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THE<br />

BULLETIN<br />

THE LAW SOCIETY OF SA JOURNAL<br />

VOLUME 43 – ISSUE 11 – DECEMBER <strong>2021</strong><br />

IN THIS ISSUE<br />

Protecting pets in<br />

domestic violence<br />

situations<br />

Renting with pets<br />

Therapy &<br />

assistance animals<br />

ANIMALS & THE LAW


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This issue of The Law Society of South Australia: Bulletin is<br />

cited as (2020) 43 (11) <strong>LSB</strong>(SA). ISSN 1038-6777<br />

CONTENTS<br />

ANIMAL LAW<br />

8 Animals and intervention orders:<br />

tree hugging nonsense or natural<br />

evolution of domestic violence laws?<br />

By Ronan O’Brien & Diana Thomas<br />

10 Renting with pets in SA<br />

By Renée Evans<br />

22 Therapy or assistance animals:<br />

What’s the difference? – By Renée<br />

Evans & Diana Thomas<br />

30 The existing legal safeguards for<br />

experimental laboratory animals in SA<br />

– By Ross Templeman<br />

31 Animal Welfare Laws leave pet fish<br />

up the creek – By Ronan O’Brien<br />

32 Turkeys & the law<br />

By Diana Thomas<br />

FEATURES & NEWS<br />

12 Know your Council Member:<br />

Melanie Tilmouth<br />

14 Vale: Mark Glencraig Nicholls<br />

By Michael Roder QC<br />

16 More collaboration between legal<br />

profession and disability community<br />

key to breaking down barriers<br />

By Catia Malaquias<br />

18 Encouraging law students to work with<br />

regional and Aboriginal communities<br />

– Dr David Plater, Chloe Winter, Charlotte<br />

Ordynski & Cayleigh Stock<br />

25 Event wrap-up: Mock Trial final<br />

By Stephanie Moore<br />

REGULAR COLUMNS<br />

4 President’s Message<br />

5 From the Editor<br />

6 From the Conduct Commissioner:<br />

Overview of the LPCC annual report<br />

By Greg May<br />

15 Members on the Move<br />

24 Young Lawyers: Committee holds<br />

interactive ethics and wellbeing<br />

seminar – By Meghan Fitzpatrick<br />

26 Wellbeing & Resilience: It’s OK to<br />

grieve, and to reach out for support<br />

By Amy Nikolovski<br />

28 Risk Watch Culturally and<br />

Linguistically Diverse Clients:<br />

Ongoing Challenges for Lawyers<br />

By Grant Feary<br />

34 Tax Files: DGRs that are not<br />

already charities – By Paul Ingram<br />

35 Bookshelf<br />

36 Family Law Case Notes<br />

By Craig Nichol & Keleigh Robinson<br />

37 Gazing in the Gazette<br />

Complied by Master Elizabeth Olsson<br />

Executive Members<br />

President:<br />

R Sandford<br />

President-Elect: J Stewart-Rattray<br />

Vice President: A Lazarevich<br />

Vice President: V Gilliland<br />

Treasurer:<br />

F Bell<br />

Immediate Past<br />

President:<br />

T White<br />

Council Member: M Mackie<br />

Council Member: M Tilmouth<br />

Metropolitan Council Members<br />

T Dibden<br />

M Tilmouth<br />

A Lazarevich M Mackie<br />

M Boyle<br />

E Shaw<br />

J Marsh<br />

C Charles<br />

R Piccolo<br />

M Jones<br />

Country Members<br />

S Minney<br />

(Northern and Western Region)<br />

P Ryan<br />

(Central Region)<br />

J Kyrimis<br />

(Southern Region)<br />

Junior Members<br />

vacant<br />

Ex Officio Members<br />

The Hon J Teague, Prof V Waye,<br />

Prof T Leiman<br />

Assoc Prof C Symes<br />

KEY LAW SOCIETY CONTACTS<br />

Chief Executive<br />

Stephen Hodder<br />

stephen.hodder@lawsocietysa.asn.au<br />

Executive Officer<br />

Rosemary Pridmore<br />

rosemary.pridmore@lawsocietysa.asn.au<br />

Chief Operations Officer<br />

Dale Weetman<br />

dale.weetman@lawsocietysa.asn.au<br />

Member Services Manager<br />

Michelle King<br />

michelle.king@lawsocietysa.asn.au<br />

Director (Ethics and Practice)<br />

Rosalind Burke<br />

rosalind.burke@lawsocietysa.asn.au<br />

Director (Law Claims)<br />

Kiley Rogers<br />

krogers@lawguard.com.au<br />

Manager (LAF)<br />

Annie MacRae<br />

annie.macrae@lawsocietysa.asn.au<br />

Programme Manager (CPD)<br />

Natalie Mackay<br />

Natalie.Mackay@lawsocietysa.asn.au<br />

Programme Manager (GDLP)<br />

Desiree Holland<br />

Desiree.Holland@lawsocietysa.asn.au<br />

THE BULLETIN<br />

Editor<br />

Michael Esposito<br />

bulletin@lawsocietysa.asn.au<br />

Editorial Committee<br />

A Bradshaw P Wilkinson<br />

S Errington D Sheldon<br />

J Arena D Weekley<br />

B Armstrong D Misell<br />

M Ford<br />

The Law Society Bulletin is published<br />

monthly (except January) by:<br />

The Law Society of South Australia,<br />

Level 10-11, 178 North Tce, Adelaide<br />

Ph: (08) 8229 0200<br />

Fax: (08) 8231 1929<br />

Email: bulletin@lawsocietysa.asn.au<br />

All contributions letters and enquiries<br />

should be directed to<br />

The Editor, The Law Society Bulletin,<br />

GPO Box 2066,<br />

Adelaide 5001.<br />

Views expressed in the Bulletin<br />

advertising material included are<br />

not necessarily endorsed by The<br />

Law Society of South Australia.<br />

No responsibility is accepted by the<br />

Society, Editor, Publisher or Printer<br />

for accuracy of information or errors<br />

or omissions.<br />

PUBLISHER/ADVERTISER<br />

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Ph: (08) 8233 9433<br />

Email: admin@boylen.com.au<br />

Studio Manager:<br />

Madelaine Raschella Elliott<br />

Layout: Henry Rivera<br />

Advertising<br />

Email: sales@boylen.com.au


PRESIDENT’S MESSAGE<br />

Another challenging year comes<br />

to a close, but commitment to<br />

welfare of the profession continues<br />

REBECCA SANDFORD, PRESIDENT<br />

As the end of <strong>2021</strong> approaches,<br />

I’m finding it hard - despite the<br />

reminders each time I walk through<br />

Rundle Mall and enjoy the Christmas<br />

decorations - to believe how fast this year<br />

has gone, and how much has occurred in<br />

only 12 short months.<br />

At the start of my Presidential term,<br />

I indicated an intention to focus on a<br />

few key priorities this year - in particular,<br />

mental health and wellbeing support for<br />

the profession; increasing diversity and<br />

taking further steps to address sexual<br />

harassment, bullying and discrimination<br />

in the law; and considering the use of<br />

and role for technology in the delivery of<br />

legal services. I’m pleased that I’ve been<br />

able to take steps to address each of those<br />

throughout this year.<br />

I have been especially proud of work<br />

the Society has undertaken in relation to<br />

wellbeing, resilience and mental health<br />

support for the profession. Early in my<br />

Presidency, the Society commissioned<br />

a mental wellbeing survey, in a similar<br />

vein to the 2020 survey conducted by the<br />

International Bar Association, to ‘take the<br />

temperature’ of the local profession on<br />

this important topic. The survey results<br />

have already been discussed in articles in<br />

this publication, and continue to be the<br />

subject of consideration by the Wellbeing<br />

and Resilience Committee, with the<br />

Society maintaining a focus on further<br />

strategies to ensure legal practitioners<br />

can be better supported in managing<br />

and maintaining their mental health and<br />

wellbeing into the future.<br />

Whilst in some respects this year has<br />

been less tumultuous than 2020, it has<br />

certainly not been without its challenges,<br />

and there have been plenty of reminders<br />

of the importance of appropriate help<br />

and support being accessible to all of us<br />

- including during our short lockdown in<br />

July. I know that for many, dealing with<br />

the uncertainties and restrictions arising<br />

from the pandemic has been very difficult,<br />

and your resilience and endeavours in<br />

dealing with those challenges are to be<br />

commended. I have found it reassuring<br />

that many of the practitioners I spoke with<br />

have, or are gaining, an increased awareness<br />

of the importance of mental health<br />

support and are actively taking steps to<br />

embed a wellbeing focus in their approach<br />

to legal practice. I have been grateful for<br />

the chance to speak with many of you,<br />

including many of our small practice<br />

solicitors, during the course of <strong>2021</strong> and I<br />

thank each of you who generously shared<br />

your experiences with me.<br />

For that reason, amongst others, I am<br />

also glad to have chosen the Breakthrough<br />

Mental Health Research Foundation as<br />

the President’s charity for <strong>2021</strong>. I have<br />

thoroughly enjoyed the relationship that<br />

has been built between the Society and<br />

the Foundation during the year and the<br />

opportunity to learn from the important<br />

work of the Foundation. Raising over<br />

$11,000 at the Legal Profession Dinner in<br />

August to help the Foundation kick off its<br />

Big Talks for Little People program in SA<br />

schools was definitely a highlight of my<br />

year (not to mention that it confirmed my<br />

long held view that wine walls really are<br />

the adult version of a lucky dip - and just<br />

as popular!), and it was also very pleasing<br />

that this year saw the victorious return of<br />

the Great Debate during Mental Health<br />

Week - a well-attended, and well received,<br />

event that allowed us to take a more<br />

humorous look at some aspects of the last<br />

12 or so months, with our speakers doing<br />

an excellent job of debating whether WFH<br />

= LAW (i.e. Work From Home really<br />

means Living At Work).<br />

Work on the topic of sexual<br />

harassment, bullying and discrimination<br />

has also been a top priority throughout<br />

this year. As I have said in various<br />

forums, including in each of the multiple<br />

presentations I have delivered or chaired<br />

this year, we all have a part to play in<br />

transforming the culture of the legal<br />

profession to make it more inclusive<br />

and welcoming, and to ensure we can<br />

each feel safe, valued and respected in<br />

our workplaces. It has been heartening<br />

to see how the profession has grappled<br />

with this challenge and taken real steps<br />

to implement change and provide<br />

support. I am particularly proud that<br />

since its introduction in June <strong>2021</strong>, the<br />

Society’s “Sexual Harassment - Changing<br />

Workplace Culture” workshop has been<br />

attended virtually by over 1850 lawyers in<br />

SA, with a further 120 practitioners also<br />

attending a bystander intervention session<br />

by Trish Lowe in November. Multiple<br />

CPDs have also been run by other bodies<br />

both prior to and since the delivery<br />

of the (Acting) Equal Opportunity<br />

Commissioner’s comprehensive Report<br />

in April this year, all of which can only<br />

help to inform and educate the profession<br />

about this issue and what needs to be<br />

done to address it.<br />

The Society, and others within the<br />

profession, have also taken meaningful<br />

action towards other recommendations in<br />

the Inquiry Report, including amending<br />

the Legal Profession Conduct Rules to<br />

ensure a single set of Rules applies to<br />

the entirety of the SA profession (and<br />

incorporating a new, more expansive<br />

prohibition against bullying and<br />

harassment), and work undertaken at both<br />

a state and national level for legislative<br />

change and with respect to model policies<br />

and procedures. Before <strong>2021</strong> concludes,<br />

my expectation is that the Law Council’s<br />

National Model Policy Framework and<br />

accompanying Guidance Notes - the<br />

development of which the Society has<br />

contributed to as a constituent body of the<br />

Law Council throughout this year - will be<br />

available for practitioners to commence<br />

using as a ‘best practice’ approach or<br />

reference tool.<br />

4<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong>


PRESIDENT’S MESSAGE<br />

I look forward to continuing to work<br />

with the Council next year as Immediate<br />

Past President to keep this important<br />

momentum going, aiming to eliminate<br />

improper conduct from within the<br />

profession, further develop our education<br />

and training offerings in this critical<br />

area, and ensure we continue to increase<br />

diversity in legal leadership.<br />

On a lighter note, I have been pleased<br />

and proud to represent the Society at<br />

a range of events throughout the year,<br />

including sharing in hosting duties for the<br />

Margaret Nyland Long Lunch (held jointly<br />

with the Women Lawyers’ Association<br />

of SA) and the Legal Profession Dinner,<br />

each of which were attended by over<br />

300 people. I have also been privileged<br />

to speak at a large number of ceremonial<br />

sittings throughout the year, including<br />

to celebrate the commencement of the<br />

Court of Appeal, to welcome several new<br />

judges and justices in the Supreme, District<br />

and Federal Circuit and Family Courts as<br />

well as the South Australian Employment<br />

Tribunal, and to commemorate the<br />

Honourable Justice Strickland’s career<br />

upon his retirement from judicial office. I<br />

have enjoyed all the opportunities I’ve had<br />

to meet with members of the profession at<br />

events and conferences throughout <strong>2021</strong>.<br />

Of course, the Society’s key advocacy<br />

work, via submissions, media, and<br />

appearances at parliamentary committees,<br />

has also formed a substantial part of my<br />

and the Society’s work - the breadth of<br />

topics has been significant, and included<br />

such varied matters as privacy and<br />

technology law, road traffic law changes,<br />

the age of criminal responsibility, domestic<br />

violence reform and vaccination policies.<br />

The Society’s comprehensive election<br />

issues platform, prepared out of the many<br />

and varied contributions offered by the<br />

Society’s members and committees this<br />

year, will continue to be of great interest<br />

and a key focus in the lead up to the state<br />

election in early 2022.<br />

This year has been a fascinating,<br />

busy, engaging, at times challenging, but<br />

consistently rewarding experience for<br />

me, and one I’m immensely proud and<br />

humbled to have had the opportunity<br />

to undertake. I’m looking forward to<br />

having the chance to thank in person<br />

many of those that have provided me and<br />

the Society with support and assistance<br />

throughout the year at the President’s<br />

Christmas Cocktail event in early<br />

<strong>December</strong>, and otherwise hope to see<br />

many of you at functions and events as<br />

the year winds down. Thank you for your<br />

ongoing support of the Society during<br />

<strong>2021</strong>, and I wish you and your families all<br />

a safe, relaxing and happy Christmas and<br />

New Year. B<br />

Patience & understanding are<br />

virtues during these times<br />

MICHAEL ESPOSITO, EDITOR<br />

It’s rather fitting that this edition contains<br />

a strong focus on animals, as we have<br />

relied on the companionship of animals<br />

more than ever during the pandemic.<br />

The growing area of law around<br />

animals reflects an increasing recognition<br />

of the value and rights of animals.<br />

The spike in pet ownership during the<br />

pandemic is unsurprising but it naturally<br />

carries the risk of more animals being<br />

mistreated in numerous ways, including<br />

being neglected, abused, or being collateral<br />

damage in broken relationships.<br />

But mostly, pets bring joy, they<br />

encourage exercise, and they are great<br />

for helping humans to socialise with each<br />

other. They have been a source of comfort<br />

in what has been another extremely<br />

challenging year.<br />

With COVID-19 stubbornly resisting<br />

all our best efforts to suppress it, <strong>2021</strong> has<br />

been a real test of resilience.<br />

We all hoped that things would go<br />

back to normal this year, but Covid has<br />

continued to wreak havoc around the<br />

world, and SA, which has by in large kept<br />

the virus at bay, now faces a surge in cases<br />

as we open up our state, and contend<br />

with the real prospect of widespread<br />

disruption to our Christmas plans due to<br />

the quarantine and isolation guidelines<br />

currently in place.<br />

While this has been another difficult<br />

year for the profession, we have<br />

collectively risen to the occasion, earnt<br />

a holiday and are now looking forward<br />

to a long overdue return to something<br />

resembling business as usual.<br />

As we approach what I hope will be<br />

a holiday season spent with family and<br />

friends, we would all do well to remember<br />

that many people are struggling, scared,<br />

and uncertain as the virus and the<br />

attendant mandates and restrictions still<br />

form a dark cloud over our lives. So let’s<br />

be kind to one another (including our<br />

animal friends) and try to conquer this<br />

thing once and for all. B<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 5


FROM THE CONDUCT COMMISSIONER<br />

Overview of the<br />

LPCC Annual Report<br />

GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER<br />

recently presented my annual report for<br />

I the financial year ended 30 June <strong>2021</strong><br />

to the Attorney-General and the Chief<br />

Justice. Once the Attorney has tabled it<br />

in Parliament, it will be available on my<br />

website (at lpcc.sa.gov.au).<br />

In the expectation that not everyone<br />

in the profession will spend as much<br />

time as they should reading my annual<br />

report, I thought I should just take this<br />

opportunity to mention a few things that<br />

are highlighted in the report that are in my<br />

view particularly relevant and important.<br />

From 1 November 2020, complainants<br />

have had to pay a fee of $110 (including<br />

GST) before I will consider their<br />

complaint. There are though a number<br />

of circumstances in which I will, or may,<br />

waive the payment of that fee.<br />

The introduction of that fee paying<br />

regime has in my view been the main,<br />

if not the sole, reason for complaint<br />

numbers reducing from over 500 on<br />

average per year to just over 400 in 2020-<br />

21. And I now expect complaint numbers<br />

from now on will be less than 400 per year.<br />

The reduction in complaint numbers<br />

has enabled me to reduce my staff<br />

numbers without impacting too much on<br />

the way in which we deal with complaints.<br />

The expense incurred in running my office<br />

has reduced from $4.3m in 2017-18 to<br />

just under $4m in 2020-21, and my budget<br />

for this current financial year is just over<br />

$3.6m.<br />

During 2020-21, I made 45 findings<br />

of misconduct – 33 of unsatisfactory<br />

professional conduct and 12 of<br />

professional misconduct. I also laid 2<br />

charges against 1 practitioner in the Legal<br />

Practitioners Disciplinary Tribunal.<br />

That number of findings of<br />

misconduct is considerably higher than<br />

in previous years. In 2019-20, I made 31<br />

such findings and also laid charges against<br />

4 practitioners). In 2018-19 it was 22<br />

findings and 8 charges, and in 2017-18 it<br />

was 21 findings and 7 charges.<br />

A significant contributor to the<br />

increased number of misconduct<br />

findings was my findings in relation to<br />

practitioners who had failed to comply<br />

with their costs disclosure obligations<br />

under Schedule 3 of the Legal Practitioners<br />

Act (Act). There were 8 such findings<br />

during 2020-21. I refer the profession to<br />

my article about those obligations and the<br />

way I view them in the April 2020 edition<br />

of the Bulletin.<br />

It is also perhaps worth me<br />

summarising the conduct that resulted in<br />

my other misconduct findings in 2020-21:<br />

• a lack of courtesy in correspondence;<br />

• failing to pay superannuation for the<br />

firm’s employees;<br />

• using a costs agreement that was legally<br />

incorrect and potentially misleading<br />

in relation to the firm’s entitlement<br />

to increase its costs if the client<br />

complained about its fees or asked for<br />

an itemised account;<br />

• having a conflict when advising a<br />

client who had a number of different<br />

capacities in relation to a deceased<br />

estate;<br />

• misleading a client as to whether a<br />

judgment debt had been obtained in<br />

recovery proceedings;<br />

• threatening action against another<br />

party without having instructions to<br />

do so;<br />

• failing to act on a client’s instructions<br />

in a sufficiently timely fashion, which<br />

led to the client terminating the firm’s<br />

instructions – and then billing the<br />

client for the work that was done<br />

(despite it being of no use to the<br />

client) and filing a credit default entry<br />

when the bill wasn’t paid;<br />

• failing to administer and distribute a<br />

deceased estate in a timely fashion;<br />

• providing mortgage financing services<br />

in contravention of the Act;<br />

• commencing to practice as an<br />

Incorporated Legal Practice without<br />

giving notices required under the Act;<br />

• acting for two executors of an estate,<br />

and then acting for one against the<br />

other despite then having confidential<br />

information about the other;<br />

• having direct contact with the client of<br />

another practitioner, in breach of the<br />

ASCRs;<br />

• allowing a client to view certain<br />

documents despite a court order<br />

requiring them to be destroyed;<br />

• preparing a revocation of a Power of<br />

Attorney and a new Power of Attorney<br />

without having obtained instructions<br />

direct from the client to do so or<br />

assessing her capacity;<br />

• misinterpreting a Will, maintaining that<br />

incorrect interpretation despite viewing<br />

advice to the contrary, and charging for<br />

that incorrect work;<br />

• charging a fixed fee up front for certain<br />

work that was to be done, and then not<br />

doing it;<br />

• obtaining a report for a client without<br />

instructions to do so, and without first<br />

obtaining a fee estimate;<br />

• failing to resolve an outstanding trust<br />

account balance within a reasonable<br />

time;<br />

• failing to progress a client’s claim<br />

within a reasonable time;<br />

• failing to comply with undertakings<br />

given to the Law Society as part of a<br />

“low income fee earner” application;<br />

• failing to comply with Court orders<br />

and to appear at hearings;<br />

• failing to comply with various<br />

employment obligations;<br />

• failing to comply with my orders;<br />

• in relation to an estate of which the<br />

practitioner was the executor, charging<br />

fees without being authorised to do so,<br />

charging for travel expenses without<br />

being entitled to do so, breaching<br />

fiduciary duties to the beneficiaries,<br />

and failing to maintain adequate<br />

records of instructions;<br />

• backdating a letter, misleading the<br />

other party about it, and blaming a<br />

junior employee for the “need” to<br />

do so;<br />

• failing to maintain a trust account<br />

despite receiving trust money; and<br />

• failing to administer an estate in a<br />

timely fashion. B<br />

6<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong>


ANIMAL LAW<br />

Animals and intervention orders:<br />

tree hugging nonsense or natural<br />

evolution of domestic violence laws?<br />

RONAN O’BRIEN AND DIANA THOMAS, ANIMAL LAW COMMITTEE<br />

The statistics don’t lie. The link between<br />

domestic violence and animal abuse<br />

is well known with some studies showing<br />

53% of women escaping domestic violence<br />

report their pets were harmed and 35%<br />

state they delayed seeking refuge out of<br />

concern for the welfare of their pet. 1<br />

The Royal Commission into Family<br />

Violence in 2016 heard testimony from<br />

numerous victims illustrating how animals<br />

are often used in coercive control: 2<br />

• Once he cut the head off my mother’s pet<br />

to ‘teach her a lesson’.<br />

• He regularly beat – and I mean beat<br />

– the shit out of our dogs.<br />

• He killed my animals.<br />

• He would say to me, ‘Here’s your precious<br />

dog, this is what you do to me’, and pretend<br />

to snap her neck. 3<br />

Animal abuse cases, often prosecuted<br />

by state-based RSPCAs, regularly involve<br />

an element of domestic violence.<br />

• In Bond v RSPCA 4 the appellant was<br />

fighting with his girlfriend. During<br />

the argument, he picked up her dog,<br />

slashed its throat and stabbed the dog<br />

four times. He then threw the bloodied<br />

body of the dog in the bin.<br />

• In a 2019 ACT case 5 CCTV footage<br />

shows the abuser smiling as, instead<br />

of feeding his ex-girlfriend’s dog, he<br />

punched, kicked, and hit the animal<br />

with a shovel for 20 minutes. The dog<br />

was euthanised due to its injuries.<br />

ABUSED ANIMALS TREATED AS DAMAGED<br />

PROPERTY<br />

Animals are specifically mentioned<br />

within the Intervention Orders (Prevention<br />

of Abuse) Act 2009 (SA) (“the Act”)<br />

regarding examples of emotional or<br />

psychological harm: 6<br />

…an act of abuse against a person resulting<br />

in emotional or psychological harm may be<br />

comprised of any of the following:<br />

causing the death of, or injury to, an animal.<br />

The legislation allows for intervention<br />

orders to be issued for the protection of<br />

a person if it is “reasonable to suspect that the<br />

defendant will, without intervention, commit an<br />

act of abuse against a person.” 7<br />

Whilst the above clauses show there<br />

can be preventative measures put in place<br />

for the safety of a protected person, the<br />

current legislation is not specific in its<br />

ability to protect the actual animals that<br />

are at risk of abuse.<br />

Given that animals are regarded as<br />

property in SA, it is possible for animals<br />

to fall within the provisions of the Act<br />

that state: 8<br />

An act is an act of abuse against a person if<br />

it results in or is intended to result in—<br />

damage to property in the ownership or<br />

possession of the person or used or otherwise<br />

enjoyed by the person.<br />

Further, given the proprietary status<br />

of animals, the following intervention<br />

terms within the Act may be relevant to<br />

protecting specified animals: 9<br />

• Prohibit the defendant from damaging<br />

specified property;<br />

• Prohibit the defendant from taking<br />

possession of specified personal<br />

property reasonably needed by a<br />

protected person;<br />

• Require the defendant to return specified<br />

personal property to a protected person.<br />

Specifying animals as requiring<br />

protection<br />

Rather than implying that animals may<br />

fall within the preventative measures of<br />

the Act used to protect property, South<br />

Australia could look to other jurisdictions<br />

that have specifically identified animals as<br />

requiring protection.<br />

The NSW parliament addressed this<br />

problem in March <strong>2021</strong> by specifically<br />

recognising the intersection between animal<br />

abuse and domestic violence in their Crimes<br />

(Domestic and Personal Violence) Act 2007. 10<br />

Every apprehended violence order<br />

in NSW is now taken to specify that the<br />

defendant is prohibited from harming<br />

an animal that belongs to or is in the<br />

possession of the protected person with<br />

whom the protected person has a domestic<br />

relationship. 11<br />

Victoria has taken a further step<br />

forward, specifically recognising that the<br />

animal threatened with harm may not<br />

necessarily be a pet of the victim. Their<br />

definition of family violence includes:<br />

“causing or threatening to cause the death of,<br />

or injury to, animal, whether or not the animal<br />

belongs to the family member to whom the<br />

behaviour is directed so as to control, dominate<br />

or coerce the family member.” 12<br />

This overcomes circumstances where<br />

an abuser may obtain for themselves a<br />

new animal with the intent to threaten or<br />

coerce the protected person, or indeed<br />

circumstances where they may threaten to<br />

harm a stray animal or wildlife.<br />

In Queensland, as a condition of a<br />

domestic violence order, the court may<br />

prohibit the respondent from possessing<br />

a thing used, or threatened to use, in<br />

committing domestic violence. 13 Whilst<br />

the legislation extends the definition of<br />

“things” to include animals, this would<br />

not prevent a perpetrator from obtaining<br />

a new animal to harm as the restriction<br />

8<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong>


ANIMAL LAW<br />

only applies to the animal used within the<br />

alleged offence.<br />

The way forward<br />

Along with the measures introduced<br />

interstate, South Australia could consider<br />

further legislative amendments to prevent<br />

a perpetrator of domestic violence having<br />

immediate access to an animal to threaten<br />

harm.<br />

In circumstances where an animal has<br />

been threatened or harmed, a condition<br />

of an intervention order could be that the<br />

defendant is forbidden from being the<br />

owner of any animal. Further, the definition<br />

of “owner” should include “a person<br />

who has the custody and control of the<br />

animal” to be consistent with the definition<br />

of owner within the Animal Welfare Act<br />

1985 (SA). This prevents scenarios of<br />

defendants attempting to avoid ‘ownership’<br />

of an animal by simply registering the<br />

animal in another person’s name.<br />

The correlation between cruelty<br />

to animals and domestic violence is<br />

increasingly being recognised and<br />

greater legislative measures should be<br />

implemented to ensure the safety of<br />

animals in the same vein as protecting<br />

partners and children escaping violence. B<br />

Endnotes<br />

1 Is there a link between Domestic Violence<br />

and animal abuse? RSPCA 8.10.2019, https://<br />

kb.rspca.org.au/knowledge-base/is-there-a-linkbetween-domestic-violence-and-animal-abuse/<br />

2 Royal Commission into Family Violence – Final<br />

report (March 2016), http://rcfv.archive.<br />

royalcommission.vic.gov.au/MediaLibraries/<br />

RCFamilyViolence/Reports/RCFV_Full_<br />

Report_Interactive.pdf<br />

3 https://www.abc.net.au/news/<strong>2021</strong>-03-01/<br />

calls-for-domestic-violence-pets-legislation-invictoria/13199928<br />

4 Bond v Royal Society For the Prevention Of Cruelty to<br />

Animals (SA) [2011] SASC 19.<br />

5 https://www.abc.net.au/news/2019-10-12/<br />

canberra-man-jailed-for-fatally-beating-dog-withshovel-handle/11595670<br />

6 Intervention Orders (Prevention of Abuse) Act 2009<br />

(SA) S 8 (4)(d).<br />

7 Intervention Orders (Prevention of Abuse) Act 2009<br />

(SA) S 6(a).<br />

8 Intervention Orders (Prevention of Abuse) Act 2009<br />

(SA) S 8 (2)(d).<br />

9 Intervention Orders (Prevention of Abuse) Act 2009<br />

(SA) S 12.<br />

10 Crimes (Domestic and Personal Violence) Act 2007<br />

(NSW) s 9 (3) (f2).<br />

11 Crimes (Domestic and Personal Violence) Act 2007<br />

(NSW) s 36(c).<br />

12 Family Violence Protection Act 2008 (Vic) s 5 (2) (e).<br />

13 Domestic and Family Violence Protection Act 2012<br />

(QLD) s 81.<br />

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<strong>December</strong> <strong>2021</strong> THE BULLETIN 9


RENTING WITH PETS<br />

IN THE DOG HOUSE? RENTING<br />

WITH PETS IN SA<br />

RENÉE EVANS, SENIOR SOLICITOR, CROWN SOLICITOR’S OFFICE & MEMBER, ANIMAL LAW COMMITTEE<br />

Finding a suitable rental property to call<br />

home can be a stressful and difficult<br />

process at the best of times, but even more<br />

so for a prospective tenant with a pet.<br />

The law concerning pets and the rights<br />

and obligations of residential tenants<br />

(prospective and existing), landlords, and<br />

strata and community title owners can be<br />

complex. Below I consider some of the<br />

common questions and issues regarding<br />

pets in rental properties, by reference to<br />

the relevant legislation in South Australia.<br />

WHAT IS A PET?<br />

Currently, the term ‘pet’ is not defined<br />

in the Residential Tenancies Act 1995. In<br />

its submission on the Residential Tenancies<br />

(Renting with Pets) Amendment Bill 2020 (the<br />

Bill), the Society (informed by the Animal<br />

Law Committee) suggested including a<br />

definition in the Bill to provide clarity<br />

and distinguish ‘pet’ animals from various<br />

other animals defined in legislation, in<br />

particular assistance dogs and therapeutic<br />

animals. 1 The Bill was negatived by the<br />

Legislative Council on 31 March, <strong>2021</strong>.<br />

THE LANDLORD’S DISCRETION?<br />

A landlord can refuse a tenancy based<br />

solely on the prospective tenant owning<br />

a pet, unless the animal in question is a<br />

therapy or assistance animal.<br />

An ‘assistance animal’ is a dog that is<br />

an accredited assistance dog under the Dog<br />

and Cat Management Act 1995 (SA), or an<br />

animal of a class prescribed by regulation. 2<br />

Pursuant to section 66(e) of the Equal<br />

Opportunity Act 1984 (SA), it is unlawful to<br />

10<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong><br />

discriminate on the grounds of disability<br />

by treating a person with a disability<br />

unfavourably because the person possesses,<br />

or is accompanied by, an assistance animal,<br />

or because of a related matter. 3 This<br />

provision will apply in the context of<br />

rental property applications. Refusing an<br />

application for a rental property on the<br />

basis that the applicant has an assistance<br />

animal and that animal is to be kept on the<br />

rented premises is unlawful.<br />

A ‘therapeutic animal’ is an animal<br />

certified by a medical practitioner as<br />

being required to assist a person as a<br />

consequence of the person’s disability,<br />

or an animal of a class prescribed by<br />

regulation. 4 It is unlawful to refuse an<br />

application for accommodation (unless the<br />

refusal was reasonable in the circumstances<br />

of the case) or defer an application, on the<br />

ground that the applicant intends to keep a<br />

therapeutic animal at that accommodation. 5<br />

Depending on the property title,<br />

there may be considerations other than<br />

the landlord’s discretion which dictate<br />

whether a pet can be kept at the premises.<br />

If the rental property is strata titled,<br />

animals (except for therapy or assistance<br />

animals) 6 may not be kept without the<br />

strata corporation’s consent. 7 For rental<br />

properties on community title, the<br />

individual by-laws of the community title<br />

corporation will state whether the consent<br />

of the corporation is required to keep<br />

an animal (noting therapy and assistance<br />

animals are excepted 8 and by-laws may not<br />

unfairly discriminate against the ‘owner’<br />

of a pet). 9<br />

Pets are generally accepted in Housing<br />

SA properties provided they are suitable<br />

for the accommodation and the tenant<br />

undertakes the animal will not:<br />

• Disturb the neighbours with excessive<br />

barking<br />

• Be a nuisance or annoyance to the<br />

neighbours<br />

• Cause danger to any other person by<br />

wandering unsupervised<br />

• Is restrained on a leash when any<br />

person authority by Housing SA is on<br />

the premises<br />

• The property and yard are kept clean,<br />

tidy and free of animal waste. 10<br />

SHARE HOUSES & ROOMING HOUSES<br />

The obligations of a rooming house<br />

resident set out in the Residential Tenancies<br />

Act 1995 (SA) include not keeping<br />

an animal without the consent of the<br />

proprietor. 11<br />

In addition, it may be prudent (not to<br />

mention courteous) to consult the other<br />

residents in the house and obtain their<br />

consent for the pet to join the household.<br />

Introducing a pet to the household<br />

without the consent of other residents<br />

may expose the pet owner to risk. What<br />

if another resident is allergic to the pet<br />

and suffers a serious skin reaction and<br />

breathing problems? The most pressing<br />

argument in the share house may quickly<br />

pivot from whose turn it is to do the<br />

dishes or clean the bathroom to who is or<br />

is not liable for a claim from the allegedly<br />

injured resident for personal injury and<br />

resulting economic loss.


RENTING WITH PETS<br />

AS QUIET AS A MOUSE - KEEPING A PET IN<br />

BREACH?<br />

Existing tenants may be served with<br />

a breach notice if a pet is discovered and<br />

the tenancy agreement specifically states<br />

‘no pets’. 12 A landlord could also make<br />

an application to the South Australian<br />

Civil and Administrative Tribunal seeking<br />

termination of the residential tenancy and<br />

an order for possession of the premises,<br />

alleging that the tenant has caused or<br />

permitted a nuisance or an interference<br />

with the reasonable peace, comfort or<br />

privacy of another person who resides in<br />

the immediate vicinity of the premises. 13<br />

Pointon v Champion & Champion 14 is a<br />

tragic example of just how badly breach<br />

situations can end. In this case, the tenant<br />

kept a pet dog on the premises in breach<br />

of the tenancy agreement. The landlords<br />

failed to give notice of intention to enter<br />

the property. When the landlord and a<br />

tradesperson entered the property, the<br />

pet dog escaped. Sadly, the dog was later<br />

struck by a vehicle and died. The Tribunal<br />

found that the landlords were not liable<br />

to pay compensation for the death of the<br />

dog and awarded compensation to the<br />

tenant in the amount of $200 in respect<br />

of the landlords’ breach of the tenancy<br />

agreement (above, and on one other<br />

occasion).<br />

A “PET BOND”?<br />

A landlord cannot require more<br />

than one bond for the same residential<br />

tenancy agreement. 15 A landlord could<br />

however decide to charge a higher bond in<br />

anticipation of pet damage as long as the<br />

bond does not exceed the relevant limit<br />

permitted under the Residential Tenancies Act<br />

1995 (SA). 16<br />

CONCLUSION<br />

The special place that pets hold<br />

in people’s lives should not be<br />

underestimated, and it follows that laws<br />

regulating pets and renting with pets in<br />

particular can have significant impact. For<br />

example, victims of domestic violence<br />

often delay leaving abusive circumstances<br />

due to a lack of available pet friendly<br />

accommodation and a fear the pet will<br />

be subject to violence and abuse after<br />

the victim has left. 17 In this regard, one<br />

of the objectives of the ‘Safe Kennels<br />

DV Project’ of the RSPCA South<br />

Australia is to advocate for an increase<br />

in pet friendly rental accommodation. 18<br />

Each of the States and Territories have<br />

approached the challenge of striking<br />

a balance between the position of pet<br />

owners and the rights of landlords and<br />

neighbours differently. 19 As recently as<br />

14 October, <strong>2021</strong>, Queensland passed<br />

the Housing Legislation Amendment Bill<br />

<strong>2021</strong>, a Bill which includes reforms<br />

aimed at encouraging more pet friendly<br />

rental accommodation and providing a<br />

framework for negotiations about renting<br />

with pets. Whether legislative reform<br />

ultimately occurs in South Australia<br />

remains to be seen, but it is clear that<br />

issues concerning the resident pet are<br />

here to stay. B<br />

Endnotes<br />

1 https://www.lawsocietysa.asn.au/pdf/<br />

L161120toHonMarkParnellreResidential.pdf<br />

2 Dog and Cat Management Act 1995 (SA), s 5<br />

3 Equal Opportunity Act 1984 (SA), s 66(e).<br />

4 Ibid s88A. Note ‘therapeutic animal’ does<br />

not include an assistance animal, a dangerous<br />

dog within the meaning of the Dog and Cat<br />

Management Act 1995 (SA) or a dog of a<br />

prescribed breed within the meaning of the Dog<br />

and Cat Management Act 1995 (SA).<br />

5 Ibid s 88A.<br />

6 Strata Titles Act 1988 (SA), s 19(4)(c), (d).<br />

7 Strata Titles Act 1988 (SA), Schedule 3, article 4.<br />

8 Community Title Act 1996 (SA), s 37(1)(d), (e).<br />

9 Community Title Act 1996 (SA) s 38(1)(b)<br />

10 https://www.sa.gov.au/topics/housing/publicand-community-housing/tenants/pets-inhousing-sa-properties<br />

11 Section 105R(1)(b).<br />

12 Residential Tenancies Act 1995 (SA), s 80.<br />

13 Ibid s 90.<br />

14 [2015] SACAT 13 (6 October 2015).<br />

15 Residential Tenancies Act 1995 (SA), s 61(1)(a).<br />

16 Ibid s 61(1)(b).<br />

17 Renting with pets landlord fact sheet (www.<br />

sa.gov.au)<br />

18 Safe Kennels DV project - RSPCA South<br />

Australia (rspcasa.org.au)<br />

19 The Residential Tenancies Act 1997 (ACT),<br />

Residential Tenancies Act 1997 (Vic) and Residential<br />

Tenancies Act 1999 (NT) provide processes which<br />

are arguably more ‘pet friendly’, where tenants<br />

give notice or seek consent of the landlord<br />

and the landlord has a period within which to<br />

make an application to refuse or object. Cf<br />

Residential Tenancies Act 2010 (NSW), Residential<br />

Tenancy Act 1997 (Tas), Residential Tenancies Act<br />

1987 (WA) and Residential Tenancies Act 1995<br />

(SA). Queensland is in the midst of legislative<br />

reform – see the Housing Legislation Amendments<br />

Bill <strong>2021</strong> and the Residential Tenancies and Rooming<br />

Accommodation Act 2008 (Qld).<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 11


Q&A<br />

Know Your Council Member:<br />

Melanie Tilmouth<br />

The Bulletin spoke to Melanie Tilmouth, who was recently<br />

appointed Vice President (Female) of the Law Society for<br />

<strong>2021</strong>-22, about her career to date, the value of giving<br />

back to the profession, and the burning issues in the law<br />

that she thinks need to be addressed.<br />

Can you please give a brief overview of<br />

your career to date?<br />

am a Family and Divorce Senior<br />

I Solicitor working at Resolve Divorce<br />

Lawyers.<br />

I initially undertook my clerkship with<br />

Tony Kerin, who was then at Johnston<br />

Withers and it was Tony who sparked my<br />

interest in practice, for which I will be<br />

forever grateful.<br />

I then worked for a medium sized firm<br />

firstly in one of their county offices before<br />

moving to their city office a few years<br />

later. I always recommend working in the<br />

country to graduate lawyers. It is such a<br />

fantastic way to have immediate, handson<br />

experience and work out where your<br />

passion lies without being pigeon holed<br />

early on in your career. I slowly gravitated<br />

towards family law and it was then that<br />

I realised that I wanted to be mentored<br />

to refine my skills and I moved to work<br />

within Jane Miller’s family law team in a<br />

large firm. The resources of a large firm<br />

allowed us to work on very interesting and<br />

complex matters and Jane was such an<br />

inspiring leader and continues to be a great<br />

mentor. When Jane was called to the bar I<br />

then moved to my current position.<br />

What drew you to a career in law?<br />

Initially, I chose to study law in<br />

conjunction with a degree in international<br />

studies with the hope of a career<br />

in international diplomacy. It was a<br />

requirement of my degree at Flinders<br />

University that I undertake a clerkship. My<br />

clerkship under supervision of Tony Kerin<br />

was transformative. He sparked my interest<br />

in practice and helped me understand that<br />

legal practice is being in the service of<br />

others and your community.<br />

What drew you to your current<br />

workplace/area of law?<br />

Early on in my career I had no in<br />

interest family law but working in general<br />

practice in the country meant that I had<br />

no option but to give it a go. I then found<br />

it so rewarding to help people at some<br />

of the most challenging times of their<br />

life, particularly given that the decisions<br />

I helped them make could have such<br />

significant impact on their future.<br />

I was drawn to working at Resolve<br />

Divorce Lawyers as it was female led with<br />

my director recently having returned from<br />

maternity leave like me. The firm sees the<br />

opportunity to improve the way in which<br />

clients experience family breakdown. I<br />

also am a strong believer in the firm’s<br />

philosophy that the law is only a part<br />

of the puzzle of family breakdown and<br />

you need to help your client build a team<br />

of support people around them such as<br />

psychologists, financial and other advisors<br />

to support them to help them achieve their<br />

best outcome.<br />

Why did you nominate for Council?<br />

When I began practice in the country,<br />

I felt disconnected from the profession so<br />

I joined the Young Lawyers Committee<br />

(YLC) as a way of reconnecting. This<br />

was the start of my journey with the<br />

Law Society and when I decided to step<br />

down at co-chair of the YLC I wanted<br />

to continue to remain closely connected<br />

with the profession, and Council felt like<br />

a natural step. I feel strongly about giving<br />

Melanie Tilmouth<br />

back to the profession, supporting each<br />

other and the community and Council<br />

provides those opportunities.<br />

What have you got out of being a<br />

Council Member?<br />

I was gained a much deeper<br />

understanding of various functions of<br />

the Society and the significant amount of<br />

work it does for the profession. There is<br />

momentous amount of work that goes<br />

on behind the scenes. I have been able<br />

to connect with other members of the<br />

profession, outside my area of practice,<br />

which has had positive impact personally<br />

and professionally.<br />

What do you see as the key challenges<br />

for the legal profession?<br />

Some of the key challenges facing the<br />

profession include:<br />

• The ongoing under funding of the<br />

justice system both at a state and<br />

federal level.<br />

12<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong>


Q&A<br />

• Up-skilling lawyers and graduates as<br />

the profession evolves. It is no longer<br />

enough to know the law. You need<br />

to be adequately equipped to provide<br />

excellent service to your clients.<br />

• The retention of women beyond their<br />

early 30s in the law and particularly in<br />

leadership roles.<br />

• Meeting the challenges that have<br />

recently under the spot light<br />

including bullying, harassment and<br />

discrimination within the profession.<br />

What do you see as the key<br />

opportunities for the legal profession?<br />

With the increased reliance on<br />

technology and artificial intelligence our<br />

role as lawyers is less about explaining the<br />

law and more about the journey that our<br />

client experiences throughout their legal<br />

problem. As lawyers we therefore have<br />

great opportunities to be creative and<br />

offer an experience to our clients, not just<br />

an outcome.<br />

What key issues do you think the<br />

Society should be advocating for?<br />

Key issues that I think the Society<br />

should be advocating for include:<br />

• Improved workplaces for lawyers<br />

that address the bulling, harassment,<br />

discrimination and cultural issues that<br />

the profession currently faces.<br />

• The underfunding of the justice<br />

system at state and federal levels.<br />

• The proper funding of the Fidelity Fund.<br />

• Legislative reform to make it faster and<br />

more cost effective for clients in the<br />

legal system.<br />

• Access to Justice.<br />

What advice would you give to<br />

practitioners who are interested<br />

in serving or improving the legal<br />

profession and justice system?<br />

Join a special interest committee of<br />

the Society to test the water and see if<br />

being involved in the society is something<br />

for you. There is such a diverse range of<br />

committees to be involved it.<br />

I also an advocate for practitioners<br />

being kinder to each other. Great<br />

outcomes are achieved for our clients<br />

through respectful dialogue, not big egos<br />

and aggressive communication.<br />

What are some of your interests<br />

outside of the law?<br />

I have a 10 week ago old (at the time<br />

of print) and a toddler both of whom are<br />

keeping me very busy at the moment.<br />

My husband is a winemaker so I<br />

have no choice but to enjoy good food<br />

and wine.<br />

Yoga and gardening are fantastic<br />

antidotes to the busyness that comes with<br />

juggling work and parenting. B<br />

New Adelaide Judge of the<br />

Federal Circuit and Family Court<br />

Dr Anna Parker has been appointed as<br />

a Judge of Division 2 of the Federal<br />

Circuit and Family Court of Australia<br />

(FCFCOA), Adelaide.<br />

Judge Parker graduated with a Bachelor<br />

of Arts (Hons) and Bachelor of Laws<br />

(Hons) in 2005 from Monash University.<br />

She has subsequently also completed a<br />

Master of Laws from the University of<br />

Melbourne and a Doctor of Juridical<br />

Science from Monash University.<br />

Judge Parker completed her Articles<br />

of Clerkship at Harwood Andrews<br />

Lawyers and subsequently practised<br />

as a solicitor in the area of family<br />

law at specialist family law firms for<br />

approximately 10 years, including as a<br />

Partner of a family law firm.<br />

Judge Parker was accredited as a Family<br />

Law Specialist by the Law Institute of<br />

Victoria in 2011. She was called to the Bar<br />

in May 2016 and practised as a Barrister<br />

exclusively in family law from 2016 until<br />

her commencement as a Senior Judicial<br />

Registrar and National Operations Judicial<br />

Registrar – Judicial Case Management<br />

with the Federal Circuit and Family Court<br />

of Australia in <strong>December</strong> 2020. While a<br />

Senior Judicial Registrar with the Court,<br />

Judge Parker was a member of the Rules<br />

Harmonisation Working Group and played<br />

a critical role in the development of the<br />

Court’s new Central Practice Direction<br />

and new case management pathway.<br />

Three recent judicial appointments<br />

to the FCFCOA announced on 26<br />

November are:<br />

• Barrister Richard Schonell SC,<br />

appointed to Division 1 of the<br />

FCFCOA, Sydney<br />

• Barrister Andrew Strum QC,<br />

appointed to Division 1 of the<br />

FCFCOA, Melbourne<br />

• Barrister Dearne Firth, appointed to<br />

Division 2 of the FCFCOA, Brisbane<br />

These appointments follow the<br />

appointment of 11 new judges to the<br />

Court that were announced in October. B<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 13


IN HONOUR<br />

Vale: Mark Glencraig Nicholls<br />

MICHAEL RODER QC<br />

Michael Roder QC reflects on the life of his great friend<br />

Mark Nicholls (25 August 1963 - 13 August <strong>2021</strong>), whose<br />

immense contribution to the community belied his<br />

genuine modesty.<br />

first met Mark Nicholls in 1974 at St<br />

I Peters College in Adelaide. I was lucky<br />

to do so.<br />

During his years at St Peter’s College<br />

Mark excelled. He became a school prefect<br />

and house captain in 1979.<br />

He had many outside interests,<br />

including sport, all outdoor activities,<br />

scouting, and the Air Force.<br />

After completing school he told me<br />

that he had been shortlisted for a Rhodes<br />

scholarship, but as usual he told me this<br />

news without a hint that he thought this<br />

was anything remarkable.<br />

He did not end up heading to Oxford<br />

to study. He commenced a law and<br />

economics degree at the University of<br />

Adelaide in 1980.<br />

During his time at university he<br />

continued to love sports, scouts and was<br />

involved in many other activities, not least<br />

of all dancing in a trademark enthusiastic<br />

style of most of the early 1980s Adelaide<br />

discos.<br />

He and his lifelong friend Bill Reid<br />

became scout leaders at Rose Park at the<br />

age of 18. Bill remembers them speaking<br />

with bewilderment about what those<br />

parents of the late 1970s were doing<br />

entrusting their young ones’ safety to two<br />

teenagers on bush hikes and camps.<br />

Mark also worked when he was at<br />

university, from a full three-month stint at<br />

a silo, hay fever and all, to a volunteer in a<br />

mission that he told me was supposed to<br />

be located in Vanuatu, but he ended up in<br />

Peshawar on the Afghanistan border at the<br />

age of 19.<br />

Mark was popular throughout his law<br />

school days, not least for his beautifully<br />

14<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong><br />

written lecture notes, which he was always<br />

willing to share. It never worried him if<br />

others got a better score on open book<br />

exams with the benefit of copying his<br />

notes.<br />

Mark graduated in 1985 with an<br />

honours degree in law and a degree in<br />

economics. He later completed a masters<br />

degree in law in 1989 whilst working full<br />

time as a lawyer.<br />

On graduating, there were many<br />

professional opportunities for Mark. The<br />

family law firm run by his mother Illa and<br />

father Chris awaited and he practised there<br />

for a short period.<br />

But he chose his own path. He gained<br />

a position, based in Canberra, as a High<br />

Court judge’s associate to His Honour<br />

Justice Dawson. It was, and is, highly<br />

unusual for a graduate from Adelaide law<br />

school to obtain such a position. As a<br />

young associate, he undoubtedly impressed<br />

Justice Dawson, it being notable that<br />

he was given co-authorship credits on a<br />

published journal article with the learned<br />

Judge in his first year as an associate.<br />

Mark always had the view that he was<br />

incredibly fortunate in his life. He would<br />

often say that he had already “won the<br />

lottery” just by being born here. He was<br />

always motivated by “giving something<br />

back”.<br />

His opportunity came in the early<br />

1990s, a few years after the Human Rights<br />

and Equal Opportunity Commission<br />

(<strong>HR</strong>EOC) was established. He was<br />

appointed as General Counsel of the<br />

Commission.<br />

The principles enshrined and the<br />

remedies now provided for in the<br />

Mark Nicholls<br />

Sex Discrimination Act 1984, the Racial<br />

Discrimination Act 1975and the Disability<br />

Discrimination Act 1993 are now accepted as<br />

everyday norms in Australian society but<br />

they were not entrenched in that same way<br />

when the Commission was established.<br />

Mark was identified by the <strong>HR</strong>EOC<br />

as a contributor to the landmark Stolen<br />

Generations report “Bringing them<br />

Home”, in 1997, and as a contributor to<br />

the 1994 <strong>HR</strong>EOC report into the Sex<br />

Discrimination Act.<br />

Several reports of <strong>HR</strong>EOC published<br />

in the 1990s acknowledge his role in<br />

overseeing and enforcing the introduction<br />

and implementation of the groundbreaking<br />

Disability Discrimination Act 1993.<br />

He also addressed the Australian<br />

Senate in 1997 on critical amendments<br />

to the Human Rights and Equal Opportunity<br />

Act, designed to ensure that there were<br />

constitutionally enforceable remedies for<br />

those who had been subject to conduct<br />

that contravened these Acts.<br />

Mark also made submissions to the


IN HONOUR<br />

High Court in a series of ground-breaking<br />

human rights cases.<br />

On behalf of the Commission, he<br />

intervened on behalf of a Mr Croome,<br />

who was seeking to have Tasmania’s laws<br />

criminalising homosexuality declared<br />

unconstitutional. He also intervened<br />

on behalf of a young girl who had<br />

been denied refugee status in Australia<br />

on the basis that she had already been<br />

forcibly sterilised because of her race and<br />

therefore had nothing more to fear or<br />

worry about.<br />

Yet another example of his work was<br />

his intervention on behalf of a disabled<br />

worker who had been dismissed because<br />

of his disability when minor modifications<br />

to his job could have remedied the<br />

difficulty.<br />

In all cases, his written submissions<br />

- which are still available on the internet -<br />

reflected his clarity of thought, empathy<br />

and basic humanity.<br />

Remarkably, he also found the time<br />

whilst doing this to donate his time to be<br />

the head of the main New South Wales<br />

community volunteer legal service.<br />

I wish I could tell you how Mark<br />

reflected on all of this, but I cannot. He<br />

never discussed any of these things in any<br />

detail with his friends. He was perhaps<br />

the least boastful person I have met.<br />

Fortunately a historical record exists of<br />

many of his contributions.<br />

In the early 2000s, Mark returned to<br />

Adelaide, now with his wife Teresa and a<br />

young family. He had worked as a senior<br />

lawyer in a large Sydney corporate law<br />

firm, but it was not a career for him.<br />

He established his own consultancy<br />

for a short time, but most of his working<br />

life in this state was spent with One Steel,<br />

Arrium and now GFG, the owners of the<br />

steel works at Whyalla.<br />

Mark (and the owners) were always<br />

concerned about the need for reliable and<br />

cheap energy and the need to embrace<br />

renewable energy.<br />

As his brother Chris recalls, Mark came<br />

up with the idea of creating hydroelectric<br />

power by storing and pumping water from<br />

a disused mining pit.<br />

That idea was embraced years later<br />

by GFG as part of their overall plan, still<br />

being implemented today, to develop a<br />

carbon neutral plan and to contribute to<br />

the greening of Whyalla. The latter part<br />

of his working life was devoted to seeing<br />

that project completed, until serious illness<br />

intervened. His legacy to the town of<br />

Whyalla and to its principal business will<br />

remain for many decades.<br />

Mark Nicholls was a great friend and<br />

lawyer. His achievements reflected what he<br />

valued.<br />

Mark is survived by his wife Teresa,<br />

and children Georgia, Sam and Max. He<br />

never got tired of telling me how much he<br />

loved them. B<br />

MEMBERS ON<br />

THE MOVE<br />

MEMBERS ON THE MOVE<br />

The Honourable Steve Strickland<br />

QC wishes to advise the profession<br />

that he is returning to private practice<br />

as a barrister, arbitrator, mediator, and<br />

consultant generally in appeals and first<br />

instance trials.<br />

Enquiries as to his availability,<br />

fees and generally can be directed to<br />

Campbell Chambers.<br />

Email: admin@campbellchambers.com.au;<br />

stricklandqc@gmail.com.<br />

Phone: (08) 8110 4900<br />

HON STEVE STRICKLAND QC<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN<br />

15


DISABILITY JUSTICE<br />

More collaboration between legal<br />

profession and disability community<br />

key to breaking down barriers<br />

CATIA MALAQUIAS<br />

When my son Julius was born 12 years<br />

ago, my husband and I welcomed<br />

him into the world in the same way we had<br />

welcomed his older sister, as a precious<br />

child with a clear future of possibilities.<br />

Our approach didn’t change when<br />

we were told the next day, “We believe<br />

that your baby has Down syndrome”, but<br />

suddenly looking through a very different<br />

prism, clouded with doubt, fear and<br />

confusion, his future possibilities were<br />

obscured.<br />

I didn’t actually know anyone with<br />

Down syndrome, and like most people of<br />

my generation, I didn’t grow up attending<br />

school and getting to know children with<br />

disabilities; instead, I had good oldfashioned<br />

myths and stereotypes, prejudice<br />

and low expectations to refer to. But<br />

prejudices are learned, and they can be<br />

unlearned, and I’ve been trying to unlearn<br />

mine ever since then.<br />

Today, Julius is a happy, thriving child.<br />

He is no longer just a little brother, but<br />

a big brother as well. And next month<br />

he will graduate from year 6 at our local<br />

Primary School, leaving his younger sister<br />

behind and joining his big sister at our<br />

local high school.<br />

Parenting Julius is not particularly<br />

different to parenting his sisters; there are<br />

joys and challenges for each of them and<br />

each is their own person, needing some of<br />

the same things and also some different<br />

things.<br />

The real difference in parenting Julius<br />

is in the way that my husband and I<br />

have had to advocate for him, to protect<br />

his rights and to ensure that he has the<br />

same opportunities for participation as<br />

his sisters and most children their age;<br />

starting with his fundamental human<br />

right to inclusive education - learning in a<br />

regular class at his neighbourhood school<br />

with non-disabled peers and disabled<br />

peers. A right that is subconsciously and<br />

consciously resisted by many who assume<br />

or think his place should be a “special”<br />

place - for “special” people – starting with<br />

segregated “special” education.<br />

We have certainly faced those<br />

challenges along the way, but with my<br />

husband and I being lawyers, it’s fair to say<br />

that Julius has a level of parental-school<br />

engagement, rights-based advocacy and<br />

socio-economic privilege that many other<br />

children with disability do not.<br />

The fact is, many Australians with<br />

disability, who represent approximately<br />

1 in 6, or 4 million of us, continue to<br />

experience significant discrimination,<br />

exclusion and victimisation in a variety<br />

of ways. In 2019 the Australian Human<br />

Rights Commission reported that 43.7%<br />

of complaints were about disability<br />

discrimination. There are other statistics<br />

in relation to unemployment and poverty,<br />

sexual abuse and incarceration, in particular<br />

for First Nations people with disability, that<br />

are even more shocking.<br />

A Royal Commission established by the<br />

Federal Government is currently examining<br />

violence against, and the neglect, abuse and<br />

exploitation of, people with disability.<br />

As a lawyer, I placed a high level of<br />

trust in the legal system to deliver justice<br />

to people with disability, like my son,<br />

through equality of rights and protections<br />

against discrimination. But as a parent<br />

and an advocate, I came to understand<br />

the different ways in which disability can<br />

be used to circumvent people’s rights and<br />

to realise that, too often, laws either fail<br />

to protect people with disability from<br />

discrimination or, in many cases, they<br />

actually legitimise the denial of equal rights.<br />

A few years ago, I met George<br />

Newhouse, the CEO and Principal<br />

Solicitor of the National Justice Project,<br />

at a human rights event in Sydney. I was<br />

aware of the important work of the<br />

National Justice Project in using legal<br />

action to break down barriers to justice<br />

and welcomed the opportunity to talk<br />

to him about some of these problems<br />

and the challenges that Australians with<br />

disability continue to face in realising some<br />

of the most basic human rights: access to<br />

education and health, reproductive rights,<br />

accessibility including to housing and<br />

public spaces, restrictive practices, denial<br />

of legal capacity and incarceration.<br />

So, this year, when George asked me<br />

to be involved in the National Justice<br />

Project’s “Law Hack <strong>2021</strong>: Disability<br />

Justice” as the Lead Mentor for Advocacy,<br />

I jumped at the chance. I couldn’t wait<br />

to be involved and was excited about the<br />

possibilities.<br />

As Scott Avery, an Indigenous<br />

disability advocate and senior lecturer at<br />

Western Sydney University, said of the<br />

event, “We’re going to change the world<br />

and we’re going to disrupt the system.”<br />

“Law Hack <strong>2021</strong>: Disability Justice”<br />

didn’t disappoint. The event was held<br />

across two days on 14 October and 22<br />

October. It brought together bright<br />

minds, passionate hearts and brilliant<br />

professionals, around the idea of strategic<br />

litigation as a tool for legal reform or as<br />

a potential catalyst to publicly expose<br />

inequality or unfairness, create public<br />

debate, empower people with disability<br />

to have a voice in that debate and build<br />

pressure for change.<br />

16<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong>


DISABILITY JUSTICE<br />

Close to 50 participants, making<br />

up 10 teams convened from the legal,<br />

community, academic and advocacy<br />

sectors, came together to hear speakers<br />

with disabilities, participate in workshops<br />

on strategic litigation and disability<br />

advocacy, share ideas and inspire one<br />

another to act by participating in a<br />

‘pitch day’ event where they presented<br />

their solutions to one of five “problem<br />

statements”, before a panel of esteemed<br />

judges with lived experience of disability.<br />

Natalie Wade, the founder of Equality<br />

Lawyers and Vice President of Australian<br />

Lawyers for Human Rights chaired<br />

the judging panel which also included<br />

former Federal Disability Discrimination<br />

Commissioner Graeme Innes AM, Rob<br />

Silberstein, Advisory Board Member,<br />

National Justice Project, Margherita<br />

Coppolino, President, National Ethnic<br />

Disability Alliance and Scott Avery.<br />

While the Law Hack was taken online<br />

due to COVID-19 restrictions, this turned<br />

out to be an advantage in many ways<br />

because it allowed for the creation of<br />

teams with participants from across the<br />

country, working together despite being<br />

miles apart.<br />

Collaboration between legal<br />

professionals, people with disability and<br />

advocacy organisations was at the core of<br />

the event, embodying the guiding principle<br />

of the international disability rights<br />

movement “nothing about us without us”,<br />

articulated by Matthew Hall, CEO Arts<br />

Access Australia and Law Hack Mentor, in<br />

his speech on pitch day.<br />

The National Justice Project team<br />

worked with community partners; the<br />

Jumbunna Institute for Indigenous<br />

Education and Research, the Council<br />

for Intellectual Disabilities, First Peoples<br />

Disability Network Australia, National<br />

Ethnic Disability Alliance , People<br />

with Disability Australia, Women With<br />

Disability Australia and Arts Access<br />

Australia in developing the “challenge”<br />

statements and curating relevant<br />

information and materials for the “hack<br />

packs”.<br />

I had the opportunity to observe the<br />

value of this collaboration first-hand, in<br />

my role as Advocacy Mentor assisting<br />

the teams to consider how a parallel<br />

advocacy strategy can be utilised, together<br />

with litigation, to deliver disability justice<br />

outcomes.<br />

For example, in exploring the idea<br />

for a new emergency services branch to<br />

support people with a disability and divert<br />

them from the criminal justice system,<br />

the winning team of Jessica Pereira,<br />

Carolyn Ledinh, Jim Simpson and Fraser<br />

Bignell looked to a model that has been<br />

implemented overseas based on a standard<br />

triple zero phone call to access emergency<br />

support. As well as discussing how<br />

litigation may be used in making the case<br />

for this idea, they explored ways to make<br />

it more accessible for people who may not<br />

be able to use a standard phone service,<br />

such as people who are non-speaking and<br />

may be able to access the service via an<br />

app instead.<br />

Accessibility was also front-of-mind<br />

for the organising team at the National<br />

Justice Project, to ensure that accessibly<br />

needs were identified and addressed,<br />

including by providing written materials,<br />

captioning, image descriptions and Auslan<br />

sign language interpreters for the event.<br />

While each participant played different<br />

roles and brought diverse insights and<br />

expertise, we all shared a common<br />

purpose: to use our collective knowledge,<br />

wisdom and experience in a range of areas<br />

to tackle the injustices facing Australians<br />

living with disabilities, by identifying and<br />

exploring effective and ground-breaking<br />

legal solutions.<br />

I hope some of the ideas canvassed<br />

during “Law Hack <strong>2021</strong>: Disability Justice”<br />

will be explored further, and I look<br />

forward to seeing where they may lead.<br />

But, most importantly, I hope the<br />

event has paved the way for more to come;<br />

much-needed increased collaboration<br />

between the legal profession and the<br />

disability community, to change laws and<br />

government policy, reform systems and<br />

challenge and reshape community attitudes<br />

that are needed for people with disability<br />

to have equal opportunities and improved<br />

outcomes.<br />

It will take time, of course, to<br />

overcome the insidious legacy of<br />

centuries of exclusion, segregation and<br />

marginalisation of people with disability,<br />

which legacy continues to constrain<br />

attitudinal change and public policy - but<br />

the world we build for tomorrow will be<br />

born of the ‘disrupting’ actions we take<br />

today, if we are to ensure that the prism to<br />

future possibilities for people like my son<br />

Julius will not remain clouded.<br />

Catia Malaquias is a lawyer and human<br />

rights advocate. She is the Founder and Director<br />

if non-profi t disability inclusion organisation<br />

Starting with Julius, and Co-Founder of several<br />

organisations including All Means All – The<br />

Australian Alliance for Inclusive Education;<br />

School Inclusion Parent Network Project; and<br />

Global Alliance for Disability in Media and<br />

Entertainment. She is also a Director of Attitude<br />

Foundation; and Down Syndrome Australia. B<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 17


FEATURE<br />

THE NEED TO THINK OUTSIDE<br />

CITY COMMERCIAL PRACTICE:<br />

ENCOURAGING LAW STUDENTS<br />

TO WORK WITH REGIONAL AND<br />

ABORIGINAL COMMUNITIES<br />

DR DAVID PLATER, CHLOE WINTER, CHARLOTTE ORDYNSKI AND CAYLEIGH STOCK 1<br />

The legal profession in both private and<br />

public practice, despite reports of an<br />

oversupply of law graduates, has difficulty<br />

in recruiting and retaining lawyers and legal<br />

professionals in rural, regional and remote<br />

(RRR) areas, 2 including in South Australia. 3<br />

Many RRR law firms and community legal<br />

agencies (including those working with<br />

Aboriginal communities) continuously<br />

struggle to find suitable lawyers to fill<br />

vacancies when they arise and are impeded<br />

by the drain of corporate knowledge<br />

caused by a constant staff turnover. 4 Law<br />

students generally consider RRR legal<br />

work to be somehow ‘inferior’ to city<br />

commercial practice. 5 Students are typically<br />

unaware of the nature, diversity and quality<br />

of rural and regional practice. Students<br />

are also often unaware about the value of<br />

working with Aboriginal communities.<br />

On 15-16 July, <strong>2021</strong>, as part of an<br />

Adelaide Law School initiative to address<br />

these issues, eight diverse Law School<br />

students; Chloe Winter, Mitchell Dunn,<br />

Arissa Robles-Rangel, Christina Akele,<br />

Charlotte Ordynski, Izak Coombe, Jack<br />

Woolford and Cayleigh Stock, joined a<br />

trip to Port Pirie and Port Augusta led by<br />

Dr Mark Giancaspro, 6 Nadia Hess 7 and<br />

Dr David Plater. 8 The aim of the trip<br />

was for students to hear firsthand about<br />

working with regional and Aboriginal<br />

communities and to encourage students<br />

to think beyond city commercial practice<br />

and consider working with RRR and/or<br />

Aboriginal communities. 9<br />

This trip proved eye opening. As one<br />

student, Charlotte, summarised:<br />

The trip provided more than the<br />

opportunity to network with our peers<br />

and legal professionals, but the ability<br />

to see a future of legal practice beyond<br />

the typical corporate pathway, and see<br />

the ability to make a difference and be a<br />

meaningful part of a community.<br />

THE PROBLEMS<br />

There are regular reports of the<br />

oversupply of law graduates in Australia<br />

and the difficulty in finding employment. 10<br />

There are even reports of law graduates ‘so<br />

desperate to kickstart their careers they’re<br />

willing to pay big bucks to land their first<br />

job’. 11 The former Prime Minister, Malcolm<br />

Turnbull, advised: ‘I think too many kids do<br />

law.’ 12 One law student even said: ‘It is near<br />

impossible just to get an unpaid clerkship.’ 13<br />

However, such negative perceptions<br />

do not convey the whole picture. 14 As<br />

early as 2009, a Senate Report noted the<br />

lack of lawyers willing to work in RRR<br />

areas as a ‘fundamental problem’. 15 Both<br />

community legal services, as well as RRR<br />

private practices, struggle to attract and<br />

retain staff. 16 There is an acute shortage of<br />

lawyers in regional and rural Australia, 17<br />

including those working with Aboriginal<br />

communities. 18 Aboriginal legal services<br />

also face challenges regarding their<br />

18<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong>


FEATURE<br />

ability to attract and retain staff. 19 These<br />

trends are likely to only intensify over<br />

coming years as a large proportion of the<br />

senior legal practitioners in RRR areas<br />

have indicated an intention to retire, 20<br />

compounded by many junior lawyers who<br />

have indicated an intention to make RRR<br />

practice a short-term career option only. 21<br />

Addressing issues around the attraction<br />

and retention of lawyers in RRR areas is<br />

important for two reasons: first, having<br />

legal practitioners living and working<br />

within RRR communities is essential to<br />

sustainable, healthy communities. 22 ‘Once<br />

a community loses its doctor, lawyer,<br />

accountant, it becomes difficult to sustain<br />

a vibrant, healthy community.’ 23 Secondly,<br />

lawyers living in these communities play a<br />

vital role to facilitate access to justice for<br />

the local community. In addition, lawyers<br />

are important to RRR areas as they carry<br />

out a large amount of legal aid work,<br />

more than their city counterparts. They<br />

also undertake significant pro bono and<br />

voluntary work within their communities. 24<br />

The shortage of lawyers outside of<br />

the city is adverse in terms of access to<br />

justice for a significant proportion of<br />

Australia’s population, 25 especially Aboriginal<br />

communities. 26 There are concerns regarding<br />

the considerable levels of unmet legal<br />

need – civil, criminal and family – in RRR<br />

communities. 27 Legal practitioners in these<br />

areas undertake a considerable amount of<br />

vital legal aid, pro bono work and voluntary<br />

community work, and a decrease in the<br />

availability of these services is likely to<br />

restrict access to justice in these areas even<br />

further. 28 These issues are compounded for<br />

Aboriginal communities which are more<br />

likely to experience multiple, intersecting<br />

legal problems, including elevated legal<br />

need in areas of, among others, crime, civil,<br />

government, child protection, tenancy,<br />

discrimination, social security, credit and<br />

consumer issues, and family law and family<br />

violence. 29 These ‘acute’ access to justice<br />

issues for Aboriginal communities are<br />

‘heightened in RRR areas where service<br />

gaps are particularly severe’. 30 The access to<br />

justice gaps in RRR communities are also<br />

telling for victims of family violence. 31 ‘It<br />

has been acknowledged that better access<br />

to legal services and remedies can play an<br />

important role in alleviating economic and<br />

social disadvantage.’ 32<br />

These concerns also arise in South<br />

Australia. Morry Bailes, a leading local<br />

lawyer, has observed:<br />

There is a legal black hole in regional<br />

and rural South Australia. It’s a problem<br />

facing the entire country. About<br />

30% of people live outside a major<br />

Australian city… Yet only 10.5% of the<br />

legal profession work in these regions.<br />

Little wonder we have a crisis in our<br />

justice system for rural and regional<br />

residents. These statistics… paint a<br />

truly disturbing picture of the difficulty<br />

regional people have in accessing<br />

lawyers or even recognising that they<br />

have a legal problem. 33<br />

The typical Law School course<br />

does not actively prepare or promote<br />

law students to work with RRR 34 or<br />

Aboriginal communities. There is often<br />

a perception amongst law students<br />

that RRR legal work is ‘inferior’ to city<br />

commercial practice. 35 Such perceptions<br />

of the quality and breadth of RRR legal<br />

work are unjustified, 36 but are widely held.<br />

As one Brisbane law student in a study<br />

remarked: ‘There’s kind of a top tier or<br />

nothing approach which is incredibly<br />

frustrating …’. 37 Another law student<br />

referred to students’ ‘fixation on the big<br />

glass building in the city …’ and their own<br />

belief that ‘the city sets the pace of legal<br />

life.’ 38 As a young lawyer has observed, city<br />

practice is typically the ‘most commonly<br />

marketed avenue presented to [students] at<br />

university and any other options have an<br />

unnecessary and unspoken stigma attached<br />

... there is a common misconception that<br />

anything other than a corporate role in<br />

a top tier city firm is not considered real<br />

legal work.’ 39 These comments are also<br />

applicable in a South Australian context.<br />

Indeed, law students are largely<br />

unaware that working with RRR<br />

communities or Aboriginal communities<br />

is a viable, diverse and worthwhile<br />

employment option as a 2012 Queensland<br />

study found. 40 Whilst there are challenges<br />

such as distance and travel, 41 there are<br />

many benefits in rural and regional legal<br />

practice, notably the diversity and breadth<br />

of the work and quality of the lifestyle. 42<br />

As Paul Boylan, a leading Port Pirie<br />

lawyer, has said:<br />

You get much more responsibility,<br />

much earlier than you otherwise would.<br />

I had one lawyer who by the second<br />

anniversary of her admission to the Bar<br />

and starting to practise law, she’d been<br />

the instructing solicitor on two appeals<br />

to the Full Court of the Family Court,<br />

two to the Full Federal Court and she’d<br />

been instructing in the High Court as<br />

well. That’s unheard-of in the city. 43<br />

There is a need to encourage law<br />

students to think of life outside city<br />

commercial practice and learn about the<br />

quality and breadth of both regional life<br />

and legal practice. 44<br />

THE TRIP<br />

The law student engagement trip was<br />

funded by a one off Faculty of Professions<br />

teaching grant.<br />

On 15 July, <strong>2021</strong>, the trip was<br />

made very welcome by the ALRM and<br />

Umeewarra Radio in Port Augusta and<br />

heard from Charlie Jackson and other<br />

local Elders and members of Aboriginal<br />

communities and Rachel Lane and other<br />

lawyers from the ALRM. The session<br />

highlighted to the students the value and<br />

importance of working with Aboriginal<br />

communities and crucially ‘making a<br />

difference’. Chloe Winter took part in<br />

an interview on Umeewarra Radio about<br />

working with Aboriginal communities.<br />

Chloe said: ‘It was very valuable to get to<br />

interact with members of a community<br />

on a deeper, less superficial level, and have<br />

genuine conversation about the need for<br />

change with those who know it firsthand.’<br />

Cayleigh described this as a powerful<br />

and invaluable session in which everyone<br />

took part and was not an experience that<br />

could have been replicated over Zoom.<br />

‘The informal round table discussion<br />

was key to the upfront discussion with<br />

the Elders who shared cultural practices<br />

and moving first-hand experiences of<br />

generational trauma.’<br />

Charlotte elaborated on this session:<br />

Speaking to Charlie Jackson and the<br />

other Elders was an eye opening and<br />

powerful experience. The stories he<br />

shared with us really highlighted the<br />

major disconnect between Aboriginal<br />

Law and Western Law. Charlie described<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 19


FEATURE<br />

Western Law as having judges, barristers<br />

and solicitors but noted that Aboriginal<br />

Law has this too, it just doesn’t look the<br />

same as it does for Western Law. This<br />

was something I had probably rather<br />

naively, never considered before and<br />

made me question what more can be<br />

done to reconcile these two systems<br />

of law to operate more harmoniously,<br />

rather than one at the expense of<br />

another. It was an absolute honour and<br />

privilege to have spoken to Charlie and<br />

I would love for more students to have<br />

this incredible opportunity.<br />

In the evening, the students joined an<br />

extended dinner in Port Pirie with local<br />

lawyers and the Hon Geoff Brock, the<br />

local State MP, and the Deputy Mayor. The<br />

quality of regional legal work and lifestyles<br />

were highlighted. As Cayleigh said:<br />

‘This dinner continued to highlight the<br />

immense value of working within regional<br />

communities and the vast opportunities<br />

available for young lawyers who are willing<br />

to commit.’<br />

On 16 July, the students explored Port<br />

Pirie before an extended meeting with Mr<br />

Brock MP, to hear about working and living<br />

in Port Pirie. Cayleigh noted: ‘His passion<br />

and commitment to the community was<br />

clear, with locals stopping by to have a chat<br />

on the street highlighting Mr Brock MP as<br />

first and foremost a community member.’<br />

Students then took part in an interview<br />

with the Port Pirie newspaper. Charlotte<br />

Ordynski took part in an ABC Radio<br />

interview. 45 The students were then hosted<br />

by Paul Boylan and John Voumand,<br />

leading local lawyers, to learn more<br />

about the nature and width of RRR legal<br />

practice. The students also heard about<br />

the role and ongoing work and regional<br />

consultation of SALRI.<br />

THE THEMES<br />

The trip proved very successful. Chloe<br />

summarised the value of the trip and its<br />

wider application:<br />

It was a rare experience, not just in the<br />

context of the information learnt, and<br />

connections made with locals and legal<br />

professionals located in the area, but<br />

also in the realisation of the immense<br />

breadth of legal work available outside<br />

of major cities. Regional areas have a lot<br />

20 THE BULLETIN <strong>December</strong> <strong>2021</strong><br />

of valuable experience to offer to young<br />

professionals. Perhaps my greatest<br />

realisation following the trip was that<br />

there are many options to be considered<br />

outside of the traditional path we are<br />

encouraged to follow after graduation.<br />

I had not imagined practicing regionally<br />

prior to the trip or think I would gain so<br />

much personally from the experience.<br />

Life after Law School is a daunting<br />

prospect at the best of times, especially<br />

with the “unprecedented” pandemic<br />

and competition for graduate positions.<br />

The opportunity to go on this trip was<br />

important, in helping us remember why<br />

we wanted to study law, and our ability<br />

to make a difference after all.<br />

The Adelaide Law School and the<br />

eight law students would like to thank all<br />

who contributed to the trip’s success. 46<br />

It is hoped to be the start of an ongoing<br />

program. There is no one ‘magic bullet’<br />

to address the problems in attracting and<br />

retaining lawyers in RRR areas. 47 However,<br />

the need to promote RRR practice as a<br />

positive long-term career option should be<br />

highlighted. There is a need to encourage<br />

law students to consider working with<br />

regional and Aboriginal communities and<br />

to think beyond city commercial practice. B<br />

Endnotes<br />

1 Dr David Plater is the Deputy Director of the<br />

South Australian Law Reform Institute (SALRI)<br />

based at the Adelaide Law School. Chloe Winter is<br />

in her final year of a Bachelor of Commerce, and<br />

her penultimate year of a Bachelor of Laws at the<br />

University of Adelaide. Charlotte Ordynski is in<br />

her fifth year of studying Law and has completed<br />

a Bachelor of Criminology. Cayleigh Stock is<br />

in her second year of studying Law and is also<br />

studying a Bachelor of International Relations.<br />

2 Trish Mundy, ‘Attracting and Retaining Lawyers:<br />

a Problem for Rural, Regional and Remote<br />

Communities’ (2009) 34(1) Alternative Law Journal 32.<br />

3 Morry Bailes, ‘Incentives Needed to Encourage<br />

Lawyers to “Go Bush”’, In Daily (online,<br />

31 October 2019), https://indaily.com.au/<br />

opinion/2019/10/31/incentives-needed-toencourage-lawyers-to-go-bush/.<br />

4 Law Council of Australia and Law Institute of<br />

Victoria, Report into the Rural, Regional and Remote<br />

Areas Lawyers Survey (July 2009) 5-6, 21; Trish<br />

Mundy, ‘“Placing” the Other: Final Year Law<br />

Students’ “Imagined” Experience of Rural and<br />

Regional Practice within the Law School Context’<br />

(2012) International Journal of Rural Law and Policy<br />

1, 2; Law Council of Australia, The Justice Project:<br />

Final Report Part 1: Rural, Regional and Remote (RRR)<br />

Australians (2018) 3, 32-33, 37-38.<br />

5 Trish Mundy, ‘“Placing” the Other: Final Year<br />

Law Students’ “Imagined” Experience of Rural<br />

and Regional Practice within the Law School<br />

Context’ (2012) International Journal of Rural Law<br />

and Policy 1, 4-6.<br />

6 Dr Mark ‘Matt’ Giancaspro is a Lecturer at the<br />

Adelaide Law School. ‘Matt’ is a native of Port<br />

Pirie and passionate about encouraging law<br />

students to work in regional communities.<br />

7 Nadia Hess is a PhD student at the Adelaide Law<br />

School and is from Port Lincoln. Nadia is also<br />

passionate about encouraging law students to<br />

work in regional communities.<br />

8 The trip was joined in conjunction with a regional<br />

SALRI consultation trip by Brooke Washusen,<br />

Holly Nicholls and Anita Brunacci.<br />

9 Christian Cominos, ‘Law Students Encouraged to<br />

Come Work in the Country’, The Recorder (online,<br />

20 July 2017), ;<br />

Shari Hams, ‘Law Students Learn about Injustices<br />

for Aboriginal People in SA’s Court System’, ABC<br />

News (online, 29 August <strong>2021</strong>), .<br />

10 See, for example, Liz Burke, ‘Desperate Law<br />

Graduates are Apparently Prepared to Pay for<br />

their Jobs’, Lawyers Weekly, 3 September 2015,<br />

https://www.news.com.au/finance/work/<br />

careers/desperate-law-graduates-areapparently-prepared-to-pay-for-their-jobs/<br />

news-story/3ec2472a2b46780632061664b<br />

9491d2e; Michael Douglas and Nicholas Van<br />

Hattem, ‘Australia’s Law Graduate Glut’ (2016)<br />

41(2) Alternative Law Journal 118; Felicity Nelson,<br />

‘New Law Schools May Leave Grads Stranded’,<br />

Lawyers Weekly (online), 29 September 2015; Marie<br />

Iskander, ‘The Deserving and the Under-Served: a<br />

Comment on the Oversupply of Law Graduates,<br />

Diversity in the Legal Profession and Access to<br />

Legal Representation’ (2017) 5(1) Griffith Journal<br />

of Law and Human Dignity 66, 67; Angela Melville,<br />

‘It is the worst time in living history to be a law<br />

graduate: or is it? Does Australia have too many<br />

Law Graduates?’ (2017) 51(2) The Law Teacher<br />

203; Emma Ryan, ‘Frustration Grows over<br />

Unis “Cashing In” on Law Grad Oversupply’,<br />

Lawyers Weekly, 19 February 2018, https://<br />

www.lawyersweekly.com.au/sme-law/22768-<br />

frustration-grows-over-unis-cashing-in-onlaw-grad-oversupply.<br />

11 Liz Burke, ‘Desperate Law Graduates are<br />

Apparently Prepared to Pay for their Jobs’, news.<br />

co.au, 3 September 2015, https://www.news.<br />

com.au/finance/work/careers/desperatelaw-graduates-are-apparently-prepared-topay-for-their-jobs/news-story/3ec2472a2b467<br />

80632061664b9491d2e.<br />

12 Louise Yaxley, ‘Don’t Study Law Unless You<br />

Really Want to be a Lawyer, Malcom Turnbull<br />

Says’, ABC News (online, 2 February 2018),<br />

https://www.abc.net.au/news/2018-02-02/<br />

malcolm-turnbull-says-too-many-kids-dolaw/9387508.<br />

13 Marie Iskander, ‘The Deserving and the Under-<br />

Served: a Comment on the Oversupply of Law<br />

Graduates, Diversity in the Legal Profession<br />

and Access to Legal Representation’ (2017) 5(1)<br />

Griffith Journal of Law and Human Dignity 66, 73.


FEATURE<br />

14 See Ibid.<br />

15 Parliament of Australia, Legal and Constitutional<br />

Affairs References Committee, Access to Justice<br />

(<strong>December</strong> 2009) [2.104].<br />

16 Law Council of Australia, The Justice Project: Final<br />

Report Part 1: Rural, Regional and Remote (RRR)<br />

Australians (2018) 3, 32-33, 37-38. For particular<br />

issues in recruiting and retaining staff in the<br />

community sector, see: at 37; Michael Cain<br />

and Suzie Forell, ‘Recruitment and Retention<br />

of Community Sector Lawyers: Regional<br />

differences Within New South Wales’ (2014)<br />

16(1) Deakin Law Review 265. These themes have<br />

also emerged in anecdotal feedback to Dr Mark<br />

‘Matt’ Giancaspro and Nadia Hess as well as to<br />

SALRI on its regular regional consultation trips,<br />

as supported by wider research, notably the Law<br />

Council of Australia. See also Law Institute<br />

of Victoria and the Law Council of Australia,<br />

Rural, Regional and Remote Areas Lawyers Survey<br />

(Law Council of Australia, 2009); Law Council<br />

of Australia, The Justice Project: Final Report Part 1:<br />

Rural, Regional and Remote (RRR) Australians (2018).<br />

17 See, for example, Law Council of Australia and<br />

Law Institute of Victoria, Report into the Rural,<br />

Regional and Remote Areas Lawyers Survey (July 2009)<br />

5-6, 21; Damien Carrick, ‘Lawyer Drought’, ABC<br />

Law Report, 14 July 2009, https://www.abc.<br />

net.au/radionational/programs/lawreport/<br />

lawyer-drought/3071010; Trish Mundy,<br />

‘Attracting and Retaining Lawyers: a Problem for<br />

Rural, Regional and Remote Communities’ (2009)<br />

34(1) Alternative Law Journal 32; Trish Mundy,<br />

‘A HECS Rebate? Ways to Attract and Retain<br />

Graduate Lawyers in Rural, Regional and Remote<br />

Communities’ (2010) 35(2) Alternative Law Journal<br />

99; Suzie Forell, Michael Cain and Abigail Gray,<br />

Recruitment and Retention of Lawyers in Regional,<br />

Rural and Remote New South Wales (Law and Justice<br />

Foundation of NSW, September 2010); Natalie<br />

O’Brien, ‘Plea Goes Out For Lawyers, To Be<br />

Sure’, Sydney Morning Herald (online, 3 July 2011);<br />

Louise Fitzroy, ‘Regional Lawyer Shortage Could<br />

Jeopardise Access to Justice Says Law Council’,<br />

ABC Rural, 5 November 2015; Law Council of<br />

Australia, The Justice Project: Final Report Part 1:<br />

Rural, Regional and Remote (RRR) Australians (2018)<br />

3, 32-33, 37-38.<br />

18 Melanie Schwartz and Chris Cunneen, ‘Working<br />

Cheaper, Working Harder: Inequity in Funding<br />

for Aboriginal and Torres Strait Islander Legal<br />

Services’, (2009) 7 Indigenous Law Bulletin 10, 19;<br />

Law Council of Australia, The Justice Project: Final<br />

Report Part 1: Aboriginal and Torres Strait islander<br />

People (2018) 39; Law Council of Australia, The<br />

Justice Project: Final Report Part 1: Rural, Regional and<br />

Remote (RRR) Australians (2018) 37.<br />

19 Law Council of Australia, The Justice Project: Final<br />

Report Part 1: Aboriginal and Torres Strait Islander<br />

People (2018) 39.<br />

20 Law Institute of Victoria and the Law Council of<br />

Australia, Rural, Regional and Remote Areas Lawyers<br />

Survey (Law Council of Australia, 2009) 5, 11, 14, 21.<br />

21 Law Institute of Victoria and the Law Council of<br />

Australia, Rural, Regional and Remote Areas Lawyers<br />

Survey (July 2009) 6, 21; Damien Carrick, ‘Lawyer<br />

Drought’, ABC Law Report, 14 July 2009, https://<br />

www.abc.net.au/radionational/programs/<br />

lawreport/lawyer-drought/3071010.<br />

22 Trish Mundy, ‘“Placing” the Other: Final Year<br />

Law Students’ “Imagined” Experience of Rural<br />

and Regional Practice within the Law School<br />

Context’ (2012) International Journal of Rural Law<br />

and Policy 1, 2.<br />

23 Law Council of Australia, The Justice Project: Final<br />

Report Part 1: Rural, Regional and Remote (RRR)<br />

Australians (2018) 42.<br />

24 See, for example, Ibid 3, 28-29, 31, 35, 40-41;<br />

Law Institute of Victoria and the Law Council of<br />

Australia, Rural, Regional and Remote Areas Lawyers<br />

Survey (July 2009) 16-17; Trish Mundy, ‘“Placing”<br />

the Other: Final Year Law Students’ “Imagined”<br />

Experience of Rural and Regional Practice within<br />

the Law School Context’ (2012) International Journal<br />

of Rural Law and Policy 1, 2.<br />

25 See generally Law Council of Australia, The Justice<br />

Project: Final Report Part 1: Rural, Regional and Remote<br />

(RRR) Australians (2018).<br />

26 Law Council of Australia, The Justice Project: Final<br />

Report Part 1: Aboriginal and Torres Strait Islander<br />

People (2018) 4, 39, 42-43.<br />

27 Maria Karras et al, Law and Justice Foundation of<br />

New South Wales, On the Edge of Justice: The Legal<br />

Needs of People with a Mental Illness in NSW (2006)<br />

110-113; Law Council of Australia, The Justice<br />

Project: Final Report Part 1: Rural, Regional and Remote<br />

(RRR) Australians (2018) 3, 24-42.<br />

28 Law Institute of Victoria and the Law Council of<br />

Australia, Rural, Regional and Remote Areas Lawyers<br />

Survey (Law Council of Australia, 2009) 16-17, 21.<br />

29 Chris Cunneen, Fiona Allison and Melanie<br />

Schwartz, ‘Access to Justice for Aboriginal People<br />

in the Northern Territory’ (2014) 49(2) Australian<br />

Journal of Social Issues 219.<br />

30 Law Council of Australia, The Justice Project: Final<br />

Report Part 1: Aboriginal and Torres Strait Islander<br />

People (2018) 4.<br />

31 Law Council of Australia, The Justice Project: Final<br />

Report Part 1: People Who Experience Family Violence<br />

(2018) 46-47. Law Council of Australia, The Justice<br />

Project: Final Report Part 1: Rural, Regional and Remote<br />

(RRR) Australians (2018) 39.<br />

32 Chris Cunneen, Fiona Allison and Melanie<br />

Schwartz, ‘Access to Justice for Aboriginal People<br />

in the Northern Territory’ (2014) 49(2) Australian<br />

Journal of Social Issues 219, 220.<br />

33 Morry Bailes, ‘Incentives Needed to Encourage<br />

Lawyers to “Go Bush”’, In Daily (online,<br />

31 October 2019), https://indaily.com.au/<br />

opinion/2019/10/31/incentives-needed-toencourage-lawyers-to-go-bush/.<br />

34 See Trish Mundy, ‘“Placing” the Other: Final Year<br />

Law Students’ “Imagined” Experience of Rural<br />

and Regional Practice within the Law School<br />

Context’ (2012) International Journal of Rural Law<br />

and Policy 1; Amanda Kennedy et al, ‘Educating<br />

Law Students for Rural and Regional Practice:<br />

Embedding Place Based Perspectives in Law<br />

Curricula’ (2014) 24(1) Legal Education Review 6.<br />

35 Amanda Kennedy et al, ‘Educating Law Students<br />

for Rural and Regional Practice: Embedding Place<br />

Based Perspectives in Law Curricula’ (2014) 24(1)<br />

Legal Education Review 6, 12-13.<br />

36 Amanda Kennedy et al, ‘Educating Law Students<br />

for Rural and Regional Practice: Embedding Place<br />

Based Perspectives in Law Curricula’ (2014) 24(1)<br />

Legal Education Review 6, 13.<br />

37 Trish Mundy, ‘“Placing” the Other: Final Year<br />

Law Students’ “Imagined” Experience of Rural<br />

and Regional Practice within the Law School<br />

Context’ (2012) International Journal of Rural Law<br />

and Policy 1, 4.<br />

38 Ibid.<br />

39 K McFarlane, ‘Attracting Graduates to Regional<br />

and Rural Australia: A Personal Experience’<br />

(Paper presented at the National Rural/ Regional<br />

Law and Justice Conference, Warrnambool,<br />

Victoria, 19-21 November 2010) 2.<br />

40 Trish Mundy, ‘“Placing” the Other: Final Year<br />

Law Students’ “Imagined” Experience of Rural<br />

and Regional Practice within the Law School<br />

Context’ (2012) International Journal of Rural Law<br />

and Policy 1, 4-6.<br />

41 Amanda Kennedy et al, ‘Educating Law Students<br />

for Rural and Regional Practice: Embedding Place<br />

Based Perspectives in Law Curricula’ (2014) 24(1)<br />

Legal Education Review 6, 11-12.<br />

42 Damien Carrick, ‘Lawyer Drought’, ABC Law<br />

Report, 14 July 2009, https://www.abc.net.au/<br />

radionational/programs/lawreport/lawyerdrought/3071010.;<br />

Paul Brazier, Elizabeth<br />

Lehmann, ‘Cassandra Banks and Sally Davies,<br />

‘The Perks of Going Rural’, Law Society Journal, 1<br />

<strong>December</strong> 2014, https://lsj.com.au/articles/<br />

the-perks-of-going-rural/.<br />

43 Damien Carrick, ‘Lawyer Drought’, ABC Law<br />

Report, 14 July 2009, https://www.abc.net.au/<br />

radionational/programs/lawreport/lawyerdrought/3071010.<br />

44 Louise Fitzroy, ‘Regional Lawyer Shortage Could<br />

Jeopardise Access to Justice says Law Council’,<br />

ABC Rural, 5 November 2015, https://www.<br />

abc.net.au/news/rural/2015-11-05/rural-andregional-lawyer-shortage-threatens-access-tojustice/6915136.<br />

45 Shari Hams, ‘Law Students Learn about Injustices<br />

for Aboriginal People in SA’s Court System’, ABC<br />

News (online, 29 August <strong>2021</strong>), .<br />

Brooke Washusen of SALRI was also interviewed<br />

on the local ‘Golden Oldies’ radio morning show.<br />

46 The trips’ participants would like to express<br />

their thanks for the support of the Faculty of<br />

Professions; Paul Boylan and his colleagues; John<br />

Voumand; Rachel Lane, the ALRM and its Port<br />

Augusta staff; the Hon Geoff Brock MP; the<br />

Deputy Mayor of Port Pirie, Alan Zubrinich;<br />

Holly Nicholls, Brooke Washusen and Anita<br />

Brunacci of SALRI and Dean ‘Elvis’ Vegas of the<br />

Ellen Hotel. A particular thanks to Charlie Jackson<br />

and the Elders and members of the Port Augusta<br />

Aboriginal communities and Umeewarra Radio<br />

for their generous and insightful input.<br />

47 Trish Mundy, ‘“Placing” the Other: Final Year<br />

Law Students’ “Imagined” Experience of Rural<br />

and Regional Practice within the Law School<br />

Context’ (2012) International Journal of Rural Law<br />

and Policy 1, 6.<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 21


ANIMAL LAW<br />

Therapy or assistance animals:<br />

What’s the difference?<br />

RENÉE EVANS, SENIOR SOLICITOR, CROWN SOLICITOR’S OFFICE & MEMBER, ANIMAL LAW COMMITTEE<br />

DIANA THOMAS, CHAIR, ANIMAL LAW COMMITTEE<br />

Assistance and therapeutic animals<br />

can have a tremendous positive<br />

impact on those they serve. The South<br />

Australian legal profession has witnessed<br />

this impact firsthand through the Canine<br />

Court Companion project, an initiative<br />

of the Office of the Director of Public<br />

Prosecutions, in partnership with Guide<br />

Dogs SA/NT. During his time in active<br />

service, Zero, South Australia’s inaugural<br />

court companion dog, assisted many victims<br />

and vulnerable witnesses and became a<br />

much-loved staff member at the Office of<br />

the Director of Public Prosecutions. Some<br />

of the common questions about assistance<br />

and therapy animals are answered below.<br />

WHAT IS THE DIFFERENCE BETWEEN AN<br />

ASSISTANCE ANIMAL AND A THERAPEUTIC<br />

ANIMAL?<br />

A therapeutic animal can be any animal<br />

certified by a medical practitioner as being<br />

required to assist a person as a consequence<br />

of the person’s disability, or an animal of a<br />

class prescribed by regulation. 1<br />

For example, until January of this year<br />

Canberra was home to a herd of therapy<br />

Alpacas who regularly made visits to<br />

vulnerable persons including those with<br />

severe mental trauma. 2<br />

Anecdotally, post-COVID 19, many<br />

Strata and Community Title residences 3<br />

are seeing previously barred animals being<br />

allowed to stay, with their therapy animal<br />

status confirmed by a doctor’s letter.<br />

For the purposes of the Disability<br />

Discrimination Act 1992 (Cth) (‘DDA’), an<br />

assistance animal is a dog or other animal: 4<br />

a. accredited under a law of a State<br />

or Territory that provides for the<br />

accreditation of animals trained to assist<br />

a person with a disability to alleviate the<br />

effect of the disability; or<br />

b. accredited by an animal training<br />

organisation prescribed by the<br />

regulations for the purposes of this<br />

paragraph; or<br />

c. trained:<br />

22 THE BULLETIN <strong>December</strong> <strong>2021</strong><br />

i. to assist a person with a disability to<br />

alleviate the effect of the disability;<br />

and<br />

ii. to meet standards of hygiene and<br />

behaviour that are appropriate for<br />

an animal in a public place.<br />

What constitutes appropriate “standards<br />

of hygiene and behaviour” for an assistance<br />

animal in a public place is not defined in the<br />

DDA and is open to interpretation.<br />

Pursuant to the Equal Opportunity Act<br />

1984 (SA), “assistance animal” means a<br />

dog that is an accredited assistance dog<br />

under the Dog and Cat Management Act 1995<br />

(SA), or an animal of a class prescribed by<br />

regulation. 5 The Dog and Cat Management<br />

Act 1995 (SA) defines “assistance dog” as<br />

a dog trained and used for the purpose of<br />

assisting a person who is wholly or partially<br />

disabled and includes a dog undergoing<br />

training of a kind approved by the Board<br />

for the purposes of this definition. 6<br />

HOW DO DOGS QUALIFY TO BE<br />

ASSISTANCE DOGS?<br />

An assistance animal must meet the<br />

requirement of ‘accreditation’ to fall within<br />

the definition of ‘assistance animal’ in<br />

the legislation. In South Australia, only<br />

prescribed accreditation bodies may, on<br />

application, accredit a dog, or renew the<br />

accreditation of a dog, as an assistance dog. 7<br />

Prescribed accreditation bodies include<br />

the Dog and Cat Management Board; The<br />

Royal Society for the Blind of SA Inc; the<br />

Guide Dogs Association of South Australia<br />

and Northern Territory Inc; Lions Hearing<br />

Dogs Inc; and any other person or body<br />

declared by regulation.<br />

DO OWNERS HAVE TO CARRY A COPY<br />

OF THE ACCREDITATION? CAN I REFUSE<br />

ENTRY OR ASK THEM TO LEAVE IF THEY<br />

CANNOT PRODUCE ACCREDITATION?<br />

Owners can be asked to produce<br />

evidence that the dog is an assistance dog.<br />

It is an offence to claim that a dog is an<br />

assistance dog unless it is accredited under<br />

SA’s fi rst canine court companion Zero<br />

the Dog and Cat Management Act 1995 (SA)<br />

or covered by the DDA.<br />

With various approaches to<br />

accreditation and regulation of assistance<br />

animals in each jurisdiction, it is not difficult<br />

to see how confusion and complaints can<br />

arise, particularly for people travelling<br />

interstate with their assistance dogs: 8<br />

• Victoria – an Assistance Animal Pass is<br />

required and issued by Public Transport<br />

Victoria permitting assistance animals<br />

to travel on public transport. 9<br />

• Western Australia – The Public<br />

Transport Authority doesn’t require<br />

permits for assistance animals to travel<br />

on public transport. There is local<br />

government legislation providing for<br />

animals to have an ID card and a dog<br />

coat/harness. 10<br />

• Queensland – A Handler’s Identity<br />

Card is valid for 5 years allowing<br />

travel on public transport. Also,<br />

Translink (South East Queensland<br />

Transport Authority) issues an Animal<br />

Pass provided the dog meets certain<br />

standards of behaviour in public. 11<br />

• South Australia – The Dog and Cat<br />

Management Board issues a Disability<br />

Dog Pass that is valid indefinitely. 12<br />

• New South Wales – An Assistance<br />

Animal Permit is required for access<br />

to public transport; however, Guide<br />

dogs and Hearing dogs do not require<br />

a permit. The permit must be renewed<br />

annually. 13


ANIMAL LAW<br />

• Australian Capital Territory,<br />

Northern Territory and Tasmania –<br />

no system of accreditation exists and<br />

no specific passes are issued.<br />

Reaching a decision on whether the<br />

evidence demonstrates the animal meets<br />

the definition of ‘assistance dog’ and<br />

taking action to refuse entry or ask the<br />

person and the assistance animal to leave<br />

may have legal consequences, as the cases<br />

below demonstrate:<br />

Mulligan v Virgin Australia (2015) 14<br />

involved a DDA claim. Virgin refused to<br />

allow Mr Mulligan (who has cerebral palsy<br />

and hearing and vision impairments) to<br />

travel on its flights with his assistance dog.<br />

The Federal Court found Virgin’s conduct<br />

amounted to illegal discrimination and<br />

awarded compensation of $10,000. It also<br />

found the Civil Aviation Regulations did<br />

not override the DDA.<br />

Queensland Health v Forest (2008) 15<br />

involved a DDA complaint by Mr Forest<br />

(who has a psychiatric disability), that he<br />

was not allowed to be accompanied by<br />

assistance dogs (Buddy and, subsequently,<br />

Knuckles) when attending a public hospital<br />

and dental clinic. The trial judge found<br />

there had been unlawful discrimination<br />

and ordered $8,000 in compensation. On<br />

appeal, the Full Federal Court dismissed<br />

the complaint, finding that Mr Forest<br />

had not been denied access with his dogs<br />

because of his disability but because his<br />

dogs were “ill-behaved and ill-controlled”<br />

and there was inadequate evidence of<br />

proper assistance dog training.<br />

More information<br />

Travelling with assistance animals on<br />

aircraft:<br />

https://www.casa.gov.au/aircraft/<br />

cabin-safety/travellers-disability/travellingassistance-animals<br />

Public access rights for assistance<br />

animals: https://www.dpc.sa.gov.<br />

au/__data/assets/pdf_file/0019/33319/<br />

Guidelines-for-Planning-for-People-with-<br />

Assistance-Animals-in-Emerg_FINA....pdf<br />

page 9<br />

Renting with an assistance dog or<br />

therapeutic animal:<br />

https://dogandcatboard.com.au/<br />

dogs/renting-with-dogs B<br />

Endnotes<br />

1 Equal Opportunity Act 1984 (SA), s 88A. Note<br />

‘therapeutic animal’ does not include an assistance<br />

animal, a dangerous dog within the meaning of<br />

the Dog and Cat Management Act 1995 (SA) or a dog<br />

of a prescribed breed within the meaning of the<br />

Dog and Cat Management Act 1995 (SA).<br />

2 https://www.abc.net.au/news/<strong>2021</strong>-01-05/<br />

canberra-alpaca-therapy-hangs-up-reins-after-17-<br />

years/13033944<br />

3 Strata Titles Act 1988 (SA) , s 19 (4)(c); Community<br />

Titles Act 1996 (SA), s 37 (1)(d).<br />

4 Disability Discrimination Act 1992 (Cth) s 9 (2).<br />

5 Equal Opportunity Act 1984 (SA), s 5.<br />

6 Dog and Cat Management Act 1995 (SA), s 5.<br />

7 Dog and Cat Management Act 1995 (SA), s 21A.<br />

8 https://humanrights.gov.au/our-work/disabilityrights/projects/assistance-animals-and-disabilitydiscrimination-act-1992-cth<br />

9 https://www.ptv.vic.gov.au/tickets/myki/<br />

concessions-and-free-travel/assistance-animalpass/<br />

10 https://www.transperth.wa.gov.au/usingtransperth/animals<br />

11 https://translink.com.au/tickets-and-fares/tickettypes/disability/assistance-animal-pass<br />

12 https://dogandcatboard.com.au/dogs/assistancedogs<br />

13 https://www.service.nsw.gov.au/transaction/<br />

apply-assistance-animal-permit<br />

14 Mulligan v Virgin Australia Pty Ltd [2015] FCAFC<br />

130.<br />

15 Queensland (Queensland Health) v Forest<br />

[2008] FCAFC 96.<br />

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<strong>December</strong> <strong>2021</strong> THE BULLETIN 23


YOUNG LAWYERS<br />

facebook.com/YLCSA<br />

Young lawyers hold interactive<br />

ethics and wellbeing seminar<br />

MEGHAN FITZPATRICK, JONES HARLEY TOOLE<br />

The Young Lawyers’ Committee Ethics<br />

and Wellbeing Hypothetical Seminar<br />

for <strong>2021</strong> was held on Thursday, 7 October<br />

<strong>2021</strong> at the Law Society.<br />

We were fortunate to have panel<br />

members Greg May, Legal Profession<br />

Conduct Commissioner and Dr Michael<br />

Baigent, Professor of Psychiatry Flinders<br />

University return following previous<br />

appearances. We also introduced new<br />

panel members, Werner Van Wyk, Deputy<br />

Director Ethics & Practice Law Society of<br />

South Australia and Bec Sandford, Law<br />

Society President.<br />

The seminar was available to attend<br />

both in person at the Society or by way of<br />

live webinar and we were pleased to see so<br />

many new attendees both in person and<br />

online.<br />

Attendees were provided with<br />

scenarios on topics relevant to the<br />

Australian Solicitor Conduct Rules,<br />

ethical dilemmas and managing our<br />

mental health. Multiple choice answers<br />

were available by way of an interactive<br />

polling system and attendees identified<br />

the most appropriate answer. Our panel<br />

members then discussed the scenario and<br />

the best approach for dealing with the<br />

different situations young lawyers might<br />

find themselves in, particularly in the early<br />

stages of their career.<br />

A special thank you to our panel<br />

members for taking the time out of their<br />

busy schedules to offer their perspective<br />

and advice to young members of the<br />

profession.<br />

The Young Lawyers’ Committee would<br />

also like to thank all of the attendees who<br />

supported the event, the Law Society for<br />

hosting, major sponsor of the Young<br />

Lawyers’ Seminar Series legalsuper, as<br />

well as the Young Lawyers’ Committee<br />

major sponsor Burgess Paluch Legal<br />

Recruitment.<br />

Hills long lunch well above par<br />

O<br />

n Saturday 23 October, a group<br />

of Adelaide’s finest young lawyers<br />

enjoyed a long lunch in the Adelaide Hills.<br />

The event was a great success, with<br />

attendees first indulging themselves (after a<br />

slight detour) to a socially responsible glass<br />

of wine or three at Maximillian’s Restaurant.<br />

Here, a few of the young lawyers tried<br />

their luck at the restaurant’s infamous hole<br />

in one attraction. Despite the frequent<br />

screams of “FORE” being called, none of<br />

our young lawyers were successful in taking<br />

out the glory (and the $500 prize on offer).<br />

Lunch was then served at Lot 100,<br />

where their 78 Degree gin tasting and<br />

bottomless wood oven pizza was a huge hit.<br />

Without Caldicott & Isaacs Lawyers<br />

and Burgess Paluch Legal Recruitment who<br />

sponsored the event, the day wouldn’t have<br />

been such a great success, so thank you to<br />

both of them and of course all of those<br />

who attended on the day.<br />

24<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong>


EVENTS<br />

Mock Trial Competition <strong>2021</strong>:<br />

That’s the way the cookie crumbles<br />

STEPHANIE MOORE, MEMBER, MOCK TRIAL COMMITTEE<br />

On Tuesday 14 September, <strong>2021</strong>, the<br />

Mock Court of South Australia sat to<br />

hear the matter of Molini v Tudor: a personal<br />

injury claim arising from a bike accident<br />

caused by the defendant’s dog ‘Biscuit’.<br />

The plaintiff, represented by University<br />

Senior College, was Lee Molini, a young<br />

student working part time as a bicycle<br />

messenger. The defendant, represented by<br />

Pembroke School, was Jo Tudor, the owner<br />

of Biscuit, a male Doberman.<br />

The issue at trial was whether Ms<br />

Monlini’s fall was due to an attack by Biscuit<br />

and if so, whether Mr Tudor was negligent<br />

in keeping Biscuit secure in the front yard.<br />

Barristers Jada Puglisi and Jazlyn<br />

Southwell of University Senior College,<br />

and Alec Johnson and Thomas Eckert<br />

of Pembroke, impressed the judges with<br />

their persuasive intellect. All four barristers<br />

articulated thoughtful argument and<br />

questioned witnesses appropriately about<br />

their knowledge of Dobermans, cyclists<br />

and the Dog and Cat Management Act 1995<br />

(SA). The barristers were assisted by<br />

their instructing solicitors: Patrick Munn<br />

and Aastha Kumar of University Senior<br />

College, and Marwan Salih and Lisa Cao of<br />

Pembroke.<br />

The witnesses were equally as<br />

impressive and entertaining. Olivia<br />

Spandrio, as the plaintiff, dressed in a hi-vis<br />

vest. She was a convincing and credible<br />

witness who told the Court she had fallen<br />

off her bike due to an unruly dog. Prapti<br />

Dhawan, as the retired witness, who was<br />

more than happy to provide an account<br />

that Biscuit “barrelled” into the plaintiff ’s<br />

bike, performed her role well. Henry Ponte,<br />

as the defendant, painted a picture of a<br />

well-behaved Doberman, as did Moon Li,<br />

the witness who previously owned Biscuit.<br />

All witnesses experienced lengthy crossexamination.<br />

The Court was assisted by the Judge’s<br />

Associate, Lachie Davis, of Pembroke<br />

who kept everyone running on time and<br />

the Sherriff ’s Officer, Em Bonython, of<br />

University Senior College who maintained<br />

order in the Court.<br />

Ultimately, the Court (being Justice Tim<br />

Stanley, “Justice” Rebecca Stanford and<br />

“Justice” Stephanie Moore) were satisfied<br />

that Biscuit had caused the plaintiff to fall<br />

off her bike and that the defendant failed<br />

to take reasonable precautions to prevent<br />

his dog from escaping.<br />

University Senior College not only won<br />

its fictional case, but also took out the title<br />

as the winner of the Mock Trial overall.<br />

Jada Puglisi won the award for the<br />

Outstanding Competitor whilst Thomas<br />

Eckert won the Best Barrister award,<br />

including the invaluable added prize of a<br />

week’s work experience with Justice Stanley.<br />

Janine Campbell, the Legal Studies and<br />

History teacher from University Senior<br />

College said “The competition is fantastic.<br />

Students learn so much about law, but<br />

also develop a range of transferable skills<br />

such as problem solving, public speaking,<br />

collaboration etc. Over the years, for some<br />

of my students it has been a life-changing<br />

experience. Every now and then I meet<br />

parents who also remark on their memories<br />

of being in the competition many years<br />

ago.”<br />

Jacqui McCann, the legal teacher<br />

of Pembroke said “the students had a<br />

wonderful time working together over<br />

the six months and many new, strong<br />

friendships have been formed, which is a<br />

fabulous outcome.”<br />

The Mock Trial Committee offers<br />

its sincere thanks to Justice Stanley and<br />

Bec Sandford who helped to judge the<br />

grand final competition. Thank you also<br />

to all of the students and teachers who<br />

participated in this year’s competition<br />

and the members of the profession who<br />

volunteered their time to coach teams or<br />

judge trials throughout the year, including<br />

Chris Brohier who coached University<br />

Senior College and Professor Rick Sarre<br />

who informally coached Pembroke.<br />

The competition is an excellent<br />

opportunity for high school students<br />

in Adelaide to work with people in the<br />

profession and to gain valuable skills to<br />

help them in their potential, future legal<br />

carers. The Committee wishes to thank the<br />

volunteers from the legal profession, the<br />

Society and the Law Foundation of SA for<br />

their ongoing support of the Mock Trial<br />

Competition. B<br />

Winning team, University Senior College<br />

Winning team, University Senior College<br />

Best barrister Thomas Eckert,<br />

Pembroke School<br />

Outstanding Competitor Jada Puglisi,<br />

University Senior College<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 25


WELLBEING & RESILIENCE<br />

It's OK to grieve, and to<br />

reach out for support<br />

AMY NIKOLOVSKI, MANAGING PARTNER DBH LAWYERS AND MEMBER OF THE WELLBEING AND RESILIENCE COMMITTEE<br />

Trigger warning- this article discusses miscarriage and<br />

pregnancy loss<br />

As a member of the Wellbeing and<br />

Resilience Committee I was asked<br />

to write an article for this edition of the<br />

Bulletin. For anyone who knows me, I am<br />

the last person who should give any advice<br />

or guidance on wellbeing or work life<br />

balance, as mine is all out of whack. What<br />

I thought I could write about however was<br />

resilience.<br />

I am writing this article in October, which<br />

is not only Mental Health Month but also<br />

includes Pregnancy and Infant Loss awareness<br />

day which is on 15 October.<br />

Pregnancy and infant loss seems to<br />

be the last taboo topic in the profession<br />

and in society in general. Despite one in<br />

four pregnancies ending in loss, we are for<br />

some reason not supposed to talk about it.<br />

I am not sure why. So today, I am going to<br />

tell you my story.<br />

After struggling to conceive for six<br />

years with Niko, when I feel pregnant<br />

almost immediately with my second child<br />

it seemed like a miracle. I did all the things,<br />

had all the tests, and everything looked<br />

great. I had my first scan at eight weeks,<br />

when I heard her little heart beating at 171<br />

bpm, it was such a glorious sound. I had<br />

another at 10 weeks to go along with my<br />

NIPT testing, which confirmed all was<br />

well and that we were having a girl. We<br />

had our 12-week scan, and got the all clear.<br />

Those first three scans, I’m sure other<br />

parents can relate, you hold your breath<br />

just hoping that they are ok and it is such a<br />

relief to get the all clear.<br />

Niko found out he was going to be<br />

a big brother, and my husband and I<br />

announced to the world that a little girl<br />

would be joining us in August, <strong>2021</strong>. We<br />

were ecstatic.<br />

That was until Friday 12 February,<br />

<strong>2021</strong>, that day will be forever etched in my<br />

memory. I had an OB appointment, I was<br />

14 + 2, well into the second trimester and<br />

I thought that I was in the “safe zone”. It’s<br />

strange how life can turn so quickly. Only<br />

two weeks earlier we were celebrating the<br />

joyous news that we were having a little<br />

girl to make our family complete, so when<br />

I attended that day, I never expected the<br />

heartbreak that was to follow.<br />

As my OB zoomed over my stomach<br />

with the ultrasound wand, she said ‘baby<br />

is measuring a little small”… In response<br />

to that I thought “oh well, they can’t all be<br />

big like Niko”, but then she looked at me<br />

and said “I’m sorry, there’s no heartbeat”.<br />

She then wrote “NFH” on the screen,<br />

“No Foetal Heartbeat”.<br />

I actually said “but she was fine last<br />

week” like that was somehow supposed to<br />

make a difference.<br />

According to her size she had stopped<br />

growing about two days earlier, at what<br />

would have been 13 weeks and 6 days.<br />

After being comforted by my OB I was<br />

booked in for a d&c first thing Monday<br />

morning but I was sent home with my<br />

dead baby still inside me.<br />

My body was playing a cruel trick on<br />

me, because it hadn’t realised the baby<br />

had died and continued to have all of the<br />

reactions of a pregnant body. I still looked<br />

pregnant, still had morning sickness,<br />

nausea, food aversions and a heightened<br />

sense of smell, but my baby’s heart was no<br />

longer beating.<br />

Monday 15 February, at what should<br />

have been 14+5, just two weeks from<br />

learning the glorious news that we would<br />

be having a little girl join us in August was<br />

the day she was taken away.<br />

The last time my husband Tony and I<br />

arrived at Calvary Hospital together it was<br />

for the delivery of our beautiful boy, this<br />

time our baby wouldn’t be coming home<br />

with us.<br />

Because of COVID Tony couldn’t go<br />

past the entrance. I was guided into Day<br />

Surgery without him; I’ve never felt so<br />

alone.<br />

My OB greeted me at the theatre doors<br />

and hugged me as I cried on her shoulder.<br />

She held my hand as they put me to sleep<br />

through my silent tears, this time though<br />

the baby she would deliver wouldn’t be<br />

coming home with me.<br />

I know I’m not the first, nor will I<br />

be the last that this will happen to, I’ve<br />

got friends who’ve had to endure the<br />

devastation of still birth. However you lost<br />

your baby, I’m sorry for your loss.<br />

It has been eight months and I am<br />

still reminded of her and what might have<br />

been. Grief comes in waves. Those first<br />

few days and weeks were so hard. My body<br />

healed relatively quickly from the surgery<br />

but I am not sure my heart ever will.<br />

So why am I telling you this? Because<br />

if you, like me are part of this crappy club,<br />

I want you to know that it is ok to grieve,<br />

to tell your story and celebrate the baby<br />

you never had a chance to meet. One in<br />

four women have suffered a miscarriage. I<br />

am the one in four.<br />

Following my miscarriage so many<br />

people reached out to me, to tell me of<br />

their losses, how they never really truly felt<br />

like they could properly grieve, because<br />

26<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong>


WELLBEING & RESILIENCE<br />

they hadn’t told work, or had deadlines.<br />

How they had lost their babies in client<br />

meetings, but persevered through.<br />

The stories of those brave women and<br />

men really helped me through those first<br />

few weeks, knowing that they had been<br />

able to mend their broken hearts and their<br />

dreams of a child lost.<br />

I am not sure why the topic is<br />

so taboo, when so many of us have<br />

experienced this same devasting loss. It<br />

really shouldn’t be.<br />

I am here to tell you to take the time<br />

you need to heal and although the storm<br />

seems like it will never end, one day the<br />

fog will lift and you will be able to see the<br />

beauty in the world again. They say you<br />

can’t build resilience if you have never<br />

suffered loss or trauma, and although I<br />

would have much preferred another way to<br />

build my resilience, it is true. Little things<br />

that seemed so important don’t so much<br />

anymore because “it could be worse”.<br />

Thank you for reading my story, and<br />

if this resonated with you, or you too are<br />

part of the one in four, I am so sorry for<br />

your loss.<br />

Working from home or living at work?<br />

The great debate of our time<br />

ZOE LEWIS. CHAIR, WELLBEING & RESILIENCE COMMITTEE<br />

The Law Society’s Wellbeing &<br />

Resilience Committee was delighted<br />

to bring back the much-loved “Great<br />

Debate” in October, <strong>2021</strong> after a two-year<br />

pandemic-related hiatus. The Great Debate<br />

is a light-hearted way to celebrate Mental<br />

Health Month - a chance to score a free,<br />

healthy breakfast and some laughs before<br />

your work day begins.<br />

This year’s debaters battled it out on<br />

the topic of “WFH = LAW” (Working<br />

From Home = Living At Work). Both sides<br />

fought valiantly and raised many thoughtprovoking<br />

arguments. Does it all depend on<br />

your home environment such as whether you have a<br />

partner and kids also WFH and home-schooling?<br />

Surely WFH means you end up working extra<br />

hours because you can log on at any time? Mind<br />

you, maybe it gives you greater flexibility than<br />

ever? But what about the isolation from colleagues?<br />

Maybe not seeing your colleagues is a good thing!?<br />

In the end, our adjudicator, Magistrate<br />

Toni Vozzo, was unable to pick a winner<br />

and the event was declared a draw.<br />

The event featured dressing gowns,<br />

cat masks and many other props, and was<br />

thoroughly enjoyed by all who attended.<br />

We express our sincere thanks to our<br />

enthusiastic debaters (Floyd Bakewell, Dr<br />

Rachael Gray QC, Enzo Belperio, Adrian<br />

Cartland, Daniel Fox and Holly Veale) and<br />

adjudicator, Magistrate Toni Vozzo.<br />

Watch out for the Great Debate in<br />

October, 2022. You might even like to<br />

participate as a debater! If so, get in touch<br />

with the Committee via the Law Society. B<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 27


RISK WATCH<br />

Culturally and linguistically<br />

diverse clients: Ongoing<br />

challenges for lawyers (Part 1)<br />

GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS<br />

Language, and the understanding of<br />

language by clients, are critically<br />

important aspects of the practice of<br />

the law. Legal professional indemnity<br />

insurers across Australia have reported<br />

an increase in claims resulting from<br />

language issues. This is hardly surprising,<br />

given the diverse multi-cultural make-up<br />

of modern Australian society - the Court<br />

forms under the Uniform Civil Rules (Forms<br />

31-33) now provide for multi-lingual<br />

Notices of Claim covering 11 different<br />

languages, including English. Somewhat<br />

surprisingly, (apart from English) the only<br />

European languages included are Albanian<br />

and Greek - Italian, Spanish, German,<br />

French, Polish, Russian etc. do not have<br />

their own Forms.<br />

As is stated in the Preamble to the<br />

Courts Administration Authority’s<br />

Interpreter Protocols:<br />

“Fundamental principles of fairness and equity<br />

require that no person appearing before a Court<br />

should be disadvantaged in the proceedings or<br />

in understanding the procedures because of a<br />

language or other communication barrier.”<br />

The steps necessary to ensure that<br />

disadvantage is not visited upon clients<br />

who do not fully understand English<br />

present a number of challenges for<br />

lawyers.<br />

The Protocols provide that legal<br />

practitioners appearing in proceedings<br />

when an interpreter is assisting should<br />

adjust their advocacy accordingly. Some<br />

of the suggestions which are made are as<br />

follows:<br />

• short sentences are preferable and<br />

complex questions should be avoided<br />

• time must be adjusted to take account<br />

of the time needed for interpreting<br />

• the interpreter should be able to finish<br />

the particular interpretation. Do not cut<br />

the interpreter off<br />

• avoid the use of negative assertions<br />

in questions as they are frequently a<br />

source of miscommunication<br />

• minimise the use of innuendo, implied<br />

accusations and figurative language as<br />

these linguistic features are difficult to<br />

interpret accurately<br />

• when words have multiple meanings, be<br />

explicit about which meaning is to be<br />

relied upon.<br />

The Protocols provide that an<br />

interpreter should be engaged in any<br />

proceedings where a party or witness<br />

who speaks limited English, has difficulty<br />

communicating in English or is hearing<br />

impaired in a courtroom context is<br />

required to appear in the court or has any<br />

other business before the court. It can be<br />

seen that this is a fairly low threshold to<br />

meet before an interpreter is required.<br />

It will generally be up to the legal<br />

practitioner acting for a client or relying<br />

upon a witness who needs assistance from<br />

an interpreter to arrange that interpreter.<br />

This obligation is not something to take<br />

lightly. In Zhou v Zong [2018] FCCA 3393<br />

the Court ordered that the costs thrown<br />

away by reason of an adjournment of a<br />

trial be paid by the lawyer personally where<br />

the adjournment was necessary in part<br />

because the lawyer had not arranged for an<br />

interpreter for his client’s evidence to be<br />

present at the commencement of the trial.<br />

It should not be supposed that<br />

problems of language are necessarily<br />

solved by the lawyer involved being able<br />

to speak the language in question, and<br />

especially not where court proceedings<br />

are concerned. In Rogic v Samaan [2018]<br />

NSWSC 1464, Kunc J made a number<br />

of observations on taking affidavits<br />

from culturally and linguistically diverse<br />

witnesses. That case involved a number of<br />

witnesses who spoke mainly Serbian. Their<br />

actual evidence in court was provided<br />

through a NAATI accredited interpreter<br />

however their affidavit evidence (being<br />

their evidence in chief at the trial) was<br />

prepared by the solicitor for the plaintiff.<br />

The solicitor spoke both Serbian and<br />

English. He took instructions from the<br />

witnesses in Serbian and then translated<br />

those instructions himself into English<br />

and prepared the affidavits in English. He<br />

then read the affidavit back to the relevant<br />

witnesses in English and translated it back<br />

to them in Serbian to obtain their assent to<br />

its contents. His Honour said:<br />

“…I am not suggesting [the] solicitor acted<br />

unethically. I assume that he did not retain a<br />

qualified, independent interpreter because he<br />

was trying to save costs by taking advantage of<br />

the fact that he spoke Serbian. Nevertheless,<br />

what was done is not a practice which is likely<br />

to maximise the prospects of justice being done<br />

and should be avoided when the witness is a<br />

culturally and linguistically diverse (CALD)<br />

person unless there is no practical alternative<br />

(for example, due to lack of communication<br />

facilities in a remote region, or urgency).”<br />

Kunc J said there are at least two<br />

reasons why a bilingual solicitor should<br />

not interpret the deponent’s evidence to<br />

produce an affidavit in English:<br />

“157. First, ‘research demonstrates the superior<br />

performance of trained interpreters over<br />

untrained bilinguals.’ (citation omitted)<br />

158. Being bilingual is not the same thing<br />

as being an interpreter (spoken words) or<br />

28<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong>


RISK WATCH<br />

translator (documents). Interpreting and<br />

translating are highly skilled occupations,<br />

often now undertaken with the benefit of<br />

specialist tertiary study. Furthermore, reputable<br />

interpreters adhere to a professional code<br />

of ethics, which emphasises the importance<br />

of professional competence, accuracy and<br />

independence.<br />

159. Second, assuming the role of interpreter<br />

or translator could put the solicitor in an<br />

invidious professional position. This is also<br />

why even a solicitor who is also a professional<br />

interpreter—if there are any—should not<br />

do so in her or his own cases. Difficulties may<br />

arise if the accuracy of the interpretation<br />

is questioned, raising the possibility of the<br />

solicitor having to give evidence. Allegations<br />

of unconscious or even conscious bias could be<br />

raised.”<br />

Whilst being a multi-lingual solicitor<br />

is unlikely to be a disadvantage it will not<br />

necessarily solve all the problems with<br />

language, particularly where documents<br />

for use in Court are concerned. Assistance<br />

from professional interpreters (even with<br />

the added cost and delay occasioned<br />

by their use) should be sought when<br />

appropriate.<br />

Of course, it is not just court<br />

proceedings which raise issues where<br />

language might be a difficulty. Language<br />

problems may arise in all areas of legal<br />

practice—commercial transactions and<br />

wills and estates are just two obvious<br />

examples. The February, 2022 Riskwatch<br />

article will deal with some of the issues<br />

that arise from CALD clients in nonlitigious<br />

matters.<br />

In the meantime, there is a checklist for<br />

working with culturally and linguistically<br />

diverse clients, and accompanying<br />

Acknowledgement to Interpreters, available<br />

to practitioners insured with the SA<br />

Professional Indemnity Insurance Scheme<br />

in the General Law document package<br />

in the Risk Management section of the<br />

Society’s website (requires login).<br />

Legal aid opens new office at Whyalla<br />

The Legal Services Commission has<br />

moved to a new office location<br />

in Whyalla to boost the delivery of its<br />

services in the Eyre Peninsula region.<br />

The office is located at 17A Forsyth<br />

Street, Whyalla. The Commission’s<br />

Whyalla office phone numbers and email<br />

addresses have not changed.<br />

“Our new Whyalla office is<br />

more than just a building,” says the<br />

Commission’s Director, Gabrielle Canny.<br />

“It’s a demonstration of our continuing<br />

commitment to the people in this<br />

important part of SA.<br />

“We have had an office in Whyalla<br />

since 1985 and we know it can be<br />

particularly tough for people dealing with<br />

legal problems in regional areas. They<br />

have fewer legal services to choose from,<br />

reduced access to courts and tribunals,<br />

plus increased travel expenses.<br />

“Many of our enquiries in this<br />

region relate to family law problems,”<br />

says Ms Canny. “Those enquiries are<br />

about the care of children, property<br />

disputes, intervention orders and divorce<br />

proceedings.<br />

“At our Whyalla office we also provide<br />

a mediation service that helps separated<br />

parents to reach out-of-court agreements<br />

regarding the care of their children and the<br />

division of property. In these negotiations,<br />

each parent is represented by a lawyer.<br />

“This Family Dispute Resolution<br />

mediation program is very successful.<br />

An agreement is reached by four out of<br />

every five couples who take part in this<br />

program.<br />

“We also handle a number of enquiries<br />

in the Whyalla region relating to consumer<br />

issues, debt, employment laws, traffic<br />

matters, Wills, criminal cases and landlord<br />

disputes.”<br />

In 2019, the Commission moved<br />

to new and improved premises at Port<br />

Augusta to boost its assistance to people in<br />

SA’s Upper Spencer Gulf. B<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 29


FEATURE<br />

The existing legal safeguards for<br />

experimental laboratory animals in SA<br />

ROSS TEMPLEMAN, MEMBER, ANIMAL LAW COMMITTEE<br />

If you, or someone that you know, lives<br />

with diabetes, has had a coronary bypass<br />

or a hip replacement, or received a<br />

vaccination for diphtheria, polio, tetanus,<br />

or been treated with antibiotics, it is<br />

probable that you or they are alive or have<br />

a better quality of life due to research that<br />

was carried out on laboratory animals.<br />

Irrespective of whether you place yourself<br />

as supporting animal welfare, animal rights<br />

or haven’t considered the matter closely,<br />

what is the actual state of the law for animal<br />

experimentation in SA at present?<br />

The bulk of the legislative framework<br />

for animal experimentation (and teaching<br />

involving animals) is contained within the<br />

Animal Welfare Act 1985. Any person (or<br />

body corporate) that wishes to use animals<br />

for teaching or research or experimentation<br />

must be licensed. 1 The type or organisations<br />

that use animals and require licensing are<br />

typically universities, TAFEs, schools,<br />

hospitals and research centres, and animal<br />

organisations such as zoos and wildlife<br />

parks. They may be either private or<br />

government owned. A licence is only<br />

granted where the responsible Minister is<br />

satisfied that the applicant can adequately<br />

house and provide for the needs meeting<br />

of the animals kept. 2 Licences need to be<br />

renewed every two years. 3<br />

Animals that may be used include typical<br />

‘laboratory’ species such as mice, rats, guinea<br />

pigs and ferrets, farm species such as cattle,<br />

sheep, poultry, horses and pigs, and other<br />

species such as native birds and animals, cats,<br />

dogs, and primates. 4 It must be remembered<br />

that many uses of animals under the Act<br />

are for the training of individuals that will<br />

interact with animals on a professional basis,<br />

such as veterinarians, agricultural students<br />

and science/medical students, rather than all<br />

being strictly experimental in nature.<br />

There are two major licence conditions<br />

that are normally made applicable for<br />

licensees. The first of these is the need to<br />

comply with ‘the Code’, being the Australian<br />

code for the care and use of animals for scientific<br />

purposes 5 (NHMRC) – the current version<br />

being the 8th Edition, 2013. 6 The Code<br />

was prepared by a working committee<br />

comprising representatives from amongst<br />

30 THE BULLETIN <strong>December</strong> <strong>2021</strong><br />

others the ARC, 7 CSIRO, 8 NHMRC, 9<br />

Universities Australia, RSPCA and Animals<br />

Australia, Commonwealth and State<br />

government departments. Under the Code,<br />

“the use of animals for scientific purposes must<br />

have scientific or educational merit; must aim<br />

to benefit humans, animals or the environment;<br />

and must be conducted with integrity. When<br />

animals are used, the number of animals<br />

involved must be minimised, the wellbeing of the<br />

animals must be supported, and harm, including<br />

pain and distress, in those animals must be<br />

avoided or minimised.” 10<br />

The second license condition is that<br />

all research/teaching activities must be<br />

approved by an Animal Ethics Committee<br />

(AEC). 11 The AECs look at all research<br />

and teaching proposals and decide whether<br />

the work proposed is ethically acceptable<br />

and likely to be useful. They comprise at<br />

least five members, who shall include at<br />

least one each of a veterinarian, nominees<br />

of animal welfare organisations and the<br />

public, 12 with the AEC itself obligated to<br />

follow the Code. 13 AECs have the wide<br />

powers to accept proposals, turn them<br />

down completely or request changes to<br />

make the proposals acceptable. 14 They have<br />

the power to inspect work on approved<br />

projects at any time, with or without<br />

notification, 15 and halt any work which is<br />

not being carried out in an appropriate<br />

manner. 16 They also examine the need<br />

for the particular end use of the proposal<br />

and ensure that there is no unnecessary<br />

repetition of previous research. 17 Should<br />

a decision of the AEC, or the Minister, be<br />

disagreed with, a Review lies to the South<br />

Australian Civil and Administrative Tribunal<br />

within one month of the decision. 18<br />

And what of the older images of<br />

rabbits being subject to the testing of<br />

shampoos or beauty products poured into<br />

their eyes? - or the LD (lethal dose) 50<br />

test 19 that measures the dose of a substance<br />

which is required to kill 50% of a test<br />

population? Under the Animal Welfare<br />

Regulations 2012, both of these practices are<br />

normally prohibited in South Australia. 20<br />

The exception to the prohibition has a<br />

reverse onus of proof on the research<br />

applicant, to justify that the research has the<br />

potential to benefit human or animal health<br />

and the objectives cannot be achieved by<br />

means that will cause less pain to animals. 21<br />

So, the next time that you visit the<br />

doctor, vet or chemist and obtain a<br />

treatment or medicine, give a small thought<br />

to the laboratory animals who have played<br />

a part over many years in ensuring that<br />

that procedure or medicine is available and<br />

relatively safe for use. B<br />

Endnotes<br />

1 Animal Welfare Act 1985 s16<br />

2 Animal Welfare Act 1985 s18<br />

3 Animal Welfare Act 1985 s20<br />

4 Definition of ‘Animal’ under the Australian Code<br />

for the care and use of animals for scientific purposes:<br />

Animal: any live non-human vertebrate (that is,<br />

fish, amphibians, reptiles, birds and mammals,<br />

encompassing domestic animals, purpose-bred<br />

animals, livestock, wildlife) and cephalopods.<br />

5 https://www.nhmrc.gov.au/about-us/<br />

publications/australian-code-care-and-use-animalsscientific-purposes<br />

6 Animal Welfare Act 1985 s19(2)(f)<br />

7 Australian Research Council,<br />

https://www.arc.gov.au/about-arc<br />

8 The Commonwealth Scientific and Industrial<br />

Research Organisation, https://www.csiro.au/en/<br />

9 National Health and Medical Research Council,<br />

https://www.nhmrc.gov.au/<br />

10 Australian code for the care and use of animals for scientific<br />

purposes – 8 th Edition, Canberra, NHMRC, p1<br />

11 Animal Welfare Act 1985 s19(2)(c)-(e).<br />

More information on Animal ethics committee’s<br />

may be found here:<br />

https://www.environment.sa.gov.au/topics/<br />

plants-and-animals/animal-welfare/Animals_in_<br />

research_teaching/Animal_ethics_committees<br />

12 Animal Welfare Act 1985 s23(3)<br />

13 Animal Welfare Act 1985 s25(1a)<br />

14 Australian code for the care and use of animals<br />

for scientific purposes – 8 th Edition, Canberra,<br />

NHMRC, 2.3.9 p26<br />

15 Australian code for the care and use of animals<br />

for scientific purposes – 8 th Edition, Canberra,<br />

NHMRC, 2.3.21 p27<br />

16 Australian code for the care and use of animals<br />

for scientific purposes – 8 th Edition, Canberra,<br />

NHMRC, 2.3.25 p28<br />

17 Animal Welfare Act 1985 s25(3)<br />

18 Animal Welfare Act 1985 ss26, 27<br />

19 https://www.animalethics.org.au/accreditationand-licensing/ld50-and-lethality-testing<br />

20 Animal Welfare Regulations 2012 s11<br />

21 Animal Welfare Regulations 2012 s11(1)(c), (d)


FEATURE<br />

Animal Welfare Laws<br />

leave pet fish up the creek<br />

RONAN O’BRIEN, MEMBER OF THE ANIMAL LAW COMMITTEE<br />

Imagine this scenario. You see your<br />

neighbour packing up their belongings<br />

and moving out. A week goes by and you<br />

hear a dog barking from the inside of your<br />

neighbour’s house. A quick peek through<br />

a window reveals the distressed dog. You<br />

contact either the police or the RSPCA<br />

(SA) and thankfully they are able to utilise<br />

their powers under the Animal Welfare Act<br />

1985 (SA) (the Act) to secure a warrant to<br />

forcefully enter the property and retrieve<br />

the abandoned dog before any harm comes<br />

to it. 1<br />

A few days later, your neighbour on the<br />

other side moves out. You are aware that<br />

they have an aquarium with all sorts of fish,<br />

however you don’t see them packing the<br />

aquarium into their removalist truck. A few<br />

days go by and curiosity gets the better of<br />

you, so you peek through your neighbour’s<br />

window and clearly see the aquarium still<br />

sitting there in the living room with all the<br />

fish. Being concerned for the welfare of the<br />

fish, you again contact either the police or<br />

RSPCA (SA), trusting that once again they<br />

will be able to forcefully enter the property<br />

and save the fish before any harm comes<br />

to them. Unfortunately, this time you are<br />

informed that there is nothing that can be<br />

done as their powers under the Act only<br />

apply to animals.<br />

DEFINITION OF ANIMAL<br />

Section 3 of the Act defines an<br />

animal as being “a member of any species<br />

of the sub-phylum vertebrata”, in other<br />

words: Vertebrates. In scientific terms,<br />

this includes all mammals, birds, reptiles,<br />

amphibians and fish. However, section 3<br />

goes on to specifically exclude fish from<br />

being included within the meaning of<br />

“animal” for the purposes of the Act. (For<br />

the sake of completeness, human beings<br />

are also excluded from this definition).<br />

A common argument for not including<br />

fish within animal welfare legislation is<br />

that this would potentially criminalise<br />

commercial and recreational fishing<br />

which, obviously, involves the capture and<br />

killing of fish. Nevertheless, every State<br />

and Territory, except Western Australia<br />

and South Australia, now recognise fish<br />

as being animals for the purpose of their<br />

animal welfare legislation. So how do other<br />

jurisdictions prevent the criminalisation of<br />

fishing?<br />

NORTHERN TERRITORY<br />

Section 4 of the Animal Welfare Act<br />

1999 (NT) recognises fish as constituting<br />

animals only when they are “in captivity or<br />

dependent on a person for food”.<br />

TASMANIA<br />

Section 4 of the Animal Welfare Act<br />

1933 (TAS) specifically excludes animal<br />

cruelty offences in circumstances of<br />

recreational and commercial fishing<br />

provided that the fishing occurs “in a usual<br />

and reasonable manner and without causing excess<br />

suffering.”<br />

QUEENSLAND<br />

Section 7 of the Animal Care and<br />

Protection Act 2001 (QLD) excludes animal<br />

cruelty offences in circumstances where<br />

the acts or omissions are authorised under<br />

a different Act. This would include the<br />

Fisheries Act 1994 (QLD).<br />

NEW SOUTH WALES<br />

Section 24 of the Prevention of Cruelty<br />

to Animals Act 1979 (NSW) provides that<br />

a person accused of an animal cruelty<br />

offence is not guilty if they satisfy the court<br />

that the act committed occurred during<br />

“hunting, shooting, snaring, trapping, catching or<br />

capturing the animal … in a manner that infl icted<br />

no unnecessary pain upon the animal.”<br />

VICTORIA<br />

Section 6(1)(g) of the Prevention<br />

of Cruelty to Animals Act 1986 (VIC)<br />

specifically excludes animal cruelty<br />

offences from fishing activities authorised<br />

by and conducted in accordance with the<br />

Fisheries Act 1995.<br />

AUSTRALIAN CAPITAL TERRITORY<br />

Section 17(1)(5)(e) of the Animal<br />

Welfare Act 1992 (ACT) provides that a<br />

person commits an offence if the person<br />

takes part in a violent animal activity,<br />

however this does not apply to the<br />

catching of fish in a way authorised under<br />

a Commonwealth or Territory law.<br />

OPTIONS FOR SOUTH AUSTRALIA<br />

Any future review of the South<br />

Australian legislation should consider<br />

the approaches taken by other states and<br />

territories. The majority of Australian<br />

jurisdictions have shown that an additional<br />

clause to animal welfare legislation can<br />

strike a balance between protecting<br />

recreational and commercial fishing whilst<br />

ensuring that fish aren’t unnecessarily<br />

abused in other aspects.<br />

1. South Australia could follow the<br />

example of the Northern Territory and<br />

amend the definition of animal, e.g.<br />

Animal means a member of any species<br />

of the sub-phylum vertebrata except:<br />

a. a human being; or<br />

b. a fish (in circumstances where the<br />

fish is not in captivity or dependent<br />

on a person for food),<br />

2. South Australia could remove the<br />

exemption of fish within the definition<br />

of animal, but then follow the<br />

example of the majority of Australian<br />

jurisdictions in specifically excluding<br />

recreational and commercial fishing<br />

from the animal cruelty offence<br />

provisions of the Act.<br />

Either of the above changes would<br />

ensure that in our earlier imagined<br />

scenario, the police or RSPCA would<br />

be able to intervene and rescue your<br />

neighbour’s fish rather than letting<br />

them starve to death. Additionally, you<br />

could still go fishing without fear of<br />

prosecution. B<br />

Endnotes<br />

1 Animal Welfare Act 1985 (SA) s 31D.<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 31


FEATURE<br />

Turkeys and the law<br />

DIANA THOMAS, CHAIR, ANIMAL LAW COMMITTEE<br />

The history and somewhat quirky<br />

nature of turkey case law illustrates<br />

that this humble fowl is so much more<br />

than the traditional protein element in a<br />

festive meal.<br />

BESTIALITY<br />

In 1642, in what was to become<br />

the United States of America, Thomas<br />

Granger was indicted for buggery with “a<br />

mare, a cow, two goats, five sheep, two calves and a<br />

turkey”. The man confessed to ‘lewd acts on<br />

a regular basis’ and was executed. 1<br />

Fast forward 200 years and in 1880 the<br />

NSW courts debated whether a turkey, as<br />

a fowl, could be considered an animal for<br />

the purposes of sodomy.<br />

The case, Queen v Reynolds 2 is one where<br />

“an unnatural connection” took place between<br />

a prisoner and the body of a male turkey.<br />

Debate then ensued as to whether ‘an<br />

unnatural connection’ with a fowl could be<br />

considered sodomy as a fowl did not come<br />

under the term ‘beast’. 3<br />

It was decided that an amendment to<br />

the Act 4 whereby ‘animal ‘was substituted<br />

for ‘beast’ meant that “all animals of the fowl<br />

kind” were now included in the definition.<br />

Thus, sodomy with a turkey became a<br />

crime in Australia.<br />

AIRPLANES<br />

Don Larson 5 was a proud turkey<br />

farmer in Iowa, USA. He valued his stock<br />

and took out an insurance policy on his<br />

turkeys covering death as a result of fire,<br />

lightning, explosion, smoke, vandalism and<br />

malicious mischief caused by huddling,<br />

piling, smothering, drowning, or freezing.<br />

21 July, 1964 was a hot day and two<br />

planes flew over Mr Larson’s turkey farm,<br />

one at 2pm and another at 5pm. There was<br />

32 THE BULLETIN <strong>December</strong> <strong>2021</strong><br />

nothing unusual about this as Mr Larson’s<br />

farm was on the flight path between<br />

Minneapolis and Des Moines. However,<br />

the 5pm plane was observed to maintain<br />

a height of 150 – 200 feet only and flew<br />

directly over 4300 insured turkeys.<br />

It was alleged the low flying plane<br />

caused the 4300 large turkeys to stampede,<br />

suffocating 2066 of them.<br />

Mr Larson claimed the deceased birds<br />

on his insurance policy under malicious<br />

mischief. The insurer refused the claim<br />

and the matter went to court where an<br />

expert witness testified that:<br />

“The birds that die from fright will die in a<br />

pile. I mean they will get to an object and that<br />

stops them, but they just keep piling on top of<br />

one another, whether it be from flying objects or<br />

from rats.”<br />

Mr Larson’s claim was ultimately<br />

denied by the court on grounds that they<br />

were unable to find in the record:<br />

“any evidence on which the jury could find the<br />

unidentified pilot was bent on mischief against<br />

the plaintiff and was prompted by an evil<br />

mind”.<br />

FEATHERS<br />

A NSW case of Harvey v John Fairfax<br />

Publications Pty Ltd 6 which involved a turkey<br />

farm, has been quoted several times in text<br />

books 7 in the context of form and capacity<br />

challenges in defamation proceedings.<br />

In 1997, the Sydney Morning Herald<br />

published the following in relation to this<br />

case:<br />

“…Harvey was running about 1000 turkeys<br />

in a paddock adjacent to the hotel and ‘it<br />

became a health issue because the residents got<br />

upset about the feathers blowing everywhere and<br />

turkey (droppings) getting into the creek”<br />

The article went on to state:<br />

“The council took him to court and ‘we must<br />

have won because the turkeys disappeared”.<br />

Mr Harvey brought a defamation case<br />

stating, amongst other matters, that the<br />

article impugned that he had seriously<br />

endangered public health.<br />

Ultimately, the initial pleading was<br />

struck out and leave granted for a<br />

repleading without the use of the word<br />

serious.<br />

BRUSH TURKEY EGG OMELETTE.<br />

The native brush turkey was a<br />

common source of meat during the<br />

great depression of the 1930s. 8 The eggs<br />

were celebrated as an excellent source of<br />

protein as they can weigh up to 180g each<br />

and are 80% yolk. 9<br />

After the second world war, due to<br />

decreasing numbers, turkeys became<br />

protected in Queensland 10 and NSW. 11<br />

In South Australia, brush or scrub<br />

turkeys, introduced to Kangaroo Island,<br />

are protected by the National Parks and<br />

Wildlife Act 12 with fines of up to $2500 or<br />

six months in prison for the taking of a<br />

protected animal or their eggs. There are<br />

exceptions to this for Aboriginal persons<br />

where the turkey will be used for food or<br />

cultural purposes. 13<br />

The turkey, both native and introduced,<br />

has shaped Australian bestiality,<br />

defamation and native protection law as<br />

well as feeding us through a depression<br />

and more recently becoming a much-loved<br />

therapy animal. 14 B


FEATURE<br />

Endnotes<br />

1 Of Plymouth Plantation a journal written<br />

between 1630 and 1651 by Governor William<br />

Bradford, the leader of the Pilgrim colony<br />

Massachusetts http://www.gutenberg.org/<br />

files/24950/24950-h/24950-h.htm paragraph<br />

[475]<br />

2 Regina v Reynolds 4 June 1880.<br />

3 1 Russell on Crimes page 938; Rex v Mulreaty<br />

from the MS of Bayley J.<br />

4 9 Geo.IV.,c.31, s 15<br />

5 Larson v. Fireman’s Fund Insurance<br />

Company,139 N.W.2d 174 (1965), Don<br />

LARSON, also known as Donald Larson and<br />

Donald Larsen, Appellant, v. FIREMAN’S<br />

FUND INSURANCE COMPANY, Appellee.<br />

No. 51843.Supreme Court of Iowa.<strong>December</strong><br />

14, 1965. https://law.justia.com/cases/iowa/<br />

supreme-court/1965/51843-0.html<br />

6 Harvey v John Fairfax Publications Pty Ltd [2000]<br />

NSWSC 337 (20 April 2000). http://www.<br />

austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/<br />

NSWSC/2000/337.html Harvey v John Fairfax<br />

Publications Pty Ltd [2004] NSWSC 188 (22<br />

March 2004). http://www.austlii.edu.au/cgi-bin/<br />

viewdoc/au/cases/nsw/NSWSC/2004/188.<br />

html<br />

7 Defamation: Comparative Law and Practice by<br />

Andrew Kenyon<br />

8 https://blogs.sydneylivingmuseums.com.au/<br />

cook/lets-talk-turkey-brush-style/<br />

9 https://www.abc.net.au/news/<br />

science/2017-01-17/five-reasons-to-love-brushturkeys/7199724<br />

10 https://www.qld.gov.au/environment/<br />

plants-animals/animals/living-with/brushturkeys#:~:text=Brush%20turkeys%20are%20<br />

threatened%20by,before%20Europeans%20<br />

settled%20in%20Australia.<br />

Nature Conservation Act 1992 (Queensland)<br />

11 Biodiversity Conservation Act 2016 (NSW)<br />

schedule 5<br />

12 National Parks and Wildlife Act 1972 (SA) s 51<br />

13 Ibid s 68D, 68E<br />

14 https://www.audubon.org/news/why-turkeysand-other-birds-make-great-therapy-animals<br />

https://www.emotionalpetsupport.com/2017/11/<br />

turkey-emotional-support-animal/<br />

Animal Law Committee<br />

Annual Appeal <strong>2021</strong><br />

SUSAN GARDINER, APPEAL TEAM LEADER AND MEMBER OF THE ANIMAL LAW COMMITTEE<br />

Despite continuing Covid-19 related<br />

challenges, the Law Society’s Animal<br />

Law Committee Members pushed forward<br />

with their Annual Shelter Appeal for <strong>2021</strong>,<br />

which this year ran for two months over<br />

July and August. Focussing on smaller<br />

and less widely known animal shelters,<br />

this year’s appeal supported a total of 13<br />

different South Australian charities, ranging<br />

from hearing assistance dogs to ferrets and<br />

Australian native wildlife.<br />

Posters were widely distributed<br />

throughout the legal community of South<br />

Australia, detailing drop-off locations for<br />

physical items as well as displaying a QR<br />

code which allowed monetary donations<br />

to be made directly to one of six individual<br />

rescues. Members of the Animal Law<br />

Committee also rallied their respective work<br />

colleagues together, including employees<br />

of the Law Society itself, amassing boxes<br />

of donated items nominated by the various<br />

charitable organisations.<br />

The Committee was thrilled with the<br />

result of the appeal and the generosity of<br />

the legal community. Donations ranged<br />

from puppy pads and scratching posts to<br />

bird seed and disinfectant, and bundles of<br />

donated items have been conveyed to the<br />

individual charities throughout the month<br />

of September.<br />

If you are kicking yourself because you<br />

forgot to donate, you’re in luck – it’s not too<br />

late! Just scan the QR code displayed above<br />

Animal Law Committee Members divvying-up the<br />

generous donations. (Left to right): Committee Chair,<br />

Diana Thomas; Appeal Team Leader, Susan Gardiner;<br />

and Committee Member, Renee Evans.)<br />

and you will be directed to a list of links to<br />

reputable charities providing invaluable care<br />

for animals in need in South Australia. B<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 33


TAX FILES<br />

DGRs that are not already charities<br />

PAUL INGRAM, SENIOR LEGAL COUNSEL, MINTERELLISON<br />

Most of the general Deductible Gift<br />

Recipient (DGR) categories in<br />

Division 30 of the ITAA 1997 require the<br />

relevant fund, authority or institution to be:<br />

• a Registered Charity (ie. with the<br />

ACNC);<br />

• an ‘Australian Government Agency’; or<br />

• operated by a Registered Charity or<br />

Australian Government Agency<br />

before they can apply for endorsement as<br />

a DGR.<br />

But there were 11 general DGR<br />

categories that were not subject to this<br />

requirement, namely:<br />

• public funds for hospitals (item 1.1.3);<br />

• public funds for public ambulance<br />

services (item 1.1.8);<br />

• public funds for religious instruction in<br />

government schools (item 2.1.8);<br />

• Roman Catholic public funds for<br />

religious instruction in government<br />

schools (item 2.1.9);<br />

• school building funds (item 2.1.10);<br />

• public funds for rural school hostel<br />

buildings (item 2.1.11);<br />

• approved research institutes (item 3.1.1);<br />

• necessitous circumstances funds (item<br />

4.1.3);<br />

• REO funds – ie. public funds on<br />

the Register of Environmental<br />

Organisations (item 6.1.1);<br />

• ROCO funds – ie. public funds on<br />

the Register of Cultural Organisations<br />

(item 12.1.1); and<br />

• fire and emergency services funds<br />

(item 12A.1.3).<br />

However, as a result of the Treasury<br />

Laws Amendment (<strong>2021</strong> Measures No. 2) Act<br />

<strong>2021</strong> (Amending Act), which received<br />

Assent on 13 September <strong>2021</strong>, these 11<br />

categories will now also be subject to the<br />

same requirement.<br />

The change takes effect from 13<br />

<strong>December</strong> <strong>2021</strong>, being 3 months after<br />

the date of Assent, but is subject to some<br />

important transitional measures (explained<br />

below).<br />

AUTOMATIC 12-MONTH GENERAL<br />

TRANSITION PERIOD FOR EXISTING DGRS<br />

All existing non-government DGRs<br />

will have 12 months (ie. until 13 <strong>December</strong><br />

2022) to become a Registered Charity.<br />

34 THE BULLETIN <strong>December</strong> <strong>2021</strong><br />

This will give affected DGRs time to:<br />

• review their Constitutions, and their<br />

entitlement to charity status generally;<br />

• effect any required changes; and<br />

• apply to the ACNC for registration.<br />

Affected DGRs who do not comply<br />

with the new requirement will lose<br />

their DGR status as at 13 <strong>December</strong><br />

2022, unless they have obtained an<br />

‘extended application date’ under the next<br />

transitional measure.<br />

DISCRETION TO GRANT A T<strong>HR</strong>EE-YEAR<br />

EXTENSION<br />

Affected DGRs can also apply to have<br />

an ‘extended application date’ (being 13<br />

<strong>December</strong> 2025).<br />

Applications for this measure have<br />

to be made by 13 <strong>December</strong> 2022, and<br />

will be granted at the Commissioner’s<br />

discretion. Before that discretion can be<br />

exercised:<br />

• the Commissioner must be satisfied<br />

that the following ‘prescribed’ criteria<br />

are met:<br />

◦ there has been no change in the<br />

applicant’s circumstances that<br />

would affect its entitlement to<br />

DGR endorsement (but for these<br />

amendments);<br />

◦ the applicant has never had an<br />

application for registration under<br />

the ACNC legislation refused; and<br />

◦ the applicant has never had its<br />

registration under the ACNC<br />

legislation involuntarily revoked;<br />

and<br />

• the Commissioner must also have<br />

regard to certain ‘prescribed matters’,<br />

namely:<br />

◦ whether the applicant has taken<br />

steps to satisfy the requirements<br />

for registration as a charity, to apply<br />

for registration, and to provide all<br />

required information;<br />

◦ whether it is reasonably possible<br />

that the applicant will be able to<br />

satisfy the requirements for charity<br />

registration by 13 <strong>December</strong> 2025;<br />

◦ if the applicant believes that it is<br />

unlikely to satisfy the requirements<br />

for charity registration by 13<br />

<strong>December</strong> 2025 – whether it is<br />

reasonable for the applicant to be<br />

given additional time to wind up<br />

and distribute surplus assets; and<br />

◦ any views expressed by the ACNC<br />

Commissioner about the above<br />

matters.<br />

OUTSTANDING DGR APPLICATIONS AS AT<br />

13 DECEMBER <strong>2021</strong><br />

Where an organisation has made an<br />

application to the Commissioner for<br />

endorsement under one of the affected<br />

DGR categories prior to 13 <strong>December</strong><br />

<strong>2021</strong>, and the application has not been<br />

determined by that date, that organisation<br />

will qualify for both the 12 month general<br />

transition period and the three year<br />

extended transition period.<br />

However, it appears that REO and<br />

ROCO applications are a special case:<br />

• these applications involve a two-step<br />

procedure:<br />

◦ approval by the relevant Minister;<br />

and<br />

◦ endorsement by the Commissioner;<br />

• the ATO position appears to be that<br />

if the first of those steps (Ministerial<br />

approval) has not been satisfied by 13<br />

<strong>December</strong> <strong>2021</strong>, then the applicant will<br />

not be entitled to any transitional relief<br />

(and will presumably have to apply for<br />

Charity Registration before the REO/<br />

ROCCO application will progress);<br />

• however, if the first step (Ministerial<br />

approval) has been satisfied by 13<br />

<strong>December</strong> <strong>2021</strong>, but the application<br />

for endorsement has not been<br />

determined by the Commissioner<br />

by that date, then both transitional<br />

measures will presumably apply.<br />

APPLICATIONS MADE AFTER 13 DECEMBER<br />

<strong>2021</strong><br />

Organisations applying under one<br />

of the affected DGR categories after<br />

13 <strong>December</strong> <strong>2021</strong> will need to comply<br />

with the new requirement before their<br />

application can proceed.<br />

Tax Files is contributed by members<br />

of the Taxation Committee of the<br />

Business Law Section of the Law Council<br />

of South Australia. B


BOOKSHELF<br />

G Appleby et al<br />

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JUDICIAL FEDERALISM IN AUSTRALIA: HISTORY, THEORY, DOCTRINE AND PRACTICE<br />

Abstract from Federation Press<br />

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from Chapter III of the Constitution significant<br />

protections for judicial independence and<br />

fair trial processes. In the last 25 years,<br />

these protections have been extended to the<br />

judiciaries of the Australian States with oftenoverlooked<br />

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and illuminate these ongoing debates, Judicial<br />

Federalism in Australia: History, Theory,<br />

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It considers the historical underpinnings of the<br />

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LAW OF COSTS<br />

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Law of Costs 5th edition comprehensively<br />

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RESTITUTION LAW IN AUSTRALIA<br />

Abstract from LexisNexis<br />

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BALKIN & DAVIS: LAW OF TORTS<br />

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The sixth edition has been extensively updated<br />

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and labour hire arrangements.<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 35


FAMILY LAW CASE NOTES<br />

Family Law Case Notes<br />

CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK<br />

PROPERTY – PRIVATE CONTACT BETWEEN<br />

BARRISTER AND JUDGE WHILE CASE<br />

WAS UNDER WAY GIVES RISE TO<br />

APPREHENDED BIAS<br />

In Charisteas [<strong>2021</strong>] HCA 29 (6 October,<br />

<strong>2021</strong>) the High Court of Australia<br />

(Kiefel CJ, Gageler, Keane, Gordon<br />

and Gleeson JJ) considered a recusal<br />

application on the ground of apprehended<br />

bias.<br />

The High Court said (from [14]):<br />

“ … [W]hat is said might have led the<br />

trial judge to decide the case other than on<br />

its legal and factual merits was identified.<br />

It comprised the various communications<br />

between the trial judge and the wife’s<br />

barrister ‘otherwise than in the presence<br />

of or with the previous knowledge and<br />

consent of ’ [cf Magistrates’ Court at Lilydale<br />

[1973] VR 122 at 127] the other parties<br />

to the litigation. … The communications<br />

should not have taken place. …<br />

[15] A fairminded lay observer …<br />

would reasonably apprehend that the trial<br />

judge might not bring an impartial mind to<br />

the resolution of the questions his Honour<br />

was required to decide. …<br />

( … )<br />

[18] … The apprehension of bias<br />

principle is so important to perceptions<br />

of independence and impartiality ‘that<br />

even the appearance of departure from it is<br />

prohibited lest the integrity of the judicial<br />

system be undermined’ (emphasis added)<br />

Ebner [2000] HCA 63 (‘Ebner’). …<br />

[19] The lack of disclosure in this case<br />

is particularly troubling. It is difficult to<br />

comprehend how the trial judge could<br />

have failed to appreciate the need to<br />

disclose the communications …<br />

( … )<br />

[21] … The hypothetical observer is<br />

not conceived of as a lawyer but a member<br />

of the public served by the courts. …<br />

[22] It may be accepted that many<br />

judges and lawyers, barristers in particular,<br />

may have continuing professional and<br />

personal connections. … [T]heir contact<br />

may be resumed … by a judge making<br />

36 THE BULLETIN <strong>December</strong> <strong>2021</strong><br />

orders and publishing reasons, thereby<br />

bringing the litigation to an end. …”<br />

The appeal was allowed and the matter<br />

remitted for rehearing with costs.<br />

PROPERTY – LITIGATION FUNDING<br />

ORDER AGAINST THIRD PARTY –<br />

IRREVERSIBILITY OF ORDER AT FINAL<br />

HEARING NOT FATAL TO APPLICATION<br />

In Lao & Zeng [<strong>2021</strong>] FedCFamC1A<br />

17 (23 September, <strong>2021</strong>) the Full Court<br />

(Ainslie-Wallace, Ryan & Austin JJ)<br />

considered a litigation funding order that<br />

required the wife’s mother to pay $350,000<br />

towards the husband’s legal fees.<br />

The wife’s legal fees were funded by<br />

her mother, the husband seeking that the<br />

mother also pay his fees.<br />

As to the reversibility of the litigation<br />

funding order, Ryan J (with whom Ainslie-<br />

Wallace J agreed) said (from [48]):<br />

“( … ) Reversibility and the ability to<br />

take the payment into account in the final<br />

hearing are considerations of fluctuating<br />

relevance having regard to the source of<br />

power under which the payment is sought.<br />

…<br />

[49] It is … significant that in [Zschokke<br />

[1996] FamCA 79] … the Full Court<br />

said that there must be a question about<br />

whether it is possible to make a litigation<br />

funding order under s 117(2) even though<br />

the order could not be taken into account<br />

in a final hearing. For example in parenting<br />

proceedings or where no right of action<br />

exists under s 79. If their Honours<br />

considered that reversibility and the ability<br />

to take the amount into account in a final<br />

property hearing was an essential element<br />

to the exercise of power under s 117(2) it<br />

follows that in the examples given such an<br />

order could not be made. …<br />

[50] … [T]here will be cases where<br />

even though the amount paid may not<br />

be able to be … taken into account in<br />

the final hearing, the interests of justice<br />

may nevertheless justify an order under<br />

s 117(2) for interim funding or security<br />

for costs. ( … )”<br />

The majority dismissed the appeal with<br />

costs.<br />

CHILDREN – PARENTAL RESPONSIBILITY<br />

– NO ERROR IN VESTING SOLICITOR WITH<br />

PARENTAL RESPONSIBILITY FOR LIMITED<br />

PURPOSE OF A TORT CLAIM AGAINST<br />

MOTHER<br />

In Agambar [<strong>2021</strong>] FedCFamC1A<br />

1 (2 September, <strong>2021</strong>) the Full Court<br />

(Strickland, Austin and Baumann JJ) heard<br />

a father’s appeal from a decision that vested<br />

a solicitor with parental responsibility for<br />

the limited purpose of instructing lawyers<br />

to act on behalf of the children in tort<br />

claims against their mother.<br />

Weeks after separation, the mother<br />

lost control of her car and crashed while<br />

driving the parties’ three children. One<br />

child was killed and the other two were<br />

injured.<br />

The children had personal injury claims<br />

against the mother.<br />

The mother conceded that she could<br />

not act as litigation guardian and sought<br />

“Mr B” to be given parental responsibility<br />

for the limited purpose of instructing<br />

lawyers to act in the tort claims.<br />

Dealing with the father’s complaint<br />

as to the interference with the parents’<br />

parental responsibility, the Full Court said<br />

(from [38]):<br />

“( … ) In VR & RR [2002] FamCA<br />

320 (‘VR & RR’) the Full Court …<br />

dismissed the aspect of the appeal which<br />

concerned the trespass upon parental<br />

autonomy by the appealed orders …<br />

( … )<br />

[39] The Full Court … recognised<br />

how the circumstances which are peculiar<br />

to a specific case might justify judicial<br />

interference with the parental responsibility<br />

vested in parents either by law or former<br />

court order. … [T]he primary judge’s<br />

interference with the allocation of parental<br />

responsibility was warranted because both<br />

parents desired it to resolve their impasse<br />

so the children’s welfare could be clearly<br />

advanced. Both parents sought an order


FAMILY LAW CASE NOTES<br />

interfering with their existing equal shared<br />

parental responsibility …<br />

[40] The application of the general rule<br />

of which the Full Court spoke in VR &<br />

RR (at [29]) does not impugn the primary<br />

judge’s decision here … because any<br />

parental responsibility with which a parent<br />

is seized only exists so long as no contrary<br />

court order is made. The Act expressly<br />

envisages that parental responsibility can be<br />

vested in adults other than the child’s parents<br />

(ss 61D(1), 64B(2), 64C, 65C, 65G(1A) and<br />

65P) and it is now well established that there<br />

is no presumption in favour of parents over<br />

non-parents in the determination of proper<br />

orders to resolve parenting disputes …<br />

( … )<br />

[43] Since the primary judge appreciated<br />

the gravamen of the decision … and<br />

nevertheless decided to invest Mr B<br />

with the discrete portion of parental<br />

responsibility which was in dispute, the<br />

father’s complaint under this ground of<br />

appeal was all but exhausted because he<br />

was unable to contend the law necessarily<br />

precluded his Honour from giving the<br />

confined aspect of parental responsibility<br />

to Mr B … ( … )”<br />

The father’s appeal was dismissed<br />

with costs. B<br />

3 OCT <strong>2021</strong> – 2 NOV <strong>2021</strong><br />

A MONTHLY REVIEW OF ACTS, APPOINTMENTS,<br />

REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH<br />

OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA<br />

ACTS PROCLAIMED<br />

Motor Vehicles (Motor Bike Driver Licensing)<br />

Amendment Act <strong>2021</strong> (No 8 of <strong>2021</strong>) c<br />

Commencement ss 4-8, 10-13:<br />

22 November <strong>2021</strong><br />

Commencement remaining provisions:<br />

7 October <strong>2021</strong><br />

Gazetted: 7 October <strong>2021</strong>,<br />

Gazette No. 66 of <strong>2021</strong><br />

Rail Safety National Law (South Australia)<br />

(Alcohol and Drug Offence) Amendment Act<br />

<strong>2021</strong> (No 30 of <strong>2021</strong>)<br />

Commencement: 1 November <strong>2021</strong><br />

Gazetted: 14 October <strong>2021</strong>,<br />

Gazette No. 68 of <strong>2021</strong><br />

Children and Young People (Oversight and<br />

Advocacy Bodies) (Commissioner for Aboriginal<br />

Children and Young People) Amendment Act<br />

<strong>2021</strong> (No 35 of <strong>2021</strong>)<br />

Commencement: 21 October <strong>2021</strong><br />

Gazetted: 21 October <strong>2021</strong>,<br />

Gazette No. 69 of <strong>2021</strong><br />

Correctional Services (Accountability and Other<br />

Measures) Amendment Act <strong>2021</strong> (No 12 of<br />

<strong>2021</strong>)<br />

Commencement ss 10; 26(1) and (3); 27 to<br />

31; 33 to 35; 37 to 40; 42; 44 to 46; Sch 1<br />

cl 4; Sch 1 cl 5(2): 1 November <strong>2021</strong><br />

Gazetted: 21 October <strong>2021</strong>,<br />

Gazette No. 69 of <strong>2021</strong><br />

Liquor Licensing (Miscellaneous) Amendment<br />

Act 2019 (No 28 of 2019)<br />

Commencement ss 6, 13 and 14(2):<br />

22 October <strong>2021</strong><br />

Gazetted: 21 October <strong>2021</strong>,<br />

Gazette No. 69 of <strong>2021</strong><br />

Lotteries Act 2019 (No 41 of 2019)<br />

Commencement: 10 <strong>December</strong> <strong>2021</strong><br />

Gazetted: 28 October <strong>2021</strong>,<br />

Gazette No. 70 of <strong>2021</strong><br />

ACTS ASSENTED TO<br />

Independent Commissioner Against Corruption<br />

(CPIPC Recommendations) Amendment Act<br />

<strong>2021</strong>, No. 38 of <strong>2021</strong><br />

Gazetted: 7 October <strong>2021</strong>,<br />

Gazette No. 66 of <strong>2021</strong><br />

South Australian Multicultural Act <strong>2021</strong>m<br />

No. 39 of <strong>2021</strong><br />

(repeals South Australian Multicultural and<br />

Ethnic Affairs Commission Act 1980)<br />

Gazetted: 21 October <strong>2021</strong>,<br />

Gazette No. 69 of <strong>2021</strong><br />

APPOINTMENTS<br />

Acting Judicial Conduct Commissioner<br />

for a term of three months commencing on 7<br />

October <strong>2021</strong> and expiring on 6 January 2022<br />

Honourable Bruce Malcolm Debelle AO QC<br />

Gazetted: 7 October <strong>2021</strong>,<br />

Gazette No. 66 of <strong>2021</strong><br />

Youth Court of South Australia<br />

Judge<br />

From 8 <strong>December</strong> <strong>2021</strong> – 16 April 2025<br />

Judge Penelope Anne Eldridge<br />

Magistrate – principal judiciary<br />

From 23 November <strong>2021</strong> for a term of 2 years<br />

Magistrate Alison Frances Adair<br />

From 19 April 2022 for a term of 1 year<br />

Magistrate Oliver Rudolf Gerhard Koehn<br />

Gazetted: 7 October <strong>2021</strong>,<br />

Gazette No. 66 of <strong>2021</strong><br />

Notification of Assumption of Office<br />

of Governor Proclamation<br />

Gazetted: 7 October <strong>2021</strong>,<br />

Gazette No. 67 of <strong>2021</strong><br />

District Court of South Australia<br />

Judge<br />

From 1 November <strong>2021</strong><br />

Heath David Barklay QC<br />

Gazetted: 28 October <strong>2021</strong>,<br />

Gazette No. 70 of <strong>2021</strong><br />

Master<br />

on an auxiliary basis,<br />

from 1 November <strong>2021</strong> - 30 June 2022<br />

Christina Rose Flourentzou<br />

Gazetted: 21 October <strong>2021</strong>,<br />

Gazette No. 69 of <strong>2021</strong><br />

Magistrate<br />

on an auxiliary basis,<br />

from 25 October <strong>2021</strong> - 30 June 2022<br />

Terence Frederick Forrest<br />

Gazetted: 21 October <strong>2021</strong>,<br />

Gazette No. 69 of <strong>2021</strong><br />

Environment, Resources and<br />

Development Court of South Australia<br />

Judge<br />

effective from 1 November <strong>2021</strong><br />

Heath David Barklay QC<br />

Gazetted: 28 October <strong>2021</strong>,<br />

Gazette No. 70 of <strong>2021</strong><br />

State Planning Commission<br />

Members<br />

for a term of three years commencing on 1<br />

November <strong>2021</strong> and expiring on 31 October 2024<br />

Craig Andrew Holden<br />

Stuart Paul Moseley<br />

Elinor Rebecca Walker<br />

Noelle Margaret Hurley<br />

Gazetted: 28 October <strong>2021</strong>,<br />

Gazette No. 70 of <strong>2021</strong><br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 37


GAZING IN THE GAZETTE<br />

REGULATIONS PROMULGATED (3 OCTOBER <strong>2021</strong> – 2 NOVEMBER <strong>2021</strong>)<br />

REGULATION NAME REG NO. DATE GAZETTED<br />

Motor Vehicles (Motor Bike Driver Licensing) Variation Regulations <strong>2021</strong> 147 of <strong>2021</strong> 7 October <strong>2021</strong>, Gazette No. 66 of <strong>2021</strong><br />

South Australian Public Health (Notifi able and Controlled Notifi able Conditions) (Miscellaneous)<br />

Variation Regulations <strong>2021</strong><br />

148 of <strong>2021</strong> 7 October <strong>2021</strong>, Gazette No. 66 of <strong>2021</strong><br />

Child Sex Offenders Registration (Savings and Transitional) Variation Regulations <strong>2021</strong> 149 of <strong>2021</strong> 7 October <strong>2021</strong>, Gazette No. 66 of <strong>2021</strong><br />

Criminal Investigation (Covert Operations) (Savings and Transitional) Variation Regulations <strong>2021</strong> 150 of <strong>2021</strong> 7 October <strong>2021</strong>, Gazette No. 66 of <strong>2021</strong><br />

Summary Offences (Savings and Transitional) Variation Regulations <strong>2021</strong> 151 of <strong>2021</strong> 7 October <strong>2021</strong>, Gazette No. 66 of <strong>2021</strong><br />

Surveillance Devices (Savings and Transitional) Variation Regulations <strong>2021</strong> 152 of <strong>2021</strong> 7 October <strong>2021</strong>, Gazette No. 66 of <strong>2021</strong><br />

Telecommunications (Interception) (Savings and Transitional) Regulations <strong>2021</strong> 153 of <strong>2021</strong> 7 October <strong>2021</strong>, Gazette No. 66 of <strong>2021</strong><br />

Judicial Conduct Commissioner (Savings and Transitional) Regulations <strong>2021</strong> 154 of <strong>2021</strong> 7 October <strong>2021</strong>, Gazette No. 66 of <strong>2021</strong><br />

Ombudsman (Savings and Transitional) Variation Regulations <strong>2021</strong> 155 of <strong>2021</strong> 7 October <strong>2021</strong>, Gazette No. 66 of <strong>2021</strong><br />

Police Complaints and Discipline (Savings and Transitional) Variation Regulations <strong>2021</strong> 156 of <strong>2021</strong> 7 October <strong>2021</strong>, Gazette No. 66 of <strong>2021</strong><br />

Independent Commissioner Against Corruption (Commission) Variation Regulations <strong>2021</strong> 157 of <strong>2021</strong> 7 October <strong>2021</strong>, Gazette No. 66 of <strong>2021</strong><br />

COVID-19 Emergency Response (Section 16) (Affi davits) Variation Regulations <strong>2021</strong> 158 of <strong>2021</strong> 14 October <strong>2021</strong>, Gazette No. 68 of <strong>2021</strong><br />

Children and Young People (Oversight and Advocacy Bodies) (Prescribed Functions and Powers) Variation<br />

Regulations <strong>2021</strong><br />

159 of <strong>2021</strong> 21 October <strong>2021</strong>, Gazette No. 69 of <strong>2021</strong><br />

Liquor Licensing (General) (Interstate Direct Sales Licence) Variation Regulations <strong>2021</strong> 160 of <strong>2021</strong> 21 October <strong>2021</strong>, Gazette No. 69 of <strong>2021</strong><br />

Magistrates Court Regulations <strong>2021</strong> 161 of <strong>2021</strong> 21 October <strong>2021</strong>, Gazette No. 69 of <strong>2021</strong><br />

Lotteries Regulations <strong>2021</strong> 162 of <strong>2021</strong> 28 October <strong>2021</strong>, Gazette No. 70 of <strong>2021</strong><br />

Gaming Offences Regulations <strong>2021</strong> 163 of <strong>2021</strong> 28 October <strong>2021</strong>, Gazette No. 70 of <strong>2021</strong><br />

We manage<br />

one of SA’s<br />

largest<br />

social media<br />

accounts.<br />

boylen.com.au<br />

P (08) 8233 9433<br />

Banking<br />

Expert<br />

Lending & recovery decisions,<br />

including: Banking Code issues,<br />

fi nance availability, capacity to<br />

settle, and loan enforcement.<br />

Geoff Green 0404 885 062<br />

Details of qualifi cations and<br />

experience, including giving evidence<br />

in the FCA, VSC and SICC, via:<br />

BankingExpertWitness.com.au<br />

Seeking Resolution<br />

Family law<br />

Business valuations<br />

Economic loss<br />

Investigations<br />

Owners disputes<br />

Suite 103 / L1<br />

448 St Kilda Road . Melbourne 3004<br />

03 9867 7332<br />

www.forensicaccts.com.au<br />

The Litigation Assistance Fund (LAF) is a<br />

non-profit charitable trust for which the<br />

Law Society acts as trustee. Since 1992<br />

it has provided funding assistance to<br />

approximately 1,500 civil claimants.<br />

LAF receives applications for funding<br />

assistance from solicitors on behalf of<br />

civil claimants seeking compensation/<br />

damages who are unable to meet the<br />

fees and/or disbursements of prosecuting<br />

their claim. The applications are<br />

subjected to a means test and a merits<br />

test. Two different forms of funding exist –<br />

Disbursements Only Funding (DOF) and<br />

Full Funding.<br />

LAF funds itself by receiving a relatively<br />

small portion of the monetary proceeds<br />

(usually damages) achieved by the<br />

claimants whom it assists. Claimants who<br />

received DOF funding repay the amount<br />

received, plus an uplift of 100% on that<br />

amount. Claimants who received Full<br />

Funding repay the amount received, plus<br />

15% of their damages. This ensures LAF’s<br />

ability to continue to provide assistance<br />

to claimants.<br />

LAF recommends considering whether<br />

applying to LAF is the best course in the<br />

circumstances of the claim. There may be<br />

better methods of obtaining funding/<br />

representation. For example, all Funding<br />

Agreements with LAF give LAF certain<br />

rights including that funding can be<br />

withdrawn and/or varied.<br />

For further information, please visit<br />

the Law Society’s website or contact<br />

Annie MacRae on 8229 0263.<br />

LawCare<br />

The LawCare Counselling<br />

Service is for members of<br />

the profession or members<br />

of their immediate family<br />

whose lives may be adversely<br />

affected by personal or<br />

professional problems.<br />

If you have a problem, speak<br />

to the LawCare counsellor<br />

Dr Jill before it overwhelms you.<br />

Dr Jill is a medical practitioner<br />

highly qualified to treat social<br />

and psychological problems,<br />

including alcoholism and drug<br />

abuse.<br />

The Law Society is pleased to<br />

be able to cover the gap<br />

payments for two consultations<br />

with Dr Jill per patient per<br />

financial year.<br />

All information divulged to the<br />

LawCare counsellor is totally<br />

confidential.<br />

To contact Dr Jill 08 8110 5279<br />

7 days a week<br />

LawCare is a member service<br />

made possible by the generous<br />

support of Arthur J. Gallagher<br />

38<br />

THE BULLETIN <strong>December</strong> <strong>2021</strong>


CLASSIFIEDS<br />

VALUATIONS<br />

MATRIMONIAL<br />

DECEASED ESTATES<br />

INSURANCE<br />

TAX REALIGNMENT<br />

INSOLVENCY<br />

FURNITURE<br />

ANTIQUES, COLLECTIONS<br />

BUSINESS ASSETS<br />

MACHINERY<br />

MOTOR VEHICLES<br />

CARS, BOATS, PLANES<br />

CITY & COUNTRY<br />

ROGER KEARNS<br />

Ph: 08 8342 4445<br />

FAX: 08 8342 4446<br />

MOB: 0418 821 250<br />

E: auctions@senet.com.au<br />

Certifi ed Practising Valuer NO.346<br />

Auctioneers & Valuers Association<br />

of Australia<br />

Improve your Bottom Line!<br />

Stop suffering<br />

outdated technology<br />

Practice Management<br />

1800 199 682<br />

thewiseowl@wiseowllegal.com.au<br />

www.wiseowllegal.com.au<br />

Business<br />

valuations<br />

Simple, clear,<br />

unbiased advice,<br />

without fear or<br />

favour.<br />

t. +61 8 431 80 82<br />

Hugh McPharlin FCA<br />

d m. +61 +61 8 8139 401 712 1130 908<br />

m e. +61 ahi@andrewhillinvestigations.com.au<br />

419 841 780<br />

e hmcpharlin@nexiaem.com.au<br />

w nexiaem.com.au<br />

Consulting Engineers<br />

Australian Technology Pty Ltd<br />

for expert opinion on:<br />

• Vehicle failure and accidents<br />

• Vehicle design<br />

• Industrial accidents<br />

• Slips and falls<br />

• Occupational health and safety<br />

• Statistical analysis<br />

W. Douglass R. Potts<br />

MAOQ, FRAI, FSAE-A, FIEAust,<br />

CPEng, CEng, FIMechE<br />

8271 4573<br />

0412 217 360<br />

wdrpotts@gmail.com<br />

Andrew Hill Investigations<br />

Investigating:<br />

ABN 68 573 745 238<br />

• workplace conduct<br />

• fraud<br />

• unprofessional conduct<br />

• probity<br />

Support services:<br />

• forensic computing analysis<br />

• transcription services<br />

• information sessions, particularly<br />

for <strong>HR</strong> practitioners on the<br />

investigative process<br />

• policy development.<br />

PO Box 3626<br />

Andrew Hill<br />

Andrew Hill<br />

Investigations<br />

NORWOOD SA t. 5067 +61 8 431 80 82<br />

m. +61 401 712 908<br />

e. ahi@andrewhillinvestigations.com.au<br />

Fellow AIPI<br />

Licensed Investigation Agents<br />

& Process Servers<br />

Servicing the Mid North, Yorke &<br />

Eyre Peninsula`s and Outback of<br />

South Australia with:<br />

• Process Serving<br />

• Property Lockouts<br />

• Investigations<br />

• Missing Persons<br />

OUTBACK BUSINESS SERVICES<br />

P.O. Box 591,<br />

PORT AUGUSTA. 5700<br />

P: 0418 838 807<br />

info@outbackbusinessservices.com.au<br />

MISSING WILL<br />

Annik Simonne Eugénie<br />

Gabrielle Madeleine Marie<br />

Lebigre (otherwise known<br />

as Annik Simonne Eugénie<br />

Gabrielle Madeleine Marie<br />

Anderson), deceased. Would<br />

any person or fi rm holding<br />

or knowing the whereabouts<br />

of a Will or other document<br />

purporting to embody the<br />

testamentary intentions of the<br />

late Annik Simonne Eugénie<br />

Gabrielle Madeleine Marie<br />

Lebigre (otherwise known<br />

as Annik Simonne Eugénie<br />

Gabrielle Madeleine Marie<br />

Anderson) widow of the late<br />

Alexander William Anderson<br />

whilst resident in the State of<br />

South Australia but late of 16<br />

Avenue de l’Europe, 78590<br />

Noisy-Le-Grand, France, who<br />

died on 3 September 2020.<br />

Please contact Mr EJ Vickery at:<br />

Minter Ellison Lawyers Level 10,<br />

25 Grenfell Street, Adelaide SA<br />

5000 (GPO Box 1272, Adelaide<br />

SA 5001) Tel: (08) 8233 5411<br />

VALUER<br />

Commercial & Residential<br />

Real Estate<br />

Matrimonial<br />

Deceased Estates<br />

Rentals etc.<br />

Experienced Court<br />

Expert Witness<br />

Liability limited by a scheme approved under<br />

Professional Standards Legislation<br />

JANET HAWKES<br />

Cert. Practising Valuer, AAPI<br />

0409 674 122<br />

janet@gaetjens.com.au<br />

Take Your<br />

Business Mobile<br />

boylen.com.au<br />

P (08) 8233 9433<br />

Family Law - Melbourne<br />

Marita Bajinskis<br />

formerly of<br />

Howe Martin & Associates<br />

is a Principal at<br />

Blackwood Family Lawyers<br />

in Melbourne<br />

Marita is an Accredited Family<br />

Law Specialist and can assist with<br />

all family law matters including:<br />

• matrimonial and de facto<br />

• property settlements<br />

• superannuation<br />

• children’s issues<br />

3/224 Queen Street<br />

Melbourne VIC 3000<br />

T: 03 8672 5222<br />

Marita.Bajinskis@<br />

blackwoodfamilylawyers.com.au<br />

www.blackwoodfamilylawyers.com.au<br />

CONSULTING<br />

ACTUARIES<br />

FOR PROFESSIONAL<br />

ACTUARIAL ADVICE ON<br />

- Personal Injury -<br />

- Workers Compensation -<br />

- Value Of Superannuation -<br />

Contact<br />

Deborah Jones, Geoff Keen<br />

or Victor Tien<br />

08 8232 1333<br />

contact@brettandwatson.com.au<br />

www.brettandwatson.com.au<br />

Ground Floor<br />

157 Grenfell Street<br />

Adelaide SA 5000<br />

<strong>December</strong> <strong>2021</strong> THE BULLETIN 39


We manage one of SA’s largest<br />

social media accounts.<br />

boylen.com.au<br />

P (08) 8233 9433

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