LSB May 2022 LR

THE
BULLETIN
THE LAW SOCIETY OF SA JOURNAL
VOLUME 44 – ISSUE 4 – MAY 2022
CHANGES TO THE LEGAL
PRACTITIONER CONDUCT RULES:
WHAT YOU NEED TO KNOW

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This issue of The Law Society of South Australia: Bulletin is
cited as (2020) 44 (4) LSB(SA). ISSN 1038-6777
CONTENTS
LEGAL PRACTITIONERS CONDUCT RUES
6 Legal Practitioners Conduct Rules:
Structure & application
By Rosalind Burke
7 National model framework addressing
sexual harassment in the profession
8 New rules on bullying, discrimination
and sexual harassment in legal
profession – By Greg May
9 Conflict of interest requirements in
short term legal assistance services
By Rosalind Burke
FEATURES & NEWS
10 Was it really that bad? What satisfies
the ‘serious harm’ element in the
Defamation Act – By Peter Quinn &
Jarrad Napier
14 Thinking of being a sperm donor? Do
you need a sperm donor agreement?
– By Julie Redman & Tayla Inglis
17 Budget boos for Federal and Family
Court
18 Disability discrimination and
reasonable adjustments in residential
tenancies – By Kayla Dickeson & Laura
Snell
24 Parliamentary report considers
reforms to Australia’s Space (Launches
and Returns) Act) – By Mark Giddings,
Sophie Howe, & Ashwini Ravindran
28 An analysis of the Law Society’s
Cloud computing guidelines:
Confidentiality – By Mark Ferraretto
REGULAR COLUMNS
4 President’s Message
5 From the Editor
22 Risk Watch: The importance
of verification of identity
By Kate Marcus
26 Tax Files: Professional practices:
what to do with the money you make
By Paul Tanti
30 Wellbeing & Resilience: Building
wellbeing culture in the workplace
By Wellbeing & Resilience Committee
32 Young Lawyers: Performing at your
performance review
Mikayla Wilson, Laura Corbett & Molly
Shanahan
33 Family Law Case Notes
By Craig Nichol & Keleigh Robinson
Executive Members
President:
J Stewart-Rattray
President-Elect: J Marsh
Vice President: A Lazarevich
Vice President: M Tilmouth
Treasurer:
F Bell
Immediate Past
President:
R Sandford
Council Member: M Mackie
Council Member: E Shaw
Metropolitan Council Members
T Dibden
M Tilmouth
A Lazarevich M Mackie
E Shaw
J Marsh
C Charles
R Piccolo
M Jones
Country Members
S Minney
(Northern and Western Region)
P Ryan
(Central Region)
J Kyrimis
(Southern Region)
Metropolitan Council Members
D Colovic E Fah
N Harb L MacNichol
L Polson M Young
KEY LAW SOCIETY CONTACTS
Chief Executive
Stephen Hodder
stephen.hodder@lawsocietysa.asn.au
Executive Officer
Rosemary Pridmore
rosemary.pridmore@lawsocietysa.asn.au
Chief Operations Officer
Dale Weetman
dale.weetman@lawsocietysa.asn.au
Member Services Manager
Michelle King
michelle.king@lawsocietysa.asn.au
Director (Ethics and Practice)
Rosalind Burke
rosalind.burke@lawsocietysa.asn.au
Director (Law Claims)
Kiley Rogers
krogers@lawguard.com.au
Manager (LAF)
Annie MacRae
annie.macrae@lawsocietysa.asn.au
Programme Manager (CPD)
Natalie Mackay
Natalie.Mackay@lawsocietysa.asn.au
THE BULLETIN
Editor
Michael Esposito
bulletin@lawsocietysa.asn.au
Editorial Committee
A Bradshaw P Wilkinson
S Errington D Sheldon
J Arena A Douvartzidis
B Armstrong D Misell
M Ford C Borrelli
The Law Society Bulletin is published
monthly (except January) by:
The Law Society of South Australia,
Level 10-11, 178 North Tce, Adelaide
Ph: (08) 8229 0200
Fax: (08) 8231 1929
Email: bulletin@lawsocietysa.asn.au
All contributions letters and enquiries
should be directed to
The Editor, The Law Society Bulletin,
GPO Box 2066,
Adelaide 5001.
Views expressed in the Bulletin
advertising material included are
not necessarily endorsed by The
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No responsibility is accepted by the
Society, Editor, Publisher or Printer
for accuracy of information or errors
or omissions.
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Junior Members
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Programme Manager (GDLP)
Desiree Holland
Desiree.Holland@lawsocietysa.asn.au
Ex Officio Members
The Hon K Maher, Prof V Waye,
Prof T Leiman
Assoc Prof C Symes

FROM THE EDITOR
People with
disability should
not be missing out
on legal services
MICHAEL ESPOSITO, EDITOR
IN THIS ISSUE
Last week, Janelle MacMillan OAM
published a powerful story on the
ABC website about the condescending and
judgmental way she is often treated due to
her disability.
Janelle has cerebral palsy. She has
trouble talking and has to deal with
constant uncontrollable body movements.
She is a highly intelligent woman,
prolific charity fundraiser, artist and
children’s book author.
But she says she has “been made to
feel like a child, talked down to, patted
on the head like a dog and made to feel
invisible”.
“I am fighting a war every day to get
people to see who I am and stop the
discrimination”.
There are about 1.2 million Australians
with communication disabilities, and many
would be fighting a similar battle.
It is one reason why the Society has
embarked on a project to increase access
to legal services for people with disability.
Many people with disabilities do not
receive the legal assistance they need
because there are not enough lawyers who
have the skills or willingness to properly
communicate with them.
And that sad reality is that physical
disability is often mistaken for mental
incapacity. As Janelle explained, just
because she has difficulty expressing
herself verbally, does not mean she is
intellectually lacking.
It is dreadful to think that people are
missing out on essential legal services
because of ill-informed assumptions that
they lack the capacity to give instructions
or understand the legal process.
The Society’s Disability Access Project
seeks to change these attitudes and equip
practitioners with the skills and resources
to serve clients with various disabilities.
We think it is a win-win proposition.
Not only do we enhance access to justice
for people with disability, but we increase
the pool of potential clientele for law firms.
Law practices that are willing to invest
in access to legal services for people with
disability will expand their potential to
bring in more work.
About 1 in 5 Australians have some
sort of disability. Firms that are not set up
to provide legal services to people with
disability are therefore missing out on
significant business growth opportunities.
On 24 June, the Society will be running
a free CPD session (at this stage both in
person and via webinar), to assist firms
in providing legal services to people with
disabilities.
The session will include a mock
lawyer-client interview involving a person
with cerebral palsy. Attendees will also
be provided with a consultation copy of
the Society’s Disability Access Guide for
the Legal Profession, and there will be a
demonstration of a soon to be launched
online tool to help people with disabilities
connect with suitable law firms.
The event is worth three CPD points.
Click here to register for the free event, or
send an email to cpd@lawsocietysa.asn.au. B
DEFAMATION REFORMS
New serious harm threshold
SPERM DONOR LAWS
Do you need an agreement?
DISABILITY DISCRIMINATION
Tenants’ rights to modify rental
properties
10
14
18
4
THE BULLETIN May 2022

PRESIDENT’S MESSAGE
Model Framework gives
guidance on effective policies
to stamp out harassment
JUSTIN STEWART-RATTRAY, PRESIDENT
Most practitioners would be well aware
by now of the important changes to
the Legal Profession Conduct Rules, which
came into force on 1 January.
An examination of these rules, as
well as an explainer on the disciplinary
ramifications, are included in this edition
of the Bulletin.
The Society has hosted a CPD to
help practitioners understand the Rules
and has sent several notifications to
practitioners, but we thought it would
be helpful to explain the key changes to
the Rules in this edition of the Bulletin,
so practitioners have an easily accessible
guide to the Rules.
I extend a large vote of thanks to
the Society’s Ethics & Practice Director
Rosalind Burke, and Legal Profession
Conduct Commissioner Greg May, for
their contributions to this edition and their
ongoing education and guidance.
One of the changes to the Rules
concerns bullying, discrimination and
harassment. The rules clarify that a
practitioner must not engage in bullying,
discrimination or any form of harassment
in connection with legal practice or their
profession.
The Rules regarding bullying,
discrimination and harassment aim to
make it clear that this type of conduct is
completely unacceptable. It is a positive
step towards building a more inclusive and
respectful culture in the profession.
In this vein, the Law Council of
Australia’s National Model Framework
aims to stamp out sexual harassment in the
profession.
The National Model Framework was
released on 23 December 2021 is available
on the Law Council’s website. It provides
a comprehensive guide to help firms
implement effective policies that protect
the safety and dignity of staff, particularly
with regards to preventing and responding
to sexual harassment.
Law practices are encouraged to either:
• adopt the Model Framework in its
entirety as that organisation’s own
sexual harassment policy; or
• use the Model Framework to augment
and/or refine their existing policies.
A checklist included in the Model
Framework can assist firms to identify
gaps in their existing policies. These gaps
can be filled with extracts from the Model
Framework.
The Model Framework also provides
guidance for people making a complaint
against sexual harassment and people
facing a complaint of sexual harassment.
Of course, having an effective policy is
just one component of a wider response
to harassment in the profession.
It is important that all staff are
familiar with their workplace policies, and
management is committed to enacting the
policies.
The opening line of the Model
Framework is the foundational premise on
which the comprehensive policy is built. It
says “Sexual harassment is unacceptable, in
any context”.
We still have a long way to go before
a culture of zero-tolerance permeates
throughout the whole profession, but
progress is being made.
It was pleasing that the Equal
Opportunity Commissioner Jodeen
Carney recently reported that there
had been a significant drop in sexual
harassment complaints coming to her
office, and expressed the view that the
legal profession’s response to last year’s
EOC Report on sexual harassment in
the profession had been “focused and
impressive”.
Ms Carney suggested that while
the decline in complaints to the Equal
Opportunity Commission may indicate
that there have been fewer instances of
sexual harassment in the profession, it
may also be partly due to there being more
pathways for complaints being available.
The introduction of a specialised
service by Legal Profession Conduct
Commissioner by which people seeking to
discuss instances of inappropriate personal
conduct in the legal profession can contact
a dedicated experienced practitioner in
confidence for support and advice, is a
significant new option. The Society offers
informal and confidential advice and a
range of specialised support services.
The greater accessibility of complaints
mechanisms is a positive step. It is
crucial that those who report harassment
are supported. We know from various
surveys that a fear of speaking out leads
to practitioners leaving the profession
prematurely.
I encourage all practice managers to
consider the National Model Framework,
and review their policies to ensure they
are robust enough to minimise the risk of
bullying, discrimination and harassment. B
May 2022 THE BULLETIN 5

CONDUCT RULES
LEGAL PRACTITIONERS CONDUCT
RULES: STRUCTURE AND APPLICATION
ROSALIND BURKE, DIRECTOR, ETHICS & PRACTICE
This paper provides an overview of
the implementation of the Legal
Practitioners Conduct Rules, their structure
and application.
On 1 January 2022 the Society revoked
the SA Australian Solicitors Conduct Rules
(SAASCR) (which were first adopted in
SA in 2011) and implemented the South
Australian Legal Practitioners Conduct
Rules (LPCR).
The SAASCR comprised the Law
Council of Australia’s Australian Solicitors
Conduct Rules (ASCR) with the addition
of some SA-specific content.
The LPCR constitute legal profession
rules that are applicable to all members of
the SA legal profession regardless of the
mode in which they practise.
The LPCR are the product of reviews
undertaken by the Society into the
application and content of the SAASCR.
Application
In addressing concerns about the
application of the SAASCR to all legal
practitioners, attention was focussed on
the statutory references to legal profession
rules contained in the Legal Practitioners Act
1981 (Act). Sections 68, 69 and 70 of the
Act provide as follows:
6
68—Unsatisfactory professional
conduct
In this Act—
unsatisfactory professional conduct
includes conduct of a legal practitioner
occurring in connection with the practice
of law that falls short of the standard of
competence and diligence that a member of
the public is entitled to expect of a reasonably
competent legal practitioner.
69—Professional misconduct
THE BULLETIN May 2022
In this Act—
professional misconduct includes—
a. unsatisfactory professional conduct of
a legal practitioner, where the conduct
involves a substantial or consistent
failure to reach or maintain a reasonable
standard of competence and diligence; and
b. conduct of a legal practitioner whether
occurring in connection with the practice
of law or occurring otherwise than in
connection with the practice of law that
would, if established, justify a finding
that the practitioner is not a fit and proper
person to practise the profession of the law.
70—Conduct capable of constituting
unsatisfactory professional conduct
or professional misconduct
Without limiting section 68 or 69,
the following conduct is capable of
constituting unsatisfactory professional
conduct or professional misconduct:
a. conduct consisting of a
contravention of this Act, the
regulations or the legal profession
rules;
The Act defines ‘legal profession rules’
as follows:
legal profession rules means—
a. the Society’s professional conduct
rules;
b. any other rules prescribed by the
regulations for the purposes of this
definition;
The Legal Profession Conduct
Commissioner advised the Society that
a small number of legal practitioners
who were the subject of allegations of
beaches of the SAASCR had raised an
argument that they could not be found
guilty of a breach of legal profession rules
under section 70 because the SAASCR
did not apply to them. The practitioners
argued that as they practised exclusively
as barristers at the time of the alleged
conduct, and the SAASCR only referred to
solicitors, the SAASCR did not constitute
legal profession rules and meant that
section 70(a) could not be invoked in
disciplinary charges against them.
This argument was concerning for the
following reasons:
• It conflicts with the fact that the
profession in SA is a fused one
pursuant to section 6 of the Act
in which all legal practitioners are
admitted and enrolled as solicitors and
barristers of the Supreme Court, and
regulated by a single regulatory and
disciplinary regime, regardless of the
mode in which they choose to practise.
• The definitions of unsatisfactory
professional conduct and professional
misconduct refer to conduct by
‘legal practitioners’ not ‘solicitors’ or
‘barristers’.
• Section 70 does not exclude any class
of practitioner from its ambit.
• The only substantive distinction
between the practice of solicitors
and barristers in the Act relates to
the provisions in relation to trust
money which is only relevant because
practitioners who choose to practise
exclusively as barristers are not
permitted to receive trust money.
The argument also implied that
community expectations that all
practitioners be required to comply
with the same obligations in relation
to discrimination, harassment and
workplace bullying (as raised in the Equal
Opportunity Commissioner’s Report of

CONDUCT RULES
Sexual Harassment in the Legal Profession that
was published on April 2021) could not be
met under the current version of the Act.
Content
From 2019 to 2021 the Law Council
of Australia (LCA) carried out an
extensive review of the ASCR. As a
constituent body that adopted the ASCR
(as the SAASCR) at its inception in 2011,
the Society participated in that review and
made some valuable contributions to it.
The review was stimulated by the
need to ensure that professional conduct
rules respond to a world in which
changing community expectations, and the
development and use of new technologies,
mean that the control of legal practitioner
conduct can no longer be confined to
physical places such as the office, Court or
chambers.
As a result of that review a number of
important modifications to the ASCR were
adopted. These include the implementation
of new rules modifying requirements in
relation to conflict of interest in relation
to short-term legal assistance services
(LPCR Part A Rule 11A) and broadening
and clarifying requirements in relation to
harassment, discrimination and workplace
bullying (LPCR Part A Rule 42 and Part B
Rule 123).
The LPCR
The structure, terminology and
content of the LPCR have effectively
addressed and put to bed the concerns
about the SAASCR referred to above.
The LPCR consists of two sections,
Part A and Part B.
Part A comprises a new SA version of
the ASCR in which:
• changes to ASCR content as a
consequence of the LCA review are
incorporated; and
• ‘solicitor’ is replaced by ‘legal
practitioner’ or ‘practitioner’; and
• Rule 16A Legal Assistance is added; and
• ASCR numbering is retained for crossrefencing
purposes and to simplify use
of the LCA’s commentary.
The rules contained in Part A apply to
all SA legal practitioners to whom Part B
does not apply.
Part B comprises rules that apply to
legal practitioners who hold a Category BA
practising certificate or who have otherwise
elected to practise exclusively as a barrister
by qualifying for the barrister contribution
under the South Australian Professional
Indemnity Insurance Scheme. It comprises
an amended version of the South
Australian Bar Association Rules and are
designed to reflect expectations in contexts
that specifically apply to practitioners who
choose to practise exclusively as barristers.
If you have any questions about the
LPCR, or need advice on professional
obligations, please contact the
Ethics and Practice Unit by email at
ethicsandpractice@lawsocietysa.asn.au. B
Rosalind Burke
National Model Framework
Addressing Sexual Harassment
for the Australian Legal Profession
One of the outcomes of the Law
Council of Australia’s (LCA) recently
concluded review of the Australian
Solicitors Conduct Rules (ASCR) was to
extend the ambit of the rules prohibiting
harassment and discrimination in the legal
profession (ASCR 42).
The subsequent amendments adopted
by the LCA have been incorporated into
the Legal Practitioners Conduct Rules
(LPCR) that were implemented by the
Society in January 2022 (see Part A Rule
42 and Part B Rule 123).
The prohibition of conduct
comprising sexual discrimination,
harassment or workplace bullying is no
longer limited to conduct that is ‘in the
course of legal practice’ but has been
extended to include conduct by legal
practitioners that occurs ‘in the course of,
or in connection with, legal practice or
their profession’.
In conjunction with the
implementation of the amendments
the LCA has developed and published
its National Model Framework Addressing
Sexual Harassment for the Australian
Legal Profession (Model Framework).
The Model Framework provides:
• best practice recommendations for
complaints procedures for disciplinary
bodies and workplaces;
• an auditing tool/checklist which
enables organisations to assess and
identify any gaps in their existing
policies; and
• Guidance Notes as follows:
○ Information for organisations
implementing the Model
Framework;
○ Information for persons wanting
to make a complaint about sexual
harassment; and
○ Information for persons
facing a complaint about sexual
harassment.
To access the Model Framework
please just click on the links provided
or go to the resources page of the
LCA website.
Please contact the Society’s Ethics
and Practice Unit if you have any
questions about the Model Framework
or the LPCR. B
May 2022 THE BULLETIN 7

FROM THE CONDUCT COMMISSIONER
New rules on bullying,
discrimination and sexual
harassment in legal profession
GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER
RULE 42 – BULLYING, DISCRIMINATION
AND SEXUAL HARASSMENT
SBackground
ection 70(a) of the Legal Practitioners
Act provides that “conduct consisting
of a contravention of this Act, the regulations
or the legal profession rules” is capable of
constituting unsatisfactory professional
conduct or professional misconduct.
Section 5 of the Act defines the “legal
profession rules” as meaning “the Society’s
professional conduct rules” or “any other rules
prescribed by the regulations for the purposes of
this definition”.
The old ASCRs clearly fell within that
definition. In my view, the old ASCRs
applied to both solicitors and barristers.
Not everyone shared that view. Some
barristers took the view that they were
only bound by the Bar Rules, not the
ASCRs – and that the Bar Rules weren’t
caught by the section 5 definition.
In my submissions to the Acting
Commissioner for Equal Opportunity
for the purposes of her review into
harassment in the legal profession, I
suggested that this particular issue should
be put beyond doubt. That has now been
done by the adoption of the new SA
Legal Practitioners Conduct Rules from 1
January 2022.
Old rule 42
Rule 42 of the ASCRs provided as
follows:
A solicitor must not in the course
of practice, engage in conduct which
constitutes:
• discrimination;
8
THE BULLETIN May 2022
• sexual harassment; or
• workplace bullying.
New rules
Rule 42.1 of Part A of the SALPCRs
now provides as follows (with the new
wording underlined):
A solicitor must not in the course of,
or in connection with, legal practice or
their profession, engage in conduct which
constitutes:
• discrimination;
• sexual harassment;
• any other form of harassment; or
• workplace bullying.
The same wording is used in rule 123
in Part B, other than that it refers to “a
barrister” rather than “a solicitor”.
The impact of the changes
The previous requirement was that
any such conduct had to be “in the course
of practice”. The use of that phrase was
somewhat problematic. Anecdotally, it
seems often to be the case that sexual
harassment occurs after work hours
– whether that be at client functions,
conferences etc. It can be a grey area as to
whether conduct in those circumstances is
occurring “in the course of practice”.
Of course, even if a lawyer sexually
harassed someone in circumstances that
were not “in the course of practice”, such
that there was no breach of old rule 42, it
could still have amounted to misconduct
under the definitions “unsatisfactory
professional conduct” in section 68 and of
“professional misconduct” in section 69.
In the new version of rule 42 / rule
123, the use of the phrase “in connection
with practice” broadens the reach of the
rule considerably. It is “a phrase of wide
import”, which requires only “a mere relation
between one thing and another and [does] not
necessarily require a causal relationship between
the two things”. 1 It is also the same phrase
as is used in the relevant definitions in
sections 68 and 69.
In my view, this new rule will now clear
up that grey area I have referred to.
The use of the term “their profession”
adds another dimension. It is no longer
only conduct that has some connection
to a person’s practice that is regulated,
but literally anything to do with the legal
profession. So, it seems to me that this
type of conduct is now clearly prohibited
at (simply by way of some examples)
the Law Society’s annual dinner, other
Law Society social events, professional
development sessions, committee
meetings, functions run by other legal
organisations (eg Australian Lawyers
Alliance, the Association of Corporate
Counsel etc). While a practitioner’s
involvement in those types of events could
well have been in connection with his or
her practice, again any doubt about that is
removed.
A new definition of “harassment” has
been added the rules as well. It is defined
to mean “harassment that is unlawful under
the applicable state, territory or federal antidiscrimination
or human rights legislation”. B
Endnotes
1 Ewin v Vergara (No 3) [2013] FCA 1311 at [230]

CONDUCT RULES
Conflict of interest requirements in
short term legal assistance services
ROSALIND BURKE, DIRECTOR, ETHICS & PRACTICE
LPCR 11A is new rule which introduces
modified, but still prescriptive, conflict
of interest requirements for practitioners
engaging in the provision of short-term
legal assistance services.
For the purpose of 11A, short term
legal assistance means:
Services offered by a legal practitioner to a
client, whether through a legal assistance service
provider or on a pro bono basis, with the
expectation by the practitioner and the client that
the practitioner will not be providing continuing
legal advice or representation in the matter.
The rule is expected to be most
relevant to community legal practices and
legal services that are funded or provided
by the Legal Services Commission in
contexts where urgent short term legal
assistance is required and it is not possible
to perform a robust conflict check prior to
the provision of those services.
In its recently concluded review of
the Australian Solicitors Conduct Rules
(ASCR), the Law Council of Australia
(LCA) gave consideration to the existing
rules in relation to conflict of interest
in the context of increasing community
concerns about access to justice
especially for remote and economically
disadvantaged communities.
After consultation with its constituent
bodies and key access to justice stakeholders,
the Law Council concluded that the existing
conflict of interest requirements can have
unintended consequences for practitioners
providing short term legal services which
might contribute to an inability for recipients
to access those services.
Rule 11A recognises that in the
provision of short term legal assistance
services there may be limits on the extent
to which conflict of interest identification
can be carried out especially in urgent
matters, and in which conflict of interest
does not necessarily apply while continuing
to provide robust protection of clients’
rights in relation to confidentiality and the
requirement that their lawyer act in their
best interests at all times.
Rule 11A provides, essentially, that
if it is not reasonably practicable for a
legal practitioner providing short-term
legal assistance to screen for conflicts, the
practitioner can act in a limited context as
long as, as far as reasonably practicable, they:
• have disclosed to the client the nature
of the services to be provided; and
• are satisfied (at that time) there is no
actual or potential conflict between the
duties owed to that client and one or
more other clients; and
• the client has given informed consent
to the provision of the services on
those terms.
Rule 11A then goes on to provide
that a practitioner must not provide or
continue to provide short-term legal
assistance to a client if they:
• are or become aware that the interests
of the client are adverse to the
interests of a current client; or
• while providing short-term legal
assistance, obtain confidential
information of a current or former
client that might reasonably be
concluded to be material to the client
matter and detrimental to the current
or former client if disclosed.
Finally, 11A provides that a practitioner
providing short-term legal assistance services
may act for that client and another client of
the practitioner or law practice if each client
has given informed consent and measures
are put in place to ensure confidential
information will not be disclosed.
Please contact the Society’s Ethics and
Practice Unit if you have any questions
about Rule 11A or the LPCR. B
May 2022 THE BULLETIN 9

DEFAMATION
Was it really that bad?
What satisfies the ‘serious harm’
element in s 10A of Defamation Act
PETER QUINN, MURRAY CHAMBERS & JARRAD NAPIER, NORMAN WATERHOUSE LAWYERS
The Defamation Act 2005 (SA) (‘Act’)
underwent a number of amendments
that became effective as of 1 July 2021.
Those amendments included s 10A, which
has now altered the essential elements of
the cause of action in defamation. The
introduction of s 10A(1) of the Act added
a “serious harm” element to the tort of
defamation that limits the cause of action
to matters where the defamatory matter
‘has caused, or is likely to cause, serious harm to
the reputation of the person’. The addition of
the ‘serious harm’ element appears to have
displaced the common law presumption
that harm flows as a natural incident of
the publication of defamatory matter.
Presumption of harm displaced
In Lachaux v Independent Print Ltd
and Anor [2019] UKSC 27 (‘Lachaux’),
the UK’s Supreme Court held that the
common law presumption of harm
to reputation has been altered by the
introduction of the threshold element of
seriousness 1 .
It is open to Australian courts
to simply follow Lachaux, accept the
presumption is displaced and to, thereby,
avoid the ‘spiralling numbers of expensive,
stressful but ultimately minor matters in our
courts, many of which could be solved better over a
coffee or a barbecue or even a handshake.’ 2
In Newman v Whittington [2022] NSWSC
249 (‘Newman’), a pleadings strike-out
case, Sackar J followed Lachaux and held
that s 10A of the Act has the effect of
abolishing the common law presumption
of harm 3 .
As yet, Australian intermediate courts
have not dealt with the question of
whether s 10A of the Act has displaced or
altered the presumption of harm.
There are, however, several reasons as
to why the presumption of harm should
not be displaced in Australia. Primary
among them is that the “serious harm”
element is a direct transplant from the UK.
In the UK, the foundation for the
serious harm element appears in the
decisions of Jameel (Yousef) v Dow Jones
& Co Inc [2005] All ER (D) 43 (‘Jameel’)
and Thornton v Telegraph Media Group Ltd
[2010] EWHC 1414 (‘Thornton’). Both
decisions questioned the basis for the
presumption that damage naturally flows
from the publication of defamatory
matter, instead finding that attention must
be given to the seriousness of the matter
and the circumstances of publication, as a
substantive threshold.
The reasoning in Lachaux drew heavily
on Jameel and Thornton. However, English
Courts dealing with actions in defamation
are subject to the Human Rights Act 1998
and a requirement to administer the law
in a manner compatible with Article 10
of the European Convention on Human
Rights. Article 10 provides protection for
the “right of freedom of expression”,
such that English Courts are required
to treat “defamation proceedings that
are not serving the legitimate purpose
of protecting the claimant’s reputation”
as an abuse of process. That approach
distinguishes Australian jurisprudence,
which is not subject to the policy
considerations defined by the UK’s
Human Rights Act and the European
Convention on Human Rights.
Australian courts have considered
Jameel on the question of the presumption
of harm prior to the introduction of s
10A of the Act 4 . However, there was
no blanket acceptance of the reasoning
in Jameel on that issue, and no apparent
indication that the presumption of harm
should be displaced.
Jameel, Thornton and Lachaux were
considered in Armstrong v McIntosh (No 2), 5
(‘Armstrong’) where, on an interlocutory
application seeking to stay or dismiss the
applicant’s action, Le Miere J considered
whether the test for what is defamatory
includes a threshold test of seriousness.
On that question, Le Miere J reasoned
that there ‘are significant differences
between the law of defamation in
Australia and the law of defamation in
England’ which included ‘the absence of
a Human Rights Act in Western Australia
and the presence of the statutory triviality
defence.’ 6 Armstrong was decided prior
to the introduction of s 10A of the
Act, however, Le Miere J’s reasoning
leaves open the possibility that Lachaux
and Thornton may be followed more
generally on the ‘serious harm’ element by
Australian courts.
Another reason that the presumption
of harm should not be displaced, is that
the long-standing principle that harm
flows naturally from the publication
of defamatory matter is bound up in
the nature of the tort and its historical
underpinnings as an alternative to the
chivalrous (but deadly) practice of duelling
over reputational slights. 7 At a policy level,
providing a remedy for victims of the
harsh and untrue was seen as preferable to
pistols at dawn.
10
THE BULLETIN May 2022

DEFAMATION
What is serious harm?
The question remains how Australian
courts will determine what amounts to
“serious harm”. Under s 10A of the
Act, on the application of a party or its
own initiative, courts are empowered to
determine, at a threshold level, whether
an applicant is capable of establishing
the “serious harm” element. The early
determination of that issue should have the
amendment’s desired effect of preventing
the litigation of trivial claims, freeing court
resources to hear and determine those
claims with substantial merit.
Writing extra-judicially, Gibson DCJ
said that courts must be not simply ‘sideline’
the consideration of the ‘serious harm
threshold’ as a ‘minor trial issue’. 8 Consistent
with that view, establishing the ‘serious
harm’ element should not be treated as a
formulaic exercise and the threshold to be
satisfied should be considered as a matter
of substance, not form.
Newman is the first reported decision
considering the meaning of ‘serious harm’
in Australia under the Act. Save to say that
it considered Lachaux to be the starting
point when assessing serious harm, which
may include an analysis of the scale of
the publication, and the print runs of the

DEFAMATION
readership of the publications, 9 there was
little analysis as to what might constitute
serious harm.
For corporate applicants the nature of
what constitutes “serious harm” is spelt
out in the legislation; they must establish
‘serious financial loss’ to their business.
However, what does it mean for the
individual to establish “serious harm” to
their reputation?
Lachaux held that the consideration
of the harm caused relates to the
consequences of the publication and ‘can
be established only by reference to the impact which
the statement is shown actually to have had.’ 10
The assessment is dependent upon the
inherent tendency of the words to cause
harm, coupled with the impact that the
words had on those to whom they were
communicated 11 . This is consistent with
the South Australian Full Court of the
Supreme Court decision in Lesses v Maras 12
(and McCallum J’s observations in Kostov v
Nationwide News Pty Ltd 13 ) namely, that an
examination of the seriousness and nature
of the defamatory meaning is necessary
to determine the seriousness of the
defamatory matter. 14
It is apparent that the question of
serious harm focuses on the particular
applicant and the publication complained
of. While always a matter of degree, the
test is concerned with the seriousness
of the injury caused to that applicant’s
reputation. It is likely that, as in Newman,
Australian courts will engage in a ‘parity
of reasoning’ and align with the English
authorities, including Lachaux, on the
question of serious harm. Therefore,
potential applicants should first consider
how they will satisfy the serious harm
element. Doing so will depend on a
combination of the following matters:
• whether the serious reputational harm
has been suffered or will more likely
than not occur in the future 15 ;
• a contextual investigation of the facts
(i.e. a move away from the objective
meaning of the words as discussed in
Thornton) 16 ;
• how many publishees heard or read the
publication;
• would the publishees believe the words
used 17 ;
• financial loss (similar to the
considerations raised by corporations
demonstrating serious harm);
• whether there is a reasonable need for
vindication or an apology 18 ;
• can it be inferred from the words that
are used in the publication (the use of
words such as ‘paedophile’ or ‘terrorist’
may be enough to satisfy the inquiry) 19 ;
and
• whether there is any actual impact that
can be demonstrated 20 .
As serious harm is now an essential
element of their cause of action,
applicants must plead a sufficient factual
basis, including proper particulars of
the matters that go to establish serious
reputational harm and whether such harm
has been suffered or is likely to be suffered
in future. If an applicant’s claim fails to
plead that necessary factual basis, they can
expect a challenge on the ‘serious harm’
element at an early stage in proceedings.
Further, an applicant must also
consider the evidence available to prove
his/her reputation, as it existed before
the publication and the harm caused
to that reputation in consequence of
the publication. Courts often divide an
applicant’s reputation into several sectors
or domains, and in the UK it has been
held that an applicant’s bad reputation can
be taken into account when considering
the ‘serious harm’ question. Therefore,
evidence of a prior bad reputation will be
relevant, provided ‘it goes to the same sector of
the claimant’s reputation’ 21 .
The procedural mechanisms of s 10A
of the Act allow for the determination
of whether the serious harm element
is established as a preliminary issue, at
any time before the trial commences are
consistent with the policy underpinning
that provision; namely, ensuring that
applicants are unable to pursue trivial
claims to trial and judgment. Providing
respondents with the opportunity
to challenge the applicant’s ability to
establish the ‘serious harm’ element
from the outset, is a significant step.
However, any applicant responding to
such a challenge may continue to benefit
from the general reluctance of courts to
deprive applicants of a chance to have
their matters heard and determined. As
with summary judgment or summary
dismissal applications, dismissing an action
because the ‘serious harm’ element is not
established may only occur in the most
obvious cases. This will be particularly so
in cases where courts are invited to dismiss
an action based on an assessment of the
pleadings alone without recourse to any,
or further, evidence 22 . With that in mind,
applicants will be well advised to ensure
that their claims provide a proper factual
basis for the ‘serious harm’ element, as
it relates to the (serious) nature of the
defamatory meaning of the publication
in issue and the (wide) scope of that
publication. Ultimately, an applicant
will need to establish the ‘serious harm’
element with admissible evidence and
should expect that the respondent is likely
to bring evidence to the contrary.
Applicants seeking damages for
defamation now face a significant hurdle
and may do so at an early stage in the
proceedings. If courts give due weight to
the intended the purpose of s 10A of the
Act, that provision has the potential of
preventing (or discouraging) the pursuit
of trivial and otherwise meritless claims,
provided that the onus of establishing the
element is placed squarely on applicants
and is treated as a substantial threshold
that an applicant must inevitably meet. B
12
THE BULLETIN May 2022

DEFAMATION
Endnotes
1 [2019] UKSC 27 [12], [13], and [17].
2 New South Wales, Parliamentary Debates,
Legislative Assembly, 29 July 2020, 2 (Mark
Speakman, Attorney-General).
3 [2022] NSWSC 249 [69].
4 Manefield v Child Care New South Wales
[2010] NSWSC 1420 (Kirby J); Bristow v
Adams [2012] NSWCA 166 (Basten JA,
Beazley JA and Tobias AJA agreeing); Bleyer
v Google Inc [2014] NSWSC 897 (McCallum
J); Lazarus v Azize & Ors [2015] ACTSC 344
(Mossop AsJ).
5 [2019] WASC 379.
6 Armstrong v McIntosh (No 2) (n 5), [75] (Le Miere J).
7 Patrick George, Defamation Law in Australia
(LexisNexis Butterworths Australia, 3 rd ed, 2017),
30-32.
8 Judith Gibson, ‘Identifying defamation law
reform issues: A “snapshot” view of defamation
judgment data’ (2019) 23 Media and Arts Law
Review 4, 20.
9 Lachaux (n 1), [14].
10 Lachaux (n 1), [14].
11 Lachaux (n 1), [14].
12 (2017) 128 SASR 292.
13 [2019] NSWCA 84.
14 NB: the considerations of seriousness in these
decisions are in relation to the defence of
triviality and damages.
15 Cooke v MGN [2014] EWHC 2831 (QB) [33].
16 Lachaux v Independent Print [2015] EWHC 2242
(QB) [47]-[48] (Warby J) (‘Lachaux (HC)’).
17 Lachaux (n 1) [16].
18 Theedom v Nourish Training [2015] EWHC 3769
(QB) [28].
19 Cooke (n 15) [43]; Lachaux (HC) (n 16) [57];
Lachaux (n 1) [16].
20 Lachaux (n 1) [15].
21 Monroe v Hopkins [2017] EWHC 433 (QB) [228]
(Warby J).
22 Defamation Act 2005 (SA) s 10A(7).
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May 2022 THE BULLETIN 13
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BVDA

FEATURE
THINKING OF BEING A SPERM
DONOR? DO YOU NEED A
SPERM DONOR AGREEMENT?
JULIE REDMAN AND TAYLA INGLIS, ADELTA LEGAL
Advances in technology and legislative
changes including recognition of
same sex marriage have seen an increase
in the number of children conceived
through artificial conception procedures.
Many people including same sex couples
and single women may wish to seek the
assistance of a sperm donor to enable them
to start a family. Important consideration
needs to be given to the role of each
person involved in the artificial conception
process and to the role it is intended each
person play in the life of the child to be
conceived. Whatever the scenario may be,
there are legal complexities that should be
carefully considered, and legal advice is
recommended.
There is a difference between
“parentage” of a child and “parenting”.
Parentage means the determination of
whether a person is the parent of the
child. Parenting is the process of raising
and educating a child from birth until
adulthood.
STATUS AS PARENTS
In South Australia there are two
statutory frameworks that need to be
considered in relation to children born as
a result of artificial conception procedures
– the Family Law Act 1975 (Cth) and the
Family Relationships Act 1975 (SA).
The term ‘parent’ is not defined in the
Family Law Act.
Under the Family Law Act where a
child is born to a woman as a result of
14
THE BULLETIN May 2022
an artificial conception procedure and
the mother has a partner (either married
or de facto) at the time of the procedure
who consented to the procedure then the
child will be a child of the mother and that
“intended parent”. 1
Where a child is born to a single
mother, the question of whether the
sperm donor is the father is considerably
more complex. Section 60H of the Family
Law Act does not prima facie exclude a
sperm donor from possibly being a parent
as would be the case for a mother with a
partner.
In contrast, under the Family
Relationships Act (SA) if a woman becomes
pregnant in consequence of a fertilisation
procedure and a man (not being the
woman’s spouse, or if she is in a qualifying
relationship, her partner) produced sperm
used for the purposes of the procedure
then for the purposes of the law of the
State, the man –
1. will be conclusively presumed not to
have caused the pregnancy; and
2. will be taken not to be the father of any
child born as a result of the pregnancy.
The High Court decision in Masson v
Parsons & Ors [2019] HCA 21 (“Masson”)
considered both the provisions of
the Commonwealth and State law in
considering similar provisions under the
Status of Children Act 1996 (NSW).
The High Court found that Mr Masson
(the man who donated his sperm to a
woman who was single at the time of the
conception procedure) was a ‘parent’ of
the child within the meaning of the Family
Law Act. The Court held that section 60H
of the Family Law Act was not exhaustive
of the circumstances in which someone
may be deemed a parent. Masson is now
the leading case in this area of law. The
factors the court considered in making this
determination are discussed in more detail
later in this article.
In determining whether a sperm donor
is a parent of a child born to a mother,
careful consideration of a range of factors
is required, including the intentions of
the mother and sperm donor, whether the
sperm donor was known to the mother
and who is listed on the birth certificate.
PRESUMPTION OF PARENTAGE AND THE
CHILD’S BIRTH CERTIFICATE
There are presumptions of parentage
under the Family Law Act. 2 Most
commonly in artificial conception matters,
this presumption arises when a person’s
name is entered on the child’s birth
certificate as a parent. 3
It is essential that all parties involved
understand and record their intentions in
relation to the parents to be recognised on
the birth certificate, currently this can be
only two people.
DO YOU HAVE TO BE FOUND TO BE A
PARENT TO HAVE A RELATIONSHIP WITH
A CHILD?
The Family Law Act does not restrict
applications for parenting orders to only

FEATURE
those persons who are a ‘parent’ of a child.
If a person can demonstrate that they
are a ‘parent’ of the child, then there is a
presumption as to parental responsibility. 4
Under section 65C of the Family Law
Act however, a parenting order can be
applied for by a parent or grandparent or by
“…any other person concerned with the care,
welfare or development of the child”. 5
A parenting order may deal with a
range of issues such as whom a child is
to live and spend time, the allocation of
parental responsibility, the communication
a child is to have with another person
or persons, maintenance of a child and
any other aspect in relation to the care,
welfare, or development of the child. 6
DOES A SPERM DONOR AGREEMENT
ASSIST TO DEFINE PARENTAGE OR TO
OBTAIN PARENTING ORDERS?
What is evident from recent case law
in the area 7 is that the intention of the
parties at the time of conception and
the actions which follow after the birth
of the child are significant factors taken
into consideration when disputes arise as to
parentage and potential parenting orders.
When embarking on the process of
artificial conception, it is recommended
that parties enter into a Sperm Donor
Agreement prior to conception. 8 This is
particularly so if the birth mother (and/
or her partner) does not want the sperm
donor to be considered a parent of the
child or if the donor intends to be a parent
but will not be registered on the birth
certificate.
Case scenario
Tim and Anna are close friends. Anna is
37, single and seeks to have a child of her
own. Tim is 36, married to Lisa. They have
two children. Tim and Lisa have agreed Tim
can donate his sperm to Anna for her to have
a child provided Tim has no legal status as
a parent. Tim wants a level of protection to
ensure he will not be a parent required to pay
any form of child support to Anna for his
biological child. They are also concerned about
potential claims on Tim’s estate if the child is
legally found to be his child.
What guarantees can be provided
to Tim?
If parties enter into a Sperm Donor
Agreement this will set out in writing the
parties’ intentions and understanding of
roles each party will have in the child’s life,
including Tim’s wife Lisa. A Sperm Donor
Agreement can encompass a range of
issues including, for example:
• Tim’s involvement in pregnancy,
appointments and scans;
• What will be Tim’s role in the child’s
life;
• Whether the parties intend Tim will be
a parent or a donor;
• What will Lisa’s role be in the child’s
life;
• When will the child be told about their
conception;
• The upbringing of the child once born;
• Provisions around dispute resolution in
the event an issue arises in the future.
In our case scenario, the Sperm Donor
Agreement would seek to identify Tim as a
donor only and not a parent of the unborn
child. The intention of the parties would
be to absolve Tim from legal, financial and
other parental responsibilities in relation
to the child to be conceived and to seek to
waive his rights to obtain orders under the
Family Law Act 1975.
Sperm Donor Agreements operate
to provide evidence of the intention of
the parties to the artificial conception
procedure at the time they entered into
the procedure. Although they are unable
to legally define a person as a parent or
not a parent of a child the evidence of the
intent of the parties can be very significant
in any subsequent legal determination
of the status of a party as a parent or
otherwise. By way of example, in our
scenario if Tim decided he now wanted
to have a parenting role in the child’s life
once the child was born, a signed Sperm
Donor Agreement would be a crucial piece
of evidence that Anna could produce as
evidence of the intention of the parties
at the time the child was conceived. A
written agreement setting out the parties’
intention of Tim’s involvement in the
child’s life, entered into pre-conception
is far more useful than a “he said, she said”
understanding, or interpretation of a
verbal agreement reached between the
parties.
May 2022 THE BULLETIN 15

FEATURE
If we flip the scenario, and say Tim always
planned to play a more significant role in the
child’s life – such as spending time with the child
during the week and on weekends, attending the
child’s schooling events and involving the child with
his family then is a Sperm Donor Agreement
recording this worth anything?
What can be discerned from the recent
case law is that actions pre-conception,
during pregnancy and following the child’s
birth will be taken into consideration by
the Court when looking at donor disputes. 9
In some cases, a sperm donor has been
determined by the Court to be a parent of
the child born of artificial insemination. 10
In cases where a sperm donor has
been considered to be a parent the relevant
factors have included the following 11 :-
• A donor always held and continued to
hold the expectation that he would be
involved with the child.
• The parties jointly informed others that
the birth mother was pregnant, and the
donor was the biological father.
• The parties discussed the naming of
the child.
• The birth mother indicated that
following the birth of the child the
donor and his family would be actively
involved with the child.
• The parties discussed the donor’s level
of involvement with the child and the
donor indicated that he wanted visits
and an opportunity to baby sit.
• The donor was registered on the child’s
birth certificate.
• The donor gave his genetic material on
the express or implied understanding
that he would be a parent of the child.
• The donor cared for the child
financially and emotionally.
• The child identified with the donor
as her father and referred to him as
“daddy.”
In our scenario, if a determination was
made by a Court that Tim was a parent of
the child, and a paternity order was made
this would enable him to be registered
on the child’s birth certificate. Tim would
then have obligations as a parent for child
support and provision for a child in the
event of his death.
An order that Tim was a parent of the
child would not automatically mean that
Tim would be granted parenting orders,
but he would be entitled to apply for them
under the Family Law Act. 12 The Court’s
paramount consideration in making
parenting orders is to make orders that are
in the best interests of the child.
The case law in this area is evolving and
changing at a rapid pace. If a Sperm Donor
Agreement has been signed by the parties
which clearly sets out their intentions and
a later dispute arises, the Agreement can
become an important piece of evidence
that the Court will consider in determining
whether the donor was intended to have
a more significant role in the child’s life
than being merely a donor. A clear, concise
and prescriptive Sperm Donor Agreement
that confirms each party has obtained legal
advice and explains the roles each party is
to have in the child’s life, will give parties
a greater level of clarity as to intention
and hopefully avoid future disputes about
parentage or involvement of a donor in a
child’s life.
There are also qualified fertility
counsellors to assist parties to explore these
issues. All parties considering an artificial
conception procedure should consider
accessing counselling together to talk
through their expectations and intentions.
We often work with fertility
counsellors to provide a comprehensive
service for people before they enter into
a legal agreement. This should also be
part of the overall preparation by parties
to embark on this complex but exciting
journey of assisted conception and
parenthood.
Adelta Legal is LGBTIQ+ friendly and are
proudly listed as a legal service in the Rainbow
Directory SA (www.rainbowdirectorysa.com.au). B
Endnotes
1 Section 60H Family Law Act.
2 Sections 69P to 69T Family Law Act.
3 Section 69R Family Law Act.
4 Section 61C Family Law Act.
5 Section 65C Family Law Act.
6 Section 64B(2) Family Law Act.
7 Masson v Parsons; Griffin & Laidley [2021]
FCCA 1515.
8 Re Patrick (2002)
9 Masson v Parsons; Griffin & Laidley [2021]
FCCA 1515.
10 Masson v Parsons; Griffin & Laidley [2021]
FCCA 1515.
11 Masson v Parsons; Griffin & Laidley [2021]
FCCA 1515.
12 Section 65C Family Law Act 1975.
16
THE BULLETIN May 2022

FEDERAL BUDGET
Budget boost for Federal
Circuit and Family Court
The Federal Circuit and Family Court
of Australia received a funding boost
of $63.75 million over four years in the
2022-23 Federal Budget, which was handed
down on 29 March.
The Chief Justice, the Hon Will
Alstergren, said “This funding is very good
news for the Australian public. The Courts
have been piloting the Lighthouse Project
in Adelaide, Brisbane and Parramatta
registries, where it has not only shed light
on the high prevalence of risk in family
law cases, but assisted the Courts to
manage those risks appropriately.”
Justice Alstergren said the funding
ensures the Courts can extend the Project
nationally to all 15 family law registries
Together, the newly announced and
recent funding allows for:
• Expansion of the Lighthouse
Project: A comprehensive funding
package for family law officers
to support the expansion of the
Lighthouse project to 15 registries
in the Courts, including funding for
registrars, including Senior Judicial
Registrars, Court Child Experts,
and support staff for registrars and
Court Child Experts. This equates to
$54.9m in funding over the forward
estimates, including $2.461 million in
capital. It provides funding from 1
July 2022, equivalent to 71 family law
positions, comprising 21 registrarrelated
positions (at varying levels), 21
registrar-related support positions, 15
positions for Court Children’s Services
plus 5 support staff, 6 case coordinators
and 3 managerial/technical roles.
• Enhance culturally responsive
support funding: Funding from
1 July 2022 for staffing to support
the expansion of Indigenous Family
Liaison Officers in the Courts. This
equates to $8.85 million in funding
over the forward estimates. It provides
funding from 1 July 2022, equivalent to
16 family law positions, comprising 11
Indigenous Family Liaison Officers, 1
registrar, 1 Court Child Expert plus 3
support staff.
The Budget also included funding of
$24.2 million over three years for Legal
Aid Commissions to raise their capacity to
meet increased demand for representation
services resulting from the extension and
expansion of the Lighthouse Project pilot.
Other family law related funding
measures include:
• $52.4 million over four years to Legal
Aid Commissions to meet expected
demand for support under the Family
Violence and Cross Examination of
Parties Scheme.
• $22 million over five years from 2021-
22 to support the placement of state
child protection and policing officials in
the family law courts across Australia to
facilitate information sharing between
the family law, child protection and
family violence systems.
• $16.5 million over two years from 2021-
22 to support Legal Aid Commissions
to meet the cost of legal representation,
including independent children lawyers
as ordered by the Federal Circuit and
Family Court of Australia as part
of the Government’s enhanced case
management arrangements for family
law proceedings.
The Law Council of Australia
welcomed these initiatives, but remained
concerned at the underfunding of
frontline legal services.
Law Council President Tass Liveris
said: “Investment in frontline legal
services not only improves outcomes for
individuals it has demonstrated benefits in
terms of downstream costs savings for the
Government,
“A stated focus of this Budget is on
guaranteeing essential services. It is time
to recognise that legal services are an
essential service.”
Other notable Federal Budget
measures included:
• $8.4 million over three years for a
pilot of a new service delivery model
to provide survivors of sexual assault
with greater access to dedicated legal
services to support their recovery and
engagement with the criminal justice
system.
• $7 million over two years for nine
Women’s and Community Legal
Services nationally, to help women
access legal assistance and migration
support. $5.4 million over two years
from 2021-22 to existing legal assistance
services operating within Queensland
and NSW to support individuals and
businesses affected by the recent floods.
• $9.3 million over four years to support
legal assistance services involved in
coronial inquiries and expensive and
complex cases.
• $1.4 million over two years from
2022-23 to the Attorney-General’s
Department to progress a national
approach to modernise the execution
of common legal documents.
• $5.6 million over four years to the
Fair Work Commission (FWC) for a
small business support unit to improve
employer/employee experiences when
navigating the Fair Work system.
• $17.0 million over two years from
2022-23 to support the Office of the
Australian Information Commissioner
in undertaking its privacy and
regulatory functions
• $15.7 million over four years
from 2022-23 (and $4.0 million
per year ongoing) to increase the
Commonwealth Director of Public
Prosecution’s capacity to respond to its
increasing caseload.
• $2.5 million over two years from 2022-
23 to support the Financial Rights
Legal Centre’s National Insurance Law
Service to continue to provide legal
advice and advocacy for consumers in
financial distress due to insurance claim
disputes.
• $1.6 million in 2022-23 to continue
a pilot for a single case management
solution for the Administrative Appeals
Tribunal (AAT), with the cost to be
met from within the existing resources
of the AAT.
• $6.7 million in 2022-23 to support
the work of the Office of the Special
Investigator’s (OSI) investigation and
prosecution of potential war crimes in
Afghanistan.
• $1.8 million over three years for advice
and support services for women who
experience sexual harassment. B
May 2022 THE BULLETIN 17

FEATURE
DISABILITY DISCRIMINATION
AND REASONABLE ADJUSTMENTS
IN RESIDENTIAL TENANCIES
KAYLA DICKESON & LAURA SNELL
Final year Adelaide Law School students Kayla Dickeson
and Laura Snell completed a six week intensive clinical
placement at the Adelaide Law School Equal Opportunity
Legal Advice Service over summer 2022. As part of their
role advising clients on Equal Opportunity and SACAT
cases, they investigated the challenges disabled people
can experience accessing rental accommodation. This
article explains the various options that people have
when navigating this difficult environment. The authors
would like to thank Jodeen Carney, Commissioner for
Equal Opportunity, and Natalie Wade, Founder and
Principal Lawyer at Equality Lawyers, for sharing their
time and their insights with us for this article.
How do we protect against
discrimination of persons with
disability 1 in Australia who wish to enter (or
remain in) a residential tenancy agreement
yet require a home modification?
This is an important question,
with particular relevance now as a new
generation of persons with disability are
starting to move into independent or
private accommodation, as opposed to
earlier generations that were historically
forced to reside in institutional settings
or group-homes. Yet, the answer to our
question has proven to be quite complex,
with the relevant law being unclear, as well
as difficult to understand and apply.
Our aim is to start a conversation
about the shortcomings of the current
law on disability discrimination. We argue
the current law is inadequate in protecting
and promoting the rights of persons with
disability in residential tenancies because it
is unclear. We propose that law reform is
needed to address this issue. However, we
suggest a bi-focal approach to law reform
to not only further protect persons with
disability, but to emphasise promotion of
human rights. 2
We will use a hypothetical case study
to better illustrate the issue. In this case,
James is a tenant living with multiple
sclerosis and requires the installation of
grabrails in his bathroom. His landlord will
not allow the modification, claiming that it
will ruin the tiles in the new bathroom.
WHAT IS THE CURRENT LAW?
Disability discrimination is when
an individual experiences ‘unfavourable
treatment’ that causes loss or detriment,
which would not have the same effect
on persons without disability. It must
be causally linked with the individual’s
disability and occur in a specified ‘area of
life’ such as accommodation. 3
If James thinks he has experienced
disability discrimination in South Australia,
he must first make a complaint to either
the Office of the Commissioner for Equal
Opportunity (OCEO) under the Equal
Opportunity Act 1984 (SA) (EOA) 4 or the
Australian Human Rights Commission
(AHRC) under the Disability Discrimination
Act 1992 (Cth) (DDA). 5
Establishing a discrimination claim
over the refusal to provide a home
modification would require the requested
home modification to be considered a
‘reasonable adjustment’.
In the EOA, the term ‘reasonable
adjustment’ is not specifically stated.
The concept arises in section 66(d)(i) 6
which provides that discrimination may
occur where it is unreasonable to fail to
provide ‘special assistance’ or ‘equipment’
that is needed by a person because of
their disability. The Act does not clarify
the definition of ‘special assistance’
or ‘equipment’. Additionally, there is
no positive obligation to provide the
adjustment. Instead, James will need to
prove that the grab rails were not provided
when it was reasonable to provide them.
Imposing this burden on James does not
provide protection in the same way that
it would if there was an obligation on his
landlord to provide the grabrails in the
first place. It also makes it difficult for
him to know what his landlord should
provide because the Act does not provide
examples of what ‘special assistance’ or
‘equipment’ means in practice.
James may have more success making
18
THE BULLETIN May 2022

FEATURE
a claim to the AHRC under the DDA
because it includes and defines the term
‘reasonable adjustment’. 7 However, the
definition of ‘reasonable adjustment’ is
problematic because it does not provide
a clear example of what a reasonable
adjustment should be, only stating
it is something that does not cause
‘unjustifiable hardship’ to a provider. 8 And
there is no clear definition of ‘unjustifiable
hardship’ either. The DDA does provide a
multifactorial definition when determining
whether a request for a reasonable
adjustment may be ‘unjustifiable hardship’. 9
A factfinder needs to balance whether
an adjustment would cause unjustifiable
hardship, considering the potential benefit
and detriment of the request to each party.
Although this can still be a difficult task
because the definitions are not clearly
stated and there are minimal guidelines to
assist factfinders. As with the EOA, James’
landlord has no obligations under the DDA
to provide a home modification.
The Residential Tenancies Act 1995 (SA)
does not impose obligations on landlords
to provide home modification. Landlords
must not unreasonably withhold their
consent to alterations of a ‘prescribed
kind’. 10 Under the regulations this is
limited to a digital television or a carriage
service for accessing the Internet. 11 These
prescribed alterations are arguably minor
when compared with the potential scale of
some home modifications. For example,
home modifications could include smaller
installations such as putting in handrails
and grabrails. Or it could involve structural
changes such as widening doorways,
removing steps, lowering benchtops, or
installing sensory lighting.
Due to differing and vague definitions,
and potential confusion over which
legislation to use, it is unclear if James
could rely on the DDA or the EOA to
offer him legal recourse if his landlord
rejects his request for home modification.
Specifically, the legislation lacks clarity
about the terms ‘reasonable adjustment’,
‘special assistance’ and/or ‘equipment’,
so James does not have clear guidelines
to depend on. We suggest law reform is
required to provide clarification over legal
recourse available to tenants with disability.
LAW REFORM
The United Nations Convention on
the Rights of Persons with Disabilities
(UNCRPD) takes the approach of promoting
human rights and equal recognition before
the law. 12 Comparatively, the EOA and
the DDA take the approach of protecting
rights. In domestic law the onus is on
tenants like James to come forward with
complaints, meaning there is no obligation
or accountability on organisations or
people to prevent discrimination. This puts
pressure on vulnerable and marginalised
groups who may fear they would be putting
their accommodation at risk if they make
a complaint. We suggest law reform is
needed to emphasise promoting human
rights, which would remove some of the
pressures on individuals from having to
make a complaint in the first place. As of
2021, 96% of the 4.4 million Australians
with disability reside in non-specialist
housing, compared with 4% that live in
Specialist Disability Accommodation
(SDA) for people with high care needs.
This means that a considerable portion of
Australia’s population (17.7%) are living
with disability and potentially require
adaptable housing. 13
Promoting Human Rights
The Disability Inclusion Act (SA) (DIA)
Access and inclusion laws can
complement anti-discrimination
protections by promoting rights and
preventing their violation. For example,
under South Australia’s DIA government
agencies must establish Disability Access
and Inclusion Plans (DAIPs). According
to the SA Housing Authority Disability Access
and Inclusion Plan 2020-2024, people with
disability comprise 39% of public housing
tenancies. 14 Across 2015-2020, 17,453
disability modifications were undertaken in
these properties. 15
However, the DIA only applies to
government agencies. Private landlords are
not accountable to a DAIP. This is despite
many persons with disability renting
privately, due to the massive reduction of
available public and community housing
places, 16 and home ownership decreasing
over time. We propose that the DIA be
amended so it extends to private rental
organisations. This could mean that all
landlords and agents would be obligated
to implement a DAIP, similar to existing
obligations to undertake entry inspections
and lodge a bond.
Universal Design
While Housing SA has developed
sustainable housing principles, which
include detailed requirements for housing
accessibility, 17 private rentals do not have
to meet the same standards. This is despite
the social benefits that accessible housing
May 2022 THE BULLETIN 19

RENTAL DISCRIMINATION
can bring, including increased quality of
life, independence, safety, fall prevention
and improved function. 18
With the increase in housing demand
and rising cost of rent, persons with
disability may have to take what is on
offer, despite it not meeting their needs.
Disability rights campaigners have
frequently called for an overhaul of
Australia’s building regulations to ensure
that universal design is considered in all
new housing developments. However,
currently there are no mandatory
accessibility standards in the National
Construction Code. 19 James and other
persons with disability could benefit
greatly from increased regulations over
building design standards to ensure they
are accessible.
Human rights bills
Another approach could be to enact
legislation that promotes rights and
prevents the violation of said rights.
These types of legal regimes are found in
countries that have a Bill of Rights 20 or
even in some Australian jurisdictions, such
as Queensland, the ACT and Victoria,
which have Human Rights Acts or
Charters. 21
Protecting Human Rights
Though law reform which promotes
rights is highly necessary, we also think
legal protections in the EOA and DDA
need to be further strengthened to ensure
that persons with disability are empowered
to make complaints when things go
wrong, and to reduce the likelihood of
discrimination occurring in the first place.
The UNCRPD emphasises that
preventing disability discrimination and
allowing for ‘reasonable adjustments’
ensures equality for persons with
disability in the enjoyment and exercise
of all human rights and fundamental
freedoms. 22 We suggest that the DDA and
EOA be reformed to sufficiently define
reasonable adjustments. These reforms
should emphasise the importance of
ensuring equal enjoyment, rather than
20 THE BULLETIN May 2022
only emphasising the prevention of
unjustifiable hardship to a provider.
A schedule of examples of reasonable
adjustments could be created and included
in the EOA and DDA. This would
be beneficial in bringing clarity to the
definition of reasonable adjustments.
However, disadvantages could arise
if narrow interpretation inadvertently
excluded certain adjustments. Alternatively,
it could impose financial hardship on the
provider. To prevent these potential issues,
it would be important to create a schedule
that is specifically ‘non-exhaustive’ and
to include protections against financial
hardship of the provider.
CONCLUSION
We argue that South Australia should
adopt a bi-focal approach of promoting
and protecting human rights. We need to
prevent the violation of human rights
from the start, but we still need sufficient
legal protections for individuals to seek
legal recourse if this promotion of rights
fails. This is particularly true in residential
tenancies due to the power imbalance
between agents and landlords compared
with tenants.
Access and inclusion legislation is an
example of rights-promotion, but it should
be extended to apply to both privately and
publicly run organisations. Employing
universal design in Australia’s building
standards so all new housing is accessible
will also ensure equal access to housing.
Parliament should also amend the
DDA and EOA to increase clarity around
what reasonable adjustments are and put
a positive obligation on organisations
to provide them. This would mean that
landlords would have an obligation to
provide home modifications, and tenants
like James would have clear guidelines to
refer to when requesting adjustments.
For more information about EOCLAS
contact Margaret Castles or Skye Schunke at the
Law School, University of Adelaide, or go to our
website: https://law.adelaide.edu.au/free-legalclinics/equal-opportunity-legal-advice-service
B
Endnotes
1 Due to limitations on words, we will refer only
to disability in terms of the protected ground of
‘disability’ as defined in legislation. However, we
wish to note that the discussion here is relevant
to elderly individuals who would arguably benefit
from home modifications. We question whether
law reform should include protections on the
ground of age as well as disability.
2 Australia’s anti-discrimination laws are arguably
already focused on protection of rights,
rather than promotion. Our laws are aimed at
providing adequate legal avenues for individuals
to get recourse as a result of wrongdoing from
discriminators.
3 Disability Discrimination Act 1992 (Cth) s 5 and 6;
Equal Opportunity Act 1984 (SA) s 66
4 Equal Opportunity Act 1984 (SA) s 93
5 Disability Discrimination Act 1992 (Cth) s 67
6 EOA s66(d)(i)
7 DDA s4
8 DDA s11
9 DDA s11
10 Residential Tenancies Act 1995 (SA) s 70(1a)
11 Residential Tenancies Regulations 2010 (SA) s 12
12 Convention on the Rights of Persons with Disabilities,
opened for signature 13 December 2006, 2515
UNTS 3 (entered into force 3 May 2008) Article
2; Committee on the Rights of Persons with
Disabilities, General Comment No. 1: Article 12
Equal recognition before the law, 11 th sess, UN doc
CRPD/C/GC/1 (19 May 2014)
13 Monash University, Adaptable Housing for People
with Disability in Australia: A scoping study,
Monash Urban Lab Department of Architecture
(Faculty of Art Design and Architecture), 2021,
commissioned by the Australian Human Rights
Commission, p 7
14 SA Housing Authority Disability Access and Inclusion
Plan, 2020, Government of South Australia, p 5
15 Ibid p 7
16 South Australian Council of Social Services,
Supplementary submission to the Select Committee
Inquiry into Privatisation of Public Services in South
Australia p 2
17 SA Housing Authority, Sustainable Housing
Principles (SAHT Universal Housing Design Criteria
2020), Government of South Australia
18 Phillipa Carnemolla and Catherine Bridge,
Housing Design and Community Care: How
Modifications Reduce Care Needs of Older People and
People with Disability, 1 June 2019, International
Journal of Environmental Research and Public
Health p 3
19 n13 p 23
20 US Bill of Rights, UK Magna Carta, Canadian
Bill of Rights
21 The Charter of Human Rights and Responsibilities
Act 2006 (VIC); Human Rights Act 2019 (QLD),
Human Rights Act 2004 (ACT).
22 Convention on the Rights of Persons with Disabilities,
opened for signature 13 December 2006, 2515
UNTS 3 (entered into force 3 May 2008) Article 2

A roundup of recent Society
meetings & conferences
ROSEMARY PRIDMORE, EXECUTIVE OFFICER
SA Law Reform Institute meeting
ustin Stewart-Rattray (President),
JStephen Hodder (Chief Executive) and
Nathan Ramos (Policy Coordinator) met
with representatives of SALRI on 7 April
2022 for the purpose of receiving an update
as to its current and future references and
to discuss the ways in which the Society can
assist with that work. SALRI is presently
focussing on its witness competence
reference and aspects of the Oaths Act.
Joint Rules Advisory Committee
Justin Stewart-Rattray, Alex Lazarevich
(Chair of the Civil Litigation Committee)
and Philip Adams represented the Society
at a meeting of meetings of the Joint Rules
Advisory Committee on 7 April 2022,
which primarily focused on consideration
of various amendments to the Uniform
Civil Rules.
Medico-Legal Advisory Group
A videoconference meeting of the
Medico-Legal Advisory Group was held on
11 April 2022. The Society was represented
by Justin Stewart-Rattray, Guy Biddle
(Co-Chair of the Accident Compensation
Committee), Tim Bourne, Rosemary
Pridmore (Executive Officer) and Annie
MacRae (Manager of the Litigation
Assistance Fund). Issues discussed
included a review of the Medico-Legal
Joint Statement and a report from the
medicos that some doctors who had been
requested to provide independent medical
reports had found that the patients had
been advised by their lawyers not to answer
questions.
Meeting with the Attorney-General
The Society’s first meeting with the
new Attorney-General, the Honourable
Kyam Maher MLC was held on 20 April
2022. Justin Stewart-Rattray and Stephen
Hodder took the opportunity to raise a
number of issues including the setting of
Practising Certificate fees for 2022-23, the
approval of the Professional Indemnity
Insurance Scheme for 2022-23, the need
to address the decline of the Fidelity
Fund and the Society’s key policy issues
(as put to parties in the run up to the State
election). B
May 2022 THE BULLETIN 21

RISK WATCH
Inventing Anna or [insert name here]:
The importance of verification of identity
KATE MARCUS, RISK AND CLAIMS SOLICITOR
his whole story is completely true. Except
“Tfor all the parts that are totally made up,”
begins every episode of Netflix’s recent
mini-series, “Inventing Anna”. For those
practitioners who have seen the series,
many may have been left wondering how in
this age of Google searches could anyone
have a remote chance of fooling New
York’s high society, investment bankers and
real estate moguls into believing that they
were a German heiress? As unlikely as it
seems, Anna Delvey/Sorokin did just that.
Maybe The Tinder Swindler documentary
is more your style? This film follows
the elaborate catfishing of unsuspecting
victims, who get captivated by a charming
and apparently wealthy jet-setting Shimon
Hayut.
Identity theft might seem entertaining
in the realm of blockbuster TV series but a
recent case in the Victorian Supreme Court
serves as a reminder that identity fraud
is a real threat. In February, 2022, Justice
Taylor of the Victorian Supreme Court
sentenced a defendant to 4 years’ jail after
the defendant pleaded guilty to 17 offences
which had seen him fraudulently acquire
$418,497.00 by obtaining the identities of
real people, changing crucial details, setting
up different addresses via post office boxes
and creating false pay slips. Using this
documentation, the defendant could then
set up loans and credit cards through banks.
Practitioners need to be alert to the
risks of identity fraud and take steps to
ensure that the person before them is the
person they claim to be. If any of these
perpetrators found themselves before a
South Australian legal practitioner, could a
VOI process have prevented their scams?
Further, and more worryingly,
could the practitioner be liable for not
preventing such a scam? The answer is
“yes”. In Graham v Hall [2006] NSWCA
208 a practitioner had been informed by a
husband that his wife was too unwell with
cancer to attend at the practitioner’s office
and that she was unwilling to speak to the
practitioner by phone. In fact, the husband
was committing fraud by refinancing the
mortgage on the jointly held family home,
paying off debts and taking the balance
for himself. It was only after the husband’s
death that the wife learned of the new
indebtedness secured against her home.
The practitioner was held to be negligent
for failing to identify the client thereby
allowing the fraud to occur. Current claims
experience in South Australia shows
similar frauds are occurring here.
There may well be much to gain from
committing a fraud and the purpose of
a VOI is to minimise the chances of
someone’s identity being falsely used.
The dangers of identity theft are to be
taken seriously and the Risk Management
packages on the Law Society of SA
website (available to practitioners insured
with the SA Professional Indemnity
Scheme) provide useful tools including
a VOI Checklist which can minimise the
risks when identifying someone.
The circumstances for requiring a VOI
particularly arise in the following situations:
• land dealings;
• mortgages, guarantees and loans;
• making of wills and powers of
attorney;
• where an asset is moving (e.g. shares,
personal property);
• matters that are high risk
Sometimes there may be “warning
signs” e.g. email only instructions,
urgency, or the client seems hesitant to
provide basic identification. There may
be inconsistencies in documents, or the
matter may involve novel features which
may give rise to concern.
Without being an exhaustive list,
practitioners should pay particular
attention to the following:
• Is the person “known” to you?
• If they are a new client - have they
been referred by someone you know?
• Is the transaction ongoing or a one-off
appointment?
• Does the person have something to
gain e.g. a loan, inheritance?
• It is NEVER just a matter of
witnessing a document.
22
THE BULLETIN May 2022

RISK WATCH
It is essential that attention to detail
is demonstrated. Practices need to have
standard policies and procedures for
client identification. Obviously, good
management is not just about having the
policies and procedures but ensuring that
they are understood and used. In this
regard, appropriate file notes and copies of
the proof of identity should be maintained.
Some essential steps in a VOI:
• Check the picture on the drivers’
licence, passport – is it a reasonable
likeness?
• Check the address on the identification
documents – do they match?
• Check the signature – does it match the
identification documents?
• Is anything odd about the documents -
does it look like the document has been
tampered with?
• If the transaction is urgent – ask why?
Some alarm bells may be ringing and
extra caution needs to be taken if:
The client is borrowing money on
the security of a mortgage on a property
owned by a family member.
Consider:
• Is there a relationship between the
borrower and the mortgagor?
• Is there potential for undue influence?
• Does the client need advice?
If satisfied then:
• Open a file
• Use the VOI checklist in the Risk
Management documents package
• Record full name, date of birth and
address
• Detail the nature of the attendance
• Photocopy/scan the identification
• Photocopy/scan the executed
documents
It is essential that a practitioner
can demonstrate that reasonable steps
were taken to establish the identity of
the client. The VOI checklist provides
a comprehensive list which should be
followed. As the documents in the
Risk Management package are regularly
updated, always check the Society website
to ensure you are using the current version
of the relevant document.
Not all clients who attend on
practitioners are committing frauds or
pretending to be someone they are not
– in fact, the vast majority of clients are
genuine but - truth can be stranger than
fiction. What would you do if a would-be
German heiress or the supposed son of
a diamond billionaire turned up in your
office seeking legal advice? We need to be
aware that identity theft poses risks and we
need to remain alert.
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May 2022 THE BULLETIN 23

SPACE REPORT
Parliamentary report considers
reforms to Australia’s Space
(Launches and Returns) Act 2018 (Cth)
MARK GIDDINGS, SOPHIE HOWE, AND ASHWINI RAVINDRAN, LK LAW
At the end of last year, the House of
Representatives Standing Committee
on Industry, Innovation, Science and
Resources (Committee) handed down its
report into Australia’s space industry and
the associated legal framework: ‘The Now
Frontier: Developing Australia’s Space Industry’. 1
The report makes 38 recommendations
directed at improving policy and legislation
in order to facilitate growth within the
sector. This article considers some of the
most significant recommendations as well
as some recent announcements by the
Commonwealth Government.
The last round of reforms occurred
when the Space Activities Act 1998 (Cth)
was amended and renamed the Space
(Launches and Returns) Act 2018 (Cth) (Act),
following a long period of consultation
and review. The amendments were focused
on opening up access to small to medium
enterprises, including by dramatically
lowering the insurance requirements
for launch licenses and other monetary
barriers. This was balanced by the
introduction of a stronger framework of
civil penalties to deter non-compliance
with the requirements of the Act.
The amended Act also sought to
accommodate technological developments
in the way payloads were launched
and the move away from government
controlled space programs towards
greater involvement by private companies.
However, not all stakeholders were
convinced that the reforms went far
enough to modernise the Act in the global
context, or that the amendments created a
regulatory regime that strongly encouraged
innovation and investment. The current
process of review and the resultant
recommendations provide a welcome
opportunity for further reform.
24 THE BULLETIN May 2022
SEPARATING THE INDUSTRY ENGAGEMENT
AND REGULATORY ROLES OF THE
AUSTRALIAN SPACE AGENCY
The report recommends that
consideration be given to separating
the industry engagement and regulatory
functions of the Australian Space Agency
(Agency), as well as transforming the
Agency into a better funded statutory
body engaging more staff who possess
industry experience and expertise. 2
Since its establishment in 2018, the
regulatory role of the Agency has been
to administer the licensing regime under
the Act. The Agency is responsible for
granting the array of licenses and permits
required under the Act, which include:
• Launch facility licenses – to allow a
person to operate a launch facility in
Australia;
• Australian launch permits – to allow
a person to launch a space object from
either a launch facility in Australia, an
Australian aircraft in flight, or a foreign
aircraft in airspace over Australian
territory, and can also authorise return
to Australia;
• Australian high power rocket
permits – to allow a person to launch
a high power rocket from a facility or
place in Australia;
• Overseas payload permits – to allow
a person to launch a space object from
a facility or place outside Australia;
• Return authorisations – to allow
a person to return a space object to
Earth; and
• Authorisation certificates – to allow
specified conduct that might otherwise
be prohibited under the Act.
Given the Agency’s regulatory
function, one submission to the
Committee noted the potential for
conflicts of interest or direction with
the Agency’s concurrent role of industry
promotion and advocacy. 3 Other
submissions proposed establishing the
Agency as a better funded statutory
body that would improve Government
coordination and promote greater
efficiency in the application assessment
process. 4 Although the Committee did not
go as far as recommending the division of
the Agency’s roles or its transformation
into a statutory body, it did recommend
that these matters be given “careful
consideration” as part of the Agency’s
upcoming post operational review. 5
REDUCING THE COMPLEXITY AND DELAY
ASSOCIATED WITH APPLICATIONS FOR
LICENCES
It is no surprise that submissions to the
Committee by industry and stakeholders
focussed on reducing the regulatory
burden. 6 There was some frustration with
the length of time it can take to obtain a
licence, with one submission estimating
that even simple applications can take up
to 6 months to approve. 7 The Committee
recommended that the Government
consider further reforms to the Act, in
consultation with industry, to simplify the
application process so as to ensure the
growth and competitiveness of the industry,
the safe and responsible management of
the space environment, and consistency
with regulations in other countries. 8
One particular suggestion made by
industry participants was to remove
the requirements in the Act to have
a “suitably qualified expert” undertake
various assessments of the proposed
space activity, and to instead have these
assessments undertaken either in-house or
by the Agency. 9 Currently, the rules under

SPACE REPORT
the Act require that risk hazard analyses,
flight safety plans, and return safety plans
must be performed or confirmed by a
suitably qualified expert who is not a
related party of the applicant. However,
there are few external organisations that
are able to provide such expertise 10 and
often greater expertise is located within
the applicant company. 11
Industry participants also noted
the inconvenience of having to
obtain separate licences from multiple
jurisdictions. 12 Currently, a party seeking to
conduct a space activity will need to ensure
that they comply with all the necessary
licensing schemes separately. For example,
an overseas payload permit will satisfy the
Australian requirements for launching a
space object overseas, but the applicant
will also need to obtain the appropriate
authorisation from the host country. It
was suggested that a system of mutual
approval of licences could be considered. 13
MINIMISING THE COSTS INVOLVED IN
SEEKING LICENCES
Another recommendation was directed
at minimising the costs involved in
applying for a licence or permit under the
Act. The focus of the Committee here
was on a proposed partial cost recovery
scheme, under which the Government
proposed to charge application fees
of approximately $189,894 per launch
permit application. 14 Such fees were
described by industry as making Australia
an uncompetitive launch location. 15
One industry submission identified that
although Australia had certain technical
advantages for launch operations, it would
be a less suitable location if the costs for
launches were “grossly disproportionate to other
like-minded commercial space-faring nations”. 16
It was noted that, in comparison, New
Zealand charges $60 and the USA $0. 17
The proposed fee posed a particular
detriment to small launch vehicle
operators as it failed to adequately take
into consideration industry trends towards
lower launch costs for small satellites.
One industry participant observed that
the proposed fee would have been up to
three times the cost of mission and rocket
development. 18 Ultimately, in a submission
from the Queensland Government, it was
said that there would be a negative impact
on jobs and economic growth, particularly
in a start-up industry that already faced high
levels of competition from overseas. 19 The
Government had deferred the introduction
of the partial cost recovery scheme
until 1 July, 2022, 20 but the Committee
recommended that the Government
consider further suspending or amending
these fees. 21 Following the release of the
report, the Government announced on 3
March, 2022 that fees for launch permit
applications will not be introduced. 22
COMMENT
The handing down of this report
shows that the Government recognises the
need for ongoing reform of the policies
and laws regulating the space industry.
If the Australian space industry is to
remain competitive it is important for the
Government to avoid disincentives to
private enterprise such as the imposition of
disproportionate license fees. The recent
announcement that launch application fees
will not be introduced will be welcomed
by those involved in the space sector,
particularly small launch vehicle operators.
Beyond that, however, there is a
real need for reforms to decrease the
complexity of the licence application
process and to improve the efficiency of
the Agency in processing applications.
Legislative amendments to the Act that
make it simpler, quicker and less costly to
apply for and obtain licence and permits
are needed to keep up with the pace
of commercial activity in this rapidly
developing sector. On this note, it was
recently announced that the Agency has
been tasked with making improvements to
the regulatory framework by “strengthening
the environment around those regulations, to
identify improvements to procedures and practices,
and to streamline interaction with industry”. 23
Mark Giddings is a Special Counsel, Sophie
Howe is an Associate and Ashwini Ravindran is
a Law Clerk at LK Law. Sophie Howe is also a
member of the Society’s Space Law Committee. B
Endnotes
1 House of Representatives Standing Committee
on Industry, Innovation, Science and Resources,
The New Frontier: Developing Australia’s Space
Industry (Report, November 2021) (Report).
2 Report, 41 at [2.115].
3 Report, 105 at [4.63].
4 Report, 16 at [2.29]-[2.30].
5 Report, 41 at [2.115].
6 Report, 97-99 at [4.33]-[4.39].
7 Report, 97-98 at [4.34].
8 Report, 109-110 at [4.78].
9 Report, 99-101 at [4.40]-[4.46].
10 Report, 99 at [4.40].
11 Report, 100-101 at [4.44].
12 Report, 98 at [4.35]-[4.36].
13 Report, 98 at [4.36].
14 Report, 101 at [4.47].
15 Report, 101-103 at [4.47]-[4.54].
16 Report, 101 at [4.48].
17 Report, 102 at [4.50].
18 Report, 102 at [4.49].
19 Report, 102 at [4.52].
20 Report, 103 at [4.53].
21 Report, 110 at [4.79].
22
The Hon Melissa Price MP, Minister for Science
and Technology (Cth), ‘Keeping Australia’s space
sector soaring’ (Media Release, 3 March 2022).
23 The Hon Melissa Price MP, Minister for Science
and Technology (Cth), ‘Address to the Australian
Space Forum’ (Speech, 3 March 2022).
May 2022 THE BULLETIN 25

TAX FILES
Professional practices: what to
do with the money you make
PAUL TANTI, PARTNER, THOMSON GEER
Since the release of guidelines in 2016
by the ATO, taxpayers have been
on notice that the ATO had concerns
regarding the distribution of profits from
professional practices.
The ATO’s views have been finalised
in Practice Compliance Guideline 2021/4
(PCG).
Under the original guidelines released
in 2016, if income derived from a
professional practice was distributed to
individuals or their associated entities
and one of three benchmark tests was
passed, the ATO was unlikely to take any
audit or review action. Those benchmarks
were that 50% or more of the income
derived from the professional practice
(which included the practice entity and its
associated entities) was distributed to the
individual professional practitioner (IPP)
or the average tax rate of the IPP and
its associated entities was 30% or more
or the remuneration received by the IPP
was at least equal to the amount paid to
employees who performed a similar role.
Due to concerns about the way the
guidelines were being implemented by
taxpayers, the Commissioner withdrew
the guidelines and replaced them with
the PCG.
The PCG sets out requirements which,
26 THE BULLETIN May 2022
if satisfied, reduce the risk of any ATO
audit activity. The PCG applies from 1 July,
2022 with various transitional provisions
(which can extend until 2025).
Under the PCG, taxpayers must pass
two gateways to be able to rely on the
PCG.
These gateways are:
1. the structure of the professional
practice has a valid commercial
rationale and has been properly
established; and
2. the professional practice does not
contain any high risk features.
If the two gateways are passed the IPP
must consider three tests. These tests are
essentially those in the 2016 guidelines.
However, rather than being able to rely
on passing one of those tests, each of the
tests is now allocated points. The lower
the points, the lower the risk of audit
activity. Depending on the points allocated
for each of the tests, the taxpayer will fall
into either a green/low risk category, an
amber/moderate risk category or a red/
high risk category.
If taxpayers do not pass the gateways
and therefore cannot rely on the PCG,
the PCG indicates that taxpayers should
contact the ATO to discuss their particular
circumstances.
In order to satisfy gateway 1,
taxpayers should review their constituent
documents (e.g. company constitutions,
trust deeds, partnership agreements) and
relevant documentation (e.g. minutes
of meetings, distribution statements)
to ensure the entities have been validly
established and that they reflect the
structure of what occurs in practice. For
example, if the practice is a partnership
of discretionary trusts, minutes of the
meetings of the discretionary trusts
should reflect the fact that the attendees
at the meeting are trustees of trusts or
representatives of trustees of trusts, rather
than individual partners.
In relation to gateway 2, some of
the features which the Commissioner
considers high risk are:
1. multiple classes of shares or units with
different rights. In particular, when
shares or units are issued to individuals
who do not have an equity interest in
the practice or their associated entities;
2. Everett assignments done on terms
which are different to the assignments
in the Everett case; and
3. the differences between tax income
and accounting or trust law income
are exploited to provide advantages
to taxpayers.

TAX FILES
If the professional practice or the
individual IPP breaches the terms of
the PCG, the ATO will consider applying
the general anti-avoidance provisions in
Part IVA.
The PCG does not, in many respects,
reflect the law regarding the distribution
of income. If the income is derived by
a business structure, rather than by the
IPP, there is no legal requirement for
income to be distributed in any particular
manner. Therefore, the original common
law provisions in the cases such as Gulland
and Tupicoff and the PSI rules in divisions
86 and 87 of the Income Tax Assessment Act
1997 continue to apply. However, even if
the structure of the professional practice
and the distribution of its income comply
with these legal requirements, the PCG
should be considered.
The ATO’s rationale for its views
appears to be that, originally, professionals
had to practice either in their own name
or in a partnership of individuals. As the
rules of the various professions have
been amended to allow them to practice
through entities such as companies and
trusts, the ability to alienate income has
increased. This appears to be the reason
why the PCG is limited to professional
practices and not other practices.
However, even under the original
structures (individuals and partnerships of
individuals), income could be alienated by
way of Philips Case service trusts and/or
Everett assignments.
Taxpayers and their advisers should
do a health check of the professional
practices and/or their professional practice
clients and IPP clients. Taxpayers should
consider their position and the risks of the
ATO taking audit activity if the structure
and pattern of distributions remain
unchanged.
If changes are to be made, taxpayers
must consider whether there are any
adverse tax, stamp duty (unlikely in South
Australia) or commercial difficulties or
liabilities in making those changes.
In many circumstances, changing the
distributions of professional practices to
come within the low risk/green zone or
to move from a high risk/red zone to a
moderate risk/amber zone or a low risk/
green zone, may not result in a significant
tax or commercial cost to taxpayers. In
these circumstances, making changes
should be considered.
If a professional practice does not pass
the gateways and therefore cannot rely on
the PCG, taxpayers and their advisers must
consider whether they should contact the
ATO. If the professional practice does not
satisfy the gateways, for example because
the practice entity is a company or trust
with different classes of shares and units,
taxpayers must consider whether the ATO
would take any action if the distribution
of income by the practice and the IPP
came within the low risk/green zone
outlined in the PCG.
All of these issues must also be
considered in light of the ATO’s recent
releases regarding the application of
section 100A of the Income Tax Assessment
Act 1936. These ATO releases target
distributions by trusts and the potential
application of section 100A. Based on
the draft releases, many situations which
would have been considered normal and
acceptable, will now, potentially, be subject
to section 100A. If section 100A applies,
income which was previously distributed
to beneficiaries would be assessable to
the trustee and subject to tax at the top
marginal rate.
While these provisions are still
draft and the ATO has stated that it
will consider the feedback on the draft
documents, the potential application
of section 100A may impact on the
distributions by professional practices. B
May 2022 THE BULLETIN 27

CLOUD COMPUTING
AN ANALYSIS OF THE LAW
SOCIETY OF SOUTH AUSTRALIA’S
CLOUD COMPUTING GUIDELINES:
CONFIDENTIALITY
MARK FERRARETTO, SOLICITOR, EZRA LEGAL
This is the second of five articles that
analyse the Law Society’s Cloud
Computing Guidelines against candidate
cloud systems and on-premises systems.
My thesis is that the caution expressed in
the Guidelines should be applied as much
to on-premises systems as cloud systems to
obtain the best risk profile for a practice’s
information systems.
In this article we analyse the
confidentiality issues that the Guidelines
raise.
Confidentiality
Confidentiality is clearly an important
obligation imposed on legal practitioners.
Rule 9.1 of the Australian Solicitor
Conduct Rules 1 (ASCR) prevents
disclosure of client data to third
parties. ASCR rule 9.2 provides a list of
exceptions to rule 9.1, of which only rule
9.2.1, which allows access by third parties
with the express or implied authority of
the client, could apply to cloud (and on
premises) data.
Paragraph 31 of the Cloud Computing
Guidelines recommends alerting a client
that their data could be disclosed by third
parties because of its storage on cloud
services. The Cloud Computing Guidelines
recommends practitioners include a clause
in their practice’s terms of engagement to
reflect this.
The use of cloud services does require
the data to be disclosed to third parties,
being at least the cloud service provider.
Most cloud providers usually provide webbased
tools to access data stored in the
28 THE BULLETIN May 2022
cloud, such as Microsoft’s online versions
of Outlook or Word. Although most cloud
providers encrypt the data they store, they
also possess the keys to decrypt the data
and must do so to process the data and
display it in the web services they provide.
However, the issue of third-party
access also exists in the on-premises
context. Many practices make use of a
practice management system to which they
usually subscribe and is usually maintained
by a service provider, that is, a third party.
These service providers will invariably have
full ‘administrator’ access to the practice
management system and the data stored
within it. This is also the case for firms that
engage IT service providers to support
their IT infrastructure, such as servers,
email systems, laptops and so-on. Clearly
these providers are third parties and these
providers also usually have ‘administrator’
access to a firm’s IT assets, resulting in
potential access to confidential data.
It follows that third-party access issues
arise in the on-premises context as well as
in the cloud context.
However, risks arise in the on-premises
context, especially with smaller practices
who may not possess enough IT expertise
to regulate the activities of third-party
providers. Also, some providers may not
be aware to the risks around confidential
data leading to activities such as backing
up client data unencrypted to a USB drive.
In general, local providers do not provide
the same level of control over data as
cloud providers, especially the larger
providers. This could lead to a greater
risk of unauthorised disclosure in an onpremises
context than in a cloud context.
At a minimum, the confidentiality risk
is at least as prevalent in on-premises as it
is in cloud.
Regardless, a clause in a practice’s
terms and conditions regarding thirdparty
access by cloud services and/or IT
providers is advisable.
Another aspect of confidentiality is
the destruction of data. If a practitioner
deletes a file or an email is it really deleted?
In cloud systems the effects of data
‘deletion’ vary depending on the service
provider and the terms offered. Dropbox,
for example, may keep data that has been
deleted for up to 30 days. 2 Google’s terms
say that it may keep data for up to six
months. 3 Microsoft 365 retains deleted
email for 30 days and files for 90 days. 4
However, these can be configured by a
practice’s administrator. LEAP may keep
deleted data indefinitely! 5
The long retentions in cloud services
are usually a result of backup cycles.
Although data may be ‘permanently’
deleted on the service itself, there may be
copies kept on backup media and it may
take some time for data to percolate out
of the service provider’s backup cycle.
On-premises data gives an impression
of greater control, but still needs to be
managed carefully. Desktop and laptop
computers contain ‘Recycle Bins’ that
may never be emptied. In addition, the
backup issue also exists in the on-premises

CLOUD COMPUTING
Table 2 Confidentiality
CONFIDENTIALITY
PROVISIONS IN TERMS
THIRD-PARTY ACCESS
TO DATA
RE-SELL DATA
DELETE/DESTROY DATA
Dropbox Not specified Not specified
Dropbox Business Yes Subcontractors
Google Workspace Yes Subcontractors
Do not sell personal
information
Use anonymised data for
any purpose
Do not sell data for
advertising purposes
Microsoft 365 Yes ‘Subprocessors’ No
30 days
Default 180 days, option
for permanent
Up to six months after
deletion
Up to 180 days, option
for permanent
LEAP Yes Not specified Not specified Up to 7 years
Actionstep Yes Yes, for analytics No 30 days after termination
On Premises
Depends on IT
provider(s)
Yes
No
Depends on backup
cycle
context. Data permanently deleted from
a computer system may still persist on
backup media for some time. A 12 month
backup cycle would be common amongst
most practices, although many would have
longer retentions, possibly extending to
indefinite retention.
Verdict
At first glance, one would think
that on-premises would win the data
destruction issue, but if it does it doesn’t
by much. Overall, my preference would be
for the cloud system. The data disclosure
risk is managed better and, while there
may be less control over data destruction,
data is likely to be retained for a shorter
period than an on-premises system.
Regardless, it is advisable to heed the
Guidelines’ recommendation to include a
clause in your terms of service regarding
access of client data by third parties.
In the next article we discuss data
security, an issue widely perceived to be a
risk with cloud systems, but which we will
see is potentially a greater risk with onpremises
systems. B
Endnotes
1 ‘Australian Solicitors’ Conduct Rules (SA)
2011 V3 with Commentary’ (Law Society
of South Australia, 1 July 2015) .
2 Dropbox, Privacy Policy (n 10).
3 Google, ‘How Google Retains Data That We
Collect – Privacy & Terms – Google’, Google
.
4 Microsoft, ‘Data Retention, Deletion, and
Destruction in Microsoft 365 - Microsoft Service
Assurance’, Microsoft .
5 ‘Supply and Support Terms and Conditions (with
12 Month Money Back Guarantee)’ (LEAP, 1
August 2016) [12].
May 2022 THE BULLETIN 29

WELLBEING & RESILIENCE
Building wellbeing culture
in the workplace
WELLBEING AND RESILIENCE COMMITTEE
Here we are in May 2022 and we find
ourselves continuing to adjust to the
“new normal” of COVID-19. Many in our
workplaces, families and communities have
contracted COVID-19 and had first-hand
experience; health mandates are changing
at an incredible pace and there are some
signs of a return to normal with overseas
travel again available - but how are we
dealing with this at a workplace level?
Unsurprisingly the 2021 International
Bar Association report, Mental Wellbeing in
the Legal Profession: A global study (https://
www.ibanet.org/document?id=IBA-report-
Mental-Wellbeing-in-the-Legal-Profession-A-
Global-Study), confirms that over a third
of legal professionals globally feel their
work negatively affects their mental health
and that a stigma around mental wellbeing
remains.
The pandemic has undoubtedly
upended how we think about wellbeing
and mental health. It is no longer a
“nice to have” but key to the strategy of
attracting and retaining the talent within
our firms. The culture of wellbeing and
psychological health are key drivers for
success at a firm and at an industry level -
but where do you start?
Naturally the legal profession is
vulnerable to poor mental health given the
stressful nature of the work itself, intensive
demands, time pressure and often a lack
of resources. The Society’s Wellbeing and
Resilience Committee is committed to
providing practical suggestions on how
firms and practitioners can revisit their
current plans and create some goals to
continuously improve the wellbeing culture
within their workplace.
1. Events are not enough
Before COVID-19, recognising mental
health through a few events per year, say
30 THE BULLETIN May 2022
R U OK and mental health month were
seen as acceptable. The focus is not on
events but on taking care of ourselves and
our teams. Events are great; they are about
connecting and sharing knowledge but
do they demonstrate that you really care
about your team or are they just a tick box
exercise?
2. Leadership 101
According to the 2021 Global Burnout
Study (https://infinite-potential.com.au/2021-
global-burnout-study), burnout levels have
increased by 5 percent. Burnout occurs
when an organisation’s culture or structure
creates unmanageable stress for its people.
Two major causes are a lack of manager
support and unclear communication.
Being a good leader is complex and
more of an art than a science. Partners
of firms are charged with a heavy burden
to be an expert in their area of law and
an expert leader, the latter often with no
training nor support. As a leader there
are two things you can do without formal
leadership training, that you already have
expertise in as a legal practitioner. The first
is active listening: put down your phone,
look away from your filling inbox and
focus on what your employees are saying.
The second is to identify any changes in
behaviour and ask the question R U Ok?.
Be an empathetic leader; the days of ‘suck
it up’ are long gone. Replace that with ‘it
sounds like what you are going through is
really challenging, how can I support you?”.
3. Culture Audit
The commitment to wellbeing is
not an easy journey at an individual
or organisational level. Inaction is not
always intentional, but it perpetuates the
impression that wellbeing is not important
and speaks louder than attempts at small
steps that lead to sustainable change.
Consider a culture audit for your team/
practice/firm:
• Who in the team/practice/firm is a role
model for wellbeing? What are those
characteristics/behaviours and how can
they be emulated?
• What are the issues in the workplace
leading to wellbeing concerns? Do
people feel comfortable to raise them?
• How can work be better delegated?
Delivery expectations managed?
• What actions can be taken to foster
a better culture? How can leaders be
better ambassadors?
4. Keep it on your agenda
The impact of wellbeing is not just
on the individual or on culture as standalone
issues. Poorly handled wellbeing can
cause economic and reputational damage
to individuals and firms through PI claims
and by clients being poorly serviced and
seeking alternative legal services, impacting
the revenue of your practice. This alone
should encourage you to put wellbeing on
your team / practice / firm agenda each
month for genuine conversation.
5. Know your resources
• The Law Society of South Australia
∘ Use the free Wellbeing and
Resilience Online programme
as part of your firm induction
program (https://www.lawsocietysa.
asn.au/Public/Lawyers/
Practitioner_Support/Wellbeing_
Online.aspx).
∘ Promote the confidential
Lawcare service - a general
practitioner (Dr Jill) with
experience supporting social and
psychological problems (https://
www.lawsocietysa.asn.au/Public/
Lawyers/Practitioner_Support/
LawCare_Support_Groups.aspx).

WELLBEING & RESILIENCE
∘ Professional Advice Service –
access to a panel of experienced
lawyers wiling to assist
colleagues with personal and
professional problems (at link
above).
∘ Young Lawyers’ Support Group
– assistance from practitioners
to young lawyers who may feel
the need for some independent
guidance from experienced
colleagues (at link above)
∘ Lawyers’ Complaint Companion
Service – for members who are
the subject of a complaint to
the Legal Profession Conduct
Commissioner (first hour free,
at link above).
∘ Women Lawyers Mentoring
Program – guidance and
support from more experienced
practitioners for professional
development of early career
female lawyers (at link above).
• Sole Practitioners Committee
∘ Self-employed legal
professionals are particularly
affected by a lack of support
and uncertainty. The LSSA
recognises this and encourages
all sole practitioners to be
involved in the activities of the
Sole Practitioners Committee.
• Beyond Blue 1300 224 636.
• Lifeline 131 114.
• Relationships Australia 1300 364
277.
Investing in a wellbeing culture within
a workplace future-proofs your workplace
culture, your delivery to clients and long
term health. The legal industry is subject
to constant change and this constant
evolution of innovation, creation and
adaption is near impossible to do when
our wellbeing is running on empty. We
have come a long way during these
COVID years but a continuing concerted
effort is what will drive sustainable change.
References
https://www.ibanet.org/
document?id=IBA-report-Mental-
Wellbeing-in-the-Legal-Profession-A-
Global-Study.
https://infinite-potential.com.au/2021-
global-burnout-study.
Why I chose the Heart Foundation
as the President’s Charity Partner
JUSTIN STEWART-RATTRAY
The Heart Foundation has been chosen
as to be the President’s Charity Partner
this year.
I chose the Heart Foundation for a
number of reasons.
Like many people, I have several loved
ones who have been affected by heartrelated
illness. I have friends around my age
who were supremely fit who all of a sudden
needed major heart surgery.
Lawyers often work in high-pressure
environments which cause considerable
stress. The Society’s Wellbeing Survey
conducted last year showed just how
widespread the negative health effects are
working in the legal profession.
The recent tragic deaths of Shane
Warne, Senator Kimberley Kitching and
Taylor Hawkins, the drummer of the
Foo Fighters, serve as stark reminders of
the fragility of life and how severe heart
problems can strike with little warning.
It is so important that we monitor our
health and have regular check-ups.
This year the Society will host a
number of fundraising events for the Heart
Foundation. Dr Marie Ludlow, Manager of
the SA branch of the Heart Foundation, will
also attend some Society events to provide
educational sessions about heart health.
Some upcoming events and campaigns
include:
• 2-8 May: Heart Week - raising awareness
about heart health.
• Commencing July: Campaign to raise
awareness of the Heart Age Calculator
• September (date TBC): Give with Heart
Day - fundraising campaign.
• October: MyMarathon fitness &
fundraising challenge.
We have all been impacted in some
way by COVID-19 in the past two years.
For many, it has exacerbated previous
health issues, and unfortunately, it has
made it more difficult for people to visit
their doctor and undergo essential health
check-ups.
My message is: Don’t delay - get
your heart health checked. For more
information about heart health checks
and booking a health check, visit the
Heart Foundation’s Heart Health Check
webpage.
Donate to the Heart Foundation.
May 2022 THE BULLETIN 31

YOUNG LAWYERS
Performing at your
performance review
MIKAYLA WILSON, SEDSMAN LEGAL, LAURA CORBETT, DICKSON WRIGHT LAWYERS
AND MOLLY SHANAHAN, FINLAYSONS LAWYERS
facebook.com/YLCSA
The Young Lawyers’ Committee were
grateful to be able to hold the annual
‘Performing at Your Performance Review’
Seminar which (despite on-going COVID
complications) we were glad to hold inperson
(and via webinar) on Thursday, 31
March, 2022 at Finlaysons Lawyers.
The seminar featured panellists
Rebecca Sandford (Special Counsel, HWL
Ebsworth and Former President of the
Law Society of South Australia) and
Will Snow (Partner and Practice Leader,
Employment, Finlaysons Lawyers) who
shared observations they have garnered
over their successful careers respectively,
and offered practical advice on how
practitioners can get the most out of
a performance review. Sam Burford
(Partner, Dispute Resolution and Litigation
– specialising in construction, Finlaysons
Lawyers) also attended the seminar and
offered some further insights and advice
on the topic as an informal panel member.
We are thankful for the advice and tips
received from all three panellists.
The panellists agreed that the most
stand-out performance reviews come from
those who noticeably prepared and had done
the groundwork prior to their review. This
includes having a goal/outline of what topics
you would like to discuss in the performance
review. In their view, being thoroughly
prepared can help to alleviate the stress
of what may be considered a confronting
experience for many young practitioners.
Another tip for a smooth performance
review was for practitioners to do some
groundwork during the year to open up
the communication channels early on and
minimise any surprises when the review
comes around. A short informal meeting
or coffee break with their supervisor every
three months was suggested as an excellent
way to implement this. This will enable
issues to be addressed as they arise, and
for feedback to be provided on a regular
basis, so that when the time comes, a
performance review can be spent reflecting
on the practitioner’s accomplishments and
learnings, discussing individual goals, and
forming productive plans for the year ahead.
It was suggested that whilst
32 THE BULLETIN May 2022
performance reviews can be a daunting
time of year, they can also provide the
opportunity for young lawyers to discuss
with their superiors the progress of their
learning and discuss which tasks they
excelled in and would like to do more of
in the future. The panellists both agreed
that not only is performance review
season daunting for the young lawyer, but
it is also daunting for the performance
reviewer, suggesting that it can be a
difficult task for some to give constructive
feedback, especially if there are some
areas of concern with the practitioner’s
performance. The panellists encouraged
the young lawyers to ask “what do I need
to be doing better” or “how can I improve”.
They suggested that asking questions
along these lines can assist the reviewer
to discuss areas of concerns more openly,
which although may be difficult to hear,
is ultimately of high value to enable a
practitioner to grow and develop.
The topic of salary was raised, with
panellists flagging the importance of
keeping in mind the difference between
a performance review (open discussion
about development and career progression)
as opposed to a salary review (an
evaluation of base salary), noting however
that these can often be combined into
one review at some firms. On the topic of
salary increases, the panellists commented
that it is helpful for practitioners to have
discussions within their social circles to
gain an insight into salary benchmarks.
The topic of self-reflection was also
discussed and the panellists highlighted
that prior to a practitioner’s performance
review, they should think about
opportunities for growth and development
of skills. These areas can be brought up
within the performance review in addition
to the practitioner highlighting what they
believe they have been doing well. It was
discussed that although self-reflection can
be difficult, it is a great process to ensure
that a practitioner’s career doesn’t end up
somewhere the practitioner doesn’t want
it to go. Practitioners should reflect on
their career by looking at where they are
currently, where they want to be and what
they need to change to get there.
Attending a performance review with
clear feedback from clients and colleagues
makes it easier for the reviewer to fairly
assess performance resulting in a more
productive performance review and better
outcomes for the practitioner, reviewer and
the firm as a whole.
The panellists also emphasised the
importance of contributing to the social
fabric of the firm, by attending Friday
night drinks, social club events and just
being part of the social culture of the
firm. While billable hours and technical
legal skills are important, firms are looking
for more than practitioners that simply
come to work, do the hours and go home.
Firms are generally looking for a wellrounded
person so it is also important
at performance reviews to discuss
extracurricular and developmental activities
that a practitioner has been involved in
throughout the year. This could include
being involved in Law Society committees,
attending marketing or business
development events, drafting a summary
from a webinar to circulate internally,
getting involved in the firm’s social events,
providing a case law update for clients
and collaborating with colleagues in
other practice areas. Participating in these
activities showcase to the firm the potential
that a practitioner may have in the future
when being more involved with interacting
with clients and importantly helps to
answer the question; “does this person have
potential to bring in new work to the firm”.
The panellists concluded this part of the
discussion by emphasising that collegiality,
networking with colleagues and building
connections are extremely important and
should be discussed during performance
reviews to assist with showing the reviewer
how the practitioner is an asset to the firm.
Overall, practitioners should reflect on and
discuss what value they bring to the firm.
The Young Lawyers’ Committee
would like to thank Burgess Paluch Legal
Recruitment and legalsuper for their
ongoing support, Finlaysons Lawyers for
generously hosting and the panellists for
their valuable time and insight.

FAMILY LAW CASE NOTES
Family Law Case Notes
CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK
PROPERTY – REGISTRAR ERRED WHEN AN
APPLICATION FOR CONSENT ORDERS WAS
DISMISSED AFTER HUSBAND’S DEATH
WHEN WIFE WITHDREW CONSENT
In Hullet & Benton [2022] FedCFamC1A
13 (11 February, 2022) the Full Court
(Austin, Tree & McEvoy JJ) dismissed an
appeal from Macmillan J’s decision in Hullet
& Benton [2021] FamCA 449.
Upon a review of his decision, a
Registrar was held by Macmillan J to have
erred when an application for consent
orders was dismissed following the
husband’s death and the wife’s withdrawal
of consent. Macmillan J held that the
proceedings could continue where the
rules enabled the husband’s executor as
legal personal representative to apply as to
the future conduct of the proceedings.
The wife appealed, arguing that when
determining the review application,
Macmillan J’s power was limited to either
granting the application for consent
orders or dismissing it; the latter being the
only option in the absence of the wife’s
consent. She argued that an application for
consent orders was a “different species of
application to an adversarial application …
and had to be treated differently” (at [10]).
The Full Court said (from [15]):
“… The existence of a ‘judgment’ is
the pre-requisite for a competent appeal (s
26(1) of the Federal Circuit and Family Court
of Australia Act 2021 (Cth) (‘the FCFCA
Act’)), for which purpose a ‘judgment’
is defined to include an order or decree,
whether it be final or interlocutory (s 7 of
the FCFCA Act).
[16] … [A] ‘judgment’ does not include
a mere ruling on a question of law which
is not decisive of the parties’ rights in the
justiciable dispute, even if it is expressed in
the form of an order …
[17] … [N]one of the orders amount
to a ‘judgment’ since none is decisive of
the parties’ rights under Pt VIII of the
Act. The orders do no more than achieve
the continuity of the proceedings. …
[18] Leave to appeal must be refused
once it is understood that no appeal validly
lies. ( … )”
PROPERTY – ERRONEOUS DISMISSAL
OF THE PARTIES’ COUNTERVAILING
APPLICATIONS FOR SOLE OCCUPATION
In Sarto [2022] FedCFamC1A 16 (10
February, 2022) Austin J, sitting in the
appellate jurisdiction of the Federal Circuit
and Family Court of Australia, allowed
an appeal in a case where the Court
heard countervailing applications for sole
occupation of the former matrimonial
home.
The wife had vacated the home
upon separation, but sought an exclusive
occupation order to move back in, despite
being the sole registered owner of the
property. The husband had lived in the
property since separation and sought a
sole occupation order.
The Magistrates Court of Western
Australia dismissed both applications. The
wife appealed.
Austin J said (from [11]):
“… Being the sole legal proprietor
of the property, absent an injunction to
the contrary, [the wife] … is entitled to
exclusive possession ( … )
[14] Regardless of whether or not
persons are married, property law governs
the ascertainment of their property rights
and interests (Wirth v Wirth [1956] HCA
71 …). ( … )
[19] The husband … seeks to obtain
a property settlement order which
substitutes him as the exclusive legal
proprietor of the property … [T]he
success of the husband’s claim depends
upon an eventual exercise of discretion …
under Pt VIII of the Act adjusting the …
existing property interests. ( … )
[20] In the face of the wife’s
withdrawal of consent, the only way …
the husband could evade ejection from the
property was by securing an injunction to
restrain the wife from exercising the rights
which attend her legal title …
[21] … Evidently, the magistrate
concluded it was not proper to do so,
because the injunction sought by the
husband was refused. ( … )
[24] … [T]he magistrate also refused
to make the orders sought by the wife
… The magistrate decided no order was
necessary, but that conclusion was reached
on the false premise that making no order
at all would then permit the husband to
continue residing in the property ( … )
[30] … The husband … has not
demonstrated it would be ‘proper’ to
grant an injunction depriving the wife
of her legal entitlement to possession of
the property. An order should be made
requiring the husband to immediately
vacate the property. … ”
May 2022 THE BULLETIN 33

FAMILY LAW CASE NOTES
CHILDREN – ORDER FOR VACCINATION OF
CHILD AGAINST COVID-19 – EVIDENCE OF
PUBLIC HEALTH RESEARCHER PREFERRED
In Palange & Kalhoun [2022]
FedCFamC2F 149 (16 February, 2022)
Judge B Smith heard an application for a
10 year old child to be vaccinated against
Covid-19.
The Court directed each parent to file
any expert evidence that they sought to
rely upon. The mother filed an affidavit
of “Dr E”, a public health researcher in
the area of vaccination, who had a PhD in
public health amongst other qualifications.
There was no other expert evidence.
The mother also sought to rely
upon publications by the World Health
Organisation and the Center for Disease
Control Prevention.
The Court said (from [68]):
“ … [E]ach party has given evidence
of what various bodies have said, and what
is contained in the pamphlets provided,
to seek to prove the truth of those
statements. ( … )
[81] Dr E … has a PhD on the topic
on which she has given her opinion. She
currently works in the field in which she
has given her opinion and her role is
to study the area on which she gave an
opinion. There was no challenge to Dr E’s
expertise. ( … )
[83] … I am satisfied that Dr E’s
opinion evidence sufficiently satisfies the
criteria for admissibility pursuant to s.79
Evidence Act ( … )
[109] … I do not consider it
appropriate to give any weight to either
of [the parties’] opinions on the medical
and public health issues associated with
COVID-19 infection or vaccination. ( … )
34 THE BULLETIN May 2022
[111] … I also give no weight to the
pamphlets tendered by the mother.
[112] … I give substantial weight to the
unchallenged and uncontested evidence
of Dr E who is a highly qualified expert.
( … )
[154] My role is to consider and weigh
the relative risks … taking into account
the evidence before me, and … to make
a decision as to what course of action I
believe is in his best interests. …
[155] … I am satisfied that it is in
the child’s best interests to be vaccinated
against COVID-19 … ”
PROPERTY – COURT ERRED BY NOT
PROVIDING REASONS WHEN REJECTING
A VALUATION THAT WAS NOT FROM A
SINGLE EXPERT
In Cantoni [2022] FedCFamC1A
11 (7 February, 2022) the Full Court
(McClelland DCJ, Williams & Wilson
JJ) allowed an appeal from a decision of
Foster J, reviewing an interim order for
the sale of a property made by a Senior
Registrar.
The property had been subject of
construction that had stalled. The husband
sought interim orders for the immediate
sale of the property. The wife sought the
appointment of a single expert as to value
and orders for a builder to complete the
construction, and for the property to be
sold upon completion.
After the Senior Registrar ordered an
immediate sale; the matter came to the
Court for review, where Foster J refused
the wife’s solicitor’s oral application for
leave to rely upon adversarial evidence as
to value, the only reason given being “she’s
not a single expert” ([18]).
The Full Court said (from [22]):
“The obligation to give reasons varies
with the circumstances of the case (Police
Federation of Australia and Another v Nixon
and Another [2011] FCAFC 161 … at
[67]). ... While there is generally no need
to give detailed reasons when exercising
a procedural discretion such as, whether
in the context of this case the affidavit
of [the adversarial expert] … should have
been admitted into evidence, the reasons
provided must nonetheless disclose the
process of reasoning …
[23] The primary judge in this matter
was placed in an invidious position as
a result of the appellant not having
complied with the requirements of the
then applicable Family Law Rules 2004
(Cth) (‘the Rules’). First, the appellant did
not file a formal application seeking leave
to rely on an adversarial report. Second,
the appellant failed to support such an
application with an affidavit addressing the
requirements of the Rules as required of
a party seeking to rely upon an adversarial
report. … ( … )
[27] … [T]he primary judge did not, in
giving reasons for rejection of the report
… refer to those matters. Instead, the
reason provided by the primary judge for
rejecting the report … was solely that she
was not ‘a single expert.’ ( … )
[29] The failure of a trial judge
to provide adequate reasons makes it
impossible for the party aggrieved by
the ruling and for an appellate court
to determine whether the ruling was
based on an error of law and, in those
circumstances, the failure to give
reasons will itself constitute an error
of law … ( … )” B

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If you have a problem, speak
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Family Law - Melbourne
Marita Bajinskis
formerly of
Howe Martin & Associates
is a Principal at
Blackwood Family Lawyers
in Melbourne
Marita is an Accredited Family
Law Specialist and can assist with
all family law matters including:
• matrimonial and de facto
• property settlements
• superannuation
• children’s issues
3/224 Queen Street
Melbourne VIC 3000
T: 03 8672 5222
Marita.Bajinskis@
blackwoodfamilylawyers.com.au
www.blackwoodfamilylawyers.com.au
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