LSB June 2022 LR

THE 

BULLETIN 

THE LAW SOCIETY OF SA JOURNAL 

VOLUME 44 – ISSUE 5 – JUNE 2022 

IN THIS ISSUE 

Travel insurance & covid 

Travelling with animals 

Space traffic management 

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

cited as (2020) 44 (5) LSB(SA). ISSN 1038-6777 

CONTENTS 

TRAVEL 

6 Travel insurance claims during 

Covid-19: An insurance lawyer’s guide 

By Marcus Vella 

8 How will the new COVID 

management laws work? 

By Nathan Ramos 

10 Travelling with assistance animals: can 

service be refused? – By Jillian Smith 

14 Travelling with pets: what the law says 

By Jillian Smith 

18 Space traffic management: Essential 

yet elusive? – By Dr Matthew Stubbs 

FEATURES & NEWS 

20 Increasing the Participation of 

Persons with Mental Health 

Disabilities in Involuntary Mental 

Health Treatment Decision-Making 

By Dr Susan Peukert 

24 An Analysis of the Law Society of 

South Australia’s Cloud Computing 

Guidelines: Data Security 

By Mark Ferraretto 

27 Lucinda Byers appointed Chief 

Legal Officer of Legal Services 

Commission 

REGULAR COLUMNS 

4 President’s Message 

5 From the Editor 

26 Risk Watch: A new case on legal 

professional privilege and former 

clients – By Grant Feary 

28 Family Law Case Notes 

By Craig Nichol & Keleigh Robinson 

30 Young Lawyers: Justice Stein imparts 

career lessons at Young Lawyers’ 

Premium Breakfast 

By Adam Hamilton & Lungaka Mbedla 

31 Wellbeing & Resilience: The burnout 

era – By Sarah El Sayed 

32 Bookshelf 

33 Tax Files: Trust reimbursement 

arrangements – By Stephen Heath 

34 Gazing in the Gazette 

Compiled by Master Elizabeth Olsson 

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 

C Borello B Armstrong 

D Misell M Ford 

The Law Society Bulletin is published 

monthly (except January) by: 

The Law Society of South Australia, 

Level 10-11, 178 North Tce, Adelaide 

Ph: (08) 8229 0200 

Fax: (08) 8231 1929 

Email: bulletin@lawsocietysa.asn.au 

All contributions letters and enquiries 

should be directed to 

The Editor, The Law Society Bulletin, 

GPO Box 2066, 

Adelaide 5001. 

Views expressed in the Bulletin 

advertising material included are 

not necessarily endorsed by The 

Law Society of South Australia. 

No responsibility is accepted by the 

Society, Editor, Publisher or Printer 

for accuracy of information or errors 

or omissions. 

PUBLISHER/ADVERTISER 

Boylen 

GPO Box 1128 Adelaide 5001 

Ph: (08) 8233 9433 

Email: admin@boylen.com.au 

Studio Manager: Madelaine Raschella 

Elliott 

Layout: Henry Rivera 

Advertising 

Email: sales@boylen.com.au 

Junior Members 

A Douvartzidis 

A Kenny 

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 

IN THIS ISSUE 

Have you considered 

a tree change? 

MICHAEL ESPOSITO, EDITOR 

14 

This travel themed edition of the 

Bulletin roughly coincides with the 

significant uptick in interstate and overseas 

travel after almost two years of tight border 

restrictions. 

For those who are planning to travel 

in the near future, the article by Marcus 

Vella on travel insurance and the extent to 

which COVID-19 related disruptions may 

be covered is very useful. 

During the border restrictions, many 

South Australians took the opportunity to 

discover different parts of their own State, 

eliciting a newfound appreciation for the 

numerous charms that exist in their own 

backyard. 

One silver lining to this whole 

pandemic was that it gave regional remote 

and rural parts of South Australia the 

opportunity to shine in front of a new 

audience of South Australians who might 

have otherwise holidayed interstate. 

It may have even convinced some 

people to make a permanent tree change. 

There’s a lot to recommend about 

living in the country, and Port-Lincoln 

based lawyer Kate McShane talks up the 

benefits of working in the country. 

We are all aware of struggles faced by 

jobseekers due to the huge numbers of 

law graduates coming through law schools, 

yet a number of regional law firms and 

organisations are crying out for lawyers. 

If you like the idea of work-life 

balance, easy commutes, being in a tightknit 

community and being surrounded by 

nature’s beauty, working in the country 

may be something worth considering. 

Choosing the right trust accounting 

software 

Practitioners are reminded that the 

Society’s website contains a list of trust 

accounting software packages that are 

operational in South Australia. 

The list can be accessed at the 

following link: https://www.lawsocietysa. 

asn.au/pdf/Trust%20account%20 

software%20schedule%202021.pdf 

When choosing a trust accounting 

package, practitioners should evaluate 

their trust accounting needs and consider 

matters such as licensing fees, security, 

compatibility, usability and data access. 

Practitioners should also be mindful of 

any contract terms relating to transitioning 

out of one platform to another, 

particularly with regards to client data 

access and exit costs. 

It is important that practitioners 

ensure their trust accounting software 

meets all regulatory requirements. For 

more information about computerised 

trust accounting regulatory requirements, 

click here: https://www.lawsocietysa.asn. 

au/Public/Lawyers/Operating_a_Legal_ 

Practice/Trust_Accounting_Management_ 

Online_Resource/TASoftware.aspx B 

TRAVELLING WITH PETS 

What the law says on pets in vehicles 

MENTAL HEALTH TREATMENT 

Empowering participation for 

people with disabilities 

PROTECTING DATA SECURITY 

Cloud computing guidelines for 

practitioners 

20 

24 

4 

THE BULLETIN June 2022

PRESIDENT’S MESSAGE 

Society busy scrutinising new 

Government’s legislative agenda 

JUSTIN STEWART-RATTRAY, PRESIDENT 

It’s hard to believe we already almost half 

way through the year! 

I must say I am pleased that the 

bombardment of State and Federal 

political advertisements is behind us, and 

our Parliaments can get on with governing. 

Due to the State Election, State 

Parliament did not sit until 3 May, meaning 

the Law Society had to wait to get its teeth 

into one of its most important roles – to 

advocate and comment on proposed 

legislation. 

What started as a slow year in that 

respect has really shifted into top gear since 

the recently elected State Government took 

power. The Government has introduced 

some significant Bills that the Society has 

closely analysed and provided commentary 

on. 

Ideally, the Government and other 

parties would allow the Society sufficient 

time to consult and provide comprehensive 

responses to proposed law reforms. 

However this does not always happen and 

we are working with these parties to ensure 

that the Society is consulted properly on 

legislation. 

Just some of the notable issues that 

the Society has provided submissions on 

include: 

• State Budget Submission, outlining the 

Society’s key priorities for investment in 

the legal profession and justice system. 

• Return to Work (Permanent 

Impairment Assessment) Amendment 

Bill 2022, which would substantially 

impact entitlements for workers who 

suffer subsequent injuries resulting 

from the original workplace injury. 

The Society's submission assessed 

the impact to injured workers of 

provisions that would alter the method 

to determine whole person impairment, 

warned about the impact of the 

transitional provisions, and urged 

proper consultation before attempting 

to pass the Bill. 

• The South Australian Public Health 

(COVID-19) Amendment Bill 2022, 

which has since passed the Parliament 

and brings the State’s ongoing 

COVID-19 response under the South 

Australian Public Health Act 2011 (SA), 

replacing the state of emergency. The 

Society noted concern at the uncertain 

scope of the now permanent feature 

of public health legislation enabling 

the Governor to make directions 

relating to COVID-19 positive cases 

and “close contacts”. 

• A letter to the Minister for Health 

and Wellbeing to request some detail 

as to why the commencement of the 

Termination of Pregnancy Act 2021 (SA) 

appears to have stalled, citing concerns 

of the Women Lawyers’ Committee as 

to the implications this may be having 

for women accessing abortion care. 

• The Criminal Law Consolidation 

(Human Remains) Amendment Bill 

2022, seeks to create four standalone 

offences which relate to dealing with 

human remains. Some concern was 

noted at the prospect of an offence 

where a person finds human remains 

and fails to report it to a police officer, 

carrying a maximum penalty of five 

years’ imprisonment. 

• The expiry of various Regulations, 

particularly the Criminal Law 

(Clamping, Impounding Forfeiture 

of Vehicles) Regulations 2007, in 

relation to which the Society raised 

and reiterated its previous advocacy 

and concern about the arbitrariness of 

the changes to the vehicle confiscation 

regime introduced in 2021. 

• The Society will also be involved 

in the SA Law Reform Institutes’s 

(‘SALRI’) review of the Ageing and 

Adult Safeguarding Act. SALRI 

plays an important part in the major 

law reform process and the Society 

welcomes the opportunity contribute 

to SALRI’s reviews. 

Lastly, I congratulate the Hon Kyam 

Maher MLC for his appointment as 

State Attorney General. I have had the 

opportunity to meet with him and I am 

very pleased that Mr Maher has accepted 

our invitation to attend the July meeting of 

the Law Society Council. 

I am very much looking forward to 

hearing what the Attorney’s legislative 

agenda is, and for the opportunity to seek 

his thoughts on some of the Society’s key 

advocacy issues. B 

June 2022 THE BULLETIN 5

FEATURE 

Travel insurance claims during Covid-19: 

An insurance lawyer’s guide 

MARCUS VELLA, ASSOCIATE, GILCHRIST CONNELL 

So the world is opening up again. After 

months of late nights working from 

home, dialling into court hearings at the 

breakfast table, and swearing affidavits over 

Zoom, perhaps, like me, you are now finally 

daring enough to swap your top-half-only 

suit and curated video-call background for a 

comfy pair of travel pants, to jet off far and 

wide across Australia or further abroad. 

Brimming with optimism, you pack 

your bags, brave the apocalyptic airport 

lines, and reach your flight in time to 

gleefully heed the airline’s advice to 

put your phone on aeroplane mode for 

everyone’s safety, and not to avoid the 

steadily expanding pile of work emails 

filling your inbox. 

Just as you think you’ve made it, and 

the unpredictable death trap of travelling 

during a pandemic appears to have been 

finally overcome, Covid-19 has other ideas. 

That’s exactly what happened to me, a 

Sydney-based insurance lawyer, when my 

partner contracted Covid-19 on our trip to 

Queensland for a wedding. Unfortunately, 

with nearly 50,000 confirmed cases of 

Covid-19 across Australia each day and 

rising, odds are that something similar may 

happen to you. 

But, as a cautious, forward-thinking 

intellectual, you will have planned ahead 

and purchased travel insurance. Doing so 

might just save you in the event of a claim. 

WHAT COVID-19 LOSSES MAY BE 

COVERED? 

As with all insurance contracts, the 

specific terms of your travel policy are key. 

Commonly, travel policies exclude cover 

6 

THE BULLETIN June 2022 

for loss arising from Covid-19. However, 

many travel insurers now offer a limited 

optional cover when Covid-19 impacts on 

your travel plans. The nature and scope of 

cover can vary significantly between policies 

and insurers, and between domestic and 

international travel. It is important that you 

closely review the full terms, conditions, 

limits and exclusions of the insurance 

policy you intend to purchase. 

Where Covid-19-related cover is 

available, it is often limited cover that 

triggers only if you or someone you 

are travelling with contracts Covid-19 

within a certain period before or during 

your journey. Some policies may also 

provide cover if you are a close contact 

and therefore unable to travel. In those 

circumstances, cover may not be available 

where the travel provider cancels their 

services for reasons incidental to Covid-19, 

such as changes in border restrictions or 

staff isolation requirements. 

Even if you or your travel partner 

contract Covid-19 within the covered 

period, only certain losses may be the 

subject of the limited cover. Some 

Covid-19 policies only cover medical 

and repatriation (i.e. flying you back 

home) costs, whereas others, usually for 

additional premium, will provide limited 

cover for consequential loss flowing from 

the illness, such as quarantine or isolation 

costs, and the costs of wasted tours at 

your intended destination. 

I have three key personal tips: 

1. Closely read the definitions in your 

policy. In some policies, cover may 

be limited to either you or a spouse, 

de facto or dependant contracting 

Covid-19. Such policies may not 

respond if you are travelling with friends 

and one of them contracts the virus. 

2. If your policy provides cover for the 

cancellation of pre-booked flights, 

accommodation or tours due to 

Covid-19, it will often only respond if 

no refund or credit is available after you 

request that. Check with each of your 

travel providers, or your travel agent, 

what refund and credit policies apply to 

you, so you don’t end up with a series 

of six-month credits that may be of 

little practical use to you. 

3. Don’t wait until the last minute to buy 

insurance, because some insurers will 

only cover you if someone contracts 

Covid-19 and the policy was purchased 

more than 21 days before your 

scheduled departure date. 

SO, YOU’VE CAUGHT COVID-19 WHILE 

TRAVELLING, WHAT NOW? 

Under many policies, contracting 

Covid-19 is considered a medical 

emergency, so once you suspect you have 

Covid-19 or have tested positive, your first 

step should be to call your travel insurer’s 

medical emergency hotline. Most travel 

insurers have 24-hour hotlines to help you 

manage your claim and, importantly, it will 

be the most useful source of information 

for meeting the requirements of your 

policy. Take the name of the person 

assisting you and keep a note of the time 

and date of the call and all steps your 

insurer requires of you. 

Here are a few helpful questions to ask 

your insurer:

FEATURE 

• What level of Covid-19 testing is 

required by the insurer? Some insurers 

will only cover you if you are ‘medically 

diagnosed’ with Covid-19. In practice, 

this may mean you must test positive 

on a polymerase chain reaction (PCR 

or RT-PCR) test, as opposed to a more 

widely available rapid antigen test 

(RAT). In reality, that can be logistically 

difficult if you are stranded in a foreign 

place with no car or nearby PCR testing 

site. If so, ask whether a positive RAT 

is sufficient in the circumstances or 

seek pre-approval from your insurer to 

cover your costs of getting to a PCR 

testing centre. 

• How long do you have to submit the 

claim? Many travel policies have a time 

period within which you must submit 

your claim form to obtain cover. In 

some circumstances, you may be 

required to submit your form, plus 

all supporting documentation, within 

28 days of testing positive. That can 

be a tall order if, for half those days, 

you feel tired, unwell and incapable 

of braving the hours of airline hold 

music required to obtain your refund 

or credit, all while figuring out exactly 

how you will now get home to your 

own bed. Ask whether the time period 

starts from the day you arrive home or 

the date of your test and, if in doubt, 

submit the claim form within the 

earliest of the two times and tell the 

insurer your supporting documents are 

forthcoming. Many insurers allow more 

time to submit claims, if required in the 

circumstances. 

Always keep all confirmation emails, 

tax invoices, and records of payment in 

a single place, ready to submit with your 

claim form. As tempting as it can be to 

leave your laptop at home while you travel, 

it’s best to have it with you to help you 

navigate the claim. 

LEGAL AVENUES IF YOUR POLICY WON’T 

RESPOND 

If you consider your claim has been 

incorrectly declined, your first avenue of 

recourse is to submit an internal complaint 

to your insurer, which must be handled 

in accordance with the insurer’s internal 

dispute resolution (IDR) processes. 

Ensure you are aware of your rights 

under your insurer’s IDR policy and, for 

signatory insurers, the Insurance Council 

of Australia’s General Insurance Code of 

Practice. 

If you remain of the view that 

cover has been incorrectly declined after 

exhausting the IDR process, there are 

several alternative avenues available to you. 

• Lodge a complaint with the Australian 

Financial Complaints Authority (AFCA). 

All travel insurers operating in Australia 

are APRA regulated and all must engage 

properly with any external complaint 

lodged with AFCA. AFCA is a 

consumer-focused complaints handling 

ombudsman that has the power to 

compel your travel insurer to honour 

their obligations under your policy and 

the Insurance Contracts Act 1984 (Cth). 

• If your dispute is with an airline, lodge 

a complaint with the Airline Customer 

Advocate, which can step in when 

a dispute involves air travel services 

arranged through a participating 

airline (currently Jetstar, Qantas, Virgin 

Australia and Rex). 

• If you believe other service providers 

are responsible for your loss, consider 

lodging a complaint with them directly. 

They may include tour operators, 

accommodation providers and travel 

agents. Each service provider may or 

may not have formal dispute resolution 

processes. 

• Obtain legal advice. If you cannot 

resolve your complaint through 

informal or formal dispute resolution 

processes, or you simply want 

the benefit of legal advice and 

representation through those processes, 

you may wish to seek advice from 

a suitably qualified lawyer. They 

can advise you on your rights and 

obligations, and the appropriate 

method of resolving the dispute. It 

is important to note there may be 

time limits in which you can lodge 

complaints or bring legal actions, so 

seek advice as early as practicable. 

The views expressed in this article are the 

author’s own, not those of the law firm Gilchrist 

Connell. Marcus Vella is a member of the 

Australian Insurance Law Association and 

the article was written as an AILA member. 

The article is a summary of information on the 

subject matter covered. The information is not 

intended to be nor should it be relied on as legal 

or any other type of professional advice. For 

more information, please contact Marcus Vella 

(mvella@gclegal.com.au). B 


PUBLIC HEALTH LAW 

How will the new COVID 

management laws work? 

BY NATHAN RAMOS, POLICY OFFICER, LAW SOCIETY OF SA 

There has been significant media 

coverage in recent weeks about 

changes to legislation in the Parliament 

which deals with the State’s ongoing 

response to COVID-19. 

As with anything related to the 

pandemic, it captures the public’s 

attention significantly. However, given the 

relative speed at which the changes have 

become law and therefore the limited 

time to consider and evaluate potential 

consequences, their full impact may not 

yet be fully realised. 

This explainer seeks to respond to 

some likely questions about how the State’s 

approach to COVID-19 has changed in 

recent weeks, with the end of the state 

of emergency and ongoing pandemic 

management via the South Australian Public 

Health Act 2011 (SA). 

FROM A LEGAL STANDPOINT, HOW HAS 

THE SITUATION CHANGED WITH RESPECT 

TO THE STATE’S ONGOING RESPONSE TO 

COVID-19? 

The two key pieces of legislation to 

keep in mind are the Emergency Management 

Act 2004 (SA) (“the Emergency 

Management Act”) and the South Australian 

Public Health Act 2011 (SA) (“the Public 

Health Act”). 

Back in March 2020, as a result 

of the unfolding pandemic situation, 

Police Commissioner Grant Stevens 

declared an emergency under the 

Emergency Management Act. This Act 

confers significant power on the Police 

Commissioner to declare an emergency 

and, during an emergency, make broadranging 

directions by which the general 

public is required to comply. 

Prior to 24 May 2022 the State’s 

ongoing COVID-19 response, which 

included the many restrictions on our 

day to day lives, was managed under the 

Emergency Management Act. This means 

the lockdowns, density caps, isolation/ 

quarantine requirements and CovidSAfe 

Check-in were all technically enabled by 

this important piece of legislation. 

This state of emergency was ended 

8 


on 24 May 2022 and the ongoing 

management of the pandemic was 

transferred to the Public Health Act, 

which is South Australia’s primary public 

health legislation. This Act was amended 

for this purpose by the State Parliament in 

May, leading up to the end of the declared 

emergency, noting the Government had 

committed to doing so. 

Practically, this means that although 

there is a direction which has implications 

for the daily lives of many South 

Australians (though to a lesser extent 

than previous directions), the declared 

emergency and the Police Commissioner’s 

extraordinary powers are no more. 

Now the Governor, rather than the 

Police Commissioner, will make the 

directions into the future as advised by the 

Emergency Management Council, being a 

sub-committee of Cabinet. 

WHAT DOES THE NEW LEGISLATION DO? 

The South Australian Public Health 

(COVID-19) Amendment Bill inserts Part 

11A into the Public Health Act. 

This provides the Governor with the 

power to enforce directions relating to 

• individuals who have tested positive to 

COVID-19; and 

• “close contacts” as defined within the 

direction. 

As a result of this, the scope 

of directions (which are made by 

the Governor and not the Police 

Commissioner) has narrowed significantly 

because they can only relate to the two 

categories above. 

But it is also important to remember 

that until this point in time, all directions 

have been made pursuant to an 

unprecedented and temporary declared 

emergency, rather than via public health 

legislation 

SO, IS THE EMERGENCY SITUATION OVER? 

Sort of. 

While the declared emergency under 

the Emergency Management Act has expired, 

the most recent direction made under that 

Act still applies. The Emergency Management 

(COVID-19 Requirements) (Consolidated 

Measures) Direction 2022 came into effect 

on 23 May 2022 and was made in the 

context of a declared emergency under 

the Emergency Management Act. The 

following day, the state of emergency 

(and the ability to make such directions), 

expired. 

The previous direction remains in 

force under the amended Public Health 

Act, despite likely exceeding the scope of 

directions permitted under that Act (which 

must relate to COVID-19 positive and 

close contacts). The arrangements made 

by the current direction which appear to 

be beyond that scope include: 

• mandatory mask wearing in certain 

circumstances; 

• obligations for certain places to have in 

place a COVID Safe Plan; and 

• obligations for some places to use an 

approved contact tracing system and 

records. 

While the emergency situation is 

certainly over from a technical perspective, 

practically, the same arrangements that 

were in place at the time the emergency 

declaration was about to expire apply now 

and can continue to apply for a maximum 

period of six months. The penalties 

for refusing, or failing to comply with a 

direction appear to replicate those in the 

Emergency Management Act. 

Should broad ranging directions 

(such as mask wearing) be required after 

six months has elapsed, the amended 

Public Health Act may not be sufficient 

to manage the pandemic. It could be 

necessary in such circumstances to 

further amend legislation, or revert to the 

Emergency Management Act and declare 

another emergency under that Act to 

manage the ongoing pandemic situation. 

HOW CAN A DIRECTION MADE UNDER THE 

DECLARED EMERGENCY (WHICH HAS NOW 

LAPSED), BE RETAINED UNDER THE NEW 

ARRANGEMENTS? 

This is the result of the transitional 

provisions for the amendments to the 

Public Health Act, which ensure a relevant

PUBLIC HEALTH LAW 

direction made under the Emergency 

Management Act, at the cessation of 

the last relevant emergency declaration, 

continues in force as a direction under the 

Public Health Act. 

In other words, a direction made under 

the previous arrangement is effectively 

validated by the amended Public Health 

Act and remains in force. However, it can 

only remain in force for six months, due to 

a time limit set out elsewhere in the Public 

Health Act. 

Transitional provisions are often 

included in amended legislation, to ensure 

a smooth transition for when the changes 

commence. 

HOW WERE THE AMENDMENTS TO 

THE PUBLIC HEALTH ACT SHAPED BY 

PARLIAMENTARY DEBATE? 

Some significant amendments were 

made to the Bill in the Legislative Council 

to include some more oversight and 

transparency in the amendments to the 

Public Health Act. The changes included: 

• clarification as to which existing 

principles within the Public Health 

Act apply to the new COVID-19 

arrangements incorporated in the 

Public Health Act by the Bill; 

• the establishment of the COVID-19 

Direction Accountability and Oversight 

Committee, being a Parliamentary 

Committee tasked with oversight 

of directions made under the new 

arrangements; and 

• the rights of a person to apply for 

review of a direction made under 

the amended Public Health Act if it 

is a direction to isolate or quarantine 

at a place other than their place of 

residence or another location chosen by 

that person. 

WHAT DOES THE LAW SOCIETY THINK OF 

THESE AMENDMENTS AND, SUBSEQUENTLY, 

THE FINALISED AMENDMENTS TO THE 

PUBLIC HEALTH ACT? 

The Society had provided a 

submission, at the request of the 

opposition, in relation to the Bill shortly 

after it was tabled in Parliament. 

The general theme of the Society’s 

initial position on the amendments to 

the Public Health Act was that the scope 

of some of the changes proposed was 

concerningly opaque. Much of this lack of 

clarity lay in the open-ended definition of 

“close contact”, which would be subject to 

change as per each direction issued under 

the new arrangement. As an example, the 

definition of “close contact” has changed 

significantly over the preceding year and 

had, less than six months ago, included 

a person who had simply attended a 

listed exposure site at a particular time. 

The significant implications of a fluid 

definition of “close contact” are obvious 

when read in this light, with the potential 

for the amended Act to interfere with the 

lives of South Australians being subject to 

significant variation. 

The Society was also concerned at 

the transitional provisions which (as was 

demonstrated shortly afterwards) enabled 

a former direction to be validated and 

maintained under the amended Public 

Health Act, despite the fact that it may be 

beyond the terms of what it would permit. 

The importance of the principles 

already set out in the Public Health Act 

was emphasised by the Society, as was 

the need for some sort of oversight 

mechanism for directions made under the 

amended Public Health Act. 

Parliamentary debate, particularly in 

the Legislative Council, was monitored by 

the Society with interest and the Society 

generally welcomes the amendments made 

to the Bill in the Legislative Council. 

The imposition of the COVID-19 

Direction Accountability and Oversight 

Committee provides an oversight 

mechanism and is a welcome addition. 

This Committee is independent of 

Executive government, given that 

it is composed of members of the 

legislature. It has an entirely different 

structure to the Emergency Management 

Council. 

Similarly, the introduction of a right 

of review of any directions made (via the 

Magistrates’ Court and District Court) 

is a positive inclusion. The Society notes 

however that the South Australian Civil 

and Administrative Tribunal is the forum 

where most Government decisions 

are reviewed as its flexible approach to 

litigation and lower costs make it a suitable 

option for many matters. 

Overall, the Society’s preference was 

at the outset and remains for a full review 

of the Emergency Management Act with 

a view to enacting legislation that deals 

with pandemics and other prolonged 

emergency situations into the future. B 


TRAVEL 

TRAVELLING WITH ASSISTANCE 

ANIMALS: CAN SERVICE BE REFUSED? 

JILLIAN SMITH, RSPCA LEGAL COUNSEL, AND MEMBER OF THE ANIMAL LAW COMMITTEE 

quick scroll through the Human 

A Rights Commission’s Conciliation 

Register 1 reveals many complaints alleging 

disability discrimination arising from the 

refusal of service to people travelling with 

assistance animals. The resolution of the 

complaints usually involves an apology and 

a monetary payment of sums ranging from 

hundreds to thousands of dollars. 

If everyone knows assistance animals 

can accompany their owners anywhere, 

why is service still being refused? 

Unfortunately, the answer to this 

question is not as straightforward as 

perhaps it should be, with confusion over 

what constitutes an assistance animal 

as distinct from an emotional support 

animal. Assistance animals travelling with 

their owner have full public access rights, 

guaranteed by the Disability Discrimination 

Act 1992 (Cth). Emotional support animals 

do not. 

The difference: assistance animals are 

specifically trained to render assistance 

for a disability whereas emotional support 

animals are not. When the assistance 

animal travelling with its owner does not 

have formal accreditation, disputes have 

arisen as to the rights of the owner to 

travel with the animal. 

In Mulligan v Virgin Australia 2 Virgin 

refused to allow Mr Mulligan’s assistance 

dog to travel in the cabin with him. Mr 

Mulligan had cerebral palsy and hearing 

and vision impairments. It was accepted 

that the dog had been trained to assist 

him, but not by an accredited organisation. 

Virgin contended that the dog required 

accreditation to travel pursuant to Civil 

Aviation Regulations. The Federal Court 

found Virgin’s conduct amounted to illegal 

discrimination – the fact that the dog 

was trained to assist Mr Mulligan in his 

disability and met standards of hygiene 

and behaviour qualified the dog as an 

assistance animal for the purposes of the 

Disability Discrimination Act 3 (the DDA) 

and the Civil Aviation Regulations did 

not override the DDA. Compensation of 

$10,000 was awarded. 

In Reurich v Club Jarvis Bay Ltd, 4 the 

refusal by the club to allow Mr Reurich’s 

dog Boofhead to ride on the club’s 

courtesy bus and to enter the club on 

eight occasions was held by the Federal 

Court to be a breach of the DDA. The 

Court ordered the club to pay Mr Reurich 

$16,000 in compensation. In this case, 

while not formally accredited, there was 

evidence that Boofhead had been accepted 

as a trainee by mindDog Australia 5 and 

that Mr Reurich himself had trained 

him. Boofhead’s very presence was the 

assistance provided to Mr Reurich (who 

suffered from a personality disorder and 

various mental illnesses) and the fact that 

the dog did not assist his handler in an 

active manner did not negate Boofhead’s 

status as an assistance animal. 

Malkovich J said “in contrast to a person 

with a physical disability, it is Boofhead’s presence 

and the fact that he provides a different focal 

point that has a positive effect on Mr Reurich’s 

symptoms. That Boofhead is not trained to do 

specific things, as for example a dog assisting a 

diabetic might be trained to recognise and take 

certain steps when their handler was having a 

hypoglycaemic or hyperglycaemic attack, does not 

mean that he is not trained to assist Mr Reurich 

alleviate the effect of his disability …. Boofhead, 

by his even temper and obedience, has been trained 

to assist Mr Reurich. It is these qualities that 

provide the calming influence. If Boofhead was a 

highly active, excitable dog lacking in obedience 

he would presumably not be trained to assist in 

alleviating the effect of Mr Reurich’s disability”. 6 

By contrast is Phillips v Ventura 

Bus Lines. 7 The Victorian Civil and 

Administrative Tribunal found there 

was no breach of the Equal Opportunity 

Act 2010 (Vic) (which uses the narrower 

term “assistance dog” 8 ) when a bus 

company refused Mr Phillips travel with 

two German Shepherd dogs. While it 

was accepted by the Tribunal that Mr 

Phillips had a psychiatric/psychological 

disability, he was unable to prove that 

his dogs had received specific training 

to assist him with the effects of this 

disability despite letters from his treating 

doctors stating that the dogs indeed did 

assist him with managing his conditions. 

However, the medical evidence did not 

address the question of the dogs’ training 

which must be “verifiable and specific”. 9 

Senior Member Steele cited another case 

in which Mr Phillips had made another 

similar and likewise unsuccessful claim of 

discrimination involving his dogs, in which 

it was held that “...the evidence is not sufficient 

to support a finding that Rishi and Goethe are 

assistance dogs within the meaning of the EO 

Act. Although Mr Phillips said that his dogs are 

trained,…… he did not identify the nature and 

scope of their training. For example, there was no 

evidence of any socialisation training that might 

be said to equip the dogs to be in public locations 

10 


TRAVEL 

(such as on public transport) bringing them into 

close proximity with strangers and, potentially, 

other animals”. 10 

One wonders if Phillips v Ventura had 

been heard in the Federal Court whether 

the result would have been different. 

As the DDA does not exclude or 

limit the operation of a law of a state 

or territory that is capable of operating 

concurrently with the DDA the result 

is a patchwork of federal, state and 

territory anti-discrimination acts operating 

concurrently: a situation ripe for confusion 

especially when travelling interstate. 11 

Some anti-discrimination laws do 

not extend protection to all animals and 

instead limit protection to dogs. 

The situation in SA 

South Australia arguably has the 

strongest protections with sections 88 

and 88A of the Equal Opportunity Act 

1984 (SA) extending protection to both 

assistance animals and therapeutic animals. 

A therapeutic animal is defined as “an 

animal certified by a medical practitioner 

as being required to assist a person as a 

consequence of the person’s disability” 12 

i.e., not required to be specifically trained 

to render assistance. However, therapeutic 

animals access rights are limited to 

accommodation settings, including hotels, 

caravan parks and holiday rentals, with it 

being unlawful to refuse an application 

for accommodation on the basis that the 

applicant intends to keep a therapeutic 

animal there. 

The Passenger Transport Regulations 

do not allow animals to travel on 

passenger service vehicles without the 

permission of an authorised person, 

however, an exception is made for “a 

working animal accompanying a person 

with a disability”. 13 The Dog and Cat 

Management Act 1995 (SA) complements 

this at section 81 by stating that disabled 

persons are entitled to be accompanied by 

their accredited assistance dogs in public 

places and on public transport. 14 The 

National Parks and Wildlife regulations 

encourage assistance dogs to be walked on 

a reserve on the proviso they remain on a 

lead. 15 

Further information: 

• A list of different requirements in each 

State and Territory: 

https://humanrights.gov.au/our-work/ 

disability-rights/projects/assistanceanimals-and-disability-discriminationact-1992-cth 

• RSPCA - what is an assistance animal: 

https://kb.rspca.org.au/knowledgebase/what-is-an-assistance-animal/ 

• Civil Aviation Safety Authority – Travel 

with assistance dogs: https://www.casa. 

gov.au/operations-safety-and-travel/ 

travel-and-passengers/passengersdisability-and-reduced-mobility/travelassistance-dogs 

• QANTAS conditions of carriage 

for assistance animals (in the cabin): 

https://www.qantas.com/au/en/ 

travel-info/specific-needs/travellingwith-specific-needs/service-dogs/ 

conditions-of-carriage.html 

• QANTAS Pet travel (as freight): 

https://freight.qantas.com/pets/pettravel-faqs.html 

B 

Endnotes 

1 https://humanrights.gov.au/complaints/ 

conciliation-register 

2 Mulligan v Virgin Australia Airlines Pty Ltd [2015] 

FCAFC 130 

3 Section 9(2) of the DDA provides that for 

the purposes of the Act an assistance animal 

is a dog or other animal: (a) accredited under 

a law of a State or Territory that provides for 

the accreditation of animals trained to assist 

a persons with a disability to alleviate the 

effect of the disability; or (b) accredited by an 

animal training organisation prescribed by the 

regulations for the purposes of this paragraph; 

or (c) trained:(i) to assist a person with a 

disability to alleviate the effect of the disability; 

and(ii) to meet standards of hygiene and 

behaviour that are appropriate for an animal in a 

public place. 

4 [2018] FCA 1220 

5 https://www.minddog.org.au/ 

6 Reurich v Club Jarvis Bay Ltd [2018] FCA 1220 at 

[236] 

7 Phillips v Ventura Bus Lines Pty Ltd (Human Rights) 

[2021] VCAT 1122 

8 Section 4 Equal Opportunity Act 2010 (Vic) 

“Assistance dog means a dog that is trained to 

perform tasks or functions that assist a person 

with a disability to alleviate the effects of his or 

her disability.” 

9 At [27] 

10 Phillips v Ventura Bus Lines Pty Ltd (Human Rights) 

[2021] VCAT 1122 at [40] 

11 For a summary of different legislative provisions 

see Disability Assistance Animals or Not? 

Problems In Policy and Practice Workshop, 

Summary and Scoping Discussion Paper Paul 

Harpur, Martie-Louise Verreynne, Nancy 

Pachana, Peter Billings and Brent Ritchie 

https://lawprofessors.typepad.com/files/ 

animals.pdf#page58 

12 Equal Opportunity Act 1984 (SA) s 88A. 

13 Passenger Transport Regulations 2009 (SA) reg. 115 (2). 

14 Dog and Cat Management Act 1995 (SA) s 81. 

15 National Parks and Wildlife (National Parks) 

Regulations 2016 (SA) Reg. 26 (4). 


EVENTS 

SA has the wood over Victorian rivals 

GREG HOWE, DIRECTOR, HOWE JENKIN FAMILY LAWYERS & MEDIATORS 

The second golf match between the 

SA and Victorian golfing lawyers was 

played on a glorious autumn morning 

on 13 May at Royal Adelaide Golf Club. 

The match saw a comprehensive victory 

to the SA team which thereby retained 

“The Serviceton” trophy, with an average 

stableford score of 38.4 to the Victorians’ 

34.4. 

The SA team was captained by David 

Jenkin in the absence of COVID-struck 

Greg Howe, and the Victorians were 

led by barrister, Caroline Paterson. The 

best overall team score was 41 points by 

Richard Wood and Jane Ekin-Smyth on a 

countback from Egils Olekalns and Kym 

Bartel. Hugh Abbott won the nearest the 

pin prize on the 7 th hole and Victoria’s 

Chris Arnold pumped a huge drive down 

the 18 th to win the longest drive. Another 

highlight was Julian Hicks’ near eagle on 

David Jenkin (left) and Ashley Kent from the SA team with Victorian golfers Grant Ezzy and Tony Robinson. 

17 and David Jenkin’s chip-in birdie on 12. 

The Victorians have invited SA to play 

the return match at Peninsula Kingswood 

Golf Club in May next year. All golfing 

lawyers are welcome to express interest by 

emailing ghowe@howejenkin.com.au. 

The SA team was David Jenkin; Jeremy 

Schultz; Kym Bartel; Egils Olekalns; 

Richard Wood; Simon Lane; Julian Hicks; 

Jane Ekin-Smyth; Andrew Sinclair; Hugh 

Abbott SC; Jamie Botten; Peter Hill; Stuart 

Henry QC and Ashley Kent. B 

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12 THE BULLETIN June 2022 

P 8444 9111 | 370-378 Torrens Road, Kilkenny, SA 5009

FEATURE 

TRAVELLING WITH PETS: 

WHAT THE LAW SAYS 

JILLIAN SMITH, LEGAL COUNSEL, RSPCA OF SA AND MEMBER, ANIMAL LAW COMMITTEE 

When I was a child our black Labrador, 

Ben, would travel with us in the Ford 

LTD, nestled happily in the foot-well by 

the backseat. A well-behaved and chilled 

individual, Ben would fall asleep almost as 

soon as the engine turned over for our road 

trips to Yorke Peninsula or the beaches of 

the South East, and wake up only at road 

stops for a quick sniff and cock of the 

leg before happily retiring back to the car. 

At night on these caravan holidays, Ben 

would sleep tethered in a pop-up canvas 

kennel my father had fashioned. It must 

have been comfortable as Ben’s loud and 

guttural snoring reverberated on the night 

air and was interpreted as Dad’s by the 

neighbouring campers, much to the chagrin 

of my mother. 

We were lucky to have such a superrelaxed 

hound as Ben, who never barked, 

never reacted poorly to other animals 

or people and treated the car as his 

own personal sleeping compartment. 

Not all pets are such pleasant travelling 

companions. 

They can be lethal distractions 

and potential missiles in a car and 

overstimulated animals can be difficult 

to control whether in the car or in new 

unfamiliar surroundings. They are also a 

constant responsibility when travelling. 

This article provides a brief overview of 

the regulatory and legislative provisions 

regulating how and where pets may travel. 

WHERE CAN I TRAVEL WITH PETS IN 

AUSTRALIA? 

All pets must be cared for at all times 

whether on holiday or at home and failure 

to do so may constitute ill treatment of 

an animal under the Animal Welfare Act 

1985 (SA) or its interstate equivalent. 1 

The responsibility of pet ownership 

may limit trips to the pub, theme park, 

sightseeing trip or other holiday activity. 2 

The Dog and Cat Management Act 1995 

(SA) provides that dogs must be under 

the effective control of the owner, 3 

therefore their presence inevitably limits 

the available activities while away from 

home. Pets cannot be left to their own 

devices in camp grounds or caravan parks. 

Domestic animals (other than accredited 

assistance dogs) are prohibited from most 

national parks, 4 and dogs are prohibited 

also in schools, childcare centres and 

shops unless permission is sought. 5 Dog 

owners may be fined for a dog’s persistent 

barking 6 (something which may be harder 

to prevent when a dog is in unfamiliar 

surroundings) and owners will need to be 

prepared with plenty of poo bags as fines 

apply for failing to immediately clean up 

when a dog defecates in a public space. 7 

DO ANIMALS NEED TO BE RESTRAINED IN 

CARS? 

Unrestrained animals can jump from 

open windows and can easily be injured 

or injure others within the car if braking 

suddenly. The RSPCA has reported that 

5000 dogs each year are either injured or 

killed in Australia as a result of jumping 

from a moving car. 8 Given this alarming 

figure, it is somewhat surprising that in no 

Australian jurisdiction other than the ACT 9 

is there a blanket requirement that animals 

be safely restrained while travelling inside 

a vehicle. There are however provisions 

in all Australian jurisdictions (other than 

the Northern Territory) prohibiting dogs 

travelling unrestrained or untethered 

on the back of a ute, (with exceptions 

applying for working farm dogs). 10 

The Australian Road Rules specifically 

prohibit driving with an animal in your 

lap or between the handlebars on a motor 

bike. 11 This is not only because of the 

distraction lap-held pets pose to the driver 

or rider but also the horrifying fact that pets 

have caused serious injury, notably when an 

airbag propels the pet into the body of the 

driver or other passengers in the vehicle. 12 

For this reason, while not expressly 

prohibited, pets should not be allowed to 

travel on a lap of any passenger in a car. 

The distraction an unrestrained 

animal provides in the car is akin to that 

of a mobile phone, 13 and may amount to 

driving without due care or attention. 14 

Further, failing to restrain an animal in a 

car may negate car insurance. The terms 

and conditions of many comprehensive 

policies providing that insured parties must 

“take all reasonable precautions to prevent 

or reduce loss or damage to the insured 

property”. A distracting unrestrained pet 

may fall foul of such a clause. 

The SA Standards and Guidelines for 

Breeding and Trading Companion Animals 2017 

provides enforceable minimum standards 

and recommended guidelines to those 

involved in the pet trade. Part 11 sets out 

the responsibilities of breeders, sellers 

and commercial transporters of pets to 

ensure animal welfare while in transit. This 

includes mandating the use of appropriate 

containers or a suitable restraint with noncompliance 

being a breach of the Animal 

Welfare Regulations 2012 and punishable 

by fine. 15 Sellers and transporters of pets 

14 


FEATURE 

are therefore held to higher account in 

the restraint of pets in vehicles than the 

general public in South Australia. 

WHAT CONSTITUTES ILL TREATMENT OF 

AN ANIMAL WHILE TRAVELLING? 

At RSPCA SA, where I am legal 

counsel, the lack of application of common 

sense has seen Animal Welfare Inspectors 

intervene where animals travelling with their 

owners have their welfare put in jeopardy. 

Animal ill treatment is an offence in each 

Australian State and Territory punishable 

by a fine or imprisonment. 16 In South 

Australia, causing an animal unnecessary 

harm and failing to provide appropriate 

living conditions (whether permanent or 

temporary) for an animal are general heads 

of ill treatment listed in section 13(3) of the 

Animal Welfare Act 1985 which have been 

enlivened in cases where: 

• Dogs have fallen from ute trays, 

causing injury, including strangulation 

of animals inappropriately tethered. 

• Animals have been left in hot cars (in 

one bizarre case a dog was left in a 

car while its owners visited the zoo, 

also leaving a portable stove going 

inside the car complete with the billy 

boiling for a cup of tea, adding to the 

temperature within). 

• Dogs have been inappropriately 

restrained for long periods in harnesses 

which are too small such that the 

harness itself injures the animal. 

• A dog was confined to a carry crate 

strapped to the roof of the car. 

• Cats were inappropriately housed in a 

temporary outdoor enclosure in belowzero 

temperatures. 

Some jurisdictions have specific welfare 

provisions in relation to the transport 

of animals. In Victoria, the Prevention of 

Cruelty to Animals Regulations 2019 prohibit 

leaving an animal unattended inside a car 

for more than 10 minutes when outside 

temperatures are at or above 28 degrees 

Celsius, or to secure a dog directly on 

a metal tray of a ute or trailer in these 

temperature conditions. There is also a 

specific regulation preventing the transport 

of animals in the boot of a car. 17 In the 

ACT, 18 it is a specific offence to transport 

an animal in a way that causes or is likely 

to cause death, injury, pain or stress to the 

animal. In Queensland 19 the Animal Care 

and Protection Act 2001 provides that it is 

an offence to transport an animal in a way 

that is inappropriate for its welfare, while 

in NSW 20 a person cannot carry or convey 

an animal in a manner which unreasonably, 

unnecessarily or unjustifiably inflicts pain 

upon it. In Tasmania 21 a person must not 

drive, convey, carry or pack an animal in 

a manner that subjects it to unreasonable 

pain or suffering. And in Western Australia 

an explicit head of animal cruelty is 

transporting an animal in a way that causes 

or is likely to cause unnecessary harm. 22 

CAN PETS BE TAKEN ON PUBLIC 

TRANSPORT? 

In Australia it is relatively uncommon 

to see animals (other than assistance 

dogs or therapy animals) taken on public 

transport. 23 The rules regarding this 

question vary somewhat across Australia. 

For example, in South Australia taking pets 

(other than assistance animals) on public 

transport is prohibited unless special 

permission has been granted beforehand 24 

but in Victoria taking small animals in 

suitable carry containers is permitted, and 

dogs may be taken on trains if they are 

muzzled and on a lead. 25 In New South 

Wales, similar rules apply, but the driver 

may refuse an animal entry if the service 

is nearing capacity or if the animal appears 

likely to misbehave. 26 

FLYING WITH PETS WITHIN AUSTRALIA 

Flying is stressful for animals, which 

despite recent regulatory change, are 

still considered cargo by the airlines and 

confined to pet carriers in the freight 

area of the plane. 27 It is not unusual 

for pets to die during flights (drops in 

pressure, temperature, noise and unfamiliar 

surroundings are frightening and stressful 

for animals) 28 . Sedation of an animal is not 

recommended due to health risks while 

unsupervised in the hold and the RSPCA 

recommends a vet check prior to flying 

to confirm that the pet is fit for travel. 29 

Approved guide, hearing and assistance 

dogs may travel in the cabin, if they meet 

certain criteria set by the airline. 30 

IMPORTING AND EXPORTING PETS 

Australia’s strict biosecurity laws can 

make importing pets from overseas a 

difficult and expensive proposition, with 

the level of difficulty depending upon the 

country of origin. For example, dogs and 

cats from New Zealand do not require 

an import permit to enter Australia but a 

veterinary health certification is required. 

Dogs from some rabies-free countries may 

be imported if granted an import permit 

with post arrival quarantine required. 


FEATURE 

Imports from rabies-affected countries 

are not permitted, unless the animal first 

travels to an approved country where 

it is rabies-vaccinated prior to import 

to Australia for quarantine. 31 Failure to 

comply with requirements may result 

in prosecution and risks substantial 

penalties, 32 as Johnny Depp and Amber 

Heard famously discovered. 33 Similarly a 

permit and veterinary examination and 

health certificate is required for the export 

of domestic companion animals under 

the Export Control Act 2020 and Export 

Control (Animals) Rules 2021 34 . The export 

of Australian native pets is essentially 

prohibited, limited to some bird species 

such as budgies, cockatoos and galahs. 35 

THE LAST WORD – ANIMAL WELFARE FIRST 

RSPCA Chief Inspector Andrea Lewis 

advises “whatever sort of pet travel is 

contemplated, individual needs of the 

animal should be assessed to ensure 

the animal can cope with travel’s stress. 

Owners should also assess their own 

capacity to manage the additional legal 

responsibilities to maintain the welfare of 

the animal and safety of others”. 36 B 

16 


Endnotes 

1 Animal Welfare Act (SA) 1985 s 13(1) and (2) 

2 Ibid s 3. 

3 Dog and Cat Management Act (SA) 1995 ss 8(b),43 – 

owners may face a fine of up to $2,500 for dogs 

wandering at large. 

4 National Parks Regulations (SA) 2016) r 26. A guide 

dog, hearing dog, or disability dog may enter a 

park on a lead. For a list of SA Recreation Parks 

where dogs are allowed on a lead see https:// 

www.environment.sa.gov.au/goodliving/ 

posts/2015/11/dogs-part-2#:~:text=Dogs%20 

are%20welcome%20at%20many,native%20 

wildlife%20will%20thank%20you. 

5 Dog and Cat Management Act 1995 s45A(2) and (3) 

6 Ibid s45A(5) - barking which “unreasonably 

interferes with the peace, comfort or convenience 

of a person”. 

7 In SA see Dog and Cat Management Act 1995 s45A(6). 

8 https://www.rspcaqld.org.au/blog/pet-care/dogrestraints 

9 Animal Welfare Act (ACT) 1992 s15A. Also note 

the Dog Control Act 2000 (Tas) requires the restraint 

of dogs to prevent them from exiting a vehicle 

whilst it is on the road but does not require 

restraint within the vehicle. 

10 Dog and Cat Management Act 1995 (SA), s45(1), 

Animal Welfare Act 1992 (ACT) s15A, Prevention 

of Cruelty to Animals Act 1979 (NSW) s7, Dog 

Control Act 2000 (Tas) s16(3), Prevention of Cruelty 

to Animals Act 1986 (Vic) s15A, Animal Welfare 

Act 2002 (QLD) s19(3)(a) prohibits a person 

from transporting an animal in a way that is likely 

to cause that animal unnecessary harm and in 

Queensland an unrestrained dog on the back 

of a vehicle can be considered an unsecured 

load and fined Transport Operations (Road Use 

Management – Road Rules). NT repealed the 

relevant provision of the Animal Welfare Act 1999 

(NT) in 2012. A new provision has been enacted 

but us awaiting commencement of operation see 

Animal Protection Act 2018 (NT) 

11 Australian Road Rules SA (under the Road Traffic 

Act 1961) s 297(1A) and 297(3). In 2019 the 

RAA reported that 411 people were fined in 

South Australia for driving with a pet in their lap. 

(see https://www.insurancebusinessmag.com/ 

au/news/breaking-news/pets-pose-a-seriousroadsafety-risk-says-raa-121971.aspx) 

12 Author’s conversation with Detective Senior Sgt 

D Gordge, Investigations Manager Major Crash 

Investigations SAPOL. 

13 see Hazel et al “Restraint of dogs in vehicles in the 

US, UK and Australia” Preventive Veterinary Medicine 

Volume 170, 1 October 2019, 104714 

14 see Road Traffic Act 1961 (SA) s 45(1)] - for a basic 

offence, the penalty is a fine of up to $2,500 [see 

s 164A(2)] and a licence disqualification penalty 

may apply. 

15 Regulation 5, Animal Welfare Regulations 2012(SA) 

16 In SA the Animal Welfare Act 1985 (SA) s 13(1) 

and (2) provides maximum penalties of 4 

years imprisonment or a fine of $50,000 for an 

aggravated offence or 2 years imprisonment or 

$20,000. 

17 Prevention of Cruelty to Animals Regulations (Vic) 2019 

r 6 

18 Animal Welfare Act (ACT) 1992 s15 

19 Animal Care and Protection Act (Qld) 2001 s 18 

20 Prevention of Cruelty to Animals Act (NSW) 1979 s 7 

21 Animal Welfare Act (Tas) 1993 s 8 

22 Animal Welfare Act (WA) 2005 s 19(3)(a) 

23 For an argument why this should change see 

https://theconversation.com/many-of-uswant-to-take-our-dogs-on-public-transportbut-others-shudder-at-the-thought-whats-thesolution-161983 

24 Passenger Transport Regulations (SA) 2009 r 115 allows 

“a working animal accompanying a person with 

a disability”, see also Dog and Cat Management Act 

(SA) 1991 s 81 

25 https://www.ptv.vic.gov.au/more/travelling-onthe-network/animals-on-public-transport/ 

26 For a list of links to the various public transport 

websites with these rules see Can You Take Your 

Fur Babies on Public Transport in Australia? 

(lifehacker.com.au) 

27 Civil Aviation Regulations (Cth) 1998 r 91.620 permits 

a person to take an animal on board an aircraft 

with the permission of the pilot in command. 

Australian airlines still do not permit this practice. 

https://www.abc.net.au/news/2022-04-30/petson-planes/101028046 

28 Is Taking Your Pet on an Airplane Worth the 

Risk? | Travel| Smithsonian Magazine For carrier 

requirements see https://freight.qantas.com/pets/ 

crates.html. 

29 https://kb.rspca.org.au/knowledge-base/whatdo-i-need-to-consider-before-transporting-mypet-by-air/ 

30 https://freight.qantas.com/pets/crates.html, 

https://www.qantas.com/au/en/travel-info/ 

specific-needs/travelling-with-specific-needs/ 

service-dogs/conditions-of-carriage.html 

31 Import guides are available at https://www.awe. 

gov.au/biosecurity-trade/cats-dogs 

32 Biosecurity Act (Cth) 2015 s 185 

33 https://www.theguardian.com/film/2020/jul/16/ 

johnny-depps-dogs-amber-heard-was-repeatedlytold-she-couldnt-take-pets-to-australia-court-hears 

34 A guide to the export of companion animals can 

be found at https://www.awe.gov.au/biosecuritytrade/export/controlled-goods/live-animals/ 

companion. 

35 Part 13A Environment Protection and Biodiversity 

Conservation Act (Cth) 1999 . See https://www. 

awe.gov.au/biosecurity-trade/wildlife-trade/ 

non-commercial/household-pets#nativehousehold-pets 

36 Conversation with author 1.5.2022

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FEATURE 

SPACE TRAFFIC MANAGEMENT: 

ESSENTIAL YET ELUSIVE? 

MATTHEW STUBBS, ASSOCIATE PROFESSOR, ADELAIDE LAW SCHOOL AND CHAIR, SPACE LAW COMMITTEE 

INTRODUCTION: THE MIRACLE OF TRAFFIC 

MANAGEMENT, AND THE MORASS OF 

UNMANAGED TRAFFIC IN OUTER SPACE 

Most of us take traffic management 

for granted. It is a problem that 

has largely been solved on the roads, and 

even in airspace. But it is one of the great 

unresolved challenges of humankind’s 

burgeoning use and exploration of outer 

space. 

Once we have learned the rules of 

the road and obtained a driver’s licence, 

it becomes second nature to drive on the 

formed road within the marked lanes, to 

give way to other vehicles which have the 

right of way (including at devices such as 

roundabouts which are designed to use the 

right of way as an ordering system) and 

otherwise to follow the various Australian 

Road Rules, and to obey traffic control 

devices such as traffic lights. Each of these 

is an element of the architecture of road 

traffic management which is essential to 

our ability to use the road but which we do 

not stop to think about, except perhaps if 

we are in a long queue at the traffic lights. 

When we fly in an aircraft, we 

also devote little thought to air traffic 

management. But typically we fly in 

aircraft whose pilots are following pre-filed 

flight plans, with access to standardised 

information-sharing regimes, using 

designated air lanes, in aircraft with 

transponders transmitting identifying 

information to facilitate radar tracking, 

whose movements are controlled by active 

air traffic control in order to reduce the 

possibility of collision even in congested 

airspace. 1 This is a highly sophisticated 

system for air traffic management. 

In outer space, there is no equivalent 

system of traffic management. Moreover, 

an object orbiting at an altitude of 400km 

(as the international space station does) 


will be travelling at just under 28,000 

kilometres per hour. At that speed, 

there will be no such thing as a ‘fender 

bender’ or minor collision. In the absence 

of space traffic management, James 

Rendleman has memorably said that 

satellites in low earth orbit are like ‘cars 

driving blindly through a corn field, at top 

speeds, in all directions at once.’ 2 

This is a problem which will only 

become more acute, as the number of 

objects in low-earth orbit is increasing 

exponentially. At the end of 2016, there 

were just over 2,000 payloads and nearly 

10,000 pieces of debris greater than 10cm 

in size in low-earth orbit. 3 By the end 

of 2021, that had risen to around 6,000 

payloads and 12,000 pieces of debris. 4 The 

number of payloads is projected to increase 

rapidly to 100,000 in coming years. 5 The 

cornfield is becoming much more crowded, 

and thus collisions much more likely. 

EXISTING PRINCIPLES AND PRACTICE: HOW 

SPACE LAW HAS ORDERED ACCESS TO DATE 

To date, users of outer space have relied 

on a practice which amounts to self-help, 

and on broad principles whose application 

to the problem is not entirely clear. 

The practice is that, where space domain 

awareness enables the tracking of objects, it 

may be possible to calculate the likelihood 

of collisions between tracked objects. In 

such a case, a conjunction warning can be 

issued when a risk of collision is identified. 6 

If there is such a warning, individual 

operators will need to choose whether to 

heed the warning and take evasive action, 

which necessarily burns fuel and reduces the 

lifespan of an expensive satellite. 7 

The limits of this system are easily 

demonstrable through the example of a 

major satellite collision. On 10 February, 

2009, there was no conjunction warning 

issued to Iridium that its Iridium 33 satellite 

was going to pass close to the defunct 

Cosmos 2251, and publicly available data 

(of which the operator was unaware) put 

the risk of collision outside the top 10 

conjunction warnings for the day. In fact, 

the satellites did collide, creating more 

than 2,000 pieces of space debris greater 

than 10cm in size, and a great many 

more smaller pieces. 8 This illustrates the 

problems of the track and avoid system 

we have today: tracking capabilities leave 

gaps in space domain awareness, and the 

lack of data sharing arrangements further 

hamper the identification of collision risks; 

and even where risks are identified, there 

may be limited capacity to respond, and 

imperfect information may mean that poor 

judgements are made about the need for 

response where there is a capability to take 

evasive action. 

The precise application of the legal 

framework is also uncertain. The Outer 

Space Treaty of 1967 9 – the constitution 

of outer space – 10 establishes important 

principles which guide the exploration 

and use of outer space. Relevantly, these 

principles include: 

• Freedom of exploration and use (art I); 

• Due regard for the interests of other 

states and the avoidance of harmful 

interference with their space activities 

(where possible) (art 9). 

Inevitably, due regard and the 

avoidance of harmful interference must 

operate as a limit on the general freedom 

of exploration and use of outer space. 

However, it is not clear how the balancing 

of these considerations is to be carried 

out in practice. 

PRACTICAL PATHWAYS TO THE FUTURE: 

WALK BEFORE YOU RUN; DON’T BITE OFF 

MORE THAN YOU CAN CHEW

FEATURE 

It is widely accepted that there is 

unlikely to be a new multilateral treaty 

establishing a regime of space traffic 

management. 11 This raises the question 

of what pathways exist for normative 

development in this important area. 

One pathway that can be of 

considerable value in the international legal 

arena is the development of relevant ‘soft 

law’ principles. The best example relevant 

to space traffic management are the Space 

Debris Mitigation Guidelines developed 

under the auspices of the United Nations’ 

Committee on the Peaceful Uses of Outer 

Space (COPUOS). 12 Although not legally 

binding, these guidelines are relatively 

widely followed and provide useful guidance 

as to the avoidance of the creation of 

space debris. They only touch tangentially 

on space traffic management in calling on 

states to ‘[l]imit the probability of accidental 

collision in orbit’. 13 The development of 

a soft law instrument is perhaps the most 

likely means for advancing understandings 

of the legal contours of effective space 

traffic management. 

What principles should be embodied 

in any soft law instrument on space 

traffic management? Two key scholars 

of outer space law have offered valuable 

suggestions. First, Paul Larsen has 

advocated that any normative regime aim 

to address only civil, and not military, uses 

of outer space. 14 This would parallel many 

other regimes – for example, the Chicago 

Convention applies only to civil aircraft, 

and the International Telecommunications 

Union regulates only civil access to the 

radiofrequency spectrum – and is much 

more likely to lead to engagement by states. 

Second, PJ Blount has suggested that the 

best immediate focus would be on what 

he terms space traffic coordination. 15 That 

is, rather than directly seeking to develop 

norms regarding traffic management, the 

first step should be to enhance data sharing 

with a view to improving general access to 

space domain awareness. In other words, 

we need to enhance our capacity to identify 

key risks of collisions, before we set out in 

detail what to do once such a risk has been 

identified (a matter which is already guided 

by the obligations of due regard and the 

avoidance of harmful interference, even if 

their precise application is unclear). 

CONCLUSION 

Just as we rely on traffic management 

on the roads and in the air, so we will need 

traffic management to ensure effective 

and efficient, or even continued, access 

to outer space. To achieve an effective 

regime of space traffic management will 

require lawyers to think more broadly 

about norm creation, given that a grand 

and comprehensive scheme brought to 

force through the traditional means of a 

multilateral treaty seems extremely unlikely. 

Instead, if we seek to develop consensus 

around non-binding guidelines that would 

enhance space traffic coordination through 

the sharing of space domain awareness 

information, and focus on civil rather 

than military uses of outer space, there is 

a realistic possibility that we will start to 

develop the foundations of the effective 

regime of space traffic management that 

will be essential in future if we are to ensure 

humankind’s continued access to outer 

space and all the benefits that brings. B 

Endnotes 

1 See, eg, Corinne Contant-Jorgenson, Petr Lála 

and Kai-Uwe Schrogl (eds), Cosmic Study on Space 

Traffic Management (International Academy of 

Astronautics, 2006) 46-52, 55. 

2 James D Rendleman, ‘Space Traffic Management 

Options’ in (2014) 57 Proceedings of the 

International Institute of Space Law 109, 111. 

3 European Space Agency, Annual Space 

Environment Report (27 April 2017) 22. 

4 European Space Agency, Annual Space 

Environment Report (4 April 2022) 52. 

5 Harry Baker, ‘How many satellites orbit Earth?’ 

(14 November 2021) https://www.livescience. 

com/how-many-satellites-orbit-earth. 

6 See, eg, Paul B Larsen, ‘Solving the Space Debris 

Crisis’ (2018) 83 Journal of Air Law and Commerce 

475, 481-2; Danielle Miller, ‘Calling Space Traffic 

Control: An Argument for Careful Consideration 

before Granting Space Traffic Management 

Authorities’ (2017) 23(2) ILSA Journal of 

International and Comparative Law 279, 283-4. 

7 See, eg, Brian Weeden, ‘Billiards in Space’, The 

Space Review (23 February 2009) ; PJ Blount, 

‘Space Traffic Management: Standardizing On- 

Orbit Behavior’ (2019) 113 American Journal of 

International Law Unbound 120, 121-3. 

8 Weeden (n 7). 

9 Treaty on principles governing the activities of States 

in the exploration and use of outer space, including the 

moon and other celestial bodies, 610 UNTS 8843 

(entered into force 10 October 1967). 

10 Ram Jakhu, ‘Legal Issues Relating to the Global 

Public Interest in Outer Space’ (2006) 32 Journal 

of Space Law 31, 31. 

11 See, eg: Blount (n 7) 123-4; Brian Israel, ‘Treaty 

Stasis’ (2014) 108 American Journal of International 

Law Unbound 63; Saadia M Pekkanen, ‘Governing 

the New Space Race’ (2019) 113 American Journal 

of International Law Unbound 92. 

12 Space Debris Mitigation Guidelines of the 

Committee on the Peaceful Uses of Outer 

Space, UN Doc A/62/20 Annex. 

13 Ibid guideline 3. Similarly, the proposed Draft 

International Code of Conduct for Outer Space 

Activities (2014) would require States to 

‘minimise the risk of accidents in space’. 

14 Paul B Larsen, ‘Minimum International Norms 

for Managing Space Traffic, Space Debris, and 

Near Earth Object Impacts’ (2018) 83 Journal of 

Air Law and Commerce 739. 

15 PJ Blount, ‘Space Traffic Coordination: 

Developing a Framework for Safety and 

Security in Satellite Operations’ (2021) 

Space: Science & Technology https://doi. 

org/10.34133/2021/9830379. 


MENTAL HEALTH LAWS 

Increasing the Participation of Persons 

with Mental Health Disabilities in 

Involuntary Mental Health Treatment 

Decision-Making 

DR SUSAN PEUKERT, BA(HONS) LLB (HONS) PHD, MENTAL HEALTH ADVOCATE 

For too long the voices of persons with 

mental health disabilities 1 have been 

unheard during the involuntary mental 

health treatment decision-making process. 2 

State legislative frameworks such as the SA 

Mental Health Act 2009 have relegated these 

persons to playing the role of observer in 

deeply personal processes in which they 

should be the key players. This framework 

prescribes when individuals can make 

decisions for themselves and when they 

cannot. The framework aims to minimise 

harm, but this is achieved at an unnecessary 

cost of too many instances of involuntary 

treatment where persons with mental 

illness are excluded from the process of 

making their own decisions. This is an issue 

that warrants careful consideration and reevaluation 

because involuntary treatment 

curtails the autonomy of the individual. 

The marginalisation of those with 

mental health disabilities can only be 

addressed by giving them back their voices, 

and, as far as possible, inviting them into 

the decision-making process. Given the 

South Australian Law Reform Institute will 

be conducting a comprehensive review of 

the Mental Health Act 2009 (SA), now is the 

time to take action and promote advocacy 

for a new model for involuntarily treating 

persons with mental health disabilities. 

South Australia needs law reform that 

realises and champions the rights of 

persons with mental health disabilities in 

line with the UN Convention on the Rights of 

Persons with Disabilities 3 (CRPD). 

This article argues that a balance must 

be struck between empowerment and 


protection - the vulnerability of those 

with a mental health disability cannot be 

ignored but neither can it be used as a 

reason to silence them during involuntary 

decision-making processes. An appropriate 

balance can be found through the creation 

of a nuanced supported decision-making 

model which draws on international best 

practice, is rights-based and focuses on 

a person’s right to make autonomous 

decisions where practicable. A supported 

decision-making model is predominantly 

about increasing respect for the rights of 

persons with mental health disabilities. 

This article sketches a supported 

decision-making model 4 which is consistent 

with the spirit of the CRPD. This model 

represents a path forward whereby persons 

with mental health disabilities and their 

supporters can more greatly participate in 

the involuntary mental health treatment 

decision-making process. This means that 

some persons who might otherwise be 

treated involuntarily will be supported to 

the degree that they are able, to participate 

in decisions surrounding their treatment in 

collaboration with their treating psychiatrist 

and supporter(s). This will allow persons 

with mental illness to build their mental 

capacity to the point where they may be 

treated voluntarily. 

The CRPD 

Rights afforded to persons with mental 

health disabilities arise from the CRPD. 

The rights flowing from the CRPD as a 

whole are important for all persons with 

disabilities. The focus here is on Article 

12 of the CRPD and its recognition of 

equality before the law 5 and the legal 

standing and legal agency 6 of persons with 

disabilities. Supported decision-making is 

promoted in the CRPD and involves the 

provision of support during the treatment 

decision-making process. 7 Article 12(4) 

introduces a ‘will and preferences’ 

paradigm and refers to the requirement 

to take into consideration the values and 

views of the individual making treatment 

decisions, or, on whose behalf, treatment 

decisions are being made. 

If adopted, a supported decisionmaking 

model will empower persons 

with mental health disabilities to make 

their own treatment decisions with legal 

effect through the provision of supported 

decision-making and recognition of their 

will and preferences. 8 As detailed below, 

careful law reform is needed to realise the 

changes proposed. 

Determining Whether a Person with 

Mental Health Disabilities Will be 

Involuntarily Treated 

The existing state legal framework 

uses a test of mental capacity 9 to 

determine whether or not a person with 

mental health disabilities will be treated 

involuntarily. 10 This test is found in s 5A 

of the Mental Health Act 2009 (SA). For 

the purposes of the Act, a person is taken 

to have impaired decision-making capacity 

if they cannot understand information 

relevant to the decision to be made, 

retain that information, and weigh the 

information in reaching a decision. Those 

who fail to meet a limb of this mental

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capacity test accordingly lose their ability 

to make treatment decisions. 

A strong critic of tests of mental 

capacity is the UN Committee on the 

Rights of Persons with Disabilities 

(Committee) as expressed in General 

Comment No. 1. It is the view of the 

Committee that a person’s decision-making 

skills should not lead to his or her legal 

capacity to make a particular decision 

being removed and that the use of mental 

capacity tests is inconsistent with the rights 

of persons with disabilities. 11 

In my view, a more nuanced approach 

than that of the Committee is required: 

that the mental capacity test should 

be retained and used as an indicator 

of support needs. For example, if the 

treating psychiatrist determines that a 

person cannot understand the treatment 

information given, they fail this limb of the 

mental capacity test and are determined to 

have impaired decision-making capacity. 

This should not be the end point. Rather, a 

decision-making supporter could step in to 

provide supported decision-making to the 

individual to assist them to make their own 

decision if practicable. 

The mental capacity test need not 

be jettisoned. This test may be used to 

identify areas in which the individual being 

considered for treatment under mental 

health legislation can be assisted to make 

their own decision. Where a person fails 

to understand treatment information, then 

it is incumbent on the treating psychiatrist 

to present the information simply, at a 

time and in an environment where the 


person is most likely to understand the 

information. If this fails, the person with 

disabilities can then resort to the aid of a 

supported decision-maker to be supported 

to understand the information related 

to their treatment, and they may go on 

to be able to make their own treatment 

decisions. Further, if a person is unable 

to weigh the treatment information, then 

the treating psychiatrist could explain the 

implications of deciding whether or not 

to proceed with treatment, along with any 

other relevant factors that are reasonably 

foreseeable as necessary to weigh the 

information given. Again, if this fails, a 

person can nominate to be supported to 

weigh the treatment information with 

the aid of a supported decision-maker 

and they may be able to proceed to make 

their own treatment decision. It is clear 

that this model does not diminish the 

role of the treating psychiatrist; it is only 

if they cannot aid the person in meeting 

the limbs of the mental capacity test that 

recourse is taken to using the assistance of 

a supported decision-maker. 

A More Nuanced Supported Decision- 

Making Model 

Three levels of decision-making 

arrangement are suggested for persons 

who are at risk of being treated 

involuntarily because of a determination 

of mental incapacity. These are assisted 

decision-making, co-decision-making, 

and fully supported decision-making. 

Each level of these arrangements may be 

entered into at a time when the individual’s 

capacity is in question because they fail the 

mental capacity test of s 5A of the Mental 

Health Act 2009 (SA). 

The level of support chosen by the 

person with mental health disabilities is 

determined by two factors. Firstly, it may 

depend on the degree of impairment 

experienced by the individual as determined 

by the outcome of the mental capacity test. 

For example, the application of the mental 

capacity test may indicate a profound lack 

of understanding of treatment information 

that requires a high level of support. 

Secondly, the individual may themselves 

choose a high level of support even if they 

have minor support needs. For example, a 

person with low support needs may request 

the support of a fully supported decisionmaker 

to make decisions on their behalf. 

A person with mental health disabilities 

may choose to relinquish the responsibility 

of making a decision to a fully supported 

decision-maker just as we may choose to 

have a family member make a decision on 

our behalf. 

Assisted decision-making arrangements 

allow the person with mental health 

disabilities to be supported by another 

person who helps them obtain 

information relevant to the decision to 

be made and explains it to them. The 

decision reached remains that of the 

person with mental health disabilities. 

Under co-decision-making arrangements, 

the person with mental health disabilities 

and their supporter make the decision 

jointly, reflecting the greater support 

needs. It is the role of the co-decisionmaking 

supporter to ascertain the will and


preferences of the person with mental 

health disabilities and to discuss the known 

alternatives and likely outcomes of the 

decision. Under fully supported decisionmaking 

arrangements, the decision is that 

of the supporter. The supporter must 

ascertain the person with disabilities’ 

treatment preferences along with their will 

and preferences before making a decision 

on their behalf. A fully supported decisionmaker’s 

role differs to that of a substitute 

decision-maker. They are nominated by 

the individual and take into account the 

will and preferences of the individual. 

The results of the supported decisionmaking 

process are reported to the 

treating psychiatrist who may take them 

into consideration when deciding a course 

of treatment. At a minimum, this means 

that persons with mental health disabilities 

are able to participate in the treatment 

decision-making process in a meaningful 

way and learn to develop their decisionmaking 

skills. At best, a person who was 

previously determined to lack capacity may 

be reassessed using the mental capacity test 

and be found to have the capacity to make 

their own decisions. For example, a person 

who had previously been found to lack the 

ability to weigh treatment information may 

be considered able to do so after receiving 

decision-making support. 

Supported decision-making 

arrangements do not diminish the role of 

the treating psychiatrist. They still have the 

primary function of directly explaining 

proposed treatment information to their 

mentally ill patient and assessing their 

mental capacity. The role of the supported 

decision-maker is then to discuss and 

provide access to information relevant to 

the decision to be made with the person 

with mental health disabilities if they fail a 

limb of the mental capacity test. Decisionmaking 

arrangements are desirable as 

these arrangements are envisaged to be 

appointer-driven, individualised, and a 

form of supported decision-making. 

Entering into these arrangements is a 

type of self-referral, with the appointer 

deciding the level and type of support that 

they want, and the person(s) they wish to 

be supported by. 

Conclusion 

The model proposed is characterised 

by the provision of support in decisionmaking, 

as opposed to substitute and ‘best 

interests’ decision-making models found 

in the traditional mental health legislation. 

Under the proposed model, persons with 

mental health disabilities being treated 

involuntarily are empowered to make their 

own decisions through the provision of 

support where practicable. In reviewing its 

mental health legislation, South Australia 

has an opportunity to ensure those 

persons with mental health disabilities can 

realise their right to make autonomous 

decisions where practicable. 

I would strongly encourage lawyers 

who have persons with mental health 

disabilities as clients and see the need for 

mental health law reform to participate in 

the Review process. You can participate 

in the Review by visiting https://yoursay. 

sa.gov.au/mental-health-act-review. B 

Endnotes 

1 The term ‘person with mental health disabilities’ 

reflects the language of the UN Convention on the 

Rights of Persons with Disabilities. It refers to those 

persons who experience long-term chronic mental 

illness of such a nature to be considered a disability. 

2 Mental Health Act 2009 (SA) ss 21, 25, 29. 

3 Convention on the Rights of Persons with Disabilities, 

opened for signature 13 December 2006, 2515 

UNTS 3 (entered into force 3 May 2008). 

4 This model is developed in full in my PhD thesis: 

Susan Peukert, Increasing the Participation of Persons 

with Mental Illness in Mental Health Decision-Making, 

2021. A snapshot is given due to the length and 

complexity of the supported decision-making 

model developed in the thesis. 



UNTS 3 (entered into force 3 May 2008) art 12(1). 



UNTS 3 (entered into force 3 May 2008) art 

12(2). Art 12(2) covers the recognition of the 

legal capacity of persons with disabilities. Legal 

capacity comprises of both legal standing and 

legal agency. The notion of universal legal capacity 

requires that both legal standing and legal agency 

are present for the right to legal capacity to be 

realised. Legal agency is commonly thwarted for 

persons with mental health disabilities as it is 

diminished by involuntary treatment under mental 

health legislation with the result that the person 

cannot make decisions on their own behalf. 



UNTS 3 (entered into force 3 May 2008) art 12(3). 

8 See: Convention on the Rights of Persons with 

Disabilities, opened for signature 13 December 

2006, 2515 UNTS 3 (entered into force 3 May 

2008) art 12(3), (4). 

9 A test of decision-making ability. 

10 In concert with impaired capacity, a person must 

also have a mental illness and pose a risk of harm 

to themselves or others to be treated involuntarily 

under an Inpatient Treatment Order. 

11 General Comment No. 1: Article 12: Equal Recognition 

before the Law, 11th sess, UN Doc CRPD/C/ 

GC/1 (19 May 2014) [15]. 


CLOUD COMPUTING 

An Analysis of the Law Society of 

South Australia’s Cloud Computing 

Guidelines: Data Security 

MARK FERRARETTO, SOLICITOR, EZRA LEGAL 

This is the third 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 discuss data security. 

Data Security 

This is where cloud services really 

shine. Ironically this is also the area which 

is usually of the greatest concern. 

The question to ask is whether a 

practitioner would prefer to delegate 

the security of their data to a provider 

with extensive resources dedicated to 

the maintenance of data security and 

the detection and resolution of security 

incidents, or to manage data security 

themselves, either directly or via an IT 

provider, neither of whom is likely to be a 

cybersecurity specialist. 

The resources and skills required 

to detect and protect against security 

intrusions is way beyond the capabilities 

of most IT providers. Cybersecurity has 

evolved to its own discipline and there exist 

businesses that specialise in cybersecurity 

management, most of whom are not 

engaged by legal practitioners to manage 

their IT infrastructure. 

Detecting an intrusion is itself 

very difficult. If an intrusion remains 

undetected, as many are, an intruder could 

usually remain, or ‘dwell’, in a compromised 

system for many many months. 1 

Cloud services encrypt data at rest 

(when it is stored) and in transit (when it is 

sent to a computer to use). Cloud providers 

usually have robust systems in place to 

ensure the keys used to decrypt data are 

not easily accessible. 

Table 3 Data Security 

ENCRYPTION 

AT REST 

Dropbox Yes Yes 

Dropbox Business Yes Yes 

Google Workspace Yes 

ENCRYPTION 

IN TRANSIT 

Yes 

Apart from Actionstep, all the service 

providers analysed for this paper encrypt 

data at rest and in transit. Actionstep does 

not encrypt data at rest by default but it can 

be requested. 

It is true that cloud services provide an 

easier target for intruders. However, this is 

offset by the increased security resources 

dedicated to detecting and mitigating this risk. 

On-premises data is almost always 

not encrypted, particularly on practice 

management servers and file servers. 

On-premises backups are also usually 

not encrypted and may not be stored in a 

secure location. 

An intrusion into an on-premises 

system carries significant risk of going 

undetected, and the intruder is likely to have 

access to unencrypted client information 

for an extended period of time. 

EFFECT OF 

TERMINATION 

Will notify and 

give opportunity to 

export data 

Provision to 

export data after 

termination 

Access to 

data ceases on 

termination 

CHANGE OF CONTROL 

Will notify and 

‘outline your 

choices’ 

Not specified 

Will give notice 

Microsoft 365 Yes Yes Not specified Not specified 

LEAP Yes Yes 

Actionstep 

Optional, 

on request 

Yes 

Data retained but 

inaccessible 

Delete data 30 days 

after termination 

On Premises No No N/A N/A 

Not specified 

Not specified 

Verdict 

In my view, cloud services do data 

security much better than on-premises 

services. Although cloud might be an 

easier target, this risk is in my opinion 

more than offset by the much higher 

level of cybersecurity skills present inside 

cloud firms (or at least the candidate firms 

discussed) than what exists in the onpremises 

context. 

Data security is a comprehensive win 

for cloud in my view. 

In the next article we discuss data 

resilience. B 

Endnotes 

1 See eg: ‘Asia-Pacific Lags in Dwell Time, 

Study Reveals’, Security Intelligence . 

24 THE BULLETIN June 2022

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RISK WATCH 

Waive goodbye? A new case on legal 

professional privilege and former clients 

GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS 

recent decision of the Supreme Court 

A of Queensland — R v McNicol [2022] 

QSC 67, Davis J, 29 April, 2022 - is of 

interest to practitioners in the common 

scenario where information is sought from 

a practitioner as to the affairs of a client. 

Sometimes this arises where an (ex)client 

has alleged negligence on the part of the 

practitioner which will give rise to issues 

concerning confidentiality and privilege. 

THE FACTS 

Mr McNicol was charged with a serious 

drug offence to which, after receiving 

legal advice, he pleaded guilty. Some 

months later he applied — through new 

legal advisors — to withdraw this plea, 

alleging that he had been pressured by his 

lawyers to plead guilty and that his plea 

was therefore not voluntary. The Crown 

opposed the application to set aside the plea 

and sought evidence from Mr McNicol’s 

former solicitors. The solicitors provided 

an affidavit without making enquiries as to 

whether privilege was waived. 

The affidavit filed by Mr McNicol’s 

previous solicitor explained how the guilty 

plea came about and what advice was given 

to Mr McNicol by both him and counsel. 

Further, various notes of the conversations 

between Mr McNicol, the solicitor and 

counsel were exhibited to the affidavits. 

THE JUDGMENT 

Davis J said that the “conversations 

and the notes clearly attracted legal professional 

privilege” [26] and went on to summarise 

the (hopefully) well-known principles 

applicable to legal professional privilege 

[26]–[29]. His Honour further said that, 

whilst Mr McNicol’s solicitors did not 

disclose to the Crown what they described 

as Mr McNicol’s “trial instructions”, they 

otherwise “seem to have given no consideration 

to any issues concerning legal professional 

privilege” [30]. It appeared that the solicitor 

only raised the issue with the Crown, 

not Mr McNicol. Davis J said that such a 

course had no justification. 

Crucially, Davis J went on to say 

“There is a trend which I have noticed that 

lawyers who have formerly acted for a client in 

criminal proceedings regard privilege as waived 

in toto once the client swears an affidavit 

criticising their handling of the client’s matter. 

Invariably then, the lawyers collaborate with 

the prosecution and swear affidavits which 

prima facie breach the privilege which they 

assume has been waived. [32] 

Such a course is fraught with risk. If the 

lawyer’s judgment is wrong and privilege 

continues to enure for the benefit of the 

client, then the delivery of the affidavit to 

the prosecution in breach of the privilege 

constitutes a serious breach of professional 

obligation owed to the client.” [33] 

Further, and helpfully, Davis J then 

proceeded to set out the approach which 

should be adopted by a lawyer who finds 

themself in the position of Mr McNicol’s 

previous lawyer, and it is worth setting out 

that guidance in full: 

“The approach which should be adopted 

by a lawyer in the position which Mr Stitt 

found himself is that once approached by the 

prosecution: 

1. prepare an affidavit in response to the 

assertions made by the client. That affidavit 

will no doubt contain privileged information; 

2. send the affidavit to the former client’s current 

solicitors, not the prosecution, and seek 

instructions as to whether the client accepts 

that the privilege has been waived; 

3. tell the prosecution that an affidavit has 

been prepared, that it contains privileged 

information and that instructions have been 

sought from the former client as to whether the 

privilege has been waived; 

4. if the former client accepts that the privilege 

has been waived, then the affidavit can of 

course be delivered to the prosecution. If the 

instructions are that there is a dispute as to 

questions of privilege, then the prosecution 

should be informed of that and told that the 

lawyer will be in court on the hearing of the 

application with the affidavit and ready to 

give evidence and will abide any ruling of the 

court on the issue of privilege.” [35] 

5. It was also said that if that procedure is 

adopted, then in the case of any dispute, the 

Court rules on the privilege and the lawyers 

are protected by the Court’s ruling in relation 

to any disclosure that is subsequently made. In 

the end there was no dispute about privilege in 

Mr McNicol’s case, however Davis J observed 

“[t]hat though was as a result more of good 

luck than good management” [37]. 

26 


RISK WATCH 

COMMENTARY 

There are antecedent questions which 

arise here, – if the lawyer was no longer 

acting for the client, why was the lawyer 

contemplating giving an affidavit or making 

a statement to the Crown at all? What 

permitted the lawyer to do this? Was there 

anything that obliged the lawyer to do this? 

It seems clear from Davis J’s comments 

at para [30] in the McNicol judgment that 

his Honour was somewhat bemused by 

the lack of attention to these antecedent 

questions given by the lawyer involved. 

Law Claims would encourage all 

practitioners who receive a request for 

information about an ex-client or the 

ex-client’s matter to treat these antecedent 

questions seriously. 1 If you have not 

received either 

i. a request from the ex-client, 

ii. a request for information or an 

explanation from the Court; or 

iii. a subpoena 

then there is no warrant for you to be 

talking about your ex-client or their matter 

at all. 

This of course is because, 

notwithstanding the desire to help 

and professional courtesy, the duty 

of confidentiality you owe to your 

client extends after the solicitor-client 

relationship has ended. 

Further, only the client can waive 

their legal professional privilege and it is 

not up to you as their previous lawyer to 

make an assessment that what the client 

has subsequently done (in the McNicol 

case for example, making an application 

to set aside the plea) constitutes a waiver 

of that privilege. This applies even when 

the court is making the enquiry and where 

a subpoena has been issued. It is in this 

situation that the well known procedure 

of producing privileged documents in a 

sealed envelope, separate from other nonprivileged 

documents should be used. 

Endnotes 

1 It should be noted that in relation to questions 

about wills and will files, especially as regards 

testamentary capacity, particular issues arise. 

An excellent resource which sets out the issues 

in this area is the paper Lawyers and Disputed 

Wills: Confidentiality, Privilege and other issues 

by Graham Edmonds-Wilson QC (Law Society 

Succession Law Conference 21 November 2019). 

New appointment brings High 

Court and Royal Commission 

experience to major legal aid role 

Lucinda Byers has been announced as 

the new Chief Legal Officer at the 

Legal Services Commission. 

Ms Byers will oversee the Commission’s 

practitioner Panels that are made up of 

more than 650 lawyers, from over 220 

SA law firms, who are approved to do 

legal aid cases. She will also manage the 

Commission’s in-house Criminal Law and 

Family Law practices. 

Before taking up this role, Ms Byers 

held senior public sector legal roles 

including Special Counsel to the SA Crown 

Solicitor and Solicitor Assisting the Nuclear 

Fuel Cycle Royal Commission. 

The appointment was announced by 

Legal Services Commission CEO Gabrielle 

Canny. 

“Lucinda is an outstanding public 

lawyer who has specialised in providing 

high level advice to government over many 

years and has also represented SA in the 

High Court,” Ms Canny says. “She joins the 

Commission with a strong understanding 

of our services and priorities, having 

served on our board since 2019.” 

Ms Byers studied law in Adelaide 

and California, and has a Master’s degree 

in International and Comparative Law 

from the University of Brussels. She 

also spent five years working for the UK 

Government. 

“I am delighted to be part of a team 

that makes an enormous difference to the 

lives of so many South Australians,” Ms 

Byers says. 

“The Legal Services Commission 

plays a fundamental role in our justice 

Lucinda Byers 

system and in society more broadly. 

The Commission delivers its services in 

collaboration with courts, government, 

lawyers and legal professional bodies 

– and I look forward to building on its 

relationships with all those parts of the 

justice system.” B 


FAMILY LAW CASE NOTES 

Family Law Case Notes 

KELEIGH ROBINSON, THE FAMILY LAW BOOK 

PROPERTY – LEAVE GRANTED TO ADDUCE 

EVIDENCE FROM AN ADVERSARIAL 

EXPERT – COURT ERRED BY CONSIDERING 

$11 MILLION DIFFERENCE BETWEEN 

VALUATIONS IN ISOLATION 

In Neales [2022] FedCFamC1A 41 (28 

March, 2022) the Full Court (Aldridge, 

Tree and Schonell JJ) considered a 

husband’s application for leave to adduce 

evidence from an adversarial expert. 

The single expert, Mr B, had valued 

real properties at between $33.835 

million and $34.190 million; whereas the 

husband’s expert, Mr D, had valued the 

properties at $22.465 million. 

The Full Court said (from [25]): 

“The primary judge concluded that 

contrary to the submissions of the husband, 

there was not a substantial body of contrary 

opinion, but rather an alternate opinion. 

( … ) 

[27] … The primary judge observed 

that to permit another expert just 

because of a divergence in value, even 

if substantial, was inconsistent with the 

purpose of the [Rules] … 

( … ) 

[41] The husband argued … that the 

following matters, which taken collectively, 

satisfied as another special reason: 

(1) that [each expert] … adopted 

alternative methodologies … ; 

(2) that matters were known to Mr D 

that were not known to the single expert. 

( … ) 

(3) that … [if] the significant difference 

in value of over $11 million … arises as a 

result of a difference in methodology and 

information, it warrants consideration as 

another special reason; and 


(4) … [I]t is the husband who will be 

left with the consequences of the findings 

as to value … 

[42] … We are satisfied that the 

primary judge did not consider these 

matters in aggregate … but rather 

confined his consideration to the issue 

of differences in value. In doing so, the 

primary judge fell into error.” 

The Full Court granted leave for the 

husband to rely on his adversarial expert 

and costs certificates were ordered. 

CHILDREN – SERIOUS CONTEMPT 

WARRANTS SIX MONTH IMPRISONMENT 

– LIBERTY TO PURGE CONTEMPT BY 

DISCLOSING WHEREABOUTS OF CHILD 

In The Marshal of the Federal Circuit and 

Family Court of Australia & Trach [2022] 

FedCFamC1F 22 (25 January, 2022) Gill J 

sentenced a mother for contempt, where 

she failed to provide information about 

the whereabouts of her son, after she 

handed him to a friend. 

In breach of a recovery order, the 

mother said that she could not locate him. 

Gill J said (from [8]): 

“In sentencing [the mother] I accept 

that to find facts … that are adverse to her 

I must find facts beyond reasonable doubt. 

I accept further that where there are 

matters that are … positive for [her] then 

they need only be found on the balance of 

probabilities … She has demonstrated that 

she suffers from some cognitive difficulties 

… [S]he is vulnerable to being used by 

others … [I]t has not been shown that the 

offending conduct is connected to … that 

vulnerability … 

[9] … [T]here are a number of … 

matters that I am to take into account, 

which include … personal characteristics 

… remorse, the seriousness of the 

contempt, whether she has purged the 

contempt, the effects of the contempt, 

issues involving retribution, personal 

deterrence and general deterrence … [O]f 

particular importance is the enforcement 

of orders, punishment, … deterrence and 

the vindication of the Court’s authority … 

( … ) 

[15] … [T]he seriousness of the 

contempt calls for a custodial disposition 

… I consider that [the mother] ought to be 

given the option to purge her contempt and 

if she provides … the information that she 

has about X’s whereabouts then she may be 

released … It is not adequate to suspend 

the term … Suspension is typically … on 

terms that a person enter into security or 

an agreement … to be of good behaviour. 

Where [the mother] has not disclosed the 

information that she holds about X … she 

is not of good behaviour … 

( … ) 

[17] The circumstances of this case and 

the purposes of sentencing for contempt 

will be sufficiently met by a term of six 

months, on terms that permit [the mother] 

to relist the matter … to disclose the 

information about X’s whereabouts …” 

PROPERTY – TREATMENT OF INITIAL 

CONTRIBUTIONS IN FOUR YEAR 

RELATIONSHIP – SPECIFIC AND 

GENERALISED ALLEGATIONS OF FAMILY 

VIOLENCE HAD A SIGNIFICANT ADVERSE 

EFFECT UPON CONTRIBUTIONS 

In Ferman & Lapham [2022] 

FedCFamC2F 415 (5 April, 2022) Judge 

Kearney considered property adjustment

FAMILY LAW CASE NOTES 

applications after a four year de facto 

relationship, where each party had children 

of previous relationships. 

The de facto husband’s initial 

contribution was $895,000 and the de facto 

wife’s $21,000 (including superannuation) 

to an asset pool of $2,814,132, with all but 

$10,763 of the pool owned by the de facto 

husband. 

Judge Kearney said (from [183]): 

“The Court must treat the de facto 

husband’s superior initial contributions as 

one of those myriad of contributions to this 

relationship rather than weighing the myriad 

of contributions during the relationship 

against his initial contributions … 

( … ) 

[189] … [C]ircumstances which weigh 

against the de facto husband’s contribution 

[to the de facto wife’s children of a 

previous relationship] are the short 

duration of the relationship and his large 

absences from the … home in the first 

half of the de facto relationship (due to 

his work commitments …) … 

( … ) 

[236] There is no doubt that the de 

facto husband has engaged in serious family 

violence, including but not necessarily 

limited to, engaging in physical violence 

upon her and [her child] (for which 

he has been convicted), behaving in a 

threatening manner towards her, repeatedly 

making offensive, abusive and derogatory 

comments about her and [her child], 

damaging property in the presence of her 

and [her child] and breaching (on more than 

one occasion) an existing ADVO. 

( … ) 

[239] I conclude that the de facto 

wife’s many and varied contributions … 

took place in a context of fear and 

suffering caused by the de facto 

husband’s conduct. A qualitative 

assessment of those contributions 

leads inevitably to a conclusion that 

they were rendered significantly more 

arduous by circumstances of the de facto 

husband’s making and meaning that her 

contributions were adversely affected by 

her having to bear the burden. …” 

After assessing contributions as 90:10 

in favour of the de facto husband, the 

Court made a s90SF(3) adjustment of 5% 

in favour of the de facto wife ([272]), such 

that there was an 85:15 division overall. 

CHILDREN – COSTS – FATHER FAILS IN 

APPLICATION FOR INDEMNITY COSTS 

WHERE THE MOTHER’S MENTAL HEALTH 

DIFFICULTIES WERE CENTRAL TO HER 

CONDUCT DURING THE LITIGATION 

In Earle [2022] FedCFamC1F 16 (21 

January, 2022) Hannam J heard a father’s 

application for indemnity costs after 

parenting proceedings culminated in orders 

for the parties’ two children to live with the 

father, with supervised maternal time. 

A single expert concluded that 

the mother exhibited symptoms of 

schizophrenia ([11]). 

After considering s117(2)(A) factors, 

Hannam J said (from [47]): 

“It is the father’s contention … that 

the mother conducted the proceedings 

in a manner that caused him to incur 

significant and unnecessary expense. 

( … ) 

[61] … I accept the father’s 

submission that the mother’s conduct 

… generally contributed to delay and 

difficulty in reaching a conclusion to the 

proceedings, which may well have resulted 

in costs being thrown away. However … 

this conduct must be viewed in the context 

of the mother’s mental health difficulties 

and the impact these difficulties had on 

her overall functioning. … 

[62] The father further argues that a 

costs order should be made against the 

mother given she was wholly unsuccessful 

… [T]he father attaches considerable 

weight to the mother continuing to press 

for final orders … contrary to the opinions 

and recommendations of the courtappointed 

expert and the final orders 

ultimately made … 

( … ) 

[67] … However, this must be 

balanced together with all of the other 

relevant factors including … the mother’s 

mental health difficulties … 

( … ) 

[77] … I accepted at the final hearing 

that the mother’s mental health difficulties 

… had been evolving over time. … 

[78] … I accepted the opinion of 

the expert that the mother did not have 

any insight into her psychotic symptoms 

or the effect that they were having on 

her functioning. I also accepted that the 

mother’s observed disorganised and unusual 

behaviour had been present to some extent 

throughout the entirety of the proceedings. 

In circumstances where these features of 

the mother’s functioning and behaviour are 

central to the father’s contentions about her 

conduct, I do not consider it just to attach 

significant weight to this matter … ” 

The Court concluded that each party 

bear their own costs, with the mother to 

reimburse the father for her share of the 

expert’s costs. B 


YOUNG LAWYERS 

facebook.com/YLCSA 

Justice Stein imparts career lessons at 

Young Lawyers’ Premium Breakfast 

ADAM HAMILTON, OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS AND LUNGAKA MBEDLA, THE WORKING WOMEN’S CENTRE SA 

Following the event’s success in 2021, 

young lawyers from around the state 

eagerly gathered in the early hours of the 

morning on 21 April, 2022 to again break 

bread, or eggs as it was, and to gain some 

tips, tricks and invaluable wisdom from the 

guest speaker, her Honour Justice Stein. 

The sold out event was hosted at 

Lot 10 Cucina & Bar on Market Street, 

allowing for an intimate morning full of 

wonderfully delicious food that did not 

disappoint, ranging from roasted granola 

bowls to balsamico eggs with goats cheese, 

alongside copious amounts of coffee. 

Following breakfast, Justice Stein 

delivered a highly insightful speech about 

her career, providing advice on a wide 

range of topics alongside a number of 

very practical tips and tricks to assist 

young lawyers as they navigate through 

their inevitably challenging career ahead. 

Notably, her Honour mentioned the 

importance of setting boundaries, where 

possible, that distinguish between work 

and personal life to assist in avoiding 

burnout. Her Honour also highlighted 

the benefits of meditation and exercise to 

assist with, among other things, memory, 

stress and productivity. 

A special thank you to Justice Stein for 

taking the time out of her busy schedule 

to offer her advice to young members of 

the profession. 

The Young Lawyers’ Committee would 

also like to thank all of the attendees who 

supported the event and purchased all 

of the tickets; Lot 10 Cucina & Bar for 

hosting and for their excellent hospitality; 

as well as our major sponsor Burgess 

Paluch Legal Recruitment. 

Justice Stein speaks to the Young Lawyers 

at the Premium breakfast 

30 


WELLBEING & RESILIENCE 

The burnout era 

SARAH EL SAYED, WELLBEING AND RESILIENCE COMMITTEE 

Prior to the emergence of COVID-19, 

burnout had gained some traction in 

headlines with its reclassification by the 

World Health Organisation as a syndrome 

caused by chronic stress in the workplace 

that has not been successfully managed. 

This occupational phenomenon has 

placed the syndrome high on the agenda 

for employers and employees concerned 

with managing burnout and employing 

effective practices that support positive 

mental well-being in the workplace. Given 

its debilitating and obstructive nature, it 

is an important skill to be able to identify 

the obvious signs of burnout (and the not 

so obvious) and adopt strategies that will 

allow you to overcome burnout so that you 

can live a flourishing life. 

WHAT IS BURNOUT? 

Burnout is a state of emotional, 

physical and mental exhaustion caused 

by chronic stress and comprises of three 

main components: 

1. Physical and emotional exhaustion 

- you may find that you are waking up 

each morning with a constant state of 

dread and fatigue. 

2. Cynicism and detachment in the 

workplace - you are finding yourself 

cynical of the workplace and perhaps 

even your clients. You have also 

developed an increased sense of 

detachment from your workplace. 

3. Reduced professional efficacy - you 

once felt like you were great at your 

job but now feel unaccomplished and 

demotivated. 

It is important to recognise that 

burnout does not occur overnight; it is 

insidious in nature and tends to creep up 

on you. It can take quite some time for you 

to notice that you are experiencing burnout 

as the signs can be quite subtle at first. 

WHAT ARE SOME COMMON SIGNS OF 

BURNOUT? 

Burnout manifests differently in 

everyone. However, some of the common 

signs of burnout include: 

• Constant fatigue, lack of energy and 

poor sleep. 

• Decreased attention span, difficulty 

focusing and poor memory retention. 

• Physical symptoms such as heart 

palpitations or chest pain, weight 

fluctuation, changes in mood, feelings 

of detachment and isolation. 

It can be quite difficult to pinpoint 

burnout as the symptoms can quite easily 

be overlooked and attributed to other 

factors in your life such as pregnancy, 

menopause or starting a new family. 

WHAT CAN YOU DO? 

If you are already experiencing burnout, 

you should first take steps to recover 

from that episode. This may include 

implementing exercise into your life, taking 

time off work, or re-assessing your goals. 

To prevent future episodes of burnout 

you should try and find the sources of 

stress in your life and implement effective 

strategies to manage that stress. It can 

be quite difficult to implement change 

in your life when you are unsure what is 

causing you to feel that way. Once you 

are aware of the contributing factors, you 

can implement strategies to manage those 

problems effectively. For example, why is 

your workload always so overwhelming? 

Perhaps you struggle to say no to your 

boss and have overcommitted or maybe 

there’s not an even distribution of the work 

between yourself and other members of 

your team. An effective strategy may be to 

communicate to your team when you are 

nearing capacity or delegate work to others 

where appropriate. The reduction in your 

workload may be enough to give you some 

immediate relief. 

Burnout can be quite overwhelming, 

and it can be difficult to find the energy to 

take positive steps to overcome burnout 

when you are feeling mentally, physically 

and emotionally exhausted. If this is the 

case, you may find some utility in reaching 

out to others for help. Seek help from 

someone you trust. It could be a family 

member, co-worker, friend or even a 

professional such as a psychologist or 

counsellor. The Dr Jill LawCare service is 

available through the Society. 

If you are concerned about your 

general well-being, you can also access the 

Society’s Wellbeing and Support resources. 


BOOKSHELF 

D Brennan 

The Federation Press 2021 

HB $220 

COPYRIGHT LAW 

Abstract from Federation Press 

Copyright Law offers a comprehensive 

resource for practitioners, students and those in 

copyright-dependent industries. It deals with all 

the private law regimes within the Copyright Act 

1968 (Cth) – proprietary copyright, technical 

protection measures, performers’ rights and 

moral rights. 

The work has a strong focus on Australian 

jurisprudence and law reform, and provides 

expositions of complex matters within their 

treaty law, litigious, technological, historical or 

political contexts. 

ROYAL COMMISSIONS AND PUBLIC INQUIRIES IN AUSTRALIA 

S Prasser 

2 nd ed LexisNexis 2021 

PB $198 

Abstract from LexisNexis 

Royal Commissions and Public Inquiries in 

Australia 2nd edition provides the most 

comprehensive and up-to-date review of 

this important, but sometimes overlooked, 

instrument of public policy. 

Written by an expert in the field, this 

authoritative book comes with several new 

chapters covering international trends; key 

issues and controversies; inquiry impacts and 

effectiveness; and comparison between public 

inquiries and permanent anti-corruption bodies. 

This book is a perfect companion 

to Advocacy in Practice 7th edition by James 

Glissan QC which provides practical insights to 

counsel appearing before Royal Commissions, 

Inquiries and anti-corruption bodies. 

WINDFALL EQUITY AND THE JOINT ENDEAVOUR PRINCIPLE: 

RESTATEMENT OF THE PRINCIPLES IN MUSCHINSKI V DODDS 

D Weber 

LexisNexis 2021 

PB $180 


An examination of over 30 years of case 

law history on constructive trusts in joint 

endeavours. 

Explores the equitable basis of joint 

endeavours through case law and shows 

how fiduciary duties and constructive trusts 

arise in joint endeavours, which is helpful for 

understanding how to wind up a joint endeavour 

that has failed and the principles one seeks to 

displace with a contract. 

J de Groot & B Nickel 

5 th ed LexisNexis 2021 

PB $240.00 

ANNOTATED CIVIL LIABILITY LEGISLATION - QUEENSLAND 


Annotated Civil Liability Legislation — 

Queensland, is the essential companion for 

practitioners engaged in the conduct of 

negligence claims, whether in a commercial or 

personal injury context. This well-renowned 

title is a unique and practical guide to the 

interpretation and application of the [law]. 

This 5th edition updates and examines 

the important advances in jurisprudence 

concerning this legislation. New developments 

are considered in areas ranging from application 

and exclusion, breach of duty and causation, 

to those governing proportionate liability, 

contributory negligence, liability for institutional 

child abuse, damages and operation in respect 

of federal statutory causes of action. 

The well-defined annotated format of this 

text affords practitioners commencement and 

application information, expert commentary 

by reference to case law and journal treatment, 

together with cross-referencing to interstate and 

federal analogues. 

32 


TAX FILES 

Trust reimbursement arrangements 

STEPHEN HEATH, PARTNER, WALLMANS LAWYERS 

The issue of the tax effectiveness of 

certain discretionary trust distributions 

has been a major focal point for the 

Australian Taxation Office (ATO) for quite 

some time. In many respects, the ATO 

perceives discretionary distributions to be 

akin to tax avoidance. 

This has now culminated in the ATO 

issuing Taxation Ruling TR2022/D1 and 

Practical Compliance Guide PCG2022/D1 

on 24 February 2022. These rulings have 

been issued as drafts and represent the 

Commissioner of Taxation’s preliminary 

view of the operation of section 100A 

Income Tax Assessment Act 1936 (Cth). 

Public consultation on the drafts closed on 

8 April 2022. 

In the writer’s experience most tax 

professionals have never had much cause 

to consider the application of section 100A 

to the annual exercise of determining the 

distribution of trust income. On occasion 

some more sophisticated and seasoned 

advisers have found reason to mention the 

potential application of section 100A to 

some arrangements, though usually without 

great conviction. 

The reason for this, perhaps quite 

rightly, is that section 100A was only 

introduced into the tax legislation in 

1978 to deal with blatant trust stripping 

arrangements. Gone are the halycon 

days of the tax avoidance industry, given 

free reign by the Barwick High Court. 

This has given rise to conjecture about 

the appropriate way to interpret tax 

legislation. The view, once upon a time, 

will of course have been that the revenue 

statute should be interpreted in favour of 

the King. 

The ATO view now being 

espoused proceeds on the basis that, 

notwithstanding section 100A having 

originally had a specific purpose, if the 

words can be made to adapt and fit to 

other circumstances then there is no 

reason for the provision not be applied to 

that end. 

What is Section 100A about? 

Section 100A is open to being applied 

where: 

1. A present entitlement of a beneficiary 

of a trust has arisen in connection 

with a ‘reimbursement arrangement’. 

The term ‘present entitlement’ often 

gives rise to confusion. In simple terms 

a present entitlement arises when a 

trustee appoints income of the trust at 

year end to a beneficiary of the trust 

but does not pay the income to the 

beneficiary. This appears on the trust 

balance sheet as an unpaid present 

entitlement of the beneficiary and 

should not be confused with a loan. 

A sui juris beneficiary, as of right, can 

demand payment as against the trustee 

at any time. 

2. A ‘reimbursement arrangement’ exists 

where: 

a. there is the provision of a benefit 

to a person other than the presently 

entitled beneficiary; 

b. the purpose of any one or more of 

the parties to the arrangement is 

to reduce the overall incidence of 

tax; and 

c. the arrangement must be other than 

in the course of ordinary family or 

commercial dealings. 

The meaning of course of ordinary 

family or commercial dealing is undefined 

and unclear and accordingly, it is not 

inconceivable that the Courts would resort 

to the historical context in which section 

100A came into being to provide guidance. 

That may prove to be an impediment to 

the ATO given the attitude that section 

100A can be applied in circumstances not 

originally intended. 

Significantly, an application of section 

100A is not subject to time limits and 

will result in the subject income being 

taxed to the trustee at the top personal 

marginal rate (47%) as distinct from the 

beneficiary’s tax rate at the margin (usually 

a lower rate). 

What is the ATO view? 

In PCG2022/D1 the ATO from an 

administrative viewpoint divides various 

trust distribution arrangements into white 

zone, green zone, blue zone and red zone 

arrangements. This is something of a 

fiction and has no basis by reference to 

the wording of the provision. In short, 

the objective for taxpayers is to stay out 

of the red zone! The PCG contains 11 

factual examples which describe what 

‘arrangements’ might fit into what ‘zones’. 

In the writer’s view the potential offered 

by this methodology is diminished by 

examples which are either simplistic and 

where the answer is self-evident or refer to 

manifestly aggressive tax planning. 

Several generalisations can be made 

which are of some assistance: 

Arrangements entered into before 1 

July 2014 fall into the ‘white zone’ and are 

unlikely to attract attention from the ATO. 

• Likewise a case of ‘trustee retention of 

funds’ is unlikely to attract the ATO’s 


TAX FILES 

attention. Examples of a ‘trustee 

retention of funds’ is the use of unpaid 

distributions to fund working capital of 

a business conducted by the trust or to 

invest in passive investments; say shares 

or real property. 

In the usual course one should not 

lose sight of the tax liability which arises 

to the beneficiary of the distribution year; 

notwithstanding the entitlement remaining 

unpaid. 

A common scenario 

A legal practitioner is a partner of a 

law firm and uses a family trust to take 

receipt of service trust distributions each 

year. Present entitlements are created in 

favour of the legal practitioner’s three adult 

children every year. After several years the 

trust balance sheet presents as follows: 

LEGAL PRACTITIONER TRUST 

A 

On the ATO’s view it is arguable that 

Section 100A applies because: 

Present entitlements have been created; 

There is a ‘reimbursement agreement’ 

because: 

a. The legal practitioner (a person other 

than the 3 child beneficiaries) has 

obtained a benefit by way of the 

$100 loan; 

b. the purpose of the legal practitioner 

(the children probably have little insight 

into this perhaps until they seek to 

claim student youth allowance from 

Centrelink) is to access the lower tax 

rate applicable to each of the children; 

c. the arrangement may not be an 

ordinary family dealing. This does 

give rise to an important issue under 

Australian tax laws; namely, is it an 

Cash 10 Child 1 20 

Loan: Legal Practitioner 100 Child 2 30 

L&E 

Child 3 50 

Settlement 10 

ordinary family dealing for family 

members to collude to access the tax 

rates of lower income earning family 

members. 

For the time being trustees and 

controllers of trusts will be well served 

to tread carefully and, at the very least, 

attempt to curb conduct in the red zone. 

PCG2022/D1 skirts around the legal 

practitioner trust example above and the 

best interpretation the writer can reach is 

that these facts rest on the cusp between 

the blue zone and red zone. 

It should be the noted that whilst 

the legal practitioner and the children 

might never seek to apply the vigour of 

their rights and obligations as between 

themselves: 

• creditors of the children are entitled to 

pursue the trustee; 

• the children can pursue the trustee as 

of right; 

• the death of any legal practitioner and 

the children will give rise to claims by 

and against executors; 

• entitlements held by a beneficiary 

may impact their availability to claim 

certain tax concessions and social 

security benefits. B 

3 APR 2021 – 2 MAY 2022 

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, 

REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH 

OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA 

ACTS PROCLAIMED 

Nil 

ACTS ASSENTED TO 

Nil 

APPOINTMENTS 

Legal Services Commission 


Member: 

from 28 April 2022 until 30 November 2022 

Stephanie Jane Jude Halliday 

Gazetted: 28 April 2022, 

Gazette No. 25 of 2022 

Coroner 

for a term commencing on 28 April 2022 and 

expiring on 10 August 2022 

Naomi Mary Kereru 

Gazetted: 28 April 2022, 

Gazette No. 25 of 2022 

RULES 

Nil 

REGULATIONS PROMULGATED 

Nil

CLASSIFIEDS 

VALUATIONS 

MATRIMONIAL 

DECEASED ESTATES 

INSURANCE 

TAX REALIGNMENT 

INSOLVENCY 

FURNITURE 

ANTIQUES, COLLECTIONS 

BUSINESS ASSETS 

MACHINERY 

MOTOR VEHICLES 

CARS, BOATS, PLANES 

CITY & COUNTRY 

ROGER KEARNS 

Ph: 08 8342 4445 

FAX: 08 8342 4446 

MOB: 0418 821 250 

E: auctions@senet.com.au 

Certified Practising Valuer NO.346 

Auctioneers & Valuers Association 

of Australia 

Banking 

Expert 

Lending & recovery decisions, 

including: Banking Code issues, 

finance availability, capacity to 

settle, and loan enforcement. 

Geoff Green 0404 885 062 

Details of qualifications and 

experience, including giving evidence 

in the FCA, VSC and SICC, via: 

BankingExpertWitness.com.au 

Take Your 

Business Mobile 

boylen.com.au 

P (08) 8233 9433 

Business 

valuations 

Simple, clear, 

unbiased advice, 

without fear or 

favour. 

t. +61 8 431 80 82 

Hugh McPharlin FCA 

d m. +61 +61 8 8139 401 712 1130 908 

m e. +61 ahi@andrewhillinvestigations.com.au 

419 841 780 

e hmcpharlin@nexiaem.com.au 

w nexiaem.com.au 

Consulting Engineers 

Australian Technology Pty Ltd 

for expert opinion on: 

• Vehicle failure and accidents 

• Vehicle design 

• Industrial accidents 

• Slips and falls 

• Occupational health and safety 

• Statistical analysis 

W. Douglass R. Potts 

MAOQ, FRAI, FSAE-A, FIEAust, 

CPEng, CEng, FIMechE 

8271 4573 

0412 217 360 

wdrpotts@gmail.com 

Andrew Hill Investigations 

Investigating: 

ABN 68 573 745 238 

• workplace conduct 

• fraud 

• unprofessional conduct 

• probity 

Support services: 

• forensic computing analysis 

• transcription services 

• information sessions, particularly 

for HR practitioners on the 

investigative process 

• policy development. 

PO Box 3626 

Andrew Hill 

Andrew Hill 

Investigations 

NORWOOD SA t. 5067 +61 8 431 80 82 

m. +61 401 712 908 

e. ahi@andrewhillinvestigations.com.au 

Fellow AIPI 

Licensed Investigation Agents 

& Process Servers 

Servicing the Mid North, Yorke & 

Eyre Peninsula`s and Outback of 

South Australia with: 

• Process Serving 

• Property Lockouts 

• Investigations 

• Missing Persons 

OUTBACK BUSINESS SERVICES 

P.O. Box 591, 

PORT AUGUSTA. 5700 

P: 0418 838 807 

info@outbackbusinessservices.com.au 

LawCare 

The LawCare Counselling 

Service is for members of 

the profession or members 

of their immediate family 

whose lives may be adversely 

affected by personal or 

professional problems. 

If you have a problem, speak 

to the LawCare counsellor 

Dr Jill before it overwhelms you. 

Dr Jill is a medical practitioner 

highly qualified to treat social 

and psychological problems, 

including alcoholism and drug 

abuse. 

The Law Society is pleased to 

be able to cover the gap 

payments for two consultations 

with Dr Jill per patient per 

financial year. 

All information divulged to the 

LawCare counsellor is totally 

confidential. 

To contact Dr Jill 08 8110 5279 

7 days a week 

LawCare is a member service 

made possible by the generous 

support of Arthur J. Gallagher 

The Litigation Assistance Fund (LAF) is a 

non-profit charitable trust for which the 

Law Society acts as trustee. Since 1992 

it has provided funding assistance to 

approximately 1,500 civil claimants. 

LAF receives applications for funding 

assistance from solicitors on behalf of 

civil claimants seeking compensation/ 

damages who are unable to meet the 

fees and/or disbursements of prosecuting 

their claim. The applications are 

subjected to a means test and a merits 

test. Two different forms of funding exist – 

Disbursements Only Funding (DOF) and 

Full Funding. 

LAF funds itself by receiving a relatively 

small portion of the monetary proceeds 

(usually damages) achieved by the 

claimants whom it assists. Claimants who 

received DOF funding repay the amount 

received, plus an uplift of 100% on that 

amount. Claimants who received Full 

Funding repay the amount received, plus 

15% of their damages. This ensures LAF’s 

ability to continue to provide assistance 

to claimants. 

LAF recommends considering whether 

applying to LAF is the best course in the 

circumstances of the claim. There may be 

better methods of obtaining funding/ 

representation. For example, all Funding 

Agreements with LAF give LAF certain 

rights including that funding can be 

withdrawn and/or varied. 

For further information, please visit 

the Law Society’s website or contact 

Annie MacRae on 8229 0263. 

Family Law - Melbourne 

Marita Bajinskis 

formerly of 

Howe Martin & Associates 

is a Principal at 

Blackwood Family Lawyers 

in Melbourne 

Marita is an Accredited Family 

Law Specialist and can assist with 

all family law matters including: 

• matrimonial and de facto 

• property settlements 

• superannuation 

• children’s issues 

3/224 Queen Street 

Melbourne VIC 3000 

T: 03 8672 5222 

Marita.Bajinskis@ 

blackwoodfamilylawyers.com.au 

www.blackwoodfamilylawyers.com.au 

CONSULTING 

ACTUARIES 

FOR PROFESSIONAL 

ACTUARIAL ADVICE ON 

- Personal Injury - 

- Workers Compensation - 

- Value Of Superannuation - 

Contact 

Deborah Jones, Geoff Keen 

or Victor Tien 

08 8232 1333 

contact@brettandwatson.com.au 

www.brettandwatson.com.au 

Ground Floor 

157 Grenfell Street 

Adelaide SA 5000 


We manage one of SA’s largest 

social media accounts. 

boylen.com.au 

P (08) 8233 9433

LSB June 2022 LR

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