LSB September 2022 LR

THE 

BULLETIN 

THE LAW SOCIETY OF SA JOURNAL 

VOLUME 44 – ISSUE 8 – SEPTEMBER 2022 

IN THIS ISSUE 

Reforming laws to 

address elder abuse 

Aged care royal 

commission 

Navigating an 

ageing client base 

AGEING & THE LAW

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

cited as (2020) 44 (8) LSB(SA). ISSN 1038-6777 

CONTENTS 

AGEING & THE LAW FEATURES & NEWS REGULAR COLUMNS 

6 Reforms must be made to address 

elder abuse – By Tass Liveris 

8 Advice for young practitioners in 

succession law navigating issues in an 

ageing population 

By Mikayla Wilson & Julia Weltner 

10 The overlooked role of intervention 

orders in addressing elder abuse 

By Jemma Holt & Dr David Plater 

16 Aged care law reform since the Royal 

Commission – By Helena Errey-White 

18 Opinion: Youth in detention: A failing 

system – By Katja Daly 

19 Event wrap-up: Margaret Nyland 

Long Lunch 

22 An interview with former District 

Court Judge David Smith QC 

Interviewed by Richard Hoang 

26 Financial wellbeing top of the agenda 

By David Brownie 

27 Stays of civil proceedings in the case 

of civil defendants with criminal 

proceedings pending– By Alexander 

Lazarevich & Margaret Castles 

4 From the Editor 

5 President’s Message 

20 Risk Watch: Don’t trust emails: 

Always verify payment details 

By Kate Marcus 

24 Tax Files: Payroll tax for medical 

practices – By Paul Ingram 

35 Wellbeing & Resilience: Ageing well in 

the law – a professional perspective 

By Colin Brown 

32 Family Law Case Notes 

By Craig Nichol & Keleigh Robinson 

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 

G Biddle 

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. 

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Email: sales@boylen.com.au 

Junior Members 

A Douvartzidis 

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Programme Manager (GDLP) 

Desiree Holland 

Desiree.Holland@lawsocietysa.asn.au 

Ex Officio Members 

The Hon K Maher, Prof V Waye, 

Prof T Leiman 

Proj J McNamara

FROM THE EDITOR 

Removing barriers 

relating to age and 

disability 

MICHAEL ESPOSITO, EDITOR 

IN THIS ISSUE 

One of the many takeaways from the 

Law Society’s recent half day CPD 

on disability access in profession was that 

disability is not binary. 

Barrister Mark Douglas, one of the 

presenters at this session, noted that as 

a person who was born almost entirely 

blind, he was actually among the minority 

of people in the disability community 

who had their disability from birth. Most 

people who have a disability acquire one 

at a later stage in their lives. And the major 

predictor of disability? Age. 

The most recent Australian Bureau 

of Statistics report indicates that 7.6% of 

Australians aged between birth to 14 have 

a disability. Between the ages of 15-24, 

9.3% of Australians have a disability. This 

climbs to 13% of the population with 

a disability for Australians ages 25-65. 

But among the over 65s, about 50% of 

people report having a disability. And 42% 

per cent of people with disability would 

describe their disability as profound. 

So, you have a one in two chance of 

having a disability after your 65 th birthday. 

While progress has been made with 

regard to disability access and services, it 

is remarkable how lacking our society is in 

disability access infrastructure when you 

consider that almost 20% of Australians 

have a disability, and almost half of 

Australians over 65 have a disability. And 

this does not include “hidden” disabilities. 

At the Law Society’s CPD session, 

Mark remarked that the session marked 

the first time in his 25 years as a lawyer 

that the profession was seriously grappling 

with the issue of disability access in the 

legal sector. 

Disability access is an issue that should 

concern all practitioners. Many clients of 

legal services are in the older age bracket. 

It is therefore almost certain that most 

practitioners have served a number of 

clients with a disability, quite likely in many 

cases without even knowing it. 

And lawyers themselves are, on 

average, working until they are older. 

This means more working lawyers with 

disabilities. When you have two Supreme 

Court rooms that do not provide access 

for people with mobility issues, it is a clear 

sign that much more needs to be done in 

the profession to ensure lawyers, judges, 

clients, litigants, witnesses and all other 

participants in the justice sector do not 

face these barriers to access. 

How much better would it be for 

both clients and practitioners if there was 

some practice whereby the practitioner 

would be availed of any particular access 

requirements that the client had, and the 

practitioner could accommodate them, or 

at least have a greater understanding of 

their particular circumstances? 

The Society is working on a project to 

address this very issue, and more details on 

this will be revealed in the coming months, 

but in the meantime, I think that a healthy 

approach to interacting with others is to be 

aware that not everyone navigates the world 

the same way, and we should all be prepared 

to make some adjustments in order to live 

in an inclusive society, rather than expecting 

one section of the community to adapt. B 

ELDER ABUSE 

The need for reform 

YOUTH JUSTICE 

Why youth detention is failing 

SEEKING A STAY 

Representing civil client charged 

with criminal offences 

6 

18 

27 

4 

THE BULLETIN September 2022

PRESIDENT’S MESSAGE 

The law is serious business, 

but great to see so many 

people having fun 

JUSTIN STEWART-RATTRAY, PRESIDENT 

After a cold, wet, winter, I hope spirits 

are being lifted by the extra sunshine 

and daylight that now appear more 

regularly. 

Spirits were definitely high at the 

Legal Profession Dinner at Adelaide Oval 

on 19 August. After the strict mask and 

seating restrictions of last year’s dinner, 

and the unfortunate cancellation of the 

2020 dinner due to Covid, it was amazing 

to see members of the profession mingle, 

dance and just enjoy themselves at this 

year’s event. 

I was so pleased that the Attorney 

General was able to attend and present 

the awards. The Honourable Kyam Maher 

also stayed on after the formalities to 

talk to guests, and I thank him for being 

so generous with his time with the many 

practitioners who were keen to meet and 

speak to him. 

Congratulations to all award winners – 

Mark Douglas, Ruth Beach, David Kelly, 

Amy Nikolovski, Madi McCarthy and 

Professor Tania Leiman. All winners were 

highly deserving and I thank them for 

their contributions to the legal profession. 

It was a thrill to interview former elite 

tennis coach Roger Rasheed and hear 

stories about his childhood and fascinating 

journey from Lebanese migrant to the 

top of his field in sports performance 

coaching. 

A huge vote to thanks goes to the 

Law Society staff who organised the 

event. What a great job they did! The 

venue looked stunning and the night was 

a success. And of course I am deeply 

grateful to the sponsors – without whose 

support this special event could not have 

happened. 

But the biggest thanks goes to 

everyone who attended the dinner. To 

all those who came, thank you for your 

support of the event. I hope you had a 

great time and you all looked fabulous! 

I encourage you to check out our 

social media (Facebook, Instagram and 

LinkedIn) to see the many photos from 

the night. A full wrap-up of the event will 

be published in next month’s Bulletin. 

At the dinner, I gave a brief snapshot 

of some of the some of the issues we 

have advocated for on behalf of the 

profession. One of these issues, which is 

very relevant to this “Ageing and the Law” 

edition of the Bulletin, concerns the order 

of signing of Advance Care Directives. 

The Law Society started a petition 

to remove the prescribed order of 

signing requirements of Advance Care 

Directives. The petition was circulated 

among members of the legal profession 

and received 878 signatures. The Society 

presented the petition to the Hon Chris 

Picton, Minister for Health and Wellbeing. 

Of all the issues that Members raise 

with the Society, the requirement that the 

substitute decision maker signs before the 

appointee of an Advance Care Directive 

(ACD) is by far the issue that is raised the 

most. This is because the mandated order 

of singing causes a number of problems 

for clients, such as unnecessary delays 

in finalising documents, extra costs for 

clients, and the increased risk of people 

losing capacity before finalising their ACD. 

The Society notes in its letter to 

the Minister that the prescribed order 

of signing could easily be revoked via 

an amendment to Regulation 8 of the 

Advance Care Directives Regulations 

2014 (SA). This would permit ACDs to 

be signed in any order, and thus resolve 

a number of difficulties with the current 

regime. 

The Society has campaigned on 

this issue for several years, and we will 

continue to update the profession as to the 

progress of this campaign. Enjoy Spring! B 

September 2022 THE BULLETIN 5

AGEING & THE LAW 

Reforms mut be made 

to address elder abuse 

TASS LIVERIS, PRESIDENT, LAW COUNCIL OF AUSTRALIA 

According to the National Elder Abuse 

Prevalence Study, published by the 

Australian Institute of Family Studies in 

December, 2021, almost one in six older 

Australians reported experiencing some 

form of elder abuse in the past 12 months. 

What make elder abuse most 

devastating is that the perpetrator is usually 

someone the older person trusts and relies 

on, such as a family member, friend or carer 

and almost two-thirds of older people don’t 

seek help when they are abused. 

Incidents of abuse may be physical, 

social, financial, psychological or sexual and 

can include mistreatment and neglect. 

Elder abuse in any form is 

unacceptable. Financial abuse is the most 

prevalent type of elder abuse and the Law 

Council of Australia has focused resources 

on addressing it. 

Legal practitioners are in a key position 

to recognise and prevent the abuse of older 

persons, including financial abuse. 

In 2020, the Law Council released a 

Best Practice Guide for Legal Practitioners 

in Relation to Elder Abuse. The Guide 

is intended to assist legal practitioners 

identify and address potential issues 

regarding elder financial abuse in the 

preparation and execution of wills and 

other advance planning documents. 

The Guide was developed by the 

Law Council’s specialist National Elder 

Law and Succession Law Committee in 

consultation with Constituent Bodies in 

response to a recommendation from the 

Australian Law Reform Commission’s 

report into elder abuse. 

The Guide includes topics such as 

setting up meetings effectively, taking 

instructions, ensuring appropriate support, 

communicating effectively with the client, 

checking for decision making capacity, 

being alert to the warning signs of 

potential abuse, and keeping records. 

While much of the lawmaking in 

the area is made at the state and territory 

level, the Guide provides overarching 

principles to complement more detailed 

guidance provided by the Law Council’s 

Constituent Bodies. 

The Law Council has also advocated 

for the creation of nationally consistent 

laws relating to the use of enduring power 

of attorney instruments (EPOAs). 

EPOA arrangements are intended to 

ensure a person’s interests are protected 

when they lose capacity to make decisions 

for themselves. However, in the absence 

of adequate legal safeguards, financial elder 

abuse by appointed decision-makers may 

be facilitated by such arrangements. 

Therefore, the Law Council 

welcomed the decision by the Meeting 

of Attorneys-General in late 2021 

to develop recommendations and a 

timetable for developing more nationally 

consistent enduring power of laws, to 

effectively reduce financial elder abuse, for 

consideration by Attorneys-General by the 

end of 2022. 

The Law Council is seeking changes 

to ensure a person making an enduring 

document makes an informed decision 

about its content and the identity of the 

appointed decision-maker, and that the 

decision-maker understands and makes a 

commitment to comply with their duties 

and obligations. 

With Australia’s population ageing and 

one in every six Australians already over 

the age of 65, stamping out elder abuse 

must be a priority. 

However, the Law Council remains 

concerned that funding of specialist 

legal assistance and aged care advocacy 

services is inadequate in light of the acute 

and widespread nature of elder abuse 

within the community and has called 

for substantial additional funds for legal 

assistance services to provide specialist 

advice, representation and education for 

older persons. 

These services play a fundamental, 

often unrecognised role in ensuring 

transparency and scrutiny of aged care. 

The underfunding of legal assistance 

services means that, for example, in the 

2020-21 financial year, just over one per 

cent of approved legal aid grants were 

provided to assist persons aged 65 years 

and over, despite this group constituting 16 

per cent of the population. 

Funding for civil legal assistance is 

further limited with less than a quarter of 

the approved grants for this group being 

granted to civil law matters. 

Given that effective implementation of 

the National Plan to Respond to the Abuse 

of Older Australians 2019-2023 requires 

a coordinated approach across all service 

providers, it is important appropriate and 

sustained funding is provided to ensure 

government agencies, tribunals and publicly 

funded services are properly resourced. 

Outstanding issues identified in the 

Australian Law Reform Commission and 

Royal Commission into Aged Care Quality 

and Safety (Royal Commission) reports 

and the National Plan to Respond must 

also be addressed. This includes developing 

a new Aged Care Act which is consistent 

with the recommendations of the Royal 

Commission report by 1 July, 2023; and 

ensuring that those in residential aged 

care facilities have legal redress to protect 

them from abuse, whether perpetrated 

by care providers (including in the use of 

restrictive practices) or fellow residents. B 

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Advice for young practitioners 

in succession law navigating 

issues in an ageing population 

MIKAYLA WILSON AND JULIA WELTNER, SOLICITORS, SEDSMAN LEGAL 

As practitioners in the area of wills 

and estates, many of our clients 

engage our services as they approach 

their later years in life. In our experience, 

ageing clients can be more susceptible and 

vulnerable to influence, commonly from 

their own friends and relatives. Accordingly, 

when we are preparing documents for 

ageing clients, it is necessary to keep 

issues such as capacity, undue influence 

and coercive control, in the front of our 

minds. In our view, the older population 

now have noticeably more wealth than in 

the past, partly due to increasing property 

prices and superannuation, therefore these 

issues are unfortunately becoming more 

common in the context of Australia’s 

ageing population. 

Whilst experienced practitioners in 

this area are well versed in identifying 

and navigating these issues in the course 

of practice, we know from experience 

that these issues can often be subtle and 

require some gentle investigating by the 

solicitor. As two young practitioners who 

have the benefit of being guided by very 

experienced solicitors in this area, this 

article will endeavour to provide some 

useful tips and tricks that we have learnt 

so far, to assist emerging practitioners in 

the field of succession law with advising 

ageing and/or elderly clients. 

TIP 1: BE ALERT TO CAPACITY ISSUES 

It is widely known that people become 

more susceptible to cognitive issues as 

they age. In 2016, almost 1 in 10 people 

aged 65 and over were suffering from 

Dementia. 1 Dementia can cause memory 

loss and cognitive impairment which 

affects a person’s ability to reason and 

rationalise complex matters, which may 

affect their ability to understand their 

estate planning documents. Accordingly, it 

is important to carefully assess each client’s 

capacity in the course of taking their 

instructions. 

While the test for assessing capacity 

may be obvious to experienced 

practitioners, the writers are aware that not 

all graduates are familiar with the principles 

found in Banks v Goodfellow. 2 Despite being 

a case from 1870, it continues to be the 

leading authority on assessing testamentary 

capacity in Australia. 

In Banks v Goodfellow, the Court 

determined that in order to have 

testamentary capacity, the testator must:- 

• understand the significance of making 

a will; 

• be aware in general terms of the assets 

comprising their estate; 

• be able to retain the ability to 

evaluate and discriminate between 

the respective strengths of competing 

claims demonstrating appreciation of 

the consequence of their decision; and 

• be free from delusional thought or 

other disorders of the mind which may 

influence decision making as to who 

should (or should not) benefit from 

the will. 

It is not necessary to perform a mini 

mental or have your client answer a myriad 

of questions about current affairs of the 

last decade to assess whether your client 

has testamentary capacity. You could 

simply start by asking your client about the 

weather, asking how they travelled to your 

office, or what they have been up to earlier 

in the day. Often you will be satisfied of 

the four fundamental requirements in 

Banks v Goodfellow by asking your client the 

usual will instruction questions i.e., asking 

about their family situation, relationship 

status, assets and liabilities and how they 

wish to distribute their estate. However, 

if any concerns do arise, make notes 

regarding the same and discuss them 

with a senior practitioner. If capacity is in 

question, you should consider whether it 

is necessary to request a letter of capacity 

from a medical practitioner prior to 

preparing or executing any documents. 

TIP 2: TAKE YOUR CLIENT’S 

INSTRUCTIONS ONLY 

Often ageing clients need assistance 

with arranging and travelling to and from 

appointments and accordingly, clients 

are regularly accompanied to our office 

by their family members or friends. In 

many instances, those in attendance may 

be potential beneficiaries of their Will or 

appointees on their other estate planning 

documents. It is important to see your 

client alone to take instructions. 

If your client attends with a family 

member/s, politely ask them to wait in 

another meeting room for the duration 

of the appointment. In the writers’ 

experience, most family members will 

understand and respect the request. 

However, if we are met with resistance, 

we explain that it is our firm’s policy and 

that we will not take instructions from the 

client with others present. The presence 

of others in the meeting can obviously 

affect the client’s freedom to discuss their 

true wishes and intentions and may also 

lend to an inability to properly assess your 

client’s capacity (i.e., if the family member 

is answering questions about the client’s 

8 



family or assets on their behalf). In that 

regard, if you are taking instructions from 

a couple, ensure both clients are answering 

your questions and consider whether one 

is relying on the other to provide key 

details such as details of family or assets. 

In some circumstances, the client 

themselves may insist on their child or 

other relative sitting in the appointment, 

as they are uncomfortable answering 

questions by themselves. We would 

recommend re-assuring the client that 

their family member will be nearby 

and can re-join them at the conclusion 

of the meeting, if necessary. In those 

circumstances, make an extra effort to 

build rapport with the client so they feel 

comfortable and open in their discussions 

with you. 

TIP 3: WATCH FOR SUBSTANTIAL 

DEPARTURES FROM PAST DOCUMENTS 

When clients are making drastic 

changes to their existing estate planning 

documents, practitioners should take 

note of the reason for the changes. For 

example, if a client’s current will leaves 

everything equally between their children 

and they now want to entirely remove one 

child, question why the client is making 

that decision. If the client is unable to give 

an objectively rational explanation for the 

changes, this may indicate that there is an 

issue with capacity, or that they are being 

influenced by a third party. 

However, we accept that 

unreasonableness does not always equal 

incapacity or third-party influence – some 

clients can just be unreasonable! You may 

think it is irrational for them to write their 

child out of the will because, say, they do 

not like their child’s new partner. However, 

you can only act in accordance with your 

client’s instructions so ensure you advise 

them accordingly (Hello Inheritance Family 

Provision Act 3 ) and keep proper notes about 

their instructions (more on that below). 

TIP 4: KEEP THOROUGH FILE NOTES! 

All of the above tips bring us to our 

most important tip (for the practitioner 

anyway) – keep thorough file notes! 

It is crucial to keep thorough file notes, 

especially when capacity or undue influence 

may be in issue. Keep in mind that it can 

often be years or even decades after a 

document is executed that the testator’s 

capacity or undue influence is called into 

question. In those circumstances, your file 

notes may be heavily relied on to provide 

context of the client’s state of mind at the 

relevant time, and your advice to them. 

Accordingly, the writers endeavour to keep 

detailed notes on anything that may be 

relevant, including: 

• Who made the appointment? Was it 

the client or someone on their behalf? 

• Where are you attending on the client? 

In the office, in their home? In 2020, it 

was reported that more than two-thirds 

of aged care residents have moderate 

to severe cognitive impairment. 4 When 

attending on a client in an aged care 

facility, pay particular attention to 

capacity concerns, and keep a detailed 

file note. 

• Did someone bring the client to the 

appointment? If so, who? If you 

follow our advice in tip 2, make sure 

you note that they were not in the 

appointment room when you took 

your client’s instructions. 

• If there are concerns regarding 

capacity, make notes accordingly – 

what were your concerns, were they 

dispelled? If so, how? 

• If there are significant departures from 

previous documents, note your client’s 

reasons. 

• Make notes of any advice given 

pursuant to the Inheritance Family 

Provision Act. 5 

Overall, while these issues can apply 

to any clients in this field, it is important 

to be particularly vigilant with ageing 

clients, especially where they have become 

more reliant on others for support and 

assistance. In addition, we note that whilst 

the above matters are most relevant in 

taking instructions for Wills, they are also 

broadly relevant with respect to documents 

such as Enduring Powers of Attorney 

and Advance Care Directives and to other 

transactions such as transfers of assets to 

family members for less than market value. 

Finally, our last tip for other young 

practitioners is to always seek the advice of 

a senior practitioner when necessary – do 

not hesitate to take advantage of their years 

of experience. On that note, the writers 

would like to thank Michael Rizzuto of our 

office for settling our above advice. B 

Endnotes 

1 Australian Institute of Health and Welfare, 

Australia’s Health 2016 (Web Report, 13 

September 2016) Ch 3. 

2 (1870) LR 5 QB 549. 

3 1972 (SA). 

4 Royal Commission into Aged Care Quality and 

Safety, Research Paper 8 - International and National 

Quality and Safety Indicators for Aged Care (Report, 

24 August 2020) p161. 

5 1972 (SA). 



INTERVENING IN ELDER ABUSE: THE 

OVERLOOKED ROLE OF INTERVENTION 

ORDERS IN ADDRESSING ELDER ABUSE 

JEMMA HOLT, RESEARCHER, AND DR DAVID PLATER, DEPUTY DIRECTOR, SOUTH AUSTRALIAN LAW REFORM INSTITUTE 

The significant incidence of the abuse 

of older persons 1 in Australia and 

the acute problems posed by the apparent 

inability of the civil and criminal law to 

effectively respond has been the subject 

of extensive concern and commentary, 2 

including in South Australia. 3 

Five elder abuse subtypes are 

commonly recognised: 4 

• financial; 5 

• physical; 

• sexual; 

• psychological (emotional); and 

• neglect. 

Elder abuse is typically carried out 

by a close family member, often an adult 

child, 6 and can have a ‘devastating effect’ 7 

on older persons. The fact that such abuse 

may also amount to domestic or family 

violence has also been highlighted. 8 

The suggestion of intervention orders 9 

(“IOs”) to address such abuse, though 

largely overlooked, has been raised. 10 It 

is argued that the option of an IO under 

the Intervention Orders (Prevention of Abuse) 

Act 2009 (SA) (“the IO Act”), though 

not a universal remedy, may be of utility 

to address elder abuse and is worthy of 

closer consideration by lawyers, police and 

relevant agencies. 

The Intersection of Psychological and 

Financial Abuse 

Financial abuse is often said to be 

the most common form of elder abuse. 11 

Such abuse has been noted as increasing 

and described as ‘significant, insidious and 

frightening’; victims can lose their home or 

the entire resources that they’ve set up for 

their later life. 12 

There is also mounting disquiet 

over the significant incidence and 

implications of psychological abuse 

(including ‘gaslighting’) 13 in relation to 

older persons. 14 Indeed, this may extend to 

‘coercive control’ 15 by family members and 

others close to the victim in the context of 

elder abuse. 16 There has been considerable 

recent discussion of coercive control, 17 

typically in an intimate or domestic partner 

context. 18 However, the application of 

coercive control beyond domestic partners 

and its application to both older persons 

and persons with disability in a family 

situation been noted. 19 

The psychological and financial abuse 

of older persons is often interrelated. 

The close intersection between financial 

and psychological abuse or coercive 

control in relation to older persons has 

emerged in recent research. 20 One study 

observed the link between psychological 

and financial abuse, noting that the former 

is a grooming behaviour for the latter. 21 

Psychological abuse ‘seems to frequently 

co-occur with financial abuse, suggesting 

a pattern of behaviour analogous to 

grooming in the sexual abuse context.’ 22 

Current Issues with Intervention 

Formal redress where abuse does 

occur both protects the victim and deters 

potential wrongdoing. 23 However, despite 

the availability of existing civil and 

criminal remedies, there are a multitude 

of legal, social and practical reasons 

why these remedies are inadequate to 

address elder abuse, and, in particular, the 

psychological and financial abuse of older 

persons. 24 A NSW Parliamentary Report 

noted the individual and external barriers 

to victims of elder abuse reporting such 

abuse and seeking help are ‘substantial and 

numerous’. 25 

Victims are often reluctant to report 

abuse as they do not want to risk their 

relationship with the abuser. 26 The 

victim may well have a disability or a 

lack of capacity that prevents them 

from seeking legal advice 27 and/or may 

make it impossible to satisfy the onerous 

evidentiary requirements in any court 

proceedings. 28 The abuse may involve a 

close family member such as an adult child 

and the victim and/or the family may be 

unwilling to seek redress for this reason. 29 

In a civil context, any legal action in 

the higher courts would undoubtedly 

prove a costly 30 and time-consuming 

process and victims may be unwilling or 

unable to bring such an action. 31 

The criminal remedy is similarly 

problematic. Even if reported to the 

police, the police may be reluctant 

to become involved 32 and regard any 

complaint of wrongdoing as a civil or 

‘private’ issue that is outside their role. 33 

The victim is likely to either have died 

before the abuse comes to light or be 

unable or unwilling to make a complaint 

and/or testify. 34 There are particular 

difficulties for the police in responding to 

claims of financial elder abuse; 35 with a 

number of particular ‘significant’ practical 

and evidential challenges arising. 36 

Further, there remains the more subtle, 

yet equally harmful, ‘grooming’ conduct 

that precipitates overt acts of abuse and 

which presents a unique challenge that is 

largely unmet by existing civil and criminal 

remedies. Namely, in cases involving 

coercive control and/or gaslighting, when to 

intervene and how? 

Intervention Orders 

Arguably, a widespread misconception 

about the current IO framework of the IO 

Act is that ‘domestic abuse’ is confined to 

domestic partner abuse. 37 Whilst domestic 

10 



partner abuse represents the majority of 

IOs in practice, the definition of ‘domestic 

abuse’ under the IO Act is far broader. 

It requires there to be a relationship or 

former relationship. However, whilst 

‘relationship’ includes marriage or a 

domestic partnership, 38 it also includes: 39 

• two people related to each other by or 

through blood, marriage, a domestic 

partnership or adoption; and 

• where one is the carer 40 of the other. 

The definition of ‘domestic abuse’ 

under the IO Act encompasses the 

relationships within which many older 

persons suffer, or are at risk of suffering, 

abuse. Older persons may be particularly 

vulnerable to abuse by relatives and/or 

those who provide them with care. 

Even in circumstances where the abuse 

of older persons does not fall within the 

definition of ‘domestic abuse’, the IO Act 

extends to protect against ‘non-domestic 

abuse’. 41 

Psychological Abuse: Coercive control 

and ‘gaslighting’ 

Coercive control and ‘gaslighting’ are 

recognised forms of abuse under the IO 

Act. Section 8 of the IO Act provides that 

‘abuse’ may take many forms including 

emotional and psychological abuse. An 

act is an ‘act of abuse’ if it results or 

is intended to result in emotional or 

psychological harm, or an unreasonable 

and non-consensual denial of financial, 

social or personal autonomy. Further, 

emotional or psychological harm includes: 

mental illness, nervous shock, and distress, 

anxiety, or fear, that is more than trivial. 

The IO Act provides a range of 

‘examples’ of acts of abuse against 

a person, many of which are directly 

applicable to older persons: 

• threatening to withhold a person’s 

medication or preventing the person 

accessing necessary medical equipment 

of treatment; 42 

• threatening to institutionalise the 

person; 43 

• threatening to withdraw care on which 

the person is dependent. 44 

• denying the person the financial 

autonomy that the person would have 

had but for the act of abuse; 45 

• withholding the financial support 

necessary for meeting the reasonable 

living expenses of the person…in 

circumstances in which the person is 

dependent on the financial support to 

meet those living expenses; 46 

• causing the person through coercion or 

deception to: 

° relinquish control over assets or 

income; 

° claim social security payments; 

° sign a power of attorney enabling 

the person’s finances to be managed 

by another person; 

° sign a contract for the purchase of 

goods or services; 

° sign a contract of guarantee; 

° sign any legal document for the 

establishment or operation of a 

business. 47 

The Case for Intervention Orders 

It is imperative to respect an older 

person’s autonomy, but ‘autonomy and 

safeguarding are not mutually inconsistent; 

safeguarding responses also act to support 

and promote the autonomy of older 

people’. 48 

The various legal mechanisms and 

frameworks which seek to protect 

vulnerable adults through a range of 

powers, duties and/or obligations such 

as Powers of Attorney, or Guardianship 

and/or Administration orders are largely 

ineffective when it comes to restraining the 

conduct of another person who is actively 

undermining these efforts. 

Traditionally, IOs are overlooked in 

this context. However, in some cases of 

the psychological abuse of older persons, 

IOs present as an appropriate means of 

early and effective intervention to either 

cease and/or prevent such abuse. 

In cases involving psychological abuse, 

there are likely to be evidentiary issues, 

that is, an absence of evidence of any 

overt act of abuse. The grounds required 

for the issuing of an IO are flexible in 

this respect. The grounds are anticipatory; 

there is no requirement to prove an act 

of abuse before an IO is issued. Grounds 

exist if it is reasonable to suspect that 

the defendant will, without intervention, 

commit an act of abuse against a person, 

and the issuing of the order is appropriate 

in the circumstances. 49 Moreover, in 

dealing with applications under the IO Act, 

the court need only be satisfied of factual 

matters to the lesser civil standard of 

proof, on the balance of probabilities. 50 

There is also a broad discretion as 

to the terms that may be included in an 

IO. Whilst the IO Act provides for some 

mandatory terms (i.e. regarding firearms 51 ) 

and a range of other suggested terms, 52 it 

otherwise states that an IO may impose 

any requirement for a person to take, or 

to refrain from taking, specified action. 53 

It further provides that an IO may specify 

conditions under which a prohibition 

imposed by the order does not apply, and 

conditions that must be complied with in 

relation to a requirement imposed by the 

order. 54 The court has much latitude when 

it comes to the terms of an IO, including 



making orders with in-built flexibility by 

way of imposing conditions in relation to 

general terms. 

It is often the case that the relationships 

in which elder abuse arises are multifaceted. 

For example, an individual may need to be 

restrained from interfering with an older 

person’s finances, whilst being permitted 

to remain in contact with the older person 

to provide them with company, care and/ 

or assistance; or being permitted to assist 

the older person with the weekly grocery 

shop. Conceivably, the flexibility and 

discretion afforded by the IO Act could 

allow for an IO to be tailored with specific 

terms and conditions to accommodate 

such circumstances. The clear objective 

would be to preserve and encourage the 

positive aspects of such a relationship with 

the older person, whilst ensuring necessary 

intervention is made to safeguard the older 

person. 

The use of IOs in elder abuse cases 

may also present as an avenue for court 

ordered programs of rehabilitation and/ 

or community education in the area of 

elder abuse, should such referral pathways 

be established between the courts and 

relevant support service providers. 55 

However, given the subtle nature of 

psychological abuse it is unlikely that the 

police would become involved in these 

matters in the way that they would by 

responding to an ‘incident’ of physical 

abuse. Any application for an IO in such 

cases is therefore likely to be a private 

application to the court (that is, not a 

police order or an application to the 

court by police 56 ). This means that any 

application for an IO would need to be 

made to the court by the older person 

themselves or a ‘suitable representative 

of such a person given the permission to 

apply to the court’. 57 

A potential difficulty in the context of 

older persons is the implicit requirement 

that any application made by a suitable 

representative is made with the consent 

of the older person. 58 Issues of consent 

and capacity are not only complex issues 

when dealing with vulnerable adults, 59 but 

they are also matters that may be impacted 

by the very psychological abuse which is 

sought to be addressed by intervention. 

However, a query is whether older person 

support/advocacy services may potentially 

play a role in assisting to bring private 

applications on behalf of older persons, 

whether as representatives themselves or 

assisting others to represent the interests 

of the older person. The role of older 

person support/advocacy services might 

also extend to referring matters to police 

in appropriate cases for police to make 

applications to the court in the absence of 

an older person’s consent or capacity. 60 

Closing remarks 

There is a need not to ‘abuse’ 61 the 

broad jurisdiction of the IO Act, nor 

unnecessarily add to the already lengthy 

lists of the Magistrates Court. However, 

the prevalence and nature of abuse which 

falls within the ambit of the IO Act should 

not deter the pursuit of intervention 

where it is appropriate. 

There seems little, if any, material in 

the public domain which addresses the use 

of IOs in the context of elder abuse in 

South Australia. However, the role of IOs 

to address elder abuse has been discussed 

elsewhere. The consensus is that it is ‘not 

common’, 62 subject to ‘limitations’, 63 is of 

varied effectiveness 64 and there is a general 

reluctance to use IOs in this context for a 

variety of reasons. 65 

Although an IO may not be a solution 

in the majority of cases of elder abuse, 

their use and utility should not be 

discounted. They may offer an accessible 

means of intervention when other existing 

remedies are not available or not suitable. 

They may provide for a flexible and casespecific 

intervention in cases where there 

is a complex and multifaceted relationship 

not only between the relevant parties, 

but also between the actual and potential 

psychological and financial abuse at play. 

The application for an IO may be 

within the expertise and established role 

of the police. However, the ability of 

other agencies to become involved and 

seek or support such orders should not 

be overlooked. The option of an IO 

to address at least some forms of elder 

abuse, namely psychological and financial 

abuse, is worthy of closer consideration by 

lawyers, police and relevant agencies. 

This article arises from the context of 

the present independent review by the South 

Australian Law Reform Institute (SALRI) 

of the operation of the Ageing and Adult 

Safeguarding Act 1995 (SA). Any views of 

the authors are expressed in a purely personal 

capacity. The authors acknowledge the erudite 

input of Dr Mark ‘Matt’ Gianacaspro, Holly 

Nicholls, Divya Narayan, Associate Professor 

Beth Nosworthy, Olga Pandos, Rachel Portelli 

and Dr Sylvia Villios. 

Jemma Holt is currently working 

as a Researcher for SALRI. She also 

works as a Researcher for the Tasmania 

Law Reform Institute and in the role 

of Clinic Supervisor for two of the free 

legal advice clinics based at the University 

of Adelaide Law School: the Adelaide 

Legal Outreach Service (ALOS) and the 

Equal Opportunity Legal Advice Service 

(EOLAS). She has been involved in 

teaching undergraduate Criminal Law and 

Evidence and Advocacy at the University 

of Adelaide since 2020. She has worked 

as a Prosecutor with the Office for the 

Director of Public Prosecutions since 

2013. She has previously worked for 

the Crown Solicitor’s Office (2018), the 

Independent Commissioner Against 

Corruption (2020-1), and the Office 

for Public Integrity (2022). She has also 

worked as a Prosecutor with Tasmania 

Police (2019) and the Office for the 

Director of Public Prosecutions in Hobart 

(2019-20). 

Dr David Plater is an Associate 

Professor at the Adelaide University Law 

School and is the Deputy Director of 

SALRI. He is an Adjunct Senior Lecturer 

at the University of Tasmania Law School. 

SALRI is an independent law reform body 

based at the Adelaide University Law 

School. B 

12 



Endnotes 

1 There are conflicting figures as to the prevalence 

of elder abuse, but the most recent study found 

15% of older persons in Australia experienced 

some form of abuse. See Lixia Qu et al, 

Australian Institute of Family Studies, National 

Elder Abuse Prevalence Study (Research Report, 

December 2021) 30–35. The abuse of persons 

with disability has also gained much concern. 

See Disability Royal Commission (Interim Report, 

October 2020). 

2 See generally Wendy Lacey, ‘Neglectful to the 

Point of Cruelty? Elder Abuse and the Rights 

of Older Persons in Australia’ (2014) 36(1) 

Sydney Law Review 99; Australian Law Reform 

Commission, Elder Abuse: A National Legal 

Response (Report No 131, May 2017); Select 

Committee into Elder Abuse, Legislative Council 

of Western Australia, ‘“I Never Thought It Would 

Happen To Me”: When Trust is Broken’ (Final 

Report, September 2018); 44 [2.42]–[2.60]. 

3 See Wendy Lacey et al, University of South 

Australia, Prevalence of Elder Abuse in South 

Australia: Current Data Collection Practices of 

Agencies (Report, February 2017); Parliament of 

South Australia, Joint Committee on Matters 

Relating to Elder Abuse, ‘Final Report of the 

Joint Committee on Matters Relating to Elder 

Abuse’ (Report, October 2017). 

4 Lixia Qu et al, Australian Institute of Family 

Studies, National Elder Abuse Prevalence Study 

(Research Report, December 2021) 1. 

5 See also Dale Bagshaw et al. ‘Financial Abuse 

of Older People by Family Members: Views 

and Experiences of Older Australians and their 

Family Members’ (2013) 66(1) Australian Social 

Work 86. 

6 Jo Wainer, Peter Darzins and Kei Owada, 

Prevalence of Financial Elder Abuse in Victoria: 

Protecting Elders’ Assets Study (Report, Monash 

University, 10 May 2010) 15; Kelly Purser, Tina 

Cockburn and Elizabeth Ulrick, ‘Examining 

Access to Formal Mechanisms for Vulnerable 

Older People in the Context of Enduring Powers 

of Attorney’ [2019] 12 Elder Law Review 1–32, 21. 

A recent study found 90% of elder abuse was 

carried out by a family member, most often an 

adult son or daughter. See Melanie Joosten et al, 

Senior Rights Victoria, Seven Year of Elder Abuse 

Data in Victoria (Report, August 2020). 

7 Adam Graycar and Marianne James, ‘Crime 

and Older Australians: Understanding and 

Responding to Crime and Older People’ 

(Conference Paper, Family Futures: Issues in 

Research and Policy, Australian Institute of 

Family Studies Conference, Sydney, 24–26 

July 2000), 7. See also Georgia Lowndes et al, 

Financial Abuse of Elders: A Review of the Evidence 

(Report, Monash University, June 2009) 5, 12. 

8 John Chesterman, ‘Taking Control: Putting 

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Older People at the Centre of Elder Abuse 

Response Strategies’ (2016) 69 (1) Australian 

Social Work 115, 117; Rosemary Croucher and 

Julie MacKenzie, ‘Framing Law Reform to 

Address Elder Abuse’ (2018) 18 Macquarie Law 

Journal 5, 8–9. 

9 Or their interstate equivalent. 

10 Barbara Hamilton, ‘Be Nice to Your Parents: or 

Else!’ (2006) 4 Elder Law Review 8, 10. 

11 Rae Kaspiew, Rachel Carson and Helen Rhoades, 

Australian Institute of Family Studies, Elder 

Abuse: Understanding Issues, Frameworks and Responses 

(Research Report No 35, 2016) 5–7, 46–7. 

12 Norman Hermant, ‘“Significant, Insidious” 

and Often Unreported, Financial Elder Abuse 

is Increasing, Lawyers say’, ABC News (online, 

5 August 2022), https://www.abc.net.au/ 

news/2022-08-05/lawyers-say-financial-elderabuse-in-families-significant/101300242. 

13 Paige Sweet, ‘The Sociology of Gaslighting’ 

(2019) 84(5) American Sociological Review 851. 

Coercive control against an older person is also 

described as ‘gaslighting’. Gaslighting is a form 

of psychological abuse that regularly takes place 

over a prolonged period of time and consists 

of small, seemingly insignificant actions or 

conversations that lead to a reduced sense of 

autonomy in a person causing them to question 

their beliefs and actions. Gaslighting can be seen 

as a form of coercive control. It is designed 

to make a person doubt their self-worth and/ 

or cognitive ability and aims to dominate and 

degrade a person and deprive them of their 

freedom and sense of autonomy. 

14 Parliament of New South Wales, Joint Select 

Committee on Coercive Control, Coercive Control 

in Domestic Relationships (Report, 2021) 95–96 

[5.75]–[5.81]. This theme has regularly emerged 

in SALRI’s present reference. 

15 See generally Parliament of New South Wales, 

Joint Select Committee on Coercive Control, 

Coercive Control in Domestic Relationships (Report, 

2021). 

16 NSW Ageing and Disability Commission, 

Submission to Parliament of New South Wales, 

Joint Select Committee on Coercive Control (2 February 

2021) 7–8, . 

17 See, for example, Heather Douglas, ‘Do We 

Need a Specific Domestic Violence Offence?’ 

(2015) 39(2) Melbourne University Law Review 

434; Parliament of New South Wales, Joint 

Select Committee on Coercive Control, Coercive 

Control in Domestic Relationships (Report, 2021); 

House Standing Committee on Social Policy and 

Legal Affairs, Parliament of Australia, Inquiry 

into Family, Domestic and Sexual Violence (Report, 

September 2021). Various Bills have been 

introduced in South Australia to introduce such 

a crime in relation to domestic partners. See, for 

example, Criminal Law Consolidation (Coercive 

Control Amendment) Bill (SA) (see further 

South Australia, Parliamentary Debates, House of 

Assembly, 2 December 2020, 3601–3603 (Katrine 

Hildyard)); Criminal Law Consolidation (Abusive 

Behaviour) Amendment Bill 2021 (see further 

South Australia, Parliamentary Debates, House of 

Assembly, 27 October 2021, 8379–81 (Vickie 

Chapman, Attorney-General). These Bills did not 

proceed and lapsed with the 2022 State election. 

18 Evidence to Parliament of New South Wales, 


Sydney, 23 February 2021, 47–8 (Margaret 

Duckett). 

19 Queensland Law Society and Queensland Public 

Advocate, Elder Abuse (Joint Issues Paper, 

2022) 86-–87; Parliament of New South Wales, 


‘Coercive Control in Domestic Relationships’ 

(Report, 2021) 95–96 [5.75]–[5.81]. Of the 156 

submissions to the NSW review, only a handful 

raised the situation of persons with disability and 

older persons beyond domestic partners. 

20 A 2010 study based on an analysis of data from 

a range of agencies with close contact with 

elder financial abuse in Victoria found similar 

themes. The study confirmed that financial abuse 

was accompanied by psychological abuse that 

was intimidating, controlling and fear inducing. 

Among the ways in which financial abuse was 

carried out were misuse of powers of attorney, 

coerced changes to wills, unethical trading in title 

to property, and the coercion of people without 

capacity into signing documents in relation to 

assets that would result in financial gain for the 

perpetrator. See Jo Wainer, Peter Darzins and 

Kei Owada, Monash University, Prevalence of 

Financial Elder Abuse in Victoria: Protecting Elders’ 

Assets Study (Report, 10 May 2010). 

21 Kylie Miskovski, Alzheimers Australia NSW, 

‘Preventing Financial Abuse of People with 

Dementia (Report, 2010), See also, for example, 

Rae Kaspiew, Rachel Carson and Helen Rhoades, 


Abuse: Understanding Issues, Frameworks and Responses 

(Research Report No 35, February 2016) 8, 10, 47. 

22 Rae Kaspiew, Rachel Carson and Helen Rhoades, 


Abuse: Understanding Issues, Frameworks and 

Responses (Research Report No 35, February 

2016) 47. 

23 Kelly Purser, Tina Cockburn and Elizabeth 

Ulrick, ‘Examining Access to Formal 

Mechanisms for Vulnerable Older People in 

the Context of Enduring Powers of Attorney’ 

(2019) 12 Elder Law Review 1–29, 11. 

24 Legislative Council General Purpose Standing 

Committee No 2, Parliament of New South 

Wales, Elder Abuse in New South Wales (Report No 

44, June 2016) xiv, 84 [6.22]–[6.23], 86–88 [6.28]– 

[6.37], 99–101 [6.94]–[6.102]. See also Kelly 

Purser, Tina Cockburn and Elizabeth Ulrick, 

‘Examining Access to Formal Mechanisms for 

Vulnerable Older People in the Context of 

Enduring Powers of Attorney’ [2019] 12 Elder 

Law Review 1–29 and Cassandra Cross, Kelly 

Purser and Tina Cockburn, Examining Access to 

Justice for Those With an Enduring Power of Attorney 

(EPA) Who are Suffering Financial Abuse (Report, 

Crime and Justice Research Centre, Queensland 

University of Technology, 2017). 




44, June 2016) 121 [8.1]; 121–2 [8.2]–[8.4]. 

26 Kelly Purser et al, ‘Alleged Financial Abuse of 

Those Under an Enduring Power of Attorney: 

An Exploratory Study’ (2018) 48(4) British Journal 

of Social Work 887, 895; Rae Kaspiew et al, Elder 

Abuse in Australia (Report No 98, Australian 

Institute of Family Studies, 2016) 71. 

27 Rosslyn Monro, ‘Elder Abuse and Legal 

Remedies: Practical Realities?’ (2002) 81 (Spring) 

Reform 42, 46. 

28 Carolyn Dessin, ‘Financial Abuse of the Elderly’ 

(2000) 36(2) Idaho Law Review 203, 212–13; 

Natalia Wuth, ‘Enduring Powers of Attorney: 

With Limited Remedies: It’s Time to Face the 

Facts’ [2013] 7 Elder Law Review 1–30, 14; Rosslyn 

Monro, ‘Elder Abuse and Legal Remedies: 

Practical Realities?’ (2002) 81 (Spring) Reform 42. 

29 Rosslyn Monro, ‘Elder Abuse and Legal 


Reform 42; Natalia Wuth, ‘Enduring Powers of 

Attorney: With Limited Remedies: It’s Time to 

Face the Facts’ [2013] 7 Elder Law Review 1–30; 

Legislative Council General Purpose Standing 



44, June 2016) 121–2 [8.1]–[8.4]. 

30 Cassandra Cross et al, Examining Access to Justice 

for Those With an Enduring Power of Attorney 

(EPA) Who are Suffering Financial Abuse (Report, 

Crime and Justice Research Centre, Queensland 

University of Technology, 2017) 44. 

31 Natalia Wuth, ‘Enduring Powers of Attorney: 

With Limited Remedies: It’s Time to Face 

the Facts,’ [2013] 7 Elder Law Review 1–30, 

14; Rosslyn Monro, ‘Elder Abuse and Legal 


Reform 42, 45; Legislative Council General 

Purpose Standing Committee No 2, Parliament 

of New South Wales, Elder Abuse in New South 

Wales (Report No 44, June 2016) 87 [6.31]; 

Kelly Purser, Tina Cockburn and Elizabeth 

Ulrick, ‘Examining Access to Formal Justice 

Mechanisms for Vulnerable Older People in 

the Context of Enduring Powers of Attorney’ 

[2019] 12 Elder Law Review 1–29, 25–6. 

32 Legislative Council Select Committee into Elder 

Abuse, Parliament of Western Australia, ‘I 

Never Thought It Would Happen to Me’: When Trust 

is Broken (Final Report, September 2018) vii 

finding 25, 50 Rec 10, 51 Rec 11, 61 Rec 55, 70 

Rec 17. One party told the NSW Parliamentary 

14 


DISABILITY 

Report that police may be unwilling to become 

involved in an allegation without clear evidence 

of physical mistreatment: Legislative Council 

General Purpose Standing Committee No 2, 

Parliament of New South Wales, Elder Abuse in 

New South Wales (Report No 44, 2016) 126 [8.20]. 

33 Select Committee into Elder Abuse, Parliament 

of Western Australia, ‘I Never Thought It Would 

Happen to Me’: When Trust is Broken’ (Final Report, 

September 2018) 61 [6.25], 67 [6.51]; Legislative 

Council General Purpose Standing Committee 

No 2, Parliament of New South Wales, Elder 

Abuse in New South Wales (Report No 44, June 

2016) 85–86 [6.25]. 

34 Select Committee into Elder Abuse, Parliament 


Happen to Me’: When Trust is Broken’ (Final Report, 

September 2018) 65 [6.42]. 




44, June 2016) 126–7 [8.19]–[8.23]. 

36 Ibid 126 [8.19]. See also at: 124–8 [8.12]–[8.28]. 

37 When the current IO framework of the IO Act 

was introduced, despite the broad potential ambit 

of the scheme, it was conceded that ‘there is a 

strong emphasis on domestic abuse and there is 

no doubt that these laws will mostly be used by 

people seeking to protect themselves and their 

children from domestic abuse’: South Australia, 

Parliamentary Debates, Legislative Council, 28 

October 2009, 3793 (Hon GE Gago). 

38 Intervention Orders (Prevention of Abuse) Act 2009 

(SA), sub-s 8(8)(a), (b). 

39 Intervention Orders (Prevention of Abuse) Act 

2009 (SA), sub-s 8(8)(i) and (k). Sub-s 8(8)(j) 

also includes: two people related according to 

Aboriginal or Torres Strait Islander kinship rules 

or are both members of some other culturally 

recognised family group. 

40 Carers Recognition Act 2005 (SA), s 5. Relevantly, 

‘carer’ is defined in general terms as a person 

who provides ongoing care or assistance to: a 

person who has a disability (within the meaning 

of the Disability Inclusion Act 2018), a chronic 

illness (including a mental health illness, within 

the meaning of the Mental Health Act 1993); 

or a person who, because of frailty, requires 

assistance with the carrying out of tasks. 

Notably, it does not include a person who is 

contracted to provide care or assistance, nor 

a person who provides care or assistance in 

the course of community work organised by a 

community organisation. 


(SA), s 8(9). 


(SA), s 8(4)(m). 


(SA), s 8(4)(n). 


(SA), s 8(4)(o). 


(SA), s 8(5)(a). 


(SA), s 8(5)(b). 


(SA), s 8(5)(e). 

48 Australian Law Reform Commission, Elder 

Abuse: A National Legal Response (Report No 131, 

May 2017) [1.17]. 


(SA), s 6. 


(SA), s 28. 


(SA), s 14. 


(SA), ss 12 and 13. 


(SA), s 12(1)(l). 


(SA), s 12(2)(a), (b). 


(SA), s 13. 


(SA), div 2 and s 20. 


(SA), s 20(1)(b). 

58 See, for example, Department of Human Services 

(Cth) v Fitzpatrick [2018] SASC 180, [32] 

(Kourakis CJ). 

59 David Lock, ‘Decision-making, Mental Capacity 

and Undue Influence: Action by Public Bodies 

to Explore the Grey Areas between Capacity and 

Incapacity’ (2015) 20(1) Judicial Review 42. 


(SA), ss 7(2), 20(1)(a). 

61 See Rana v Gregurev [2015] SASC 37, [15] (Peek 

J): ‘…because the concept of abuse is so 

broadly defined, it is…necessary for the courts 

to ensure that this broad jurisdiction is not 

itself abused by specious or unwarranted claims 

with their associated detrimental consequences 

to both the limited resources of the courts 

and to persons the subject of unmeritorious 

applications. The necessary balance is achieved 

by investing the Magistrates with a great deal 

of discretion in the course they may take in any 

given case.’ 

62 The 2021 AIFS study found that a ‘personal 

protection order’ (what in South Australia would 

be called an ‘intervention order’) was obtained 

against the perpetrator in 3.8% of cases of elder 

abuse, breaking down as in cases of financial 

abuse (4.4%), physical abuse (9.3%), sexual abuse 

(0.7%), psychological abuse (3.8%) and neglect 

(0.9%). See Lixia Qu et al, National Elder Abuse 

Prevalence Study: Final Report (Research Report) 

(Australian Institute of Family Studies, 2021) 

86. It also to be noted that the West Australian 

Police conceded in evidence before the 

Parliamentary Committee that police only very 

rarely sought an intervention order in cases of 

elder abuse and identified that such orders had 

been sought by police in Western Australia in 

only three instances during 2017/2018 on behalf 

of parties aged over 65: See Legislative Council 

Select Committee into Elder Abuse, Parliament 


Happen to Me’: When Trust is Broken (Final Report, 

September 2018) 64. Indeed, the Western 

Australian Police Commissioner had doubted 

such orders were even available in respect of 

financial elder abuse or without the victim’s 

consent: See Transcript, Evidence, Legislative 

Council Select Committee into Elder Abuse, 

Parliament of Western Australia, ‘I Never Thought 

It Would Happen to Me’: When Trust is Broken, 7 

May 2018, 2-5 (Mr Dawson). 

63 Queensland Law Society and Queensland Public 

Advocate, Elder Abuse: Joint Issues Paper (2022) 

54-55, 53-54 [6.2.4]. The 2022 Queensland study 

identified an apparent police reluctance to utilise 

such orders in relation to elder abuse and noted 

their ‘limitations’ in the context of elder abuse. 

64 On the one hand, in the 2021 AIFS study, they 

were seen in some instances as putting a stop 

to the abuse and also providing a deterrent 

going forward. But it was also noted in the 2021 

AIFS study that ‘in some cases legal action was 

ignored or not understood by the perpetrator 

or restraining orders were flouted and did not 

prevent the perpetrator from reoffending.’ 

Substantial minorities of the victims in the 

2021 AIFS study considered such actions were 

ineffective. See Lixia Qu et al, National Elder 

Abuse Prevalence Study: Final Report (Research 

Report) (Australian Institute of Family Studies, 

2021) 3, 88 and 89. 

65 Legislative Council Select Committee into 

Elder Abuse, Parliament of Western Australia, 

‘I Never Thought It Would Happen to Me’: When 

Trust is Broken (Final Report, September 2018) 

63 [6.312], 64 [6.38], 65 [6.43]. The Committee 

noted that, despite the broad statutory powers, 

it had heard of a ‘distinct reluctance’ by the 

Western Australia Police to exercise these powers 

either where the older person in question did 

not consent to the order or did not want the 

orders in place. The Committee observed that 

the tension between the police duty to protect 

vulnerable older people in the community and 

the duty to respect the inherent dignity and 

autonomy of adults in terms of the decision 

to apply for orders under the Restraining Orders 

Act 1997 may ‘sometimes result in a lack of 

appropriate action being taken to protect an 

older person from continued or greater harm’. 

The Committee, whilst the appreciating the 

difficult position that this tension may create, 

was of the view ‘that Western Australia Police’s 

duty to protect vulnerable older people in the 

community should take precedence where to 

take no action could result in continued or 

greater harm.’ 



Aged care law reform since 

the Royal Commission 

HELENA ERREY-WHITE, HUMAN RIGHTS COMMITTEE MEMBER AND ASSOCIATE AT O’LOUGHLINS LAWYERS 

At the end of the Royal Commission into 

Aged Care Quality and Safety (Aged 

Care Royal Commission) in early 2021, 

the Final Report: Care, Dignity and Respect 

(Final Report) handed down by the Royal 

Commissioners the Honourable Gaetano 

(Tony) Pagone and Ms Lynelle Briggs AO 

contained 146 recommendations. Since 

the handing down of the Final Report 

three key Acts have commenced that have 

sought to reform aged care law, with a 

particular focus on protecting the human 

rights of the most vulnerable in our 

community receiving aged care. 

Serious Incident Response Scheme 

The Aged Care Legislation Amendment 

(Serious Incident Response Scheme and Other 

Measures) Act 2021 sought to address issues 

identified in the final submissions of 

Counsel Assisting the Royal Commission 

and commenced on the day the Final 

Report was tabled. 1 This Act introduced 

to residential aged care the Serious 

Incident Response Scheme (SIRS). As is 

becoming a common theme of law reform 

in aged care, SIRS took inspiration from 

the National Disability Insurance Scheme 

(NDIS). 

SIRS has two key components: 

incident management and reporting 

‘reportable incidents’. 

For incident management, SIRS 

put in place detailed requirements on 

recording and responding to incidents 

and continuous improvement to prevent 

further such incidents. 

For reporting, SIRS replaced the 

concepts of ‘reportable assault’, being 

unlawful sexual contact and unreasonable 

use of force, and ‘unexplained absences’ 

with ‘reportable incident’. The concept 

of a reportable incident has been 

defined broadly to include eight different 

categories of serious incidents ranging 

from physical and sexual abuse and 

unexplained absences to psychological and 

financial abuse and neglect. Reportable 

incidents are required to be reported to the 

Aged Care Quality and Safety Commission 

(Aged Care Commission) within a 

certain timeframe. The Aged Care 

Commission then assesses the incident and 

engages with the provider to take further 

action if required. 

In addition to reporting reportable 

incidents to the Aged Care Commission, 

within the incident management 

requirements there is also a requirement to 

report incidents to the police where there 

are reasonable grounds to do so (ie the 

incident is of a criminal nature). 

Addressing restrictive practices 

The Aged Care and Other Legislation 

Amendment (Royal Commission Response No 

1) Act 2021 introduced the first stage of 

law reform formally in response to the 

Final Report. The most significant reform 

arising from this Act for persons receiving 

aged care was the enhancement of 

requirements around the use of restrictive 

practices in residential aged care. 2 

Again looking to the NDIS for 

inspiration and alignment, the definition 

of restrictive practice was reformed to 

largely align with that used in the NDIS. 

The previous brief definition of ‘physical 

restraint’ was replaced with the more 

detailed definitions of ‘environmental 

restraint’, ‘mechanical restraint’, ‘physical 

restraint’ and ‘seclusion’, which give 

greater guidance to providers and 

persons receiving aged care as to what is 

a restrictive practice. The definition of 

‘chemical restraint’ was largely unchanged 

but already substantially aligned with the 

definition used in the NDIS. 

The reform also put in place stricter 

and more detailed requirements for 

the use of restrictive practices. These 

requirements address the criteria that 

must be satisfied before a restrictive 

practice can be used, with the exception of 

emergency use, and what providers must 

do during the use of a restrictive practice 

such as monitoring the effects, necessity 

and effectiveness of the restrictive 

practice. The Act also introduced detailed 

requirements for behaviour support 

plans to be developed where restrictive 

practices are used. However, the Act did 

not implement the recommendation of 

the Royal Commission that ‘the use of 

restrictive practices must be based on an 

independent expert assessment’. This 

is an approach more closely used in the 

NDIS, which requires behaviour support 

plans to be developed by an approved 

NDIS behaviour support practitioner. A 

less direct approach has been taken in 

aged care where there is an obligation 

on providers to consult with health 

practitioners with expertise relevant to 

the person’s behaviour when preparing, 

reviewing or revising the behaviour 

support plan. 

16 



The most substantial law reform yet 

The recent Aged Care and Other 

Legislation Amendment (Royal Commission 

Response) Act 2022 implements the second 

stage of law reform formally in response 

to the Final Report. 3 

The Act introduces the most 

substantial law reform yet arising from the 

Royal Commission. It addresses a range 

of areas in aged care law from the funding 

model for residential aged care, star ratings 

of providers, governance standards for 

providers, banning orders for workers, 

information sharing between relevant 

government bodies and departments to 

the direct protections of the human rights 

of persons receiving aged care. 

While much of this reform will 

be behind the scenes changes within 

providers or within the Government, 

two areas of reform that will directly 

impact persons receiving aged care are the 

expansion of SIRS into home care and the 

introduction of a Code of Conduct. 

SIRS will be expanded to apply to aged 

care provided in the home (eg persons 

receiving home care packages) from 1 

December 2022. The details of how it will 

apply in this different environment have 

not been released at the time of writing 

but it is reasonable to expect that there 

will need to be some variation to account 

for the different nature of home care 

compared to residential care. 4 

From 1 December 2022 there will also 

be a Code of Conduct in aged care that 

providers and their workers must comply 

with when delivering aged care to persons. 5 

Again drawing inspiration from the NDIS, 

the Government has indicated that the 

aged care Code of Conduct will be based 

on the NDIS Code of Conduct. 6 The 

NDIS Code of Conduct is not dissimilar 

to the current Charter of Aged Care 

Rights, which forms part of a person’s 

contract for aged care. Both documents 

seek to explicitly recognise and protect 

the human rights of persons receiving 

care by setting out broad obligations on 

providers and those they engage to deliver 

care and services. 7 Despite the obligations 

being broad in nature, there are significant 

financial penalties for providers if the 

Code of Conduct is breached. 

Other reforms being implemented by 

the Act also aim to improve the aged care 

persons receive. For example, the reform 

to the funding model for residential aged 

care will include additional funding for 

minimum care minutes for residential aged 

care residents, including minimum minutes 

of registered nurse time, and a focus on 

incentivising rehabilitation. 8 

Summary 

The introduction of SIRS and 

the reform of the restrictive practices 

requirements as a priority addressed two 

important areas where the human rights 

of persons receiving aged care could be 

better protected. The second stage of 

law reform recently passed in August this 

year makes the most substantial reforms 

to aged care law since the Final Report. In 

addition to the law reform arising from the 

Final Report of the Royal Commission, 

there is also another Bill currently before 

Parliament that seeks to implement the 

new Federal Labor Government’s election 

promises of a registered nurse onsite in 

residential aged care 24/7 and capping 

administration charges in home care. 9 

Aged care will continue to be an area 

subject to significant and fast paced law 

reform in the coming years. B 

Endnotes 

1 The details of the Serious Incident Response 

Scheme are set out in Part 4B of the Quality of 

Care Principles 2014 (Cth), implemented by the 

Aged Care Legislation Amendment (Serious Incident 

Response Scheme) Instrument 2021 (Cth). 

2 See Schedule 1 of the Aged Care and Other 

Legislation Amendment (Royal Commission Response 

No 1) Act 2021 (Cth). The requirements for 

restrictive practices are detailed in Part 4A of the 

Quality of Care Principles 2014 (Cth), implemented 

by the Aged Care Legislation Amendment (Royal 

Commission Response No 1) Principles 2021 (Cth). 

These reforms arose from Recommendation 

17 of the Final Report and the Independent review 

of legislative provisions governing the use of restraint in 

residential aged care. 

3 The Aged Care and Other Legislation Amendment 

(Royal Commission Response) Act 2022 (Cth) was 

passed by both Houses of Parliament on 2 August 

2022 and received Royal Assent on 5 August 2022. 


Legislation Amendment (Royal Commission Response) 

Act 2022 (Cth). This reform responds to 

Recommendation 100. 


Legislation Amendment (Royal Commission Response) 

Act 2022 (Cth). This reform responds to 

Recommendation 77 in the Final Report. 

6 The NDIS Code of Conduct is set out in the 

National Disability Insurance Scheme (Code of Conduct) 

Rules 2018 (Cth). 

7 The Charter of Aged Care Rights is set out in 

Schedule 1 of the User Rights Principles 2014 (Cth). 

8 This reform is discussed in Recommendation 86. 

9 See Schedules 1 and 2 of the Aged Care Amendment 

(Implementing Care Reform) Bill 2022 (Cth). 


OPINION 

Youth in detention – a failing system 

KATJA DALY, MEMBER, ABORIGINAL ISSUES COMMITTEE, & SOLICITOR, ABORIGINAL LEGAL RIGHTS MOVEMENT 

The overuse of pre-trial detention in 

the youth criminal justice system is 

a critical issue across Australia. In South 

Australia, almost all children held in 

detention are on remand and have therefore 

not been found guilty of any crime 1 . 

Aboriginal children are severely 

overrepresented in the criminal justice 

system, and therefore also in the remand 

population 2 . Although Aboriginal children 

comprise only around 5% of the South 

Australian population, 50% of the total 

admissions into Kurlana Tapa Youth 

detention centre identified as Aboriginal 

during 2018-19 3 . Aboriginal children are 

overrepresented in other aspects of the 

criminal justice system too. According 

to data recorded in the Guardian for 

Children and Young People and Training 

Centre Visitor’s Report 2021, Aboriginal 

children are significantly more than likely 

than their non-Aboriginal peers to be 

referred to court rather than receive a 

caution or diversion. This means only 

25.3% of Aboriginal offenders are being 

diverted away from court compared to 

55.6% of non-Aboriginal youth being 

diverted away 4 . These figures are cause for 

concern because it shows that Aboriginal 

children are more likely to be arrested; 

spend time in police custody; enter bail 

agreements; and be remanded in detention. 

Consequently, they have a greater risk 

of becoming institutionalised into the 

criminal justice system. 

The cost per day for holding a child 

in detention far exceeds the cost of 

community based rehabilitative focused 

Youth Justice supervision. In South 

Australia, detention costs 32.3 times 

more per day per child than community 

supervision. 2021 data shows holding a 

child in detention costs $3,121.25 per day 

compared to community supervision at 

$96.59 per day 5 . 

It is clear the current model of youth 

detention does not work. However 

State and Federal governments are not 

prioritising a focus on this issue; and nor 

are they pursuing beneficial reform. In fact, 

rather than adopt community-led initiatives 

recommended by the Royal Commission 

into the Protection and Detention of 

Children in the Northern Territory Report 

2017, State governments have toughened 

youth bail legislation and expanded 

detention centres. Detention is not a good 

solution. The Australian government must 

instead prioritise funding and legislative 

change to integrate recommendations by 

law and justice groups working across 

youth justice and child protection systems 6 . 

Australia could benefit from initiatives 

that have been developed and tried in other 

jurisdictions. Native Nation Rebuilding 

for self-determined self-governance is 

emerging in the United States of America 

and Canada as a distinctive field of enquiry 

which holds tremendous potential to 

contribute valuable and timely legal reform 

in Australia 7 . Indigenous-led initiatives in 

jurisprudence have demonstrated capacities 

for improving equitable access to justice 8 . 

The ‘Ontario Model’ of youth detention 

is a model Australia could adopt. Ontario 

has transformed its youth justice system 

“from a custody-focused system to one 

that offers a broad range of communitybased 

options” 9 . The Ontario model is 

a realistic and proven effective pathway 

to promote community control and legal 

reform towards self-governance, enabling 

increased jurisdictional powers that better 

guarantee Indigenous people the enjoyment 

of their human rights. Due to diverse and 

preventative measures introduced across 

the province of Ontario, there has been an 

81% decrease in custody admissions for 

youth detention. This has also resulted in 

$39.9 million annual cost savings. 

South Australia’s current regime 

of youth detention fails to uphold 

international standards of human 

rights - including Australia’s obligations 

as a signatory of the United Nations 

Convention on the Rights of the Child - 

and further fails to prioritise the objectives 

of the Young Offenders Act 1993 (SA). 

State and Federal governments must 

prioritise reform of the youth justice 

system to fulfil legislated responsibilities 

and uphold internationally agreed legal 

commitments. Further, from an economic 

viewpoint, such reform has the potential 

to significantly reduce the current high 

cost of youth detention. B 

Endnotes 

1 Office of the Guardian for Children and Young 

People, May 2021, ‘Snapshot of South Australian 

Aboriginal Children and Young People in Care and/ 

or Detention from the Report on Government Services 

2021’, page 25 

2 see Outcome 11 - Aboriginal children and young 

people should not be overrepresented in the 

criminal justice system 

Australian Government (Department of the 

Prime Minister and Cabinet, 2018, ‘Closing the 

Gap – Prime Minister’s Report 2018’, 

3 Ibid, Office of the Guardian for Children and 

Young People, May 2021, page 1. 

4 Ibid, page 1 

5 Ibid, page 25. 

6 North Australian Aboriginal Justice Agency, 

2017, ‘Submissions of Pre and Post Detention- 

Royal Commission into the Protection and Detention 

of Children in the Northern Territory’, page 2 

< https://www.naaja.org.au/wp-content/ 

uploads/2020/03/North-Australian-Aboriginal- 

Justice-Agency-Pre-Post-Detention.pdf> 

7 Jorgensen, Miriam (2007). Rebuilding Native 

Nations. Tucson: University of Arizona Press. 

8 Ibid, North Australia Aboriginal Justice Agency, 

2017, pages 3-4 

9 M Rampersaud and L Mussell: ‘Ontario 

closes half of its youth detention centres’, 

The Conversation, (6 May 2021) 

18 


EVENTS 

Nyland lunch celebrates power 

of women in law & leadership 

About 315 guests packed the Adelaide 

Convention Centre on 1 July for the 

annual Margaret Nyland AM Long Lunch, 

which celebrated the achievements of 

women in the law and the trailblazing legacy 

of the Hon Margaret Nyland AM, who was 

in attendance. 

Guests were honoured to hear from 

guest speaker, AFL’s General Manager of 

Inclusion and Social Policy, Tanya Hosch 

who is a trailblazer in her own right as 

the first Indigenous person on an AFL 

Executive Board. 

Tanya’s speech was equal parts hilarious 

and poignant, as she spoke not just of 

her role in a traditionally male dominated 

area and the importance of using power 

responsibly, but also spoke passionately 

about the need to engage in meaningful law 

reform to address the appalling rates of 

Indigenous incarceration. 

In particular, Tanya powerfully advocated 

for raising the age of criminal responsibility. 

The Law Society extends its thanks 

to Marissa Mackie, Chair of the Women 

Lawyers’ Association (SA) and Chair of the 

Society’s Women Lawyers’ Committee, for 

expertly MC’ing the event, and Adeline Lim, 

also a member of the WLC and WLA (SA) 

for her help in organising the event. 

The Society also thanks major sponsors 

Notable Imprint and LK Law for their 

generous support of the event. B 

Brooke Hall-Carney (left), Tanya Hosch, The Hon Margaret Nyland, Marissa Mackie and Nick Gormley 

Jessica McNamara (left), Kylie Dunn, Shelley O’Connell, Adeline Lim, Thea Birss and Fiona Trethewey 

NOTICE TO MEMBERS 

Annual General Meeting 

Law Society Members are advised that the Annual General Meeting of the Society will be 

held at the Law Society, Level 10, 178 North Terrace, Adelaide on 

Monday, 24 October 2022 at 5.15pm CDT 

Information about the AGM (including how to participate via videoconference), nominating for positions 

on the Council and any required election/s will be forwarded to Members in due course. 

Nominations for Office-bearers and designated positions on Council close on Thursday 1 September 2022 at 5.00pm. 

Notice of any business to be brought forward at the Annual General Meeting must be delivered to the Chief Executive by Thursday 1 September 2022 at 5.00pm. 


RISK WATCH 

Don’t trust emails - even internal 

emails: Always verify payment details 

KATE MARCUS, RISK & CLAIMS SOLICITOR, LAW CLAIMS 

Cyber criminals are targeting small 

to medium businesses and legal 

practitioners. 

Cyber frauds pose a major risk to 

the profession and to your clients. Email 

accounts and attachments have been 

targeted and bank account details changed. 

This risk is real and a number of claims 

have been notified to Law Claims in the 

past two months. The claims are alarming 

both in terms of the number of claims 

notified and also in terms of the quantum. 

Simply put, emails are an easy target. 

Emails and email attachments should 

never be trusted. Practitioner emails and 

client emails are being intercepted. The 

details are changed and the emails arrive 

at the recipient with new bank account 

details, with the recipient being none the 

wiser. 

Likewise, email attachments such 

as PDFs are being altered and account 

details provided in any attachments should 

not be trusted. 

Don’t be fooled by something which 

looks legitimate. If it involves a payment it 

must be checked. 

This is not an IT issue, but it is a 

user issue. 

Recent instances where moneys have 

been transferred to a fraudster could have 

been avoided entirely if the practitioner 

and staff members had performed the 

simple task of verifying the BSB and 

account number directly with the clients. 

All staff need to be alert to the risks of 

email/email attachments. 

WHAT SHOULD YOU DO? 

If you are making payments to clients 

or third parties: 

1. On opening the file get the client’s BSB 

and account number. If you cannot 

obtain this in person use a secure, 

verified method; 

2. If payment is not anticipated for some 

time or payment will be made to other 

parties whose details may be unknown 

(e.g. beneficiaries) make it clear than 

you will never ask for BSB and account 

details by email; 

3. If you need to get details later – ring or 

write, using a secure, verified method; 

4. If you receive any details by email you 

must ring and verify the details with 

the client or the intended party; 

5. Do not ring the phone number on the 

email –the number on the email is likely 

to be the fraudster’s number; 

6. Check any phone numbers with the 

original file and written instructions 

provided directly by the client. 

7. Train all of your staff not to trust any 

email instructions for payments - this 

includes emails from within the firm. 

RECEIVING PAYMENTS 

If you anticipate receiving moneys 

from clients: 

1. On opening the file, provide your trust 

account details to the client. If you 

cannot provide this in person, use a 

secure, verified method; 

2. Provide your trust account details in 

your retainer letter and advise that your 

bank account details will not change 

during the course of a transaction, and 

you will never notify of any changes to 

your bank details via email; 

3. Always advise your client to 

independently confirm bank account 

details and provide instructions to you 

in person or via a telephone call to a 

trusted and verified phone number; 

4. All letters and emails should contain 

a simple reminder to clients that the 

law practice will never ask for bank 

account details by email and that clients 

should not: 

a. act on any emails that request their 

bank account details; or 

b. act on any demands for payment 

without verifying details. 

WHAT ABOUT INTERNAL EMAILS? 

Even after verifying details with a 

client do not email bank account details 

within the firm. 

Emails forwarded within a firm 

have proved to be just as susceptible as 

those coming from outside a firm. If 

you are working remotely, do not send/ 

rely on emails with bank account details. 

These must be checked again with the 

practitioner or support staff who sent 

the email. 

Again, instruct all of your staff that 

they must not follow any email instructions 

for payment. This includes internal emails. 

WHAT SHOULD YOU DO IF YOU HAVE A 

CYBER INCIDENT? 

If you do experience a cyber incident: 

1. Call the bank immediately – some 

funds may be recovered if you act 

quickly; 

2. Report the incident to the 

Australian Cyber Security Centre: 

www.cyber.gov.au/report. This 

informs SAPOL of the incident 

and gives you a Report Reference 

Number. You can provide this number 

to financial institutions or other 

organisations as proof that a report 

has been submitted to the police; 

20 


RISK WATCH 

3. If it involves trust account moneys, 

report the defalcation to Ethics & 

Practice on 8229 0229; 

4. If it involves a claim or potential 

claim, notify Law Claims on 

8410 7677; 

5. Contact your IT providers – your IT 

system is vulnerable; 

6. Obtain a report from your IT 

provider or a cyber investigator 

with confirmation as to the fraud or 

malware etc.; 

7. If you have cyber insurance – notify 

your cyber insurer. 

Trust account obligations: 

If moneys have been sent in error to 

any third party – remember you are 

under an obligation to replenish your 

trust account. 

For further information and resources 

on cybersecurity, see the cyber document 

package available free to practitioners 

insured under the SA PII Scheme. 

ON THE RADAR — PHISHING GETS EASIER 

One of the easiest ways for 

cybercriminals to gain access to your 

systems is to go phishing. Phishing emails 

appear to be from legitimate senders 

but will usually involve an email or 

website address which is ever-so-slightly 

different. They look legitimate and even 

the savvy can be tricked. Up to 70% of 

email attacks are by phishing. Hovering 

over hyperlinks and email addresses and 

checking them for authenticity before 

clicking is a good practice to avoid 

unintentional breach of your systems. All 

staff should be trained to do so. 

Be aware though that in the coming 

months, there may be increased phishing 

activity with the release of a new 

category of domain name registrations. 

The new category allows registration of 

.au domain names for any business with 

an Australian presence. For example, 

where a business currently holds a 

registration for mybusiness.com.au, they 

can also register mybusiness.au. Existing 

domain name licence holders have 

until September 20 to obtain priority 

registration of the equivalent .au domain 

name, after which the domain names will 

become available to the public. 

There is potential for uncertainty and 

confusion in the domain name space, 

as businesses could be susceptible to 

impersonation or be phished or scammed 

for domain name registration fees. 

Increased vigilance and caution should be 

exercised in relation to email, particularly 

unsolicited email. 

Further information in relation to the 

new domain name registrations can be 

found on the auDA website. 

- By Mercedes Eyers-White, PII Risk 

Management Coordinator 

YOUNG LAWYERS 

Young Lawyers host premium dinner with Attorney General 

The annual Young Lawyers’ Premium 

Dinner was held on Thursday, 28 July 

2022 at Pizza e Mozzarella Bar on Pirie 

Street. This year’s attendees had the privilege 

of hearing from The Honourable Kyam 

Maher MLC (Minister for Aboriginal Affairs, 

Attorney-General, Minister for Industrial 

Relations and Public Sector). The Attorney 

provided attendees with valuable insight into 

his involvement and experience in the legal 

profession as well as Parliament, and his 

views on fostering an inclusive community 

within and beyond legal profession. 

The Young Lawyers’ Committee would 

like to thank Pizza e Mozzarella Bar for 

their hospitality and generous portions 

of porchetta, our major sponsor Burgess 

Paluch Legal Recruitment, who continues to 

make our events possible, as well as all those 

who attended and continue to support the 

events held by the Committee. 

Most of all, the Committee wishes to 

thank facebook.com/YLCSA 

The Attorney for taking the time out 

of his undoubtedly busy schedule to speak 

at the Premium Dinner. 

We look forward to seeing you all at the 

2022 Christmas Drinks! 

September 2022 THE BULLETIN 

21

INTERVIEW 

Skip the pleasantries and get 

on with it: An interview with 

former judge David Smith QC 

Law Society Advocacy Committee Member Richard 

Hoang interviews former District Court Judge David 

Smith QC, who is currently pracitising as a mediator, 

about courtroom etiquette, antiquated conventions, and 

the increasing unaffordability of legal action. 

Richard Hoang: Perhaps I might start 

with “Good morning Your Honour”. Say I 

am appearing before you, thirty years ago, 

and began by saying “Good morning Your 

Honour”. What are your thoughts? 

David Smith: I have no memory of 

being greeted like that when I was on the 

Bench. It is trivial but Counsel should be 

deflected from doing that in the interests 

of ensuring that the courts remain free 

from any hint of favouritism. 

However, as Counsel, I have a memory 

of instances of overly familiar and even 

cringeworthy exchanges between the Judge 

and Counsel. 

In one instance, my opponent wished 

the Judge “a happy birthday”. 

In another, the Judge embarked upon 

a long personal discussion with Counsel 

about that Counsel’s recent attempt at 

some long-distance swimming feat. This 

continued for a number of minutes in the 

courtroom in front of other barristers, 

solicitors and members of the public. 

At best it was rude, at worst it raised a 

perception of favouritism and bias. 

Accordingly, although the greeting 

“Good Morning Your Honour” is a small 

and common place pleasantry, it has a ring 

of some personal connection. Lawyers, 

and the Judge for that matter, should avoid 

such salutations and get on with the matter 

in hand. 

RH: Right. So, the jurisdiction wouldn’t 

matter too much as well, do you think? 

For example, in a Magistrate’s Court or 

Supreme Court of Appeal setting? 

DS: The jurisdiction doesn’t make a 

difference. The problem is that such a 

greeting has a familiarity about it which 

can raise a perception of personal 

connection in the mind of a reasonable 

bystander, and perhaps therefore, a 

perception of bias. 

Let me give you an example – a 

Supreme Court Case. 

In 1975, there was a case of Garrihy, 1 

which concerned a traffic light offence 

which was being prosecuted in a suburban 

court. The two Justices of the Peace, who 

were hearing the case, adjourned to view 

the intersection. They travelled to and 

from the intersection in a Police Car with 

the Prosecutor and a Prosecution Witness. 

The Defendant travelled to and from the 

view, by himself, in his own car. He was 

convicted of the offence. On Appeal, 

his conviction was set aside on grounds 

that it would not be unreasonable for a 

right-minded person to think that there 

was a possibility of bias on the part of the 

Justices. The Appeal Court made it clear 

that the principle applied to all persons 

who sit in a judicial capacity. 

RH: What about the practice where 

instead of the usual “Your Honour” 

practitioners use “Sir” or “Madam”? What 

are your thoughts on that? 

DS: I welcome the shedding of the 

archaic and sycophantic court language 

we inherited from the English Courts. 

“Sir” and “Madam” would suffice. In 

particular, I would like to see the end of 

“My Learned Friend,” “With respect”, 

and “With the Greatest Respect”, and the 

rest. Indeed “Your Honour” is sometimes 

repellent. 

RH: Speaking of English Traditions, what 

are your thoughts on phasing our wigs and 

gowns? 

DS: I would approve of phasing out wigs. 

For a while I did think it was not a bad 

disguise. On one occasion when I was out 

looking for some lunch in the Market, a 

large threatening guy walked up to my side 

and said, “Good afternoon, Judge Smith”. 

I replied, “Do I know you?” He replied 

“Yes, you do. You refused me bail two days 

ago but I had your decision overturned in 

the Supreme Court.” My wig and gown 

were not a great disguise. 

I still think the wig should be 

abandoned. Some years ago, that proposal 

was rejected by the profession – that was 

a shame. 

Some people like to dress up. A plain 

gown would be good for identification 

purposes. 

RH: What first drew you to the Bar? 

DS: When I first started work as a lawyer 

in Adelaide, there was no formalised 

division between barristers and solicitors. 

some people called it an amalgam 

practice. By 1974, two or three small sets 

of chambers had started up. In 1981, 

after seven years of enjoyable practice 

at Wallman and Partners, I joined eleven 

others to form Jeffcott Chambers. 

The original members were engaging 

personalities. It wasn’t a difficult decision. 

We opened at 7 Gouger Street, in 1982. 

The Chambers thrived as the legal 

profession embraced the notion of the 

separate Bar. The separate Bar had the 

support of Chief Justice King. Like other 

chambers, we rode a wave of success, for 

the better part of twenty years. 

22 THE BULLETIN September 2022

INTERVIEW 

RH: Over the years you spent at the 

Bar and on the Bench, have you noticed 

any change in the “skill set” of legal 

practitioners? 

DS: I offer the following rough and ready 

perceptions: 

In 1967, when I first appeared in Court 

as an Articled Clerk, the legal profession 

was small, and male dominated. I witnessed 

some Hollywood style flamboyance, 

which gradually diminished over the years. 

The fees charged by lawyers seemed to 

be received, as reasonable. As the years 

rolled on, lawyers seemed to become more 

“corporate”, and, for the better, more 

women began joining legal practice. 

Then, in 1999, when I was appointed 

to the District Court, it became obvious to 

me that many great ordinary people could 

not afford a lawyer. In consequence, the 

civil list slowly reduced. Like some elite 

sportsmen, some lawyers charged obscene 

daily fees, and still do so. It was rare that 

“Party and Party Costs” would meet a 

party’s legal bill and so it was not unusual 

for the legal bill to eat into any damages 

award. On more than one occasion, 

when I emerged from my Chambers, in 

the District Court, I was confronted by 

a person, draped in a sandwich board, 

advertising a protest that a sizeable 

damages award had all but been consumed 

by legal fees. 

In a sense, the growing popularity of 

such measures as Mediation is testament 

to the failure of the ordinary legal 

action. The threat of the ongoing cost 

of litigation is used by a Mediator to 

encourage parties to resolve their legal 

dispute. I think more needs to be done to 

give ordinary people access to the Courts. 

To get back to your question about 

“skill sets”, I think not much has changed 

in the course of my time in the law. There 

were good and bad advocates in practice, 

and good and bad judges on the Bench. 

RH: What are your overall reflections of 

your time in the law? 

DS: At the time of the presentation of 

my Commission in September, 1999, I 

spoke about the importance of the Rule 

of Law. That is still my position in that 

respect. In many countries around the 

world, the courts do the bidding of those 

in power, that is the Government. In 

the result, those countries can be fearful 

places to be. 

Of allied importance is the 

independence of the judiciary. The 

judiciary in Australia is independent 

however, I think that the appointment 

process could be more transparent. 

Though judicial appointments will 

remain the prerogative of the Executive 

Government, I think they should not 

be wholly within the benefit of the 

sitting Government. Rather, I think 

that the judicial appointments should 

be made on the recommendation of an 

independent and impartial body with 

some expertise and broad community 

representation. In this respect, the Law 

Society’s Advocacy Committee, (of which 

you and I Richard are both Members), 

made a recommendation along those lines 

to the Society, for reference on to The 

Law Council of Australia for its policy 

statement. Of paramount importance in 

our submission was that appointments 

be made on merit. We also recommended 

that diversity should play a part in the 

Attorney’s choice. 

The Committee’s submission drew 

on a number of academic papers, some 

of which complained that the process 

of appointment had sometimes been 

somewhat “opaque”. The submission 

by the Advocacy Committee embodies 

my view. I consider, like a number of 

commentators, that it is time for some 

change. A judicial appointment should not 

be a reward for service. 

I have another political complaint 

which has been borne from my 

experiences in the law. Our Federal System, 

enshrined as it is in the Constitution, is 

stifling and wasteful. We are in a country 

of only about 25 million people, yet we 

have multiple governments, legislatures, 

and legal systems – all of them jealously 

guarding their apportionment of power. 

The “Tyranny of Distance” is no longer 

any excuse. 

About 40 years ago, when I was 

Chairman of the Criminal Law Committee 

of the Law Society, one of our tasks was 

to contribute to the nationwide effort 

to formulate a Uniform Criminal Code 

across Australia. There is still no Uniform 

Criminal Code operating in Australia. We 

have the ludicrous situation of a person, 

who commits a crime in Victoria, after 

which he flees home to South Australia, 

requiring extradition to Victoria to face 

charges. 

I am sure a civil war or similar 

cataclysmic event will be necessary to 

make any substantial change – more is 

the pity. Perhaps we can change slowly, 

for example, uniform laws – we copy one 

another anyway – and then one Court 

system. 

One final comment – of course there 

should be a robust corruption watchdog 

both State and Federally – amongst other 

institutions our democratic system requires 

vigilance. 

I have had what I regard as a lucky and 

happy life in the law – I treasure it. B 

Endnotes 

1 Garrihy v Wyatt (1975) 10 SASR 476 


TAX FILES 

Payroll tax for medical practices 

PAUL INGRAM, MINTERELLISON 

The Payroll Tax legislation in each 

jurisdiction has provisions aimed at 

treating payments to ‘contractors’ as wages, 

so that they are subject to tax. 

The South Australian provisions are 

contained in ss 31-36 of our Act. 

Section 35(1) relevantly provides as 

follows: 

‘For the purposes of this Act, amounts paid or 

payable by an employer during a financial year 

for or in relation to the performance of work 

relating to a relevant contract…. are taken to 

be wages paid or payable during that financial 

year’ (emphasis added). 

Section 32(1) then relevantly provides: 

‘In this Division, a “relevant contract” 

in relation to a financial year is a contract 

under which a person (the “designated 

person”) during that financial year, in the 

course of a business carried on by the 

designated person – 

(a) supplies to another person services for 

or in relation to the performance of 

work; or 

(b) is supplied with the services of 

another person for or in relation to the 

performance of work …’ (emphasis 

added). 

Section 32(2) then sets out a series of 

key exemptions. 

Where there is a ‘relevant contract’, the 

person to whom services are provided is 

taken to be an employer (section 33), and 

the person who supplies the services is 

taken to be an employee (section 34). 

The question is whether these 

provisions capture the service 

arrangements commonly entered by 

medical practitioners and other health 

practitioners. Two recent decisions: 

• CCSR v The Optical Superstore Pty Ltd 

[2019] VSCA 197; and 

• Thomas and Naaz Pty Ltd v CCSR [2021] 

NSWCATAD 259, and on appeal 

24 THE BULLETIN September 2022 

[2022] NSWCATAP suggest that 

they do apply, exposing such service 

arrangements to Payroll Tax. 

This article examines those two 

decisions. 

1. THE OPTICAL SUPERSTORE PTY LTD 

The Optical Superstore dealt with 

arrangements between Optometrists 

and The Optical Superstore Pty Ltd 

(TOS), being the entity that owned the 

premises from which each Optometrist 

practised. The Optometrists provided 

services to the public, fees were collected 

by TOS (but expressly held on trust for 

the Optometrists), with TOS deducting 

an ‘occupancy fee’ (a percentage of the 

gross fees) before passing on the rest to 

the Optometrist. The Victorian Court of 

Appeal held that: 

• the arrangements were ‘relevant 

contracts’; and 

• the amounts distributed by TOS, back 

to the Optometrists were ‘amounts paid 

or payable for or in relation to work, 

and were therefore subject to PRT; 

• the fact that the amounts were held by 

The Optical Superstore as trustee was 

not relevant: 

‘[64] At no point does the statute 

articulate as a relevant inquiry whether 

the flow of money in question is 

beneficially owned by the recipient ... 

[67] The ordinary meaning of ‘payment’ 

readily embraces a payment of money 

to a person beneficially entitled to that 

money…’ 

The taxpayer’s subsequent application 

for special leave to appeal to the High 

Court was refused. 

It was hoped that the decision was an 

‘outlier’ that could be confined to its own 

facts. In particular, the documentation did 

contain some reference to hourly rates, 

which is unusual, and perhaps did make 

the Optometrists look a bit more like 

employees than would otherwise have been 

the case. However, worse was still to come. 

2. THOMAS AND NAAZ PTY LTD 

a. The facts of this case were quite 

similar: 

ii. the applicant company operated 

three medical centres. Various 

doctors ran their practices from 

each. Each had an agreement with 

the applicant for the provision of 

rooms, and various medical and 

administrative support services; 

iii. each Doctor billed his or her 

patients, but most got the applicant 

to make the claims with Medicare. 

Funds went into a central account, 

with the Doctor receiving 70%, and 

the applicant retaining the other 

30%. Unlike in The Optical Superstore, 

there was no express reference to 

the company holding the funds on 

trust for the doctors. 

b. The NSW CAT held for the 

Commissioner: 

iii. the Doctors mainly provided 

services to patients, but could also 

be said to be providing services to 

the applicant; 

iv. those services were provided for 

or in relation to work as they were 

‘work-related’; 

v. the payments made by the applicant 

to the doctors were ‘for or in 

relation to the performance of 

work’: 

• there was a clear relationship 

between the provision of 

services and the payments, 

albeit indirect; and 

• whether or not the payments 

represented the Doctor’s own

TAX FILES 

money was irrelevant - neither 

the capacity in which the 

employer receives the amount 

which is paid to the employee, 

nor the amount of the funds 

transferred, is a relevant 

consideration in applying the 

words of the statute, for the 

reasons that were explained in 

The Optical Superstore. 

c. The Taxpayers’ appeal was also 

unsuccessful: 

iv. the key point raised on appeal 

was that the Doctors were only 

providing services to their patients, 

and were not providing services to 

the applicant company. However, the 

Appeal Panel viewed this as nothing 

more than an attack on the Tribunal’s 

findings of fact, from which there 

was no appeal as of right; 

v. the taxpayer’s attempt to rely on the 

decision in Homefront Nursing Pty 

Ltd v CCSR [2019] NSWCATAD 

145, which had been delivered on 

the same day as the decision in The 

Optical Superstore, also failed (but 

apparently on the basis that there 

was no finding of fact in Homefront 

Nursing that services were provided 

to the applicant company). 

CONCLUDING COMMENTS 

It is submitted that taxing the 

payments made to medical professionals 

under these arrangements is a poor 

outcome, and one which may need to 

be addressed by policy reform (whether 

administrative or legislative in nature). 

The reality is that these payments 

are simply a return of the medical 

professional’s own money, and are not 

properly seen as ‘wages’. In this regard, it 

should be noted that neither the rejection 

of this argument in The Optical Superstore, 

or the following of that decision in Thomas 

and Naaz, have been properly tested on 

appeal. 

It is further submitted that the 

payments made to medical professionals 

under these arrangements should not 

be seen as being made ‘for or in relation 

to the performance of work’. It is 

unfortunate that an adverse finding of fact 

in Thomas and Naaz meant that this point 

wasn’t fully considered on appeal in that 

case. 

It is understood that various 

professional bodies are already preparing 

submissions on the need for policy reform. 

In the meantime, affected clients should 

be considering the potential impact of the 

decisions on their existing structures, and 

what action may need to be taken in the 

event that a better policy outcome is not 

achieved. 

Tax Files is submitted on behalf of the 

Adelaide-based members of the Taxation 

Committee of the Law Council of Australia B 

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BANKSA 

Financial wellbeing top of the agenda 

DAVID BROWNIE, CORPORATE PARTNER MANAGER, BANKSA AND WESTPAC 

In June, 1995, BankSA and the Law 

Society of South Australia came together 

to provide an exceptional banking offer for 

Law Society Members. 

Some 27 years later, that strong 

relationship continues. Members can still 

access many superior banking and financial 

benefits, which have now extended to 

include offers from Westpac. 

Westpac and BankSA State General 

Manager, Consumer, Ben Owen, said 

the relationship with the Law Society has 

been one of the most lasting and stable 

member-benefit partnerships for both 

organisations. 

“Over the years we have refined the 

benefits available to members, enabling 

the partnership to grow from strength to 

strength,” Mr Owen said. 

“An extended focus for the partnership 

this term, in addition to existing monetary 

cashback benefits, is on financial education 

and wellbeing - equipping members with 

the right tools to tackle financial hurdles, 

particularly with the complex economic 

environment and rising costs at the front 

of people’s minds.” 

Law Society Chief Executive, 

Stephen Hodder, said the Society and its 

Members had greatly benefitted since the 

partnership was established – not only in 

financial terms but also through the sheer 

convenience of having a direct and single 

point of contact with the bank. 

“I’m delighted that we’ve maintained 


this effective partnership for 27 years, 

having now extended it to include another 

option for Members with Westpac, and 

hope it will continue to grow, benefitting 

even more Members in the coming years,” 

Mr Hodder said. 

BankSA and Westpac have committed 

to working with Law Society Members 

to help achieve their financial goals and 

improve their financial wellbeing. 

An example of this could be reducing 

your home loan through additional 

repayments, which could have a big impact 

in the long term. 

By putting surplus spare funds into 

extra mortgage repayments, Members 

can reduce the length of a loan by years 

and save thousands of dollars in the 

process. Similarly, changing a payment 

frequency from monthly to fortnightly, 

means you effectively end up paying 

the equivalent of 13 monthly repayments 

in a year instead of 12. Likewise, 

weekly repayments will help repay your 

loan even faster. 

BankSA Corporate Partner Manager, 

David Brownie, is the Law Society’s 

dedicated partnership manager and has 

assisted many Members make their money 

work better for them. He is particularly 

passionate about financial education, and 

together with his team, regularly provides 

member education sessions for first home 

buyers, property investors, small business 

banking and equipment finance. 

Contact David Brownie on 0466 404 074 

or david.brownie@banksa.com.au for 

more information about BankSA and 

Westpac’s current home loan options, and 

to discuss what other measures may help 

reduce your home loan more quickly and 

save money in the long term. B

FEATURE 

STAYS OF CIVIL PROCEEDINGS IN 

THE CASE OF CIVIL DEFENDANTS 

WITH CRIMINAL PROCEEDINGS 

PENDING: GETTING THE BALANCE 

OF JUDICIAL DISCRETION RIGHT 

ALEXANDER LAZAREVICH, CHAIR, AND MARGARET CASTLES, MEMBER, CIVIL LITITGATION COMMITTEE 

Ask a lawyer representing a defendant 

in civil proceedings what they would 

do if their client was charged with criminal 

acts relating to the civil case, and they’d 

immediately say, “seek a stay”. After all 

that is the only way to protect the client 

from revealing material in the civil case that 

might compromise their criminal defence. 

Ask the plaintiff ’s lawyer and they 

might say “not so fast – what about the 

interests of my client to have their civil 

case heard expeditiously – it might be years 

before the criminal proceedings are heard, 

by which time any assets the defendant 

has left will be spent on the criminal 

proceedings or otherwise dissipated”. 

Granting a stay of civil proceedings 

to protect the criminally accused civil 

defendant involves a careful balancing of 

interests by the court, and it is not such a 

straightforward option as it seems. 

This article looks at recent 

developments in the law for granting a stay 

in these circumstances and asks whether 

the courts are getting the balance right for 

the parties affected. 

The right to silence, and the associated 

privilege against self-incrimination, are 

key protections in the Anglo/Australian 

legal system. No criminal accused can be 

compelled to speak or proffer information 

against their interests, and as a result 

uncommunicative accused persons are a 

typical feature of criminal proceedings. 

In civil proceedings, it is a very different 

story. Defendants in civil cases are 

required to engage with and actively 

respond to the allegations against them in 

pleadings, via discovery of documents, and 

affidavits. They may also be compelled to 

disgorge documentation via search orders. 

This contradiction arises because the 

criminal system requires the Crown alone 

to prove that the offence is proven beyond 

reasonable doubt, whereas the civil system 

seeks to determine the truth of the matter by 

evaluation of all the evidence available. In 

criminal proceedings there is a significant 

power imbalance between state/defendant, 

whereas there is a notionally level playing 

field between parties to a civil dispute. 

Increasingly, civil defendants charged 

with fraud, theft from employers or other 

organisations, or similar crimes will also 

be investigated to determine whether 

the acts might give rise to criminal or 

regulatory prosecution (for example, by 

ASIC, Safework SA or the Fair Work 

Ombudsman), and charges might be 

laid, or civil penalty proceedings might 

eventually be brought. 

Take the example of an employee 

who has been siphoning funds from an 

employer’s accounts over a period of time. 

The employee has accumulated assets that 

are still accessible. The employer has a 

civil claim for breach of fiduciary duty and 

conversion and can claim an interest in any 

assets accumulated. 

At the same time, the employee may be 

investigated by police or other authorities, 

and ultimately charged with criminal 

offences arising from the theft. The 

defendant is in a dilemma. If they decide 

not to disclose any defence in the civil 

proceedings for fear of foreshadowing a 

criminal defence, they will be defending the 

civil claim with one hand tied behind their 


CIVIL LITIGATION 

back and may lose as a result. On the other 

hand, if they disclose all of the information 

that they are required to through various 

civil court processes (defence or other 

court documents, discovery, interrogation, 

or via the above protective orders) this may 

lead investigators to evidence, witnesses 

or arguments that will count against them 

in criminal prosecution. The criminal 

defendant will seek a stay of the civil 

proceedings for fear that they can’t actively 

defend the civil case without compromising 

a future criminal defence. 

A stay leaves the civil applicant with 

nowhere to go in terms of prosecuting 

their case in a timely manner. By the time 

criminal proceedings conclude (assuming 

even that they are commenced which is 

not always the case), assets may have been 

liquidated or removed (not least to pay for 

legal fees) and the civil plaintiff will have 

been denied access to the normal court 

process to recover their loss. Freezing 

orders might provide a measure of 

protection for a plaintiff at the start of a 

civil case, but they are often only as good 

as the defendant’s respect for the Court 

process, with issues of enforcement often 

being problematic (and where the privilege 

against self-incrimination might apply). 

And the plaintiff cannot get access to any 

assets until the criminal case is determined, 

which may be years in the future by which 

time the plaintiff may themselves have 

become insolvent by reason of being out 

of their money. 

Courts in Australia are charged with 

balancing the competing interests of 

the parties in this event. An oft applied 

test was articulated in McMahon v Gould 

1 

where the Supreme Court of Victoria 

ruled that the court had inherent power 

to stay civil proceedings if criminal 

proceedings could be commenced against 

a defendant in respect of substantially 

the same conduct and continuing the 

civil case would result in prejudice to the 

defendant in the criminal matter. McMahon 

v Gould involved the Plaintiff liquidator of 

a company suing the directors including 

Gould for fraud and conversion involving 

company funds. Gould was then charged 

with conspiracy and other matters related 

to his directorship of the company. 

The Court outlined a range of factors 

to be considered, including the risk and 

severity of prejudice to the accused, the 

cost of dual proceedings, and the impact 

on forthcoming criminal proceedings, 

the possibility of miscarriage of justice 

by disclosure of a defence enabling the 

fabrication of evidence by prosecution 

witnesses, or interference with defence 

witnesses by prosecutors. The Court 

concluded that the stay would not be 

granted. This turned in part on the fact 

that Gould had already disclosed his 

defence to the civil claims, and that he had 

himself instigated other civil proceedings 

on the same topic. 

The Court concluded that in all of 

these circumstances in this case there was 

nothing about the civil proceedings that 

would further compromise his criminal 

defence. 

The Court set out a number of 

principles to be considered. These have 

been added to by numerous courts since 

and are summarised below: 

1. The Plaintiff is entitled to have its 

action tried in the ordinary course of 

the procedure and business of the 

court, and there is no presumption that 

a stay will be granted merely because 

there are parallel criminal proceedings 2 . 

A tactical advantage will not be 

sufficient to warrant a stay 3 . There must 

be a “real risk” of prejudice to the 

accused. What must be considered is 

the ‘requirements of justice overall.’ 4 

MEMBERS ON 

THE MOVE 

The directors of Adelaide specialist 

workplace law firm KJK Legal are 

pleased to announce the promotion 

of Suzana Jovanovic to the role of 

senior associate at the firm from 1 July 

2022. Following her joining of the firm 

several years ago, Managing Director of 

KJK Legal, Mark Keam, noted Suzana 

continues to flourish as a lawyer both 

within the firm, as well as external to the 

firm. During the COVID-19 pandemic, 

Suzana was recognised as a leader in 

legal innovation by providing interstate 

mentoring in the TFL Connect virtual 

mentoring program. 

Law Society of SA Young Lawyer of 

the Year in 2022, David Kelly was called 

to the Bar and joined Anthony Mason 

Chambers in August this year. He accepts 

briefs in a wide range of areas. 

David previously practised for 

7 years as a solicitor in Adelaide 

working primary in civil, commercial, 

and corporate litigation and alternative 

dispute resolution. During that time, 

he represented a broad range of 

SUZANA JOVANOVIC 

DAVID KELLY 

clients in State and Federal Courts and 

Tribunals. 

Before practising as a solicitor, David 

was an Associate to Peek J of the SASC. In 

addition, since 2015, he has been a member 

of the Civil Litigation Committee and 

headnote writer (SASR, FCR, FLR, and IR). 

He has also been a casual tutor at Flinders 

University where he completed his studies as 

Dux of Law, graduating with the University 

Medal, double First Class Honours in Laws 

and Legal Practice, and Psychology, and 

winning seven subject prizes. 



2. The burden is upon the applicant for 

the stay to show that the plaintiff ’s right 

to an expeditious hearing should be 

deferred because of potential injustice 

to the defendant in criminal proceedings 

3. As an alternative to granting a stay, 

the court may give directions 

designed to ensure that the 

hearing of the civil proceedings 

occurs after the determination of 

the criminal proceedings 5 , or make 

other orders to limit prejudicial impact 

of civil steps, which might include 

proceeding to a certain point, or 

deferring some aspect of proceedings. 

Whilst the McMahon factors are still 

used as guidelines in stay decisions, the 

case has at various times been criticised 

and distinguished over the years, although 

it has not yet been expressly overruled 6 . 

However, authorities applying (or perhaps 

misapplying) two recent cases in the High 

Court have thrown serious doubt on the 

ongoing applicability of the case. 

Courts have questioned the implication 

in McMahon v Gould that all of the factors 

mentioned would be put into the balance 

to determine the outcome is flawed, and 

that one factor, in favour of the principle 

that privilege of the defendant against 

self incrimination must outweigh all the 

others. This is based on the proposition 

that the privilege against self-incrimination 

is a cardinal principle, and should not just be 

thrown into the balance along with a range 

of other factors 7 . 

The High Court case of Commissioner 

of the AFP v Zhou and Jin 8 has influenced 

this trend. Zhou was a criminal accused 

charged with people trafficking. At 

the same time as the criminal charges 

proceeded, the AFP commenced civil 

proceedings under Proceeds of Crime Act 

2002 (Cth). In staying the civil penalty 

proceedings, the court noted that if 

the proceedings were not stayed, the 

prosecution would be informed, in advance 

of the respondent’s criminal trial, of his 

defence because he could not realistically 

defend the forfeiture proceedings without 

telegraphing his likely defence. In a similar 

case, involving concurrent criminal and 

asset forfeiture proceedings by the Crown 9 , 

the NSW Court of Appeal noted that the 

in prosecuting both cases at the same time 

the Crown would be advantaged in a way 

that would fundamentally alters its position 

vis-à-vis the accused and therefore render 

the trial of the criminal proceedings unfair, 

a decision that was affirmed by the High 

Court. 

Whilst the High Court in Lee expressly 

declined to comment on the applicability 

of McMahon v Gould on other cases, this line 

of reasoning has influenced subsequent 

cases, having the effect of elevating the 

protection against the privilege of selfincrimination 

to a determining factor in the 

balancing, process, rather than considering 

it as one (albeit very important) factor to 

be considered. 

Without in any way questioning the 

importance of protecting the interests 

of accused persons, our contention is 

that using Zhou and Lee to significantly 

elevate the bar for plaintiffs to avoid a 

long stay of proceedings, fails to recognise 

the unique context of the cases, in that 

the prosecuting authority was the same in 

both the civil recovery and the criminal 

cases. In both cases the court determined 

that flagging or foreshadowing possible 

defence to the criminal proceedings in the 

civil process which was prosecuted by the same 

authority as the criminal case was basis enough 

to warrant a stay. 

Clearly this is a different situation to 

that of a citizen plaintiff (whether an 

individual or corporation) taking action in 

a civil case, with no involvement (perhaps 

other than as an informant or witness) 

in potential criminal proceedings. In 

McLachlan v Browne the Court considered 

that the weight given to the to the privilege 

against self-incrimination must be paramount 

in any balancing of the McMahon factors, 

emphasising the primary importance of 

the liberty of accused persons. The Judge 

also stated that the applicant could not be 

asked to justify the nature and extent of 

the prejudice because this would infringe 

on the very right sought to be protected by 

the application for stay (25). 

In Adelaide Brighton Cement Ltd 

v Burgess 10 the Plaintiff took action (cause 

of action) in relation to $12 m defrauded 

by the Defendant employee. The employee 

had not yet been charged for the theft. The 

privilege against self incrimination applies 

though not just when criminal charges 

are laid, but where it there is a reasonable 

possibility that charges might be laid. 

In considering an application for stay 

of the civil proceedings by the Defendant, 

Judge Dart considered that the law had 

evolved since McMahon v Gould, and 

emphasised the fundamental importance 

of the privilege against self-incrimination: 

“In my opinion, it is not appropriate to read 

the more recent authorities in a narrow way. 

What the High Court has made clear is that 

the privilege against self-incrimination is a 

“cardinal principle” laying at the heart of the 

administration of criminal law. To accede to 

the plaintiff’s submission would be to relegate 

that “cardinal principle” to simply one of a 

basket of issues to be considered in the balance 

when determining whether or not to stay a 

matter.” In considering the prejudice to the 

plaintiff His Honour described the delay in 

finalisation of the civil matter as relevant, but 

“not a significant prejudice”. 

An illustration of the readiness to 

grant a stay perhaps going too far was 

a matter where winding up proceedings 

against a company were stayed on the basis 

of an assertion by directors that they could 

provide evidence that the company was 

solvent, but in doing so might incriminate 

themselves of an offence, leading to the 

Court staying the winding up application. 11 

This situation can be contrasted with 

that in the United Kingdom. Whilst the 

foundational principles that require a 

balancing of interests with due attention to 

the significant risk to the accused are the 

same, the weight given to the factors differs. 

In FM Conway v Sugget 12 , the Court 

determined that being required to disclose 

a civil defence that may foreshadow the 

criminal defence was not a basis for a stay, 

and that in seeking a stay the criminal 

defendant would have to explain in the 

civil process how they may be prejudiced. 

The decision whether to file a defence and 

engage in further documentary exchange 

etc in the civil case was a strategic decision 

for the Defendant. If the Defendant 

chose not to file a defence, adverse 

inferences could be drawn by the Court, 

and by inference any negative effect on the 

defendant’s civil case was a consequence 

of that choice. 

In Barrowfen Properties v Patel and Ors 13 

the Court affirmed that the availability of 

the right to silence in criminal proceedings, 



and the right not to give notice of the 

criminal defence, carried little weight in 

civil proceedings, where the defendant is 

expected to serve a defence, although the 

privilege could subsequently be invoked 

where the defendant is being interrogated, 

compelled to produce documents, or cross 

examined 14 (similar protection is provided 

by the UCR in SA). 

And in Dacorum Sports Trust Limited 

v Connolly 15 the Judge confirmed that 

the Defendant has a choice whether or 

not to remain silent in civil proceedings, 

but “harshness of such a choice did 

not provide a good ground for staying 

civil proceedings”, and even if there is 

a real risk of serous prejudice leading to 

injustice if the civil proceedings continued, 

the proceedings should not be stayed if 

safeguards can be put in place. 

Thus the UK courts take a different 

approach – firstly, that prejudice to the 

criminal defendant arising from a decision 

not to plead any or a full civil defence is a 

strategic decision and no basis for a stay; 

secondly that revealing possible bases for 

future criminal defence in a civil defence 

is of little importance and thirdly, that if a 

defendant argues that they will be seriously 

prejudiced if the civil case proceeds, they 

must explain how and why. 

Our concern is that applying the 

principles devised in cases involving 

defendants being attacked by the same 

prosecuting authority in both civil and 

criminal proceedings to more typical 

cases where the civil plaintiff and the 

prosecuting authority are not in any way 

connected has skewed the balance in these 

decisions in a way that presumptively 

demands a stay. In our view there is a clear 

distinction between punitive recovery 

action imitated by the same authority that is 

pressing criminal charges, but in the normal 

case where the civil plaintiff is not in any 

way connected to or involved in such 

action. That is not to infer that it should 

be difficult for a defendant to obtain a stay, 

rather, that the unique circumstances of 

the prosecuting authority being the same 

in both criminal and civil cases with exactly 

overlapping facts should be seen as a “high 

point” of the discretion to grant a stay. 

Our proposition is that the legal 

culture of determining when stays should 

be granted in Australia has drifted to 

implicit assumptions that stays should be 

readily (and at times even automatically) 

granted when there is serious risk of 

criminal investigation or charge. We 

contend that the more rigorous approach 

taken in the UK, including the use of 

varied means of protecting the criminal 

accused whilst not absolving them of the 

responsibility of pleading the civil case, 

creates a more equitable balance in this 

increasingly important area of civil law. B 

Endnotes 

1 1982 ACLR 202 

2 Elliot v Australian Prudential Regulation Authority 

[2004] FCA 586 at [15] 

3 (1993) 12 ACSR 69 at 77 

4 Hurley v FCT (1992) 37 FCR 11 at [13]; see also 

Australian Securities Commission v Kavanagh 

(1993) 12 ACSR 69 

5 Silbermann v CGU Insurance Ltd (2003) 

48 ACSR 231 

6 Lee v DPP 2009 75 NSWLR 581 

7 Adelaide Brighton Cement Ltd v Burgess [2018] 

SASC 134 

8 [2015] HCA 5 

9 2009 NSWCA 347 

10 [2018] SASC 134 

11 In the matter of Plutus Payroll Australia Pty Limited 

[2017] NSWSC 1854 

12 [2018] EWCH 3173 (QB) 

13 [2020] EWHC 2536 

14 Citing V v C [2002] C.P Rep. 8, Waller LJ at 

paras 37 and 38. 

15 Employment Tribunal 3301877/2020; 

3302639/2020 (V) 

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WELLBEING & RESILIENCE 

Ageing Well in the Law – A professional 

wellbeing perspective 

COLIN BROWN, DIRECTOR, LEGAL & LEGISLATIVE POLICY, SA HEALTH 

ith age comes wisdom, but 

“Wsometimes age comes alone!” 

Oscar Wilde could have been reflecting 

on the importance of wellbeing and 

appropriate stress-management as we 

age through life. Professionally, as we 

gain experience through the years, we 

tend to engage with increasingly more 

stressful roles, matters, and responsibilities. 

Exploring and developing self-awareness 

and self-care is a piece of wisdom to 

keep us balanced as we age and grow 

professionally. 

Demographically, the South Australian 

solicitor workforce tends to be slightly 

older than other jurisdictions, 1 consistent 

with South Australia’s higher proportion 

of older people generally. 2 Nonetheless, 

with a mean age of just 43 in 2020, it still 

seems we have youthful solicitors! Perhaps 

more important than our workforce’s 

increasing statistical mean-age is the 

way in which it handles the increasing 

responsibility and pressure of legal-related 

work; at both individual and group levels. 

Biologically and otherwise, ageing is 

complex. And perhaps unsurprisingly, 

psychological stress has been identified 

as a possible risk factor for accelerating 

ageing. 3 Our political leaders certainly 

appear to age exponentially after taking the 

stress of top-office! (think of the beforeand-after 

photos of Tony Blair and Barack 

Obama). We probably all have relatable 

examples within our own professional 

experience where our colleagues, or indeed 

ourselves, have felt the exhaustion (if not 

apparent ‘ageing’) from sustained stressful 

workloads and responsibilities. While the 

pandemic also created additional stress 

for the Australian legal profession, 4 it 

highlighted the importance of strong local 

leadership for establishing and maintaining 

workplace cultures that support 

managing chronic stress of increased 

work responsibilities in unpredictable 

environments. 

Across the nation, South Australia 

has one of the largest proportions 

of solicitors in sole-principal private 

practice. 5 Helping sole-principal colleagues 

support themselves as well as their staff is 

therefore of importance - particularly in 

circumstances where the funding apparatus 

found in larger private or government legal 

practices may not exist. The Law Society’s 

various wellbeing offerings, such as the 

Small Practice Committee’s Coffee-Break for 

Sole & Small Practitioners, are a helpful way 

of staying connected to other practitioners 

and debriefing about stressors in legal 

practice and approaches to managing those. 

South Australia, compared to other 

jurisdictions, has a large proportion of 

newly-admitted solicitors (a year or less). 

Importantly, South Australian universities 

continue to supply quality legal education 

and law graduates to the profession. 

Graduates find work in private practice, 

government, and other areas adding 

excellent value to business and society. 

These workplaces must strive to provide 

suitable scaffolds for new lawyers as they 

begin on their journey of ageing well in 

the profession. Nurturing and growing 

their self-care skills is critical for practising 

law for career sustainability and longevity. 

The Law Society offers through its 

membership additional profession-long 

support, assisting all lawyers to gain and 

retain the wisdom of self-care. Various 

networks and opportunities are available, 

including helpful wellbeing resources and 

tools, Young Lawyers’ Support Group, 

as well as Dr Jill’s confidential support 

service as part of LawCare. 

Ageing well in the Law is everyone’s 

responsibility; to ourselves and each other. 

Please keep an eye out for future events 

from the Society’s Wellbeing and Resilience 

Committee. 

Endnotes 

1 2020 National Profile of Solicitors, p.13. 

2 Office for Ageing Well, SA Government. 

3 Okereke O, Anxiety Linked to Shortened 

Telomeres, Accelerated Aging, PLoS ONE, 2012 

4 K Allman, Pandemic mental health toll on lawyers 

revealed, Law Society of NSW Journal, 2021. 

5 2020 National Profile of Solicitors, p.30. 


FAMILY LAW CASE NOTES 

Family Law Case Notes 

CRAIG NICHOL & KELEIGH ROBINSON, THE FAMILY LAW BOOK 

CHILDREN – ASSESSMENT OF 

UNACCEPTABLE RISK IS A PREDICTIVE 

EXERCISE THAT INCLUDES MERE 

POSSIBILITIES 

In Isles & Nelissen [2022] FedCFamC1A 

97 (1 July, 2022), the Full Court 

(Alstergren CJ, McClelland DCJ, 

Aldridge, Austin & Tree JJ) dismissed 

a father’s appeal from orders made by 

McGuire J that four children live with the 

mother and spend supervised time with 

the father. 

The father had been charged with rape 

of the eldest child in criminal proceedings 

that had been discontinued for “lack of 

specificity” in the evidence ([63]). 

McGuire J found he could not make a 

specific finding of sexual abuse; but found 

the father presented an unacceptable risk 

of harm. 

The Full Court noted cases had gone 

so far as to posit that (from [6]): 

“[T]he risk of … abuse … must be 

proven on the balance of probabilities 

according to the civil standard of proof 

…We consider that statement of principle 

to be incorrect … 

[7] … [I]t is an oxymoron to expect … 

possibilities to … be forensically proven 

on the balance of probabilities … By 

definition, possibilities are not, and could 

never be, probabilities. ( … ) 

[56] … [T]he principles enunciated 

in M v M (1988) 166 CLR 69 about 

‘unacceptable risk’ were woven into 

the fabric of family law in instances of 

alleged actual and prospective child sexual 

abuse. The Full Court later extended such 


principles to cases involving allegations 

of children being at risk of physical or 

emotional harm for other reasons (A v A 

[1998] FamCA 25 … ) ( … ) 

[59] … The provisions of the Act 

are [now] wide enough to embrace most, 

if not all, assertions of an ‘unacceptable 

risk’ of harm … and so it is preferable 

for litigants to conduct their parenting 

disputes by reference to the express 

provisions of the Act. ( … ) 

[85] The assessment of risk is an 

evidence-based conclusion and is not 

discretionary. … The finding about 

whether an unacceptable risk exists, based 

on known facts and circumstances, is 

either open on the evidence or it is not. 

It is only the overall judgment … which 

entails an exercise of discretion. …” 

PROPERTY – TRUST PROPERTY EXCLUDED 

FROM ASSET POOL – DESPITE HER 

ROLE AS APPOINTOR, WIFE NEVER HAD 

CONTROL OF THE TRUST 

In Barrett & Winnie [2022] 

FedCFamC1A 99 (1 July, 2022), the 

Full Court (McClelland DCJ, Baumann 

& Hartnett JJ) dismissed with costs 

a husband’s appeal against a decision 

of Kent J declining to make property 

adjustment orders in the context of a 14 

year marriage. 

Subsequent to their separation, 

there was an informal settlement 

whereby the husband demanded and 

received the wife’s interest in a jointly 

owned property ([91]); where the wife 

was also removed as appointor of a 

trust called “the Winnie Family Trust” in 

February 2008 ([100]). 

The husband unsuccessfully sought to 

set the wife’s removal aside pursuant to s 

106B. Kent J excluded the trust’s property 

from the matrimonial asset pool, otherwise 

finding that the husband already retained 

property 95.61% of the existing net asset 

pool. 

The Full Court said (from [99]): 

“The … judge accepted the evidence 

of … [the] respondents as to the 

adverse impacts of the … global financial 

crisis … The … judge accepted the 

evidence that … the … respondents … 

took effective action including by way of 

selling properties at a loss. … [T]he … 

judge found that a substantial part of the 

asset base that currently exists in the trusts 

… accrued in the period subsequent to 

the global financial crisis and … post the 

separation of the parties to the marriage. 

( … ) 

[137] … [T]he … judge found, as a 

matter of fact, that the Winnie Family 

Trust had never operated as or been 

treated as the alter ego of the [wife] ( … ) 

[145] … [T]he … judge … 

appropriately had regard to the interests 

of other third parties and the significant 

contributions that they made to the trust 

property in determining whether it was 

appropriate to exercise his discretion to set 

aside the Deed. ( … ) 

[155] … [T]he judge, appropriately 

… excluded the trust property from the 

property pool but had regard to the trust 

assets as being a significant financial 

resource available to the [wife] …”

FAMILY LAW CASE NOTES 

PROPERTY – INJUNCTION – FREEZING 

ORDERS ARE TO PRESERVE THE STATUS 

QUO, NOT CHANGE IT IN FAVOUR OF THE 

PARTY WHO SEEKS THE ORDER 

In Qian & Xue [2022] FedCFamC1A 93 

(21 June, 2022), Aldridge J set aside a “suite 

of interim freezing orders”, including an 

order that the wife pay $850,000 to the 

husband’s solicitors trust account. 

Contested property proceedings 

had been on foot since 2019; where 

the husband brought an application for 

injunctions in anticipation of the wife 

receiving monies on 24 August, 2021; the 

wife received the $850,000 on 30 August 

2021, but transferred $735,000 to her 

brother, sister and father in China, prior to 

the listing of the application in November. 

The wife said the transfers were 

to repay loans; the husband seeking 

injunctions on the basis that “the 

disposition of the funds would put them 

beyond the jurisdiction of the court and 

diminish the property pool” ([15]). 

Aldridge J said (from [22]): 

“A freezing order ‘operates to preserve 

the status quo and not to change it in 

favour of the party who seeks the order’ 

per Gageler, Keane, Gordon and Gleeson 

JJ in Deputy Commissioner of Taxation v 

Huang [2021] HCA 43; (2021) … 

[23] The order made … for the 

payment of $850,000 exposed the wife to 

the risk of punishment for contempt in 

the event it was not complied with … 

[24] … [T]he purpose of a freezing 

order is … not to improve the security 

position of the applicant or to render the 

respondent liable for imprisonment for 

debt. The order should only have been 

considered if it was clear that it could be 

complied with ( … ) 

[26] … [W]hilst there may have been 

a basis to prevent the funds from being 

transferred, absent an order from the Court 

preventing her from doing so, the wife was 

free to deal with her funds … ( … ) 

[29] The fact that an injunction 

could have been obtained preventing … 

[a] person from transferring funds, but 

was not, does not automatically lead the 

proposition that, having permissibly done 

so, they must now reacquire the funds …” 

PROPERTY – WIFE RECEIVES 100 PER 

CENT OF NET ASSET POOL WHERE NET 

EQUITY IN HOME WAS $38,000 – NO 

ORDER MADE AS TO JOINT DEBT 

In Chan & Lee [2022] FedCFamC1A 

85 (3 June, 2022), the Full Court (Tree, 

Gill) allowed an appeal from a decision 

of Rees J, where the wife appealed orders 

where she was to receive 100% of the net 

asset pool, where the effect of the further 

order that she indemnify the husband as 

to debts was that she would retain a net 

deficit overall. Wilson J dissented. 

The net pool was primarily comprised 

by a $570,000 property (at Suburb 

C); subject to a mortgage; there being 

conflicting evidence of loans owed to the 

wife’s parents. 

Tree & Gill JJ said (from [96]): 

“Although the wife sought … that 

an obligation should be placed upon the 

husband to pay the mortgage for that 

property, this is not a sustainable position. 

If the husband were to be required to 

hold the obligation for … the … debts 

in relation to that property he would 

effectively be required to bring property 

into existence that does not at present 

form a part of the parties’ pool of 

property. ( … ) 

[98] The debt related to the property 

is constituted by $440,000 secured by 

mortgage and $92,000 unsecured but 

owed to the wife’s parents, totalling 

$532,000 in relation to a property valued 

at $570,000, leaving a net equity of 

$38,000. Where the wife is to retain the … 

Suburb C property, she should indemnify 

the husband in respect of all debt 

associated with the property … 

[99] The balance of the debts total a 

$26,826 student loan taken out by the wife 

and $30,500 borrowed from her parents 

for various living expenses and supports 

for the parties. ( … ) 

[101] … [I]nsofar as the orders required 

the wife to indemnify the husband in 

respect of the non … Suburb C property 

related debt to the parents, this should not 

be the case … [N]o provision should be 

made for indemnification in respect of this 

debt. This leaves the husband also indebted, 

and both parties in a net debt position. … 

[102] Whilst this may seem a minor 

benefit to the wife, given her parlous 

financial circumstances, it is potentially 

significant, and not mere tinkering. 

Moreover, it properly reflects the reality of 

the position arrived at (correctly) by the 

primary judge that the orders should reflect 

a 100 per cent adjustment to the wife … ” B 


GAZING IN THE GAZETTE 

3 JUL 2022 – 2 AUG 2022 

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, 

REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH 

OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA 

ACTS PROCLAIMED 

Statutes Amendment (Local Government Review) 

Act 2021 (No 26 of 2021) 

Commencement ss 150(5) and (8); 150(9) 

but only insofar as it inserts subsection (8) 

into s 6 of Local Government (Elections) Act 

1999; 151; 160; 174: 7 July 2022 

Gazetted: 7 July 2022, Gazette 

No. 46 of 2022 

Civil Liability (Institutional Child Abuse 

Liability) Amendment Act 2021 (No 52 

of 2021) 

Commencement: 1 August 2022 



Return to Work (Scheme Sustainability) 

Amendment Act 2022 (No 4 of 2022) 

Commencement except ss 3; 4; 5; 8; 9; 

10; 11(1), (2) and (5); 12; 14; 15; 16; 18; 

19; Schedule 1, clause 1(1), definitions 

of Category 1 seriously injured worker, 

Category 2 seriously injured worker, 

designated worker, interim seriously 

injured worker and relevant day; Schedule 

1 clauses 2-5: 1 August 2022 

Gazetted: 

ACTS ASSENTED TO 

28 July 2022, Gazette 


Return to Work (Scheme Sustainability) 

Amendment Act 2022, No. 4 of 2022 



South Australian Motor Sport (Miscellaneous) 

Amendment Act 2022, No. 5 of 2022 



Civil Liability (BYO Containers) Amendment 

Act 2022, No. 6 of 2022 



Animal Welfare (Jumps Racing) Amendment 

Act 2022, No. 7 of 2022 



Cross Border Commissioner Act 2022, No. 8 

of 2022 



Statutes Amendment (Child Sex Offences) Act 

2022, No. 9 of 2022 

(amends Child Sex Offenders Registration Act 

2006, Criminal Law Consolidation Act 1935 

and Sentencing Act 2017) 



APPOINTMENTS 

Legal Profession Conduct 

Commissioner 

(commencing on 1 August 2022 and expiring on 

31 July 2025) 

Anthony John Keane 



Coroner 

for a term commencing on 11 August 2022 and 

expiring on 10 August 2023 

Naomi Mary Kereru 

Gazetted: 

RULES 

Nil 

28 July 2022, Gazette 


REGULATIONS PROMULGATED (3 JULY 2022 – 2 AUGUST 2022) 

REGULATION NAME REG NO. DATE GAZETTED 

Primary Produce (Food Safety Schemes) (Plant Products) Regulations 2022 52 of 2022 7 July 2022, Gazette No. 46 of 2022 

Plant Health Regulations 2022 53 of 2022 7 July 2022, Gazette No. 46 of 2022 

Local Government (Elections) (Miscellaneous) Amendment Regulations 2022 54 of 2022 7 July 2022, Gazette No. 46 of 2022 

Local Government (General) (Electoral Advertising Posters) Amendment Regulations 2022 55 of 2022 7 July 2022, Gazette No. 46 of 2022 

History Trust of South Australia Regulations 2022 56 of 2022 21 July 2022, Gazette No. 51 of 2022 

Evidence Regulations 2022 57 of 2022 28 July 2022, Gazette No. 52 of 2022 

Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 58 of 2022 28 July 2022, Gazette No. 52 of 2022 

34 


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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 

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• matrimonial and de facto 

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LSB September 2022 LR

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