‘too rigid’ 38 application to unlawful
killings which involve a lesser degree of
culpability. The rule’s strict application
may well produce unjust outcomes. For
example, the callous premeditated murder
of a close relative carried out to obtain a

SUCCESSION LAW
financial benefit is treated the same as a
suicide pact in which one party survives
or where a victim of prolonged family
violence responds and kills an abusive
spouse and is convicted of manslaughter.
The prevailing view is that these situations
will still attract the strict application of
the forfeiture rule and produce the same
consequences in terms of an offender’s
succession rights. The rule may produce
particularly unfair implications in the
context of domestic violence, where the
typically (though not inevitably) female
victim of family violence kills an abusive
spouse and is convicted of manslaughter. 39
The strict application of the rule in
such circumstances has been described
as ‘unnecessarily harsh, inconsistent
and … irrational’ 40 and ‘injudicious and
incongruous’ 41 with its public policy
foundations. The automatic and inflexible
application of the rule is at odds with
modern attitudes, which is ‘reflected in the
greater range of offences and sentence
options today compared to when the rule
was first articulated.’ 42
SALRI, drawing on the extensive
research and consultation that it undertook
during its reference, concluded that,
although the underlying rationale of the
forfeiture rule remains sound, reform
is necessary for two reasons: clarity and
fairness. 43 The rule in its present form
is inflexible, potentially unfair, unclear
and uncertain in scope and operation
and is in need of legislative reform. It
is preferable for Parliament to reform
the forfeiture rule, rather than relying
on judicial reformulation. 44 SALRI
recommended that South Australia should
introduce a standalone Forfeiture Act for
clarity and certainty. 45 SALRI made a total
of 67 recommendations for inclusion in
any Forfeiture Act relating to the scope,
operation and effect of the forfeiture rule.
SALRI was of the view that the
forfeiture rule should apply in South
Australia to murder, all forms of
manslaughter, assisting suicide, causing
the death of a child or vulnerable adult
by criminal neglect under s 14 of the
CLCA and the offence of causing death
by culpable or dangerous driving. These
are all offences of unlawful homicide
within the CLCA. 46 Any other offences
of unlawful homicide outside the CLCA
should fall outside the forfeiture rule.
SALRI considered that it is
impracticable and inappropriate to
distinguish (as the court sought to
do in Edwards) between the different
categories of manslaughter as to the
application of the forfeiture rule and
it should apply to both voluntary
manslaughter (where murder is reduced
to manslaughter for whatever reason) and
involuntary manslaughter (manslaughter
by an unlawful and dangerous act or
manslaughter by gross negligence) as well
as the survivor of a suicide pact. 47
The question of whether the forfeiture
rule should apply to the offence of
causing death by culpable or dangerous
driving was a prominent theme in SALRI’s
consultation. 48 There was strong support
for the application of the rule in such
cases. SALRI agreed that it is illogical
to treat death by culpable or dangerous
driving differently from manslaughter by
gross negligence and noted the gravity
of many examples of causing death by
culpable or dangerous driving and that it is
very rare for manslaughter to be charged
in such circumstances.
Both murder 49 and manslaughter 50
vary infinitely in gravity and the offender’s
culpability. SALRI recommended that
any Forfeiture Act should provide a court
with the discretion to modify the rule’s
application where a court finds that it is in
the interests of justice to do so and crucially
there are ‘exceptional circumstances’. The
concept of ‘exceptional circumstances’ is a
familiar statutory and judicial expression. 51
SALRI accepted that there are unlawful
killings, even very rarely murder, where it
will be unduly harsh to apply the forfeiture
rule. Whilst SALRI accepted that the
introduction of a judicial discretion to
modify the rule will result in uncertainty in
some cases, 52 it is unavoidable in practice
and will mean that justice can be achieved
by providing courts with the power and
crucial flexibility to deal with each case
on its individual merits rather than by the
application of a rigid rule. In order to
address the uncertainty that may arise in the
exercise of judicial discretion in some cases,
SALRI recommended that any proposed
Forfeiture Act should contain a list of
statutory considerations for a court to have
regard to and the primary factor should be
the culpability of the unlawful killer.
SALRI found that the technical
application of the modern forfeiture
rule in various property, succession and
inheritance situations is unclear and
problematic. The practical implications
and consequences of the potential
operation of the rule arise in a wide
variety of succession situations such
as when the victim dies with a will or
intestate, holds property as a joint tenant,
holds trust assets, holds life insurance,
is a member of a superannuation fund
or is in receipt of other benefits. The
practical implications and consequences
that arise from the potential operation
of the rule are significant but have been
often overlooked. 53 In particular, in various
property, succession and inheritance
situations the present rule may result in
the ‘sins of the unlawful killer been visited
upon their blameless children’. 54 SALRI
proposed various suggestions to improve
the rule’s technical operation.
The common law forfeiture rule
presently does not apply to a person
found not guilty of murder by reason of
mental incompetence (previously termed
insanity). 55 SALRI supported the retention
of this approach and disagreed with the
NSW Forfeiture Act which allows a court
the discretion to invoke the forfeiture
rule in these cases. 56 Legitimate concerns
arise over the prevalence of drug induced
psychosis in relation to serious crimes of
violence and the potential successful use of
the mental impairment defence by persons
whose mental impairment has been caused,
or at least contributed to, by the use of
illicit drugs or alcohol. 57 The solution to
such concerns lies with the scope of the
defence of mental impairment and not the
role and scope of the forfeiture rule. 58
The forfeiture rule does not require a
criminal conviction to attract its operation
and may still apply if the unlawful killing
can be established in civil proceedings on
the civil standard of proof (even if the
apparent killer was acquitted in a criminal
trial). 59 SALRI described this as the OJ
Simpson situation and recommended the
retention of this proposition. 60
The famous case of Florence Maybrick
and the venerable common law forfeiture
rule should not be discarded. An unlawful
killer should ordinarily not be allowed
to benefit from their crime. However,
the forfeiture rule requires significant
reform for clarity and fairness. 61 Statutory
clarification is therefore timely.
SALRI thanks the many parties who
contributed to this important reference. 62 B
September 2021 THE BULLETIN 37

SUCCESSION LAW
Endnotes
1 Sylvia Villios, David Plater, Olivia Jay, Terry
Evans and Emily Ireland, Riddles, Mysteries and
Enigmas: The Common Law Forfeiture Rule (South
Australian Law Reform Institute, 2020).
2 Re Estate of Crippen [1911] P 108.
3 Darryl Brown and Ruth Pollard, ‘Where From
and Where to With the Forfeiture Rule’ (2018)
148 Precedent 14.
4 See Re Tucker (1920) 21 SR (NSW) 175, 177–178;
Arie Freiberg and Richard Fox, ‘Fighting Crime
with Forfeiture: Lessons from History’ (2000)
6(1–2) Australian Journal of Legal History 1. See
further Sylvia Villios, David Plater, Olivia Jay,
Terry Evans and Emily Ireland, Riddles, Mysteries
and Enigmas: The Common Law Forfeiture Rule
(South Australian Law Reform Institute, 2020)
17-39. The contribution in this historical context
of Dr Emily Ireland was notable.
5 See Alexander MacDougall, The Facts of the
Case, and of the Proceedings in Connection with the
Charge, Trial, Conviction, and Present Imprisonment
of Florence Elizabeth Maybrick (Baillière, Tindall
and Cox, 1891); Helen Densmore, The Maybrick
Case: English Criminal Law (Sonnenschein, 1892);
HB Irving (ed), Trial of Mrs Maybrick (William
Hodge, 1912); Bernard Ryan, The Poisoned Life of
Mrs Maybrick (Excel Press, 1977); George Robb,
‘The English Dreyfus Case: Florence Maybrick
and the Sexual Double-Standard’ in George
Robb and Nancy Erber (eds), Disorder in Court
(Palgrave MacMillan, 1999) 57; Kate Colquhoun,
Did She Kill Him?: A Victorian Tale of Deception,
Adultery and Arsenic (Harry Abrams, 2014);
Richard Hutto, A Poisoned Life: Florence Maybrick,
The First American Woman to be Sentenced to Death in
England (Blackstone Publishing, 2018).
6 Mrs Maybrick’s conviction was highly
contentious. She seems to have been convicted
as much on moral grounds (an extra-marital
affair) as the strength of the prosecution case.
See Dinah Birch, ‘Did She Kill Him? Review:
A Victorian Scandal of Sex and Poisoning’, The
Guardian (online, 26 February 2014); Richard
Hutto, A Poisoned Life: Florence Maybrick, The First
American Woman to be Sentenced to Death in England
(Blackstone Publishing, 2018). Hutto even notes
that Florence’s husband is suspected (amongst
many others over the years) of being Jack the
Ripper.
7 Cleaver v Mutual Reserve Life Fund Association
[1892] 1 QB 147.
8 [1892] 1 QB 147, 156.
9 [1914] P 1.
10 (1940) 63 CLR 69.
11 State Trustees Ltd v Edwards [2014] VSC 392;
Edwards v State Trustees Limited (2016) 257 A Crim
R 529.
12 The forfeiture rule was designed to operate
independently of any statutory scheme for
the confiscation of the proceeds of crime to
the State and it operates independently of the
Criminal Assets Confiscation Act 2005 (SA). See
Rivers v Rivers (2002) 84 SASR 426.
13 Re Giles (dec’d) [1972] Ch 544; Troja v Troja (1994)
33 NSWLR 269, 283, 299.
14 State Trustees Ltd v Edwards [2014] VSC 392, [94].
15 Re Dellow’s Will Trusts [1964] 1 All ER 771.
16 Re Tucker (1920) 21 SR (NSW) 175; Re Estate of
Soukup (1997) 97 A Crim R 103; Rivers v Rivers
(2002) 84 SASR 426, [42]–[43].
17 Cleaver v Mutual Reserve Fund Life Association
[1892] 1 QB 147; Gray v Barr [1971] 2 QB 554.
18 R v Chief National Insurance Commissioner, Ex Parte
Connor [1981] QB 758.
38 THE BULLETIN September 2021
19 Re Royse (dec’d) [1985] Ch 22; Troja v Troja (1994)
35 NSWLR 182.
20 Re Barrowcliff [1927] SASR 147.
21 Re Thorp and Real Property Act (1961) 80 WN
(NSW) 61.
22 Re Crippen [1911] P 108; Re Rattle [2018] VSC
249.
23 Re Hall [1914] P 1; Re Stone [1989] 1 Qd R 351.
24 Gray v Barr [1971] 2 QB 554; Henderson v Wilcox
[2016] 4 WLR 14.
25 Mack v Lockwood [2009] EWHC 1524 (Ch).
26 Re Giles (dec’d) [1972] Ch 544; Jones v Roberts [1995]
2 FLR 422.
27 Troja v Troja (1994) 33 NSWLR 269; Re K (dec’d)
[1985] 3 WLR 234.
28 State Trustees Ltd v Edwards [2014] VSC 392.
29 Land v Land [2007] 1 WLR 1009; Nay v Iskov
[2012] NSWSC 598.
30 Nay v Iskov [2012] NSWSC 598.
31 Dunbar v Plant [1998] Ch 412, Public Trustee of
Queensland v Public Trustee of Queensland [2014]
QSC 47.
32 Dunbar v Plant [1998] Ch 412.
33 Rivers v Rivers (2002) 84 SASR 326; Re Luxton
(2006) 98 SASR 218.
34 (1994) 33 NSWLR 269.
35 See also Batey v Potts (2004) 61 NSWLR 274;
Permanent Trustee Co Ltd v Gillett (2004) 145 A
Crim R 220, 224; Pike v Pike [2015] QSC 134,
[22].
36 Re Rattle [2018] VSC 249, [42] (McMillan J).
37 State Trustees Ltd v Edwards [2014] VSC 392;
Edwards v State Trustees Limited (2016) 257 A Crim
R 529.
38 J Chadwick, ‘A Testator’s Bounty to His Slayer’
(1914) 30(2) Law Quarterly Review 211, 211.
39 Barbara Hamilton and Elizabeth Sheehy, ‘Thrice
Punished: Battered Women, Criminal Law and
Disinheritance’ (2004) 8 Southern Cross University
Law Review 96. See, for example, Troja v Troja
(1994) 33 NSWLR 269.
40 Nicola Peart, ‘Reforming the Forfeiture Rule:
Comparing New Zealand, England and Australia’
(2002) 31(1) Common Law World Review 1, 20.
2
41 Anthony Dillon, ‘When Beneficiary Slays
Benefactor: The Forfeiture “Rule” Should
Operates as a Principle of the General Law’
(1998) 6(3) Australian Property Law Journal 1.
42 Victorian Law Reform Commission, The Forfeiture
Rule (Report No 20, September 2014) ix.
43 Ibid.
44 State Government Insurance Commission v Trigwell
(1979) 142 CLR 617, 633–4 (Mason J). See also
at 628–9 (Stephen J).
45 England, New South Wales and the ACT have
introduced Forfeiture Acts to modify the operation
of the rule.
46 Victorian Law Reform Commission, The Forfeiture
Rule (Report No 20, September 2014) 22 [3.33].
The forfeiture rule should also apply to aiding
or abetting any of these offences under s 267 of
the CLCA.
47 See s 13A(3) of the CLCA.
48 Straede v Eastwood [2003] NSWSC 280.
49 Murder can encompass a single ‘mercy’ killing
(such as of as terminally ill spouse), or extremely
violent, cruel, pre-meditated, multiple and
contract killings. See Reyes v The Queen [2002]
2 AC 235, 241–2 [11]. There is also a large
spectrum of subjective blameworthiness and
culpability of the person or persons responsible
for the killing(s), which ranges from recklessness
and intentional motives of compassion to
intentional killings for financial gain or callous
and calculating offenders. See R v Howe [1987]
AC 417, 433 (Lord Hailsham).
50 ‘Manslaughter is a crime which varies infinitely
in its seriousness’ which may range from ‘mere
inadvertence’ to just short of murder: Gray v
Barr [1971] 2 QB 554, 581. See also R v Lavender
(2005) 222 CLR 67, 77.
51 See R v Kelly [2000] 1 QB 198, 208; R v Skinner
(2016) 126 SASR 120; Knight v R [2021] SASCFC
12.
52 This is not without concern. ‘The law as laid
down in Cleaver’s case is that all felonious killings
are contrary to public policy and hence, one
would assume, unconscionable. Indeed, there
is something a trifle comic in the spectacle of
Equity judges sorting felonious killings into
conscionable and unconscionable piles’: Troja v
Troja (1994) 33 NSWLR 269, 299 (Meagher JA).
53 Cf Law Commission of England and Wales,
The Forfeiture Rule and the Law of Succession
(Consultation Paper No 172, 30 September
2003).
54 See, for example, Re DWS (dec’d) [2001] Ch 568.
See also Roger Kerridge, ‘Visiting the Sins of the
Fathers on their Children’ (2001) 117 (July) Law
Quarterly Review 371.
55 Re Houghton [1915] 2 Ch 173; Re Pitts [1931] 1 Ch
546; Re Estate of Soukup (1997) 97 A Crim R 103.
56 See, for example Re Settree Estates; Robinson v
Settree [2018] NSWSC 1413.
57 One reason for extending the forfeiture rule to
persons found not guilty of murder on the basis
of insanity may be perceived disquiet over the
prevalence of drug induced psychosis and the
successful use of the mental impairment defence
by persons whose mental impairment has been
caused, or at least contributed, by the use of
drugs or alcohol. ‘Statistics collected from a case
file review undertaken by the Attorney-General’s
Department indicated that almost a quarter of
offenders who successfully used the mental
incompetence defence were suffering from an
impairment caused by drug induced psychosis
or from substance abuse and dependence’: at
South Australia, Parliamentary Debates, House
of Assembly, 4 August 2016, 6642 (Hon John
Rau, Attorney-General). See also Criminal Law
Consolidation (Mental Impairment) Amendment Act
2017 (SA); South Australia, Parliamentary Debates,
House of Assembly, 4 August 2016, 6640–6646;
South Australia, Parliamentary Debates, House of
Assembly, 30 May 2017, 9882–9883.
58 See also Victorian Law Reform Commission, The
Forfeiture Rule (Report No 20, September 2014)
30–34 [3.74]–[3.102].
59 Helton v Allen (1940) 63 CLR 69; Rivers v Rivers
(2002) 84 SASR 426.
60 Sylvia Villios, David Plater, Olivia Jay, Terry
Evans and Emily Ireland, Riddles, Mysteries and
Enigmas: The Common Law Forfeiture Rule (South
Australian Law Reform Institute, Adelaide, 2020)
113-120.
61 Victorian Law Reform Commission, The
Forfeiture Rule (Report No 20, September 2014)
ix.
62 SALRI’s reference was ably assisted by Professor
John Williams, the Hon David Bleby QC, the
late Helen Wighton (the founding Deputy
Director of SALRI), Louise Scarman, Holly
Nicholls, Joshua Aikens Professor Gino Dal
Pont of the University of Tasmania, Dr Xianlu
Zeng, Emily Sims, Anita Brunacci, Dr Mark
‘Matt’ Giancaspro, SALRI’s Advisory Board and
especially the students of the Law Reform class
at the University of Adelaide.

BOOKSHELF
J Anderson
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The fourth edition of Uniform Evidence
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comprehensive and reader-friendly overview of
Australian public law institutions and principles,
together with the principles and process of
statutory interpretation.
The former inform the fundamental nature
of the Australian legal system; the latter is vital
knowledge in a legal system in which statute
law is so pervasive. This book is the first text to
draw these two topics together to clearly explain
how the principles of statutory interpretation
reflect the constitutional relationship between
the legislative, executive and judicial branches of
government.
September 2021 THE BULLETIN 39

RISK WATCH
Stop: Take two. Time to tame your inbox.
MERCEDES EYERS-WHITE, PII RISK MANAGEMENT COORDINATOR
One of the statistics arising out of the
claims made on the South Australian
Professional Indemnity Insurance Scheme
that I find endlessly fascinating is that only
around 10 percent of all claims in any
given year relate to ‘not knowing the law’.
To what, then, do most claims relate?
Failures of practice management or of file
management. And the bread and butter of
lawyering: details, details, details.
As hard as we might try to be “perfect”,
we are going to make mistakes. I’m sorry
if that shocks you but it is inevitable. It is
because, despite our best endeavours to do
away with anything resembling humanity,
we are, after all, human. We need ways to
help us to stay on track and to be across all
the details because relying on experience
or remembering alone, does not work. It’s
not our fault; it’s the way our annoyinglyhuman
brains work.
Just as oversights are small things, so
too are the mitigation strategies that can
be used to avoid them.
BUT I SENT IT!
Time limits can sometimes be missed
because practitioners aren’t aware of
the relevant limitation (hint – see the
Limitation Schedule, updated annually, on
the Society website as a starting point) but
most of the time they are missed because
of a practical difficulty or technical hitch,
which leads to the critical deadline not
being met.
Use of an incorrect email address can
result in the failure to meet deadlines. An
email address may have the wrong suffix
yet be a valid address - but not the correct
address. As a result, the corresponding
server does not bounce the email back -
and a deadline sails past.
In other examples, the AutoComplete
function has seen emails sent to an
incorrect address, with deadlines passing
before the mistake was realised.
The most obvious way to mitigate
against such oversights is to always doublecheck
your email address fields. Consider
also not addressing an email until it is ready
to send, so that your mind is not full of
what you want to say and you do not send
it before you intend to. Consider turning
off auto-complete altogether [in Outlook:
File – Options – Mail – Send Messages
– De-select “Use AutoComplete…” and
click on Empty AutoComplete List] or
remove individual addresses as they come
up in the ‘To’ field [by clicking on the “x”
in the drop down list].
Consider also the use of delivery and
read receipts [in a new Outlook email:
Options – check the box ‘Request a
delivery receipt’ or ‘Request a read receipt’].
Delivery receipts confirm that the item
has been delivered to the recipient’s mail
server while read receipts show the item
has been opened. The receipts come to
your inbox as an email when the action has
been fulfilled. Check the receipts, follow up
where a receipt is not received (particularly
delivery) and keep the record with the file.
If dealing with critical deadlines or other
particularly time sensitive matters or crucial
documents, pick up the phone and confirm
receipt; don’t rely on ‘no response’ as
confirmation of receipt.
It is also useful to remember that
a deadline is not a date to aim for but
rather it is the last possible moment to do
something. Options should be exercised at
the beginning of a three month window,
not at the end. Best practice is always to
leave yourself enough time to deal with
any unforeseen issues so that what needs
to be done by the deadline, can still be
done if something goes awry.
I’M LATE, I’M LATE, FOR A VERY
IMPORTANT DATE!
Knowing a time limit is also obviously
critical; and there have been some
examples recently of practitioners not
being aware of time limits to file and serve.
One of the changes missed is to limits
for minor civil actions in the Magistrates
Court, which has caught practitioners out.
Under R 64.1 of the Uniform Civil Rules
2020, claim documents must be served
within six months after being filed. This
was previously the case for the District and
Supreme Courts but now applies to the
Magistrates Court (where it was previously
12 months).
Practitioners are reminded that use of
the Moratorium on steps under R64.5 is
encouraged in circumstances where the
action is to be delayed, for example, for
reasons of the settlement of medical issues
or for negotiation with the respondent. Use
of the moratorium procedure, rather than
delaying service, can keep costs down as
well as avoiding unnecessary angst.
Whilst reinstatement of a dismissed
action is possible under R64.4, the Court
needs to be satisfied, amongst other
things, that the applicant has a reasonable
explanation for having allowed the claim
to be dismissed.
It is also clear that email management
and practice management are another factor
in these errors. Before entering a claim in
the list of inactive cases, an email notice is
sent by the Registrar of their intention to
do so; failure to act on this notice will result
in the claim being entered on the inactive
list and, if still inactive, be dismissed for
want of prosecution two months later. If
these notices are not acted upon – missed,
deleted or delegated without further
supervision –the problem of the missed
time limit will be compounded.
Physical mail still has a role to play and
having systems in place to avoid oversights
here is also important, particularly where
the firm is an address for service. Ensuring
that mail is delivered to the correct person,
and that mail is opened in a timely manner,
may be an obvious thing to do but it is
important.
TAMING THE EMAIL BEAST
There are a multitude of tips for
email management readily available on the
internet that you can consider to reduce the
likelihood of missing or deleting important
emails. For example, reduce clutter in your
inbox by setting up Rules to automatically
divert newsletters or other regular emails
into a folder to read later or consider
unsubscribing if you never get around to
reading them. Avoid using your work email
for personal subscriptions. If an email will
take less than three minutes to deal with,
do it immediately, even if it’s not urgent.
Create ‘To Do’ folders (for non-urgent or
40
THE BULLETIN September 2021

RISK WATCH
more complex emails) and ‘Follow Up’
folders (for tasks you’ve delegated) - and
drag emails into these. This leaves urgent
or simple (less than three minutes) emails
left in your inbox to deal with. Alternatively
make use of the Task function to action
emails or set reminders. File (carefully!) at
the end of a task. Consider scheduling time
throughout the day to check, prioritise and
reply to emails, rather than having them
constantly interrupt.
If your inbox is overwhelming you,
making some time to plan how to tame
the email beast is not wasted time. Indeed,
email management is one of the bigger
challenges we face in the workplace; the
good news is that with a little planning
and a little discipline, stress is reduced and
productivity is improved. Find what works
for you - and hopefully stay out of the
statistics altogether.
Superannuation Guarantee Contributions Increased
ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER
Under Australia’s Superannuation
Guarantee (SG) laws, employers
are required to pay a set percentage
of superannuation into each eligible
employee’s super fund, on top of their
standard wages or salaries.
From 1 July, 2021, SG rates increased
from 9.5 percent of ordinary time earnings
to 10 percent. The SG rate is scheduled
to continue to increase until it reaches 12
percent from 1 July, 2025 onwards.
WHY THE INCREASE?
SG is increasing to further help
Australians save for their life in retirement.
The SG rate has increased since its
introduction in 1991, from 3 percent to 9
percent, and then 9.5 percent in 2014. 1
Out of concern that many retirees
would be too reliant on the age pension, and
to increase the extent to which Australians
have sufficient savings to self-fund a
comfortable income by the time they retire,
Parliament legislated a gradual increase of
the percentage to 12 percent by 1 July, 2025.
The 2014 federal budget deferred the
2018 SG rate increase by three years, such
that the 9.5 percent rate remained until 30
June, 2021. Five annual increases of 0.5
percent are now due until SG reaches 12
percent from 1 July, 2025.
WHY ONLY 0.5 PER CENT?
This stepped increase gives businesses
time to plan ahead and manage small
increases each year rather than cope with a
2.5 percent increase all at once.
If you’re an employer and need
some assistance to navigate the changes
and understand your obligations, you’re
welcome to contact legalsuper – the
industry super fund for Australia’s
legal community – for comprehensive,
personalised support.
WHAT DOES THIS MEAN FOR EMPLOYEES?
As a result of this change, most
employees will receive more super from
their employer, but the overall impact of
the SG increase will depend on people’s
employment arrangements.
There may be a potential ‘sting in the
tail’ for people whose wages or salaries are
packaged in a certain way and they may
find they actually take home less pay each
pay cycle.
People covered under enterprise
agreements, or minimum pay standards,
are unlikely to be affected. However, those
under an employment contract specifying
their total remuneration, inclusive of
superannuation, may take home less pay
from July 1.
I would encourage you to check if
the SG increase has any implications for
your remuneration package, including any
salary sacrifice or after-tax contributions
arrangements you may have in place. Your
super fund and your employer will be able
to help you with this.
LOOKING LONG TERM
A 0.5 per cent increase to your super
may not seem like much, but over the
long-term, with the wonders of compound
interest and the lower tax rates applying to
superannuation, a small increase in super
could make a huge impact on your life in
retirement.
To help you see what the latest SG
increase could mean for you over the
long-term, Industry Super Australia 2 has
an easy-to-use online Superannuation
Calculator at https://www.industrysuper.
com/retirement-info/retirementcalculators/retirement-balanceprojection/.
Take a look and find out how
much extra you may have in retirement.
Legal Super Pty Ltd ABN 37 004 455
789 is the Trustee of legalsuper ABN 60 346
078 879 and holds Australian Financial Services
Licence No. 246315 under the Corporations Act
2001. The information contained in this document
is of a general nature only and does not take
into account your objectives, financial situation or
needs. Past performance is not a guide to future
performance.
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.
Endnotes
1 https://www.aph.gov.au/About_Parliament/
Parliamentary_Departments/Parliamentary_
Library/pubs/BN/0910/ChronSuperannuation
2 Industry Super Australia (ISA) was established
in 2006 and manages collective programs on
behalf of the 15 Industry SuperFunds, with the
objective of maximising the retirement savings
of five million industry super members.
September 2021 THE BULLETIN 41

UNCONSCIONABLE CONDUCT
STEERING STATUTORY
UNCONSCIONABILITY OUT OF A JAM AT
LAST: STUBBINGS V JAMS 2 PTY LTD
DR GABRIELLE GOLDING AND DR MARK GIANCASPRO, ADELAIDE LAW SCHOOL, THE UNIVERSITY OF ADELAIDE
Following its decision in Australian
Securities and Investments Commission v
Kobelt, 1 the High Court left the doctrine
of statutory unconscionable conduct
in a considerable jam. In that decision,
the Court had the opportunity to clarify
the principles relevant to establishing
unconscionability under s 12CB(1) of
the Australian Securities and Investments
Commission Act 2001 (Cth) (ASIC Act) and,
by extension, the equivalent provision
under s 21(1) of the Australian Consumer
Law (ACL). 2 While the legal profession
anticipated further clarity from Kobelt, they
were instead left none the wiser.
Section 12CB(1) of the ASIC Act is
well-known to commercial lawyers. It
prohibits persons, in trade or commerce,
from engaging in conduct, in connection
with the supply or acquisition of financial
goods or services, that is unconscionable. 3
Breach of that provision is determined
by reference to the factors outlined in
s 12CC (ACL s 22). Section 12CA(1)
of the ASIC Act (ACL s 20(1)) also
prohibits unconscionable conduct but
within the meaning of the ‘unwritten
law’, a breach of which is instead
determined by reference to the various
common law and equitable principles
developed by the courts from time to
time. Truly understanding what constitutes
unconscionable conduct for the purpose
of ASIC Act s 12CB(1) (and ACL s 21(1))
42 THE BULLETIN September 2021
has resulted in substantial confusion for
some time. 4
Thankfully, the High Court has again
been presented with a further opportunity
to clarify these principles when it hears the
forthcoming appeal from the Victorian
Court of Appeal’s decision in Jams 2
Pty Ltd v Stubbings [2020] VSCA 200
(Stubbings).
GETTING STUCK IN A JAM
The applicants in Stubbings (the
Lenders) were three companies who
loaned $1,059,000 to the Victorian Boat
Clinic Pty Ltd—a shell company with
no assets, owned and controlled by the
respondent, Mr Jeffrey Stubbings. The
loan was procured to purchase a $900,000
residential property in Fingal, Victoria
and had interest and default rates of 10%
and 17% per annum, respectively. The
loan was secured by a guarantee given by
Stubbings and supported by mortgages
over the Fingal property as well as two
others owned by Stubbings, located in
Narre Warren. The lawyers acting for
the Lenders, Ajzensztat Jeruzalski & Co
(AJ), acquired signed certificates from a
solicitor and accountant that Stubbings
had received legal and accounting advice
about the transaction, and the funds were
advanced. This is despite the fact that
Stubbings had: no job; nominal income;
no assets (other than the Narre Warren
properties); and insufficient funds to pay
the deposit for the Fingal property, or
to service the loan. After paying the first
two monthly instalments on the property,
Stubbings defaulted.
The Lenders commenced proceedings
to recover the guaranteed debt and
possession of the three secured properties.
The trial judge upheld Stubbings’ claim
that the loan, mortgage and guarantees
were procured by unconscionable conduct
and ordered that they be set aside (subject
to offsets to prevent unjust enrichment).
AJ was said to have been ‘wilfully blind’
to Stubbings’ personal and financial
circumstances and that its asset-based
lending scheme involved ‘a high level of
moral obloquy’ 5 —a phrase that, prior to
Kobelt, had plagued decisions concerning
whether conduct was unconscionable. 6
Stubbings was ‘unsophisticated, naïve
and had little financial nous’, as well as
‘unrealistic in the management of his
financial affairs’ and lacking entirely in
‘business understanding’. 7
THE CASE BEFORE THE VICTORIAN COURT
OF APPEAL (‘VCA’)
The VCA disagreed with the trial
judge’s classification of AJ’s asset-based
lending scheme as unconscionable, as
well as his Honour’s conclusion that AJ
had, in totality, acted unconscionably
towards Stubbings. AJ ‘did not wilfully

UNCONSCIONABLE CONDUCT
and recklessly fail to make such inquiries
as an honest and reasonable lender would
make in the circumstances, or at least
have knowledge of circumstances which
would put an honest and reasonable
lender on inquiry’. 8 AJ therefore could
not be treated as having ‘actual’ or
‘constructive’ knowledge of Stubbings’
circumstances. 9 While AJ was broadly
aware of Stubbings’ lack of income and
payment of a token deposit for his Fingal
property, it was entitled to rely upon the
signed and returned certificates of advice
provided by Stubbings as evidence that
he fully understood the legal and financial
consequences of the agreement. AJ was
therefore entitled to refrain from more
forensically enquiring as to his personal
circumstances and capacity to service the
loans and could not be deemed to have
unconscientiously exploited Stubbings. 10
The VCA consequently allowed the
appeal against the trial judge’s findings on
unconscionability.
THE VCA’S RECONSTRUCTION OF KOBELT
The VCA considered the High Court’s
approach in Kobelt when determining
the content of the standard of statutory
unconscionability expressed in ASIC
Act s 12CB(1). Kobelt concerned ASIC’s
investigation into a controversial ‘book-up’
credit system utilised by some storekeepers
in many of Australia’s remote Aboriginal
communities. Mr Lindsay Kobelt was
one such storekeeper. ASIC’s argument
was that this system of supplying credit
to residents from remote Aboriginal
communities was unconscionable under
s 12CB(1). A High Court majority (Kiefel
CJ, Bell, Gageler and Keane JJ; Nettle,
Gordon and Edelman JJ dissenting)
rejected this argument, holding that Kobelt
had not unconscientiously exploited
his customers, but rather fulfilled local
demand and acted on the need for the
book-up system. 11
Chief Justice Kiefel and Bell J
described s 12CB(1) as requiring ‘an
evaluative judgment’, 12 noting that
the pivotal inquiry was whether the
impugned conduct was against conscience,
by reference to the factors outlined
in s 12CC(1) and the totality of the
circumstances. 13 Justice Gageler’s judgment
echoed similar sentiments, 14 noting that
the normative standard of conduct
prescribed by s 12CB(1) would not be met
where a person engaged in conduct ‘so
far outside societal norms of acceptable
commercial behaviour as to warrant
condemnation as conduct that is offensive
to conscience’. 15 Justice Keane emphasised
the moral underpinnings of the evaluative
assessment mandated by s 12CB(1) 16 and
regarded ‘moral obloquy’ as the yardstick
(despite its express retraction by Gageler J
in the same case). 17
The minority judgments aligned
more closely with Gageler J’s analysis.
Justices Nettle and Gordon recognised
that the equitable principles underpinning
unconscionability at common law (and
captured by s 12CA(1)) helped ascribe
meaning to s 12CB(1), but that the s 12CC
factors would be determinative. 18 Justice
Edelman concurred with Nettle and
Gordon JJ, 19 adding that the meaning of
s 12CB(1) could not be understood ‘other
than against its background in equitable
doctrine and the repeated responses by
parliaments to that equitable doctrine’. 20
Whereas unconscionability under s
12CB(1) was not defined exclusively by
reference to the unwritten law (like s
12CA(1)), it was still informed by the
values and norms recognised by the
statute, as well as the broader community
standards and values that underpin
it. 21 The minority concluded that the
indicia of unconscionability in s 12CC
and, more broadly, equitable notions
of unreasonableness and unfairness,
pointed to Kobelt’s conduct as being
unconscionable.
The VCA in Stubbings favoured the
Kobelt minority’s view that the equitable
principles of unconscionability remained
relevant to the interpretation of s
12CB(1). 22 The court analogised equity’s
broad analysis of unconscionable conduct
with the statement in s 12CB(1) that ‘all
September 2021 THE BULLETIN 43

UNCONSCIONABLE CONDUCT
the circumstances’ be considered when
evaluating impugned conduct. 23 And
yet, despite recognising the consistent
statements of the minority and Gageler
J in Kobelt as obiter dicta, 24 the VCA stated
that it was compelled to follow the same
approach, as a consequence of Farah
Constructions Pty Ltd v Say-Dee Pty Ltd; 25
specifically, intermediate appellate courts
should not depart from ‘long-established
authority and seriously considered dicta’
found in High Court judgments, nor
from the decisions of other intermediate
appellate courts (unless convinced they
are plainly wrong). The court appeared
to merely ‘rebadge’ Gageler J’s rejected
litmus test of ‘moral obloquy’ in terms of
the normative standard described by his
Honour and the minority in Kobelt. 26
WHAT WE CAN ANTICIPATE FROM THE
HIGH COURT APPEAL
It is hoped that the High Court in
the forthcoming appeal clarifies three
particular matters.
First, the High Court should
conclusively delineate the correct approach
to applying both ASIC Act ss 12CA(1)
and 12CB(1) (ACL ss 20(1) and 21(1)). In
particular, the relevance of the body of
broader equitable principles captured by s
12CA(1) to the application of s 12CB(1)
must be unambiguously articulated.
Respectfully, the High Court in Kobelt and
the VCA in Stubbings confused matters
when stating that equity’s notions of
unfairness and unreasonableness still
informed the more prescriptive statutory
form of unconscionability in s 12CB(1).
Parliament appeared to purposely distance
these equitable and statutory standards
through the stipulation that s 12CA(1)
did not apply to conduct captured by s
12CB(1), 27 and in the limitation of the
latter to the specific context of the supply
or acquisition of goods or services.
44 THE BULLETIN September 2021
Secondly, the ongoing relevance, if
any, of the concept of ‘moral obloquy’
should be conclusively removed. This
nomenclature is too vague and lacks
clarity. 28 While the VCA appeared to
accept its demise as a consequence of
Kobelt, 29 it still favoured ‘an evaluative
judgment as to the morality of the
allegedly unconscionable behaviour’, 30
which is informed by reference to related
earlier cases and the normative standard
expressed in Kobelt. 31 This approach could
be interpreted as reopening the door to
moral obloquy, particularly given Keane J’s
approval of the concept in Kobelt. 32
Finally, precisely when solicitors’
certificates can be relied upon to
demonstrate both attempts to ensure
a client is properly informed as to the
nature of a transaction and a lack of
unconscientious exploitation of that
client, should be properly explained. The
VCA in Stubbings held that AJ’s solicitation
of signed certificates confirming that
Stubbings had consulted a lawyer and
accountant for advice and that he had
read, been explained, and understood
the relevant loan documents meant that
they were entitled to believe that he was
able to meet his obligations under the
loan agreement and could not be held to
have unconscientiously exploited him. 33
The VCA’s comment that the certificates
permitted the respondent to refrain from
making further inquiries as to Stubbings’
finances 34 is intriguing. It enlivens a
long-running debate as to the function
and value of solicitors’ certificates—a
topic that been discussed extensively
elsewhere, 35 with commentators noting
that the certified provision of independent
advice often provides an answer to
a claim. 36 It is hoped the High Court
elaborates as to when such certificates can
capably be relied upon to ward off claims
of unconscionability. B
Endnotes
1 (2019) 267 CLR 1 (‘Kobelt’).
2 Contained under Schedule 2 of the Competition
and Consumer Act 2010 (Cth).
3 ACL s 21(1) applies in the context of nonfinancial
goods or services.
4 See generally, T F Bathurst, Law as a Reflection of
the ‘Moral Conscience’ of Society (Opening of Law
Term Address, 5 February 2020).
5 Jams 2 Pty Ltd v Stubbings (No 3) [2019] VSC 150
[313].
6 See, eg, Gabrielle Golding and Mark Giancaspro,
‘To Moral Obloquy or Not to Moral Obloquy?
That is the Judicial Confusion Surrounding
Statutory Unconscionable Conduct’ (2020) 34
Commercial Law Quarterly 3.
7 Jams 2 Pty Ltd v Stubbings (No 3) [2019] VSC 150
[264].
8 Ibid [130].
9 Ibid.
10 Ibid [132]-[133].
11 Kobelt [64]-[66], [77]-[79].
12 Ibid [47].
13 Ibid [72]-[79].
14 Ibid [101].
15 Ibid [92].
16 Ibid [118]-[120].
17 Ibid.
18 Ibid [144], [154].
19 Ibid [273]-[278].
20 Ibid [279].
21 Kobelt [234], [267].
22 Stubbings [78].
23 Ibid [79].
24 Ibid [90].
25 (2007) 230 CLR 89, 150–2.
26 Stubbings [91]-[92].
27 ASIC Act s 12CA(2); ACL s 20(2).
28 See generally, Golding and Giancaspro (n 6).
29 Stubbings [85].
30 Ibid [91].
31 Ibid [92].
32 Kobelt [118]-[120].
33 Ibid [132]-[133].
34 Ibid [133].
35 See, eg, Charles YC Chew, ‘Another Look at the
Giving of Independent Advice to Sureties: Some
Uncertainties and Evolving Concerns’ (2006)
18(1) Bond Law Review 45.
36 See, eg, Felicity Maher and Stephen Puttick,
‘Reconsidering Independent Advice: A
Framework for Analysing Two-Party and Three-
Party Cases’ (2020) 43(1) University of New South
Wales Law Journal 218, 218.

FAMILY LAW CASE NOTES
Family Law Case Notes
CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK
PROPERTY – EQUAL ASSESSMENT
OF CONTRIBUTIONS FAILED TO
GIVE RECOGNITION TO HUSBAND’S
INHERITANCE WHICH MADE UP 30 PER
CENT OF THE POOL
In Roverati [2021] FamCAFC 89 (11
June, 2021) the Full Court (Strickland,
Ryan and Austin JJ) considered a 33 year
marriage that produced two children.
In 2003, the wife received an
inheritance of about $50,000 ([18]), which
was put in a trust and had not generated
income. In 2006, the husband received an
inheritance, worth at least $404,619, that
generated rental income.
The net pool was $1,317,405 ([60]).
Allowing the appeal, Strickland and
Ryan JJ said (from [27]):
“The … husband’s complaint …[is]
that ... his Honour implicitly concluded
that both inheritances were similar in
nature, and … his Honour erred by giving
no or insufficient weight to the [husband’s]
inheritance ( ... )
[32] … [T]he husband’s inheritance
was … at least … $404,619.64, whereas
the wife’s … approximately $50,000. …
[T]he husband’s financial contribution …
was significantly more than the wife’s, …
without taking into account the income
subsequently derived therefrom, and the
increases in the value of the assets …
[33] … [T]he assessment of
contributions is not a mathematical or
accounting exercise, … it is an holistic
undertaking with all … contributions
… being taken into account (Dickons &
Dickons [2012] FamCAFC 154 ... ) …
[34] … [I]t is not apparent from his
Honour’s treatment of the respective
contributions … culminating in a finding
of equality, how the contributions of the
wife informed that outcome, such that the
… financial contributions of the husband
… did not result in a weighting in his
favour. ( ... )
[39] ... There is no recognition that
approximately 30 per centum of the asset
pool … was derived from the husband’s
inheritance, and his Honour’s failure …
cannot be masked by suggesting that his
Honour … applied the requisite holistic
approach in assessing contributions ( … )
[58] … [G]iven the significant financial
contribution by the husband of his
inheritance, … the respective contributions
of the parties should be assessed at 55 per
centum/45 per centum in the husband’s
favour.”
PROPERTY – INTERIM ORDER FOR
CONDITIONAL SALE OF PROPERTY IN
WHICH HUSBAND ONLY OWNED A 5 PER
CENT INTEREST IN ERROR
In Lin & Ruan [2021] FamCAFC 90
(9 June, 2021) the Full Court (Ainslie-
Wallace, Watts & Austin JJ) allowed an
appeal from a series of interim orders,
the first requiring the husband to pay
mortgage outgoings for a property he
owned with the wife (suburb “B”), and
subsequent interim orders that in the
absence of his rectifying mortgage arrears,
another property, (suburb “C”) be sold.
The husband owned a 5 per cent
interest in the suburb C property; while
his mother owned a 95 per cent share.
The wife joined the husband’s mother as
a party, as she argued that the husband’s
mother owned her interest in the property
upon trust for the husband.
The Full Court said (from [25]):
“… [S]ince the husband had failed
to … comply with the order and the
mortgage repayments on the Suburb B
property were in arrears, his Honour
turned to consider what ‘machinery
provisions’ were necessary to ensure the
mortgage repayments were met …
[26] … [W]ithout any further …
explanation …, the primary judge
concluded:
35 ... [I]t would be appropriate to make
… orders for the sale of the [Suburb C
property] to use at least [the husband’s] 5%
legal entitlement in that property, to pay
the outstanding mortgage costs. ( … )
[28] … [T]he [husband’s mother] bore
no separate obligation to financially support
the wife … and so, if the orders for the
conditional sale of the Suburb C property
were only being made to ensure rectification
of the husband’s personal default … then
no more than his own five per cent stake
in the Suburb C property should have been
the subject of such garnishment. …
[29] Even if the primary judge
concluded that the appropriation of the
appellant’s property to cover the husband’s
individual liability was justified, it was
obligatory to identify the source of power
to make the orders and to satisfy himself
that the pre-conditions for its exercise
were fulfilled. That was not done. ( … )”
CHILDREN – PARTIES’ CONTRAVENTION
APPLICATIONS SHOULD NOT HAVE BEEN
HEARD TOGETHER
In Dobbs [2021] FamCAFC 78 (21
May, 2021) the Full Court (Alstergren CJ,
Strickland & Austin JJ) allowed a husband’s
appeal from an order made pursuant to
s 70NEB(1)(d) made after each party
had brought contravention applications,
alleging that both property and parenting
orders had been contravened.
The Full Court said (from [23]):
“ … [I]t was quite unclear what
particular applications were the subject
of attention by the … judge at any one
point in time. … [T]he conduct of the
proceedings in that way was procedurally
unfair for two fundamental reasons.
[24] … [T]he … procedure prescribed
for hearing contravention applications
(r 21.08 … Family Law Rules 2004 (Cth)
(‘the Rules’)) is … different from the usual
procedure for hearing other forms of civil
application. If there is to be a departure
from that procedure, it must be done so
as not to cause injustice or prejudice to
the respondent (Caballes & Tallant [2014]
FamCAFC 112 …). … [T]he husband
was defending the wife’s contravention
applications and, … he enjoyed an
entitlement to remain mute until the closure
of the evidence offered in support of the
September 2021 THE BULLETIN 45

FAMILY LAW CASE NOTES
alleged contraventions, which right he
could not be forced to relinquish. He could
not be expected to lead evidence about
the need for further orders to facilitate
implementation of the final property orders
when he was … defending an allegation of
his contravention of those … orders.
[25] … An applicant who prosecutes
a contravention application carries the
burden of adducing evidence to prove the
alleged contravention. … [N]either party
could concurrently carry the burden of
proof and reserve their right to silence.
[26] The procedure adopted by the
primary judge for hearing and determining
the wife’s contravention applications bore
no similarity at all to that prescribed by r
21.08 of the Rules ( … )
[29] ( … ) [T]he husband was improperly
converted from applicant to respondent
when the evidence filed in support of the
contraventions alleged by the wife had not
yet been either formally adduced or tested in
cross-examination. ( … )
[33] Given the denial of procedural
fairness, … the … judge fell into
appealable error.”
CHILDREN – ORDER THAT ROUTINE
NOTIONALLY CONTINUE THROUGH
HOLIDAYS INTERPRETED SO THAT FIRST
WEEK OF SCHOOL WAS ‘WEEK 2’ OF CYCLE
In Nagel & Clay [2021] FamCA 358 (2
June, 2021) Harper J heard two parents’
opposing views as to the interpretation of
a parenting order made by consent.
The order related to the resumption of
time following school holidays, specifically
that at the commencement of school
term, the fortnightly routine resume “as
if the children had been living with the
parties” in accordance with the fortnightly
routine “during the duration of the school
holidays”.
After citing Langford & Coleman [1992]
FamCA 68, the Court said (from [7]):
“The decision in Langford is consistent
with authority … to the extent that it denies
interpretation of court orders by reference
to the parties› subjective intentions. ( …)
[9] In Apoda & Apoda [2013] FamCA
265 at [35] - [41] Le Poer Trench J
concluded that in construing final consent
orders the Court should undertake a three
step process, namely, determining whether
there is ambiguity, identify surrounding
circumstances, other than the subjective
intentions of the parties … and reach a
conclusion in relation to construction. ( … )
[15] … [T]he father construed Order
10 to mean that the question of which
week in the two cycle is applicable at
the commencement of Term 2, 2021
is determined by reference to the
alternating weeks which would have been
notionally applicable as if Order 10(a)
and (b) had been operating during the
… school holidays, and, for the purposes
of calculating the relevant dates, as a
continuation of the fortnightly cycle
initiated by Order 9 on the specified dates
in October 2020.( … )
[23] It is clear … that the opening
words of Order 10 ‘From the
commencement of school in Term 2
...’ mean only that there will be inserted
into the existing fortnightly cycle from
the commencement of Term 2 … the
additional Tuesday night with the father.
They do not mean the fortnightly cycle
is reset to commence with Week 1 to
coincide with the commencement of
Term 2 ( … )
[30] The mother also argued that the
parties could not have intended that Order
10 would operate so that in the week
commencing Term 2, 2021 the children
would have spent the second half of the
immediately preceding school holidays
with the father, then return for only one
night with the mother before returning
again to the father’s care …. Even on the
mother’s construction, such an outcome
would be possible [and] would be entirely
contingent on the dates on which the
school holidays fell. … ” B
3 JULY 2021 – 2 AUG 2021
A MONTHLY REVIEW OF ACTS, APPOINTMENTS,
REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH
OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA
ACTS PROCLAIMED
Statutes Amendment (Recommendations of
Independent Inquiry into Child Protection) Act
2021 (No 14 of 2021)
Commencement: 2 August 2021
Gazetted: 22 July 2021, Gazette
No. 49 of 2021
Fire and Emergency Services (Governance)
Amendment Act 2021 (No 15 of 2021)
Commencement: 2 August 2021
Gazetted: 29 of 2021, Gazette No.
50 of 2021
Health Care (Governance) Amendment Act
2021 (No 21 of 2021)
Commencement: 23 August 2021
Gazetted: 29 of 2021, Gazette No.
50 of 2021
ACTS ASSENTED TO
Nil
APPOINTMENTS
Nil
RULES
Nil
REGULATIONS PROMULGATED (3 JULY 2021 – 2 AUGUST 2021)
REGULATION NAME REG NO. DATE GAZETTED
Adelaide Park Lands Regulations 2021 108 of 2021 8 July 2021, Gazette No. 46 of 2021
Firearms (Miscellaneous) Variation Regulations 2021 109 of 2021 8 July 2021, Gazette No. 46 of 2021
Mining (Rules of Warden’s Court) Variation Regulations 2021 110 of 2021 15 July 2021, Gazette No. 48 of 2021
Planning, Development and Infrastructure (General) (Application of Act) Variation Regulations 2021 111 of 2021 22 July 2021, Gazette No. 49 of 2021
46 THE BULLETIN September 2021

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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
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
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or Victor Tien
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