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THE

BULLETIN VOLUME 43 – ISSUE 1 – FEBRUARY 2021

THE LAW SOCIETY OF SA JOURNAL

INNOVATION & ADAPTION IN THIS ISSUE

Re-evaluating the future of legal practice in the wake of COVID-19 How law schools are driving innovation in the midst of a pandemic SA's new AI program for separated couples

PLUS

Explaining the new Civil pre-action protocols Insurers brace for business interruption claims following landmark COVID-19 judgment High Court to review casual employees' entitlements


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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (10) LSB(SA). ISSN 1038-6777

CONTENTS INNOVATION & ADAPTION 6

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10 18

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FEATURES & NEWS

Revisiting the ‘Future of Law & Innovation in the Profession’ report after the pandemic By Prof Michael Legg & Gary Ulman

Surveillance in the 21st century: A legal & human rights perspective By Prof Rick Sarre

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From the Editor

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President’s Message

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Pre action protocols under SA’s new Uniform Civil Court Rules By Margaret Castles, Michelle Hamlyn & Shavin Silva

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Wellbeing & Resilience: Modern skills: making time for reflection By Georgina Portus

Landmark UK decision on COVID-19 business interruption claims: What does it mean for Australian insurers? – By Nathan Day

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Family Law Case Notes By Keleigh Robinson

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Tax Files: The future of tax in Australia – By Stephen Heath

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Risk Watch: File management and practitioner supervision in the era of social distancing – By Grant Feary

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Gazing in the Gazette

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Bookshelf

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Working from home: employment issues faced during COVID-19 By Margaret Kaukas Special Law Schools feature: Innovation in education Can AI help resolve family law disputes? Computer says Yes By Gabrielle Canny Designing a new approach to the law By Robert Chalmers

Executive Members President: President-Elect: Vice President: Vice President: Treasurer: Immediate Past President: Council Member: Council Member:

R Sandford J Stewart-Rattray A Lazarevich Vacant F Bell T White M Mackie M Tilmouth

Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich M Mackie M Boyle E Shaw J Marsh C Charles R Piccolo C Lien M Jones Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region) Junior Members N Rossi F Wambeti Ex Officio Members The Hon V Chapman, Prof V Waye, Prof M de Zwart, Prof T Leiman

REGULAR COLUMNS

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High Court to review casuals’ permanent employee entitlements By Ben Duggan

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The limits of civil contempt in the South Australian Supreme Court: Time for an alternative approach to non-compliance? – By Lachlan Blake

KEY LAW SOCIET Y 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) Geoff Thomas gthomas@lawguard.com.au Manager (LAF) Annie MacRae annie.macrae@lawsocietysa.asn.au Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au Programme Manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au

THE BULLETIN Editor Michael Esposito bulletin@lawsocietysa.asn.au Editorial Committee A Bradshaw P Wilkinson S Errington D Sheldon J Arena G Mottillo B Armstrong D Misell R Scarabotti The Law Society Bulletin is published monthly (except January) by: The Law Society of South Australia, Level 10-11, 178 North Tce, Adelaide Ph: (08) 8229 0200 Fax: (08) 8231 1929 Email: bulletin@lawsocietysa.asn.au All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.

Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions. PUBLISHER/ADVERTISER Boylen GPO Box 1128 Adelaide 5001 Ph: (08) 8233 9433 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Layout: Henry Rivera Advertising Email: sales@boylen.com.au


FROM THE EDITOR

Forecasting the longterm implications of the pandemic

IN THIS ISSUE

MICHAEL ESPOSITO, EDITOR

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elcome all to 2021! We managed to get through 2020, and although the problems of last year did not magically disappear upon the advent of the New Year, it still felt like a psychological line that was a relief to cross. Of course, COVID-19 still poses a great threat, and in a number of countries the virus is spreading faster than ever before. In Australia, despite our sterling efforts to control the virus, it appears we will be dealing with outbreaks for the foreseeable future, and hope that our containment efforts remain more akin to putting out spot fires rather than battling all-encompassing infernos. The roll-out of COVID-19 vaccines, which by and large are considered by the scientific community to be extremely effective, is a source of great hope, and the fact that the new administration in the US appears to take the pandemic more seriously than the previous administration should also instil some confidence that we will overcome this global existential threat. The pandemic has forced us to drastically alter our lifestyles, particularly our work practices. We’ve all heard a lot about the need to “pivot” to more flexible, technology-enabled, virtual means of performing tasks, but in the scramble to adapt to a post-COVID environment and toil away just to stay afloat, most of us have had little time to reflect on the longterm implications of the pandemic. In this edition of the Bulletin, which is themed “Innovation & Adaption”, we aim to do just that. In 2017, the Law Society of NSW released a landmark “Future of Law and Innovation in the Profession” (FLIP)

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report, which explored how the delivery of legal services (and the demand for those services) was changing, and forecasted what the practice of law would look like in the future. The report provided a number of recommendations as to steps the profession ought to take in order to survive and thrive in a rapidly changing environment. The FLIP report could not have foreseen the onset of COVID-19, and in this edition, two of the key architects of the report, Professor Michael Legg and former Law Society of NSW President Gary Ulman, re-evaluate the FLIP report in the context of the pandemic and reflect on how we should think about the future of our profession. The Bulletin also contains contributions from all three South Australian law schools, outlining how they educated law students during COVID-19, new or adapted modes of delivery that will likely remain beyond the pandemic, and critically, how the universities are ensuring that future lawyers have the capacity to think creatively and innovatively to deliver solutions. It is clear that practitioners must be adaptable, keep developing new skills and keep updating their knowledge. You will no doubt hear a lot more from the Society about innovation and adaption, particularly with new president, Rebecca Sandford, declaring that the role of technology in delivering legal services will be a key area of focus during her presidency. I hope you enjoy the first Bulletin of the year, and here’s to finding stability while embracing change. B

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WORKING FROM HOME Employment issues during COVID-19

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MODERN DAY SURVEILLANCE A human rights perspective

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TAXING TIMES Is there an appetite for tax reform?


PRESIDENT’S MESSAGE

Embracing innovation & strengthening the profession key goals for 2021 REBECCA SANDFORD, PRESIDENT

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am honoured and delighted to serve the Society as President in 2021. It is a privilege to take on this role and I am looking forward to continuing the important work undertaken by presidents before me, and doing my part to help guide and support our Members and the profession. It is fitting that the theme for the first Bulletin edition for this year is ‘Innovation and Adaption’. There’s no denying 2020 presented many challenges, and we were frequently required to make use of those skillsets. As we move into 2021, I am particularly alert to the stress and difficulties which many of us have recently faced, what can be done to help us reflect on and recover from those events, and what we can learn from those experiences to improve the delivery of legal services in SA for lawyers and clients into the future. It should hopefully come as little surprise that one of my priorities during 2021 will be to consider how we as legal practitioners are managing and maintaining our mental health, and what we can do (individually and collectively) to better support our mental wellbeing. I am not alone in considering this to be one of the key issues facing our profession the IBA has recently embarked on a global project aimed at assessing and addressing the mental wellbeing of lawyers around the world, commencing by undertaking two global surveys, one for individual lawyers and one for law firms and other institutions such as bar associations, law societies and in-house legal departments. The surveys will help to gather important information about the state of mental health in the profession across the globe, and enable the development of

strategies, tools and best practice guides to improve the wellbeing of lawyers in the future. To support those efforts and further our own education, I am also aiming to undertake a South Australian version of the IBA survey during 2021. I hope this will allow us all to gain a better understanding of the mental health of our profession, open up some vital conversations about our mental health and wellbeing, and enable the Society to offer additional, targeted education and even more support to assist our Members and to help improve the health of the individuals and institutions tasked with upholding the rule of law and administration of justice. The Society is due to adopt a new strategic plan by the end of 2021 for commencement at the start of 2022, so I also anticipate that much of my work this year will be directed towards developing and instituting that plan. I am keen to collaborate with and speak to as many Members as possible this year to identify strategies for consideration and inclusion. To facilitate that, I am intending to hold events during the year to seek input from our committees and key stakeholders, and I invite feedback and submissions from Members to help determine priorities and implement future change. I also intend to look at the role of technology in the delivery of legal services, and consider how and where we can act to ensure we capitalise on advantages we have in SA which make us well positioned to be leaders in this space. Other issues which I expect will impact my term include the anticipated introduction of the Uniform Criminal Rules by the Courts, addressing ongoing concerns with respect to the decline in the

Fidelity Fund, and continued assessment with respect to South Australia’s potential participation in the Uniform Law. I also expect to build on the important work done by recent presidents on matters such as improving the public perception of lawyers and increasing connection and collegiality within the profession. To that end, I am pleased to be working alongside my fellow presidents interstate, and the Law Council of Australia, on a number of common issues facing lawyers and law societies around the country. I understand this is the first time that the majority of Law Society presidents nationally are female - I’m very proud to be a part of this historic occasion, and looking forward to what can be done at a national level as well as locally to progress issues affecting South Australian practitioners. Those include a national action plan for dealing with bullying, harassment and discrimination in the profession, and mental health strategies for lawyers, both of which will be priorities not only for the Society but also for the Law Council in 2021, and I expect that focus will help us all to make the profession a safer, more welcoming and inclusive place. On a lighter note, I’m optimistic that in 2021 we will also have a few more opportunities than we did in 2020 to gather as colleagues and friends to celebrate what we do and how we do it, and I hope to see many of you at functions and events throughout the year. These are certainly interesting times to be a lawyer. I am very much looking forward to representing our Members as President in 2021, and aiming to embrace the spirit of innovation and adaption throughout the balance of the year as I serve the Society in this role. B February 2021 THE BULLETIN

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INNOVATION & ADAPTION

REVISITING THE FUTURE OF LAW AND INNOVATION IN THE PROFESSION REPORT AFTER THE PANDEMIC PROFESSOR MICHAEL LEGG AND GARY ULMAN

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he legal profession has been subject to change at a pace not previously seen. The Law Society of New South Wales’ 2017 Future of Law and Innovation in the Profession (FLIP) Report sought to understand and respond to that change. Only three years later the world is in the grip of a pandemic and the practice of law faces further challenges. So what does a post-pandemic profession look like? This article revisits some of the key findings and recommendations of the FLIP report in light of 2020’s shut-downs, border closures and social distancing.

NEW WAYS OF WORKING One of the most important findings of the FLIP report was the multitude of approaches to offering legal services that were developing. A central focus was New Law or the virtual law firm which had been built with technology as a core component. There were also lawyer marketplaces or legal staffing providers that linked lawyers with clients, or lawyers with law firms. Legal Process Outsourcers who took elements of the legal service, such as discovery in litigation, and undertook it for lower cost. The multidisciplinary partnership, including the Big 4 accounting firms, offered the prospect of the one-stop shop for professional services. Business models remain a key area for the evolution of legal practice. A development that attracted interest in the FLIP report was remote working. In a COVID-19 world this has been fully embraced, by necessity for the most part, by working from home, or ‘WFH’ for shorthand. WFH became a necessity

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around the world because in March, 2020 an estimated 2.6 billion people – or a third of the world’s population – were living under some kind of lockdown or quarantine.1 Remote working was prized for the flexibility it afforded lawyers and its ability to reduce office overheads. However, the pandemic has raised for consideration whether there may also be a downside to WFH. The measures taken to avoid the spread of COVID-19, including isolation, have been said to have impacted the wellbeing of citizens around the world. People, including lawyers, need personal connections. WFH needs to ensure that these connections are maintained. A further concern that was not apparent at the time of the original FLIP report is that some new modes of practice operate by introducing the ‘gig economy’ to legal practice. The worry is that lawyers, particularly new members of the profession, while having greater flexibility and autonomy will also face greater precariousness in employment and income, as well as reduced opportunities for professional development.

LEGAL TECHNOLOGY The FLIP report covered a range of new technologies, or technologies being used for new purposes in the legal field, including mobile technology, big data, the internet of things and artificial intelligence (AI). At the time there was enormous interest in cutting edge technologies like AI as it offered the opportunity for dispute resolution, due diligence, document

drafting and compliance to be automated with the result that less hours and less cost would be incurred. Consistent with remote working, the FLIP report identified that lawyers were no longer tied to their office because of mobile technology. The virtual law firm was becoming a reality, but the levels of interaction with technology varied significantly across the profession. The pandemic made mobile technology and video-conferencing software apps such as Zoom, Cisco Webex and Microsoft Teams essential business tools. The massive uptake of these apps by almost everyone in the profession so as to be able to keep practising was not foreseen by the FLIP report. The videoconferencing software app has been used for internal team meetings, client meetings, negotiations, witness interviews, mediations and even court hearings and trials. This introduced new challenges such as security and confidentiality, and for the courts additional questions about how to maintain open justice and procedural fairness. The refinement of these apps will continue now that their utility is accepted. What remains unclear is what other technologies will receive expanded usage.

CLIENT NEEDS AND EXPECTATIONS The FLIP report identified that across all clients - corporate, government or individual - the client wanted user-friendly legal services that solved problems in a cost-effective manner. Easily said – but much harder to deliver. The FLIP report put forward some solutions:


INNOVATION & ADAPTION

• Lawyers needed to understand a client’s needs and their drivers or concerns. • The lawyer obtains that understanding through engagement and collaboration with the client. • The legal product must be fit for purpose, which means practical and comprehensible (pithy and in plain English to the extent possible) The FLIP report also found that the “imperative to keep costs low is the most powerful driver of change today”. Price pressure has challenged the once ubiquitous time-based billing and fostered alternative fee arrangements. Cost concerns also saw greater interest in outsourcing, insourcing (inhouse lawyers doing more work internally) and unbundling (lawyers performing only a part of a legal service). The pandemic with its forced shutdown or new operating requirements for many businesses, from global airlines to neighbourhood restaurants, as well as new government support initiatives such as Job Keeper, meant responsive, costeffective legal advice was highly sought after. The responsive, affordable, clientfocused lawyer is always needed, but particularly in times of crisis.

LEGAL EDUCATION The FLIP Report recognised seven skills or areas of knowledge that were identified as essential for the successful future practice of law: • Ability to understand and employ technology • Practice skills (interpersonal skills such as teamwork and collaboration

and professional skills such as writing and drafting skills, interview skills, presentation skills, advocacy/ negotiation skills) • Business skills (such as accounting, finance and marketing) • Project management • Internationalisation and cross-border practice of law • Inter-disciplinary experience • Resilience While technology was a key focus there were also a range of other skills aimed at providing a lawyer with the know-how to provide responsive client-centred legal services. Moreover, while lawyers need to be able to use technology, the lawyer also needs to be able to differentiate themselves from a technology solution through emotional intelligence, teamwork and collaboration. University education, including that provided by law schools, has been stunted by the pandemic. The focus has been on staying afloat rather than exploring new areas. Revisiting the structure of legal education, such as what courses or topics should be compulsory, so as to create space for new offerings, as well as investigating how new areas of knowledge may be taught have had to wait. But legal education needs to develop so as to align with the future legal profession’s needs.

DIVERSITY The FLIP report identified that lawyers continue to be held back from full participation due to a variety of factors including gender, disability, family status, faith and cultural identity.

The profession does not yet mirror the diversity of the Australian community. However, diversity can drive not just better business outcomes, it can be a source of innovation. The pandemic has highlighted the need for a continued focus on this issue. The pandemic has impacted members of the profession unequally, just as it has impacted people and businesses differently. McKinsey & Co has reported that ‘the virus is significantly increasing the burden of unpaid care, which is disproportionately carried by women’ and impacts their ability to undertake pre-existing commitments.2 Equally the media and academic literature has argued that the leadership lessons from COVID-19 include putting more women in charge, or more accurately, having leaders with the leadership style that is more often associated with women ie being more empathetic, collaborative, accepting fallibility and being responsive to new learnings.3

COMMUNITY NEEDS Demand from vulnerable and disadvantaged people for legal assistance continues to grow. The failure to meet that demand worsens problems of poverty, inequality and unremedied injustice. It may also have flow-on consequences in other sectors – such as health and social services – involving significant additional financial costs. The pandemic created greater demand for legal assistance in the community as job losses and business closures meant people needed to know their rights and be able to take appropriate action in relation February 2021 THE BULLETIN

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INNOVATION & ADAPTION

to employment issues, housing issues, such as being unable to pay rent, financial issues such as dealing with debt repayments and possible bankruptcy, and civil rights more generally as fines or arrests took place due to contravention of restrictions made pursuant to emergency powers.4 An important way to address community need is government funding of legal aid and community legal centres. Another is pro bono legal services. Both have increased in response to the pandemic. However, the FLIP report was interested in what further solutions could be found. The FLIP report found that technology seemed very promising, with digital legal applications to address issues in the community legal sector being the focus of law school courses and hackathons.5 But Australia has not yet seen major gains here. The opportunities to serve unmet latent demand for legal

services are numerous. Some will be notfor-profit and others will use technology to be able to provide affordable, but profitable, legal services.

CONCLUSION The pandemic has accelerated some changes, such as WFH and mobile and video-conferencing technologies. It has also seen areas that needed further development fall behind. Nonetheless, change has become consistent and the legal profession needs to continue meeting the challenges created by that change. B Michael Legg is Professor and Director of the Law Society of NSW Future of Law and Innovation in the Profession research stream at UNSW Law. Gary Ulman is former President of the Law Society of NSW and Chair of the Future Committee that produced the FLIP Report.

Endnotes 1 Mia Jankowicz, “More People Are Now in “Lockdown” than Were Alive During World War II” Business Insider, 25 March 2020, 25. https:// www.sciencealert.com/one-third-of-the-worlds-population-are-now-restricted-in-where-theycan-go 2 Anu Madgavkar, Olivia White, Mekala Krishnan, Deepa Mahajan, and Xavier Azcue, COVID-19 and gender equality: Countering the regressive effects, McKinsey & Co, 15 July 2020 https:// www.mckinsey.com/featured-insights/future-ofwork/covid-19-and-gender-equality-counteringthe-regressive-effects# 3 Peter Huang, ‘Put More Women in Charge and Other Leadership Lessons from COVID-19’ (University of Colorado Law Legal Studies Research Paper No 20-21, 2020). 4 See https://justiceconnect.org.au/help/covid19/ 5 See UNSW, Digital legal applications can provide greater access to justice, 13 December 2019 https://www.law.unsw.edu.au/news/digital-legalapplications-can-provide-greater-access-to-justice Melbourne Law School, Law Apps opportunity for not-for-profits https://law.unimelb.edu.au/ law-apps-calls-for-expression-of-interest-fromthe-community

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EMPLOYMENT LAW

Working from home: employment issues faced during COVID-19 MARGARET KAUKAS, SPECIAL COUNSEL, ANDERSONS SOLICITORS

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he unprecedented circumstances we have faced due to the spread of Coronavirus have inevitably led to significant changes in the way we work. For those of us fortunate enough to be able to do so, working remotely/ from home became the new “normal” for many of us in 2020. However, working from home can raise a number of issues from both the employee and employer’s perspective. This article addresses a number of the employment issues faced during the pandemic.

AM I STILL COVERED FOR WORKERS COMPENSATION WHILE WORKING FROM HOME? Yes. The Return to Work Act 2014 (SA) applies to all injuries which arise from employment. For physical injuries this means that the injury must: 1. Arise out of or in the course of employment; and 2. Employment must be a significant contributing cause. For psychiatric injuries this means that the injury must: 1. Arise out of or in the course of employment; 2. Employment must be the significant contributing cause; and 3. The injury must not arise wholly or predominantly from certain reasonable actions taken by the employer in a reasonable manner. If a person is working from home, while they are working, they are “in the course of employment.” Accordingly, if a person is injured while working at home, as long as the other criteria are satisfied, they should be covered by workers compensation. There will always be circumstances where there may be room for argument as to whether or not the person in question was “in the course of employment” at the time they were injured, and we expect that such circumstances will inevitably arise more frequently in the context of working from

home. For example, if a person takes a break from work while working at home to make a cup of tea and is scalded by steam from the kettle, did that injury arise “in the course of employment”? If such an injury occurred in the employer’s premises there would be little doubt that it arose in the course of employment but, if it occurred at home, the answer may not be as simple.

ARE WORKERS AND EMPLOYERS STILL REQUIRED TO COMPLY WITH WORK, HEALTH AND SAFETY LEGISLATION WHILE WORKERS ARE WORKING FROM HOME? Yes. The Work Health and Safety Act 2012 (SA) applies to all work wherever it takes place. The legislation defines a “workplace” as somewhere where work is carried out and includes any place where a worker goes, or is likely to be, while at work. The legislation provides that both employers and workers have an obligation to ensure, so far as reasonably practicable, the health and safety of workers and others while at work. Some may argue that, for employers, this obligation means that whenever a staff member is working from home, the employer is obliged to examine the worker’s work location at home to ensure that it is safe and free of obvious hazards. Others believe that, to satisfy the employer’s obligation, the employer must: • Take action to ensure that staff working from home understand the principles of safe work; • Brief their staff on ensuring that hazards are removed or reduced; and • Ensure that any equipment taken home from the workplace has been tested and is safe. Workers themselves have an obligation to take reasonable care for their own health and safety while at work. When working from home, this would mean taking care to ensure that the environment is safe, not exposing yourself or others to risks or hazards, and exercising appropriate caution while working.

SECURITY ISSUES WHILE WORKING FROM HOME For work that involves access to confidential or private information or personal data, care should be taken to ensure the security and confidentiality of such material.

HOW CAN YOU ENSURE SECURITY AND CONFIDENTIALITY IS MAINTAINED WHILE WORKING FROM HOME? • Ensure that original documents and hard copies of confidential or sensitive information are safely stored while at home so that they cannot be viewed by others in the home, or damaged; • Be conscious of others in the home – do not leave sensitive information lying around where it can be viewed, and make telephone calls in a private location where they cannot be overheard; • Do not share your computer or laptop with others in the home; • If leaving your computer for any length of time, shut it down so that others in the home cannot ‘eavesdrop’; • Use secure wi-fi - do not use public wi-fi or neighbourhood wi-fi.

BEST PRACTICES WHILE WORKING FROM HOME It is a privilege to work from home, and those who have jobs which are conducive to do so are very fortunate. Those whose work is not easily performed at home may lose their jobs, or be required to take unpaid leave, while those who are able to work from home might remain employed. In these difficult times it is incumbent upon all of us to do our part to ensure that the current circumstances cause as little damage to our jobs, our industries, and our economy. Remaining highly productive while working from home is a critical contribution. B February 2021 THE BULLETIN

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INNOVATION & ADAPTION

Innovation in education: Adelaide Law School MARGARET CASTLES, MARK GIANCASPRO, CORNELIA KOCH, BETH NOSWORTHY, ANNA OLIJNYK AND MATTHEW STUBBS

The Bulletin asked SA’s three law schools how it is embracing innovation – and how it has adapted to COVID-19 - in delivering education to law students and equipping tomorrow’s lawyers for a rapidly changing future.

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he 2020 academic year brought unprecedented challenges for students and staff at Adelaide Law School. With effort, goodwill and innovation, the Adelaide Law School community rose to meet the unprecedented difficulties faced by students and staff in 2020. The difficulties faced in the first stage are easy to imagine – when social distancing meant students could no longer gather in large groups for lectures or exams, and then when stay at home restrictions meant that neither staff nor students could attend seminars or the University campus at all, we all moved to online learning. This was no easy task – the benefits of face-to-face interaction for legal education are well understood, and students faced a momentous challenge in adjusting to online learning at the same time as dealing with extraordinary disruptions to every aspect of their lives. Many students and staff discovered that teaching and learning online could work well, and soon we were learning to conduct small group discussions in Zoom breakout rooms, engage in voting and other in-class activities, share our screens to share our work, and make use of live chat to ask (and answer) questions during class. In fact, in some ways we found that teaching and learning online brought distinct advantages – Dr Sylvia Villios and Dr Mark Brady found students more willing to engage than normal in their income tax law courses: ‘it was fantastic. Students were super engaged

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in the chat room, feeding us questions along the way … it was more interactive than face-to-face as the anonymity of the chatroom was a real instigator to students being involved. The students also seemed very appreciative’. A second set of difficulties faced later in the year are perhaps less obvious – when we could transition back to on-campus learning, we had to adapt to social distancing, which kept our students safe, but meant far fewer of them could be in any particular teaching room. Our professional staff team worked miracles reallocating classes around the University to get our students the safest and best options for face-to-face teaching for those who wanted it, while our academics also continued to support remote learning for those whose personal situations meant they were unable to move back into oncampus learning. In the rest of this article, we highlight some of the key successes at Adelaide Law School in adapting and innovating in response to the COVID challenges of 2020. This work led to Adelaide Law School staff receiving four of the University’s 18 Special Commendations – COVID 19 Emergency Teaching Response: Skye Schunke, Ross Savvas and Patrick Wille (Clinics), Anna Olijnyk and Cornelia Koch (Australian Constitutional Law), Mark Giancaspro (Commercial Transactions) & Peter Burdon, Panita Hirunboot, Matthew Stubbs and Corinne Walding (leadership).

LAW CLINICS STILL REPRESENTING THE VULNERABLE AND TEACHING STUDENTS In mid-March 2020, our five legal advice services had just commenced operation for first Semester, with one solicitor supervising six students on site at various free legal services we operate in the Adelaide CBD. When COVID hit, and we were told that the University campus and external sites would close, the Law School Clinic managers and supervisors took a deep collective breath. We decided, rather than closing the doors due to the

lockdown, to shift (in under a week) to operating online legal advice services. Over the next couple of weeks, we worked out how to use Zoom so that students could interview clients and liaise with solicitors in a private “office”, prepared video clips for clients to explain how to use Zoom, and switched to entirely electronic record and file keeping. Although one of our clinics was already running an electronic file system, and other clinics engaged in telephone interviews, we had no experience with an entirely online practice environment, encompassing supervising solicitors, students, and clients spread out across the Adelaide Metro area and beyond. What made this transition both notable and challenging was that our students had only just started their threemonth practical placement in the advice clinics. They had barely begun engaging with interviewing clients or keeping files, and were already well out of their comfort zone, when they had to adapt to a completely new way of relating with clients and working in a legal office. Once the technicalities were sorted, the challenge was to support students who found themselves working in isolation under pressures they had never experienced. Our supervising solicitors, Skye Schunke, Ross Savvas, and Patrick Wille, worked tirelessly to make this all come together, organising files, processes, interviews, and patiently supporting students. Technology is a wonder and enabled us to switch from traditional face to face to remote electronic services overnight. For students, the absence of the human connection – face to face communication in which the non-verbal nuances are clear, and the inability to sit together to debrief with each other and supervisors and be part of the clinic learning community – was a real challenge. To their immense credit, our cohort of 38 students rose to the occasion, whether they were in isolation over the border in Victoria or New South Wales, or working from


INNOVATION & ADAPTION

their dining room for three months, they demonstrated professionalism and the capacity to work with clients who themselves were struggling with new technology. The clinics suffered no downturn in client numbers or quality of service, indeed, we were approached by clients in other States where free legal services had shut down. Like most law practices in Australia, our five legal advice clinics at Adelaide Law School were unceremoniously shoved into the digital world – our vague plans about making more use of technology become real over-night, and now, eight months later, we continue to use a mix of electronic and face to face interviews. This has greatly expanded our reach into the community: people who are distant, who can’t make it into the city for an interview, or remain isolated for health reasons, can all access free legal services now. Our clinics’ success across the lockdown period has encouraged us to start a deliberate expansion into the North of South Australia based on using technology to connect with clients from Port Augusta to Leigh Creek.

SUPPORTING OUR STUDENTS’ STUDIES – THE AUSTRALIAN CONSTITUTIONAL LAW EXPERIENCE Like all other courses, Australian Constitutional Law had to move all teaching activities online in week four of a 12-week course. This rapid adjustment was extremely challenging for both students and teachers, especially amidst

an atmosphere of uncertainty and fear. But, in the end, the course was a success. Students stayed engaged and committed to their studies. The quality of their work was on par with previous years; overall grades were slightly higher than 2019. Student feedback was positive, both in formal evaluations and in countless ‘thank you’ emails and conversations. The teaching team (led by Anna Olijnyk and Cornelia Koch) used three guiding principles to navigate ‘the COVID semester’ successfully. First: minimal student stress. COVID wreaked havoc on students’ lives. Students lost their jobs and even their homes. Some moved interstate or overseas to be with their families. Others were separated from loved ones in hard-hit areas. Study-fromhome was easier said than done, with shared homes quickly becoming crowded

and internet connections struggling to cope. The Constitutional Law teaching team wanted the course to be an oasis of calm in a chaotic world. Decisions about major changes to the course (eg assessment and participation) were made as early as possible to give students certainty. Clear communication was a high priority: students received regular email updates and reminders to keep them on track. Secondly: building a community between students and academics. This was not an easy task, given the lack of face-toface interaction. The teaching team used a combination of all-student and individual emails, online discussion boards, and Zoom seminars to create an environment in which students took ownership of their learning experience, and had individual interaction with academics.

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The teaching team took every opportunity to seek feedback from students about how the course was going and what could be done better. Implementing this feedback not only made for a better course; it also showed students their input was valued. The course was a genuinely collaborative effort between students and staff. Thirdly: digital inclusion. It became obvious that not everybody had equal access to, or ability to use, technology. To make sure no student was excluded from learning, the course used technology with which most students were already familiar; provided low-tech alternatives (eg a document with question prompts as an alternative to an interactive online workshop); and chose assessments that would minimise the impact of digital inequality. Finally, the success of the course was in large part due to the remarkable response of the students. This cohort should be proud of the resilience, positivity and commitment to their study they demonstrated during this most difficult year.

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Paralympian and gold medallist, Katrina Webb. Given Katrina’s experience overcoming extraordinary adversity in her life and her experience as a professional speaker and organisational coach, Mark felt she could reach the students through her experiences. The similarities between professional athletes and university students (fixation on goals, difficulty dealing with interruptions, highly selfcritical) made Katrina’s advice and strategies for ‘pivoting’ and ‘normalising the abnormal’ transferrable. The video was viewed hundreds of times and received wonderful feedback. Students described it as ‘pure oxygen’ and ‘a simple, honest and grounded discussion’ which helped to instil a sense of calm and control throughout the cohort. Others said that the chat helped them ‘stay sane, motivated and focussed’ while also ‘calming the nerves’ and making students feel ‘more positive and less overwhelmed’. Mark decided to go one step further and make the most of forced isolation and the ‘teach from home’ directive. Given that the pandemic struck around the time he was teaching the complex topic of secured transactions law, and the fact students habitually struggled with the material in the absence of lockdowns and other

Dr Mark Giancaspro interviewing Australian Paralympic Gold Medallist Katrina Webb OAM.

It was not just online classes that were needed, but broader support for our students’ wellbeing. The move into lockdown was sudden, confusing, distressing and highly disruptive. Students in our Commercial Transactions course indicated that their motivation was dwindling as they missed the interpersonal connections that came with face-to-face teaching. To help improve the psychological wellbeing of the cohort, Mark Giancaspro organised and recorded a live ‘fireside’ Zoom chat with former Australian

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interruptions, he decided to create another resource: a self-written rap song explaining the topic. Mark dressed in ‘rap attire’ and used humour to both educate and improve spirit in a recorded song clip. The clip was viewed many hundreds of times and went viral on social media thanks to students recording snippets! The cohort found it uplifting, calling it ‘enjoyable and useful in terms of thinking about the PPSA’ and ‘a light in dark times’. Student feedback indicates that these broader supports contributed positively to students’ psychological health and

learning experience, improving morale and re-establishing the ‘connection’ that went missing when teaching transitioned to the virtual world because of COVID-19.

A TEAM EFFORT University educators now like to speak of students as partners with their teachers in a learning journey. This was brilliantly illustrated by the way Adelaide Law School’s staff and students worked together in 2020 to continue highquality teaching and learning even in very different situations. We could not have asked for more from our resilient, adaptable and remarkable student body, or from our staff, who rose to meet extraordinary challenges, and whose efforts were generously recognised by our students – Belal Salih, President of the Law Students’ Society, wrote: ‘I have already received lots of positive feedback from students … From a leadership perspective, I really appreciate that we are very fortunate to be part of such a receptive faculty that truly acts in the best interest of the student body, especially during times like this’. There is no doubt that 2020 was a very challenging year. Our first-year students encountered a completely new way of learning, and many found it challenging. Continuing students experienced domestic upheaval, employment uncertainty, financial pressures, and prolonged isolation. Online learning posed challenges with technology, pace, and the loss of human contact which is so important to learning engagement. Inevitably, there was some loss of motivation, some students experienced much higher levels of anxiety, and it was challenging to reach out to all students who needed support. Nonetheless, Adelaide Law School adapted quickly and worked hard to support students both as a cohort and individually. We learned a lot about how to adapt to online teaching in an imaginative and engaging way, and our students displayed remarkable resilience and dedication. Of course, coping with the enormous change that COVID posed impacted on many students, but we will continue to learn from this experience to develop ways to use online learning strategies and support student wellbeing as we approach a blended learning environment in 2021. B


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INNOVATION & ADAPTION

Innovation in education: UniSA Law School PROFESSOR VICKI WAYE, DEAN OF LAW, JUSTICE & SOCIETY, UNIVERSITY OF SOUTH AUSTRALIA

The Bulletin asked SA’s three law schools how it is embracing innovation – and how it has adapted to COVID-19 - in delivering education to law students and equipping tomorrow’s lawyers for a rapidly changing future.

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egal education has come a long way from the old chalk and talk lecture and Ox-bridge style tutorial system in place 30 years ago. Since that time there has been a paradigm shift away from an ‘input’ focus on the delivery of content and student regurgitation of that content via examination, toward an ‘outcome’ focus that promotes students’ abilities to identify, use and apply legal knowledge, to discriminate between valid and invalid sources of evidence that might support legal policy, to creatively explore legal options and to resolve legal issues, to communicate effectively, to develop and exercise professional judgment, to behave ethically, and to engage in a process of continuous learning. That paradigmatic shift has been accompanied by an emphasis on a pedagogy of active student engagement and authentic learning experiences and assessments. Simultaneously, institution wide adoption of online learning management systems has led to widespread digitisation of content and resource delivery. Ever since the law discipline was established at UniSA, UniSA law courses have adopted varying degrees of blended learning. In some cases, face to face lectures have been replaced by in favour of online recorded material supplemented by dynamic face to face workshops and seminars where students collaboratively grapple with legal problems and engage in legal style activities such as legal document

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drafting, client letter writing, appellate style mooting or various role plays that enable students to practice negotiation, mediation or advocacy. Where lectures are retained, they are recorded as video segments and are delivered using well-paced tools like power-point, polling and other methods to encourage active student participation. All students are provided with professional, experiential learning opportunities in their final year of law study. Options include working in our Legal Advice Clinic, undertaking a professional placement, participation in a law reform project, or carrying out advanced legal research.

HAS COVID-19 INSTIGATED NEW AND INNOVATIVE WAYS OF TEACHING/ LEARNING? During the COVID-19 lockdown periods all face to face teaching activities and assessments were moved online at short notice. As noted above, UniSA already had a good foundation for doing so in the form of an online learning management system and digital library sources and in the form of online learning tools such as Zoom, online assessment functions, chat forums, polling and survey instruments, and discussions boards. Nonetheless, given that most law teaching was designed at the commencement of 2020 to either be blended or face to face, the move required staff to think innovatively about ways of connecting with their students and of supporting their learning in a wholly online environment. A variety of means were used for content delivery including pre-recorded podcasts, power point presentations embedded with audio files, as well as synchronous Zoom lectures. Synchronous video chat sessions where students could ‘drop in’ and ask questions were also scheduled as well as synchronous online seminars and workshops which could be divided up into break-out rooms for more active, engaged inter-student discussion at various points.

Asynchronous discussions boards were also very active. Some staff engaged in continuous dialogue with their students by embedding surveys/polls into their powerpoint presentations, and then discussing results with students in follow up sessions or via discussion boards. This proved to be a good way of elaborating on key concepts or addressing misconceptions in student understanding. During this period, we learned that many activities that were previously undertaken in classrooms, could, with a little adjustment, also be carried on virtually achieving the same high levels of student performance. For example, students continued to conduct mediation and advocacy assessment online in their Dispute Resolution and Civil Litigation and Evidence courses. The introduction of ‘tele-health’ style provision of legal advisory services through our Legal Advice Clinic was another significant innovation. Initially, when clients and students could no longer attend the Clinic in person, advisory services facilitated by a supervising solicitor were offered by telephone. Later on, with the generous support of the Law Foundation of South Australia Inc, advisory services were offered via a secure encrypted video platform. The use of the secure video platform ensured that clients whose access to legal services was unavailable or very limited during the lockdown could receive legal advice and assistance. Even after the lockdowns were relaxed the Legal Advice Clinic has continued to use the secure video platform for clients who are not able to physically attend our premises. This has proven to be especially advantageous to clients with restricted mobility. As legal educators we experienced many of the stresses and frustrations experienced by our students when internet bandwidth was insufficient to cope with the load imposed by the nation’s wholesale shift online, when children required care and or schooling while we


INNOVATION & ADAPTION

UniSA law students participating in a Moot Court.

were trying to work from home, and when close friends or family members lost employment. Consequently, as well as upskilling our online teaching skills very quickly, we learned many lessons about the importance of empathy, agility, flexibility and resilience. Students have provided us with many comments about how helpful and supportive academic staff have been in supporting students who were struggling.

HOW ARE STUDENTS BEING EQUIPPED WITH THE SKILLS TO INNOVATE AND ADAPT TO THE CONSTANTLY EVOLVING NATURE OF THE LEGAL PROFESSION WHEN THEY ENTER THE WORKFORCE? The feedback that we have received from the major employers of our law graduates is that they do not require law graduates who can code in Python or design IT system architecture. Although they want law graduates who understand the functions, benefits and limitations of Industry 4.0 technology (and beyond), they mostly want graduates who can connect and engage with their clients, users and communities. The ability to empathise, create relationships and identify and respond to client, user or community needs plus the ability to synthesise a large amount of complex information and communicate it clearly and effectively are what is prized. Employers we speak with also want graduates who are self-aware and self-regulating, who understand and adhere to their professional and ethical responsibilities and who can map out and commit to ongoing professional

development so that they can readily adapt to changing market conditions and public priorities. Through our emphasis on experiential learning in our law programs, these are the qualities that we strive to inculcate in our law students. A good example of our approach relates to the introduction of the ‘telehealth’ style legal advice in our Legal Advice Clinic referred to above. The use of telephone and a secured encrypted video platform for interaction with clients has exposed our students to remote/ electronic modes of work that they are likely to frequently encounter when they graduate.

TO WHAT DEGREE ARE STUDENTS BEING ENCOURAGED TO DRIVE INNOVATION IN THE PROFESSION? Innovation can take many forms. For solicitors this may include the development of business models that embrace new forms of client collaboration, leveraging technology to deliver services or to perform back of house functions more cost effectively, or the development of new areas of legal business such as licensed cannabis production or data governance. For legal professionals employed by government as well as developing new fields of regulation (for example, regulation of self-driving cars) this may include using big data and artificial intelligence as an evidence base to formulate policy or to conduct regulatory impact assessment or regulatory monitoring. Such innovations have generally occurred organically because of changing market and social conditions, the

development of technologies that support them, and the enterprising nature of their proponents. We encourage UniSA students to maintain openness to change and a willingness to explore future possibilities. During their studies, our students learn about the complexity and multi-layered nature of the legal system and how it is constantly evolving and changing. UniSA students are taught to think about areas in which the law may develop in the future and how to advocate for change. They are taught that law does not exist in a hermetically sealed vacuum but interacts with and is informed by a wide range of other disciplines and practice, and that it can be disrupted by technological, geo-political, environmental and socioeconomic change. Thus, our students can understand how smart contracts work as well as the legal implications of their use, they understand the pitfalls of automated government or judicial decision making, and they recognise the benefits of adopting blockchain technology for determining title to property including carbon credit systems that might be deployed to discourage greenhouse gas production. UniSA students are also taught about the changing nature of the legal profession and how their responsibilities as future legal professionals may be shaped by those changes. Armed with this knowledge of constant change and adaptation we feel our students are well placed to help drive future innovation in the law and legal profession. B February 2021 THE BULLETIN

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Innovation in education: Flinders Law School TANIA LEIMAN, ASSOCIATE PROFESSOR & DEAN OF LAW, FLINDERS UNIVERSITY

The Bulletin asked SA’s three law schools how it is embracing innovation – and how it has adapted to COVID-19 - in delivering education to law students and equipping tomorrow’s lawyers for a rapidly changing future.

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hat a lot has happened since this time last year! ‘Unprecedented’ has become an over-used word; ‘unexpected’ has been the only certainty; and new ways of doing things have become the norm. All this is against a background of rapid technological growth, automation, datadriven inferencing, machine learning, artificial intelligence, geopolitical shifts and the increasingly urgent challenge of climate change. We each respond to innovation differently: some of us are innovators (about 2.5% of the population) or early adopters (about 13.5%); others form the early majority or late majority (both about 34%); or finally laggards (about 16%). ‘Diffusion of innovation is a process’, with each group (except the innovators) influenced by the experiences of the group adopting the innovation ahead of them.1 Fear of being left behind is a major driver,2 but ‘speed of adoption is not a reliable guide for an innovation’s importance’3 or for its social or economic value.4 In the legal sector, adoption of innovation is also influenced by whether legal services are designed for individual/personal clients (the ‘People Law’ market segment) or organisational/corporate clients (the ‘Organisational Law’ market segment).5 Recent empirical research from Oxford identifies ‘three margins along which the deployment of artificial technologies affect the work of lawyers’:6 Firstly, technology substitutes humans in traditional legal

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tasks; secondly, lawyers’ capacity to perform those tasks is augmented by their consumption of artificial intelligence and automation; and thirdly, AI-enabled legal services are produced by legal professionals (who may or may not be admitted practitioners) as part of multidisciplinary teams.7 Even lawyers in ‘classical advisory roles augmented by technology’ increasingly need capacity to understand how those tools work, and to be able to explain their strengths and weaknesses to clients or other end users.8 New roles are emerging too – that do not necessarily require a practising certificate. ‘Persons with legal human capital working in these roles will likely be producers, rather than simply consumers of AI-enabled legal services’ – and will work in multidisciplinary teams, and need a wider mix of skills.9 Students commencing law studies in 2021 are likely to graduate in 2025-2026. Given the unprecedented and unexpected change that has occurred this year, it is almost impossible to predict what the practice of law will look like in five years. Already, we know that many law graduates obtain employment outside traditional legal practice, and even for those who do go on to work in a law firm, many leave for other opportunities within five years post admission. Graduates are now predicted to have 12-15 different jobs10 and several different careers during their working life, including creating their own jobs. So how can we ensure legal education is fit for purpose, ethical, responsive to society’s needs and able to continue to protect those most at risk? What knowledge and skills are required to navigate these changes? How should these be taught? ‘The education of the new generation is of critical importance to the entire profession.’11

FLINDERS 2020 LLB CURRICULUM During everything else that has

happened, in 2020 Flinders University is proud to have introduced an exciting undergraduate LLB curriculum. It embeds explicit training for all law students in creative and critical thinking, use of technology to deliver legal services and a semester of clinical placement. All students undertake two core legal innovation topics – Legal Innovation and Creative Thinking and Innovation for Social Justice Impact, before going on to collaborate with students from Engineering, IT, Business and other disciplines in the final core innovation topic From Innovation to Impact. (See article by Rob Chalmers this issue for more detail). New compulsory first year topics, International Law and Global Legal Perspectives and Indigenous peoples, Colonialism and Law equip students to engage confidently in an increasingly globalised world and provide a foundational understanding for all students of the historical and continuing significance for Australia and other former colonial countries of the interaction between law and Indigenous peoples. This refreshed curriculum is designed to better equip our students with the skills they will need to innovate and adapt to the constantly evolving nature of the legal profession, the opportunities provided by alternative legal services providers and the impact of adjacent industries on what lawyers do and how they do it. Our new second or later year core topic, Law in a Digital Age, teaches students how to apply technology to legal issues. In Digital Age teams of students work with not-for-profit organisations to build legal software applications addressing legal pain points for those organisations or their clients. In doing so, students learn basic yet useful coding skills. Learning coding exposes students to the most fundamental aspects of technology in a very tangible way. Students learn industry-standard technologies, such as Python and CSS and the concepts students are taught are portable to any other software technology.


INNOVATION & ADAPTION

All technology is based on software code after all. Students complete the course having learnt tangible and re-usable technology skills, as well as making a real difference in enabling access to justice. Since March, 2019, Flinders Law students have built more than 25 working, useful applications. This is significant as students enter the course with no exposure to software coding whatsoever. Even more significantly, some applications have been commissioned for ‘live’ use by their NFP clients. Examples include iRefer SA written for Relationships Australia, and MyDocs written for the Hutt Street Centre. In 2021, as part of our Flinders Law Beyond: Digital Law Lab project, Digital Age student teams will partner with Computing Science students and academics, to develop even higher quality applications more effectively and efficiently. Responding to enquiries about Digital Age from interested practitioners and others, Flinders Law now offers this same innovative opportunity to anyone in the community via our Coding the Law course. Similar to Digital Age, participants learn basic, useful coding skills and write a software application, this time for their own practice. Coding the Law is 100% online, self-paced and can be completed in up to 12 months. Participants to date include practitioners from the UK, the Netherlands, Pakistan and across Australia. Another new later year core topic is Law in Action. All students undertake clinical placement for one semester – either in a variety of streams supervised by Flinders Legal Centre or with external host agencies. Students can start to apply the theory they are learning, get practical experience and exposure to legal workplaces. In 2020, external placement opportunities include legal operations internships with SA-based, national and international firms. In 2021, our new Digital Law Lab collaboration with Computing Science will allow Law in Action students to maintain and further develop apps created in Law in a Digital Age, ensuring both the law and code remain accurate and up-to-date. This exciting new approach is designed to equip our students to not only understand the constantly evolving nature not only of the legal profession, but of the legal sector more broadly. It also introduces them to the skills and

Flinders hub students study.

approaches they will need to drive further innovation in exploring new ways of interacting with clients, new services and new legal products.

FLINDERS 100% ONLINE JURIS DOCTOR Our innovative postgraduate Juris Doctor degree has been offered since 2016, entirely online using a problembased learning methodology. Future focussed, it embeds traditional discipline areas in the context of new challenges. All JD Students undertake a Law Reform Project working on legal implications of emerging technologies and complete their JD studies with a capstone topic, Integrating Knowledge and Skills for Practice, completing authentic tasks such as drafting a commercial agreement, litigation documents and advising on potential commercial transactions. In March, 2020, COVID required us to move all face to face classes online in one week, and significantly modify all clinical placement opportunities, including Flinders Legal Centre conducting virtual client interviews. Lectures at Flinders University have been live streamed and video recorded since 2014, but COVID changes have been the catalyst for exploring all the capabilities of not only our own internal systems, but also various industry systems such as Cisco Webex and Microsoft 365. Staff and students have learnt to effectively use these standard tools to collaborate in real time, manage

projects, work with clients, and work as teams more effectively together. With easing of restrictions, and returning to campus, hybrid classes allow students to join synchronously and remotely with those physically in the room. Students are learning skills and tools that will be essential for all of us as we navigate a new COVID-normal future which will entail increased remote working and expectations of greater flexibility in how legal professionals interact with each other, their clients, and the courts. B Endnotes 1 William D Henderson, ‘Innovation Diffusion in the Legal Industry’ (2018) Articles by Maurer Faculty 2771. https://www.repository.law.indiana. edu/facpub/2771 p.401-402 2 Henderson, p.403 3 Henderson, p.423 4 Henderson, p.424 5 Henderson, p.407-408 6 John Armour, Richard Parnham and Mari Sako, ‘Augmented Lawyering’ 21 August 2020 https:// ssrn.com/abstract=3688896, p. 5 7 Armour et al, p. 5 8 Armour et al, p. 56 9 Armour et al, p. 57-58 10 https://www.linkedin.com/pulse/how-manyjobs-average-person-have-his-her-lifetime-scottmarker/ 11 Morry Bailes, ‘The Law and Legal Technology – Our Changing Work Practices’ (20 October 2017) Speech delivered by Mr Morry Bailes, President-elect, Law Council of Australia at the 2017 Australian Young Lawyers’ Conference, Sydney. https://www.lawcouncil.asn.au/media/ speeches/the-law-and-legal-technology-ourchanging-work-practices Accessed 20 November 2018

February 2021 THE BULLETIN

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CAN AI HELP RESOLVE FAMILY LAW DISPUTES? COMPUTER SAYS YES GABRIELLE CANNY, AMICA PROJECT CHIEF AND DIRECTOR, LEGAL SERVICES COMMISSION

I

n the 21st year of the 21st century, many Australians don’t simply go online - they live online. They find love online, they work online, they shop online and socialise online. And when relationships break down, they want online help to resolve their family law disputes. In response to that community demand, SA is now at the forefront of a ground-breaking national service combining artificial intelligence and family law. This initiative exemplifies the transformative impact of technology on legal processes. However, this new digital service is not a magic bullet that will solve all the challenges facing Australia’s family law system and all the difficulties confronting separating couples. The service is called "amica" and it empowers separated couples to reach amicable agreements online regarding property and parenting issues. It is a mobile-first tool that uses artificial intelligence and other smart technology to help people resolve disputes themselves and record their agreements in plain language on a secure platform. It also helps them create applications for family court consent orders if they wish to. amica provides free information throughout its site about issues regarding separation; it uses conversational language and avoids legal jargon. amica complements existing family law services and resources, and guides

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people to specialist legal help in situations where it is required. Throughout the site, it encourages people to seek legal help if they require legal advice or further information. amica was created in SA by the Legal Services Commission on behalf of National Legal Aid with $3m in funding from the Commonwealth AttorneyGeneral’s Department. (National Legal Aid represents Australia’s eight legal aid commissions. There’s one in each state and territory and, collectively, these Commissions are the largest providers of family law assistance in Australia.) Legal Aid Commissions across the nation provided data and input to assist amica’s development. Its design was also guided by direct input from everyday Australians who have been through everyday family law disputes. Their insights were invaluable. They outlined what they wanted in an online service that’s designed to help ordinary Australians get through what is, for many people, one of the hardest times in their lives. This new service, located at amica.gov. au, responds to community demand for digital solutions in the family law sector. Each year there are more than 48,000 divorces and 105,000 applications to family courts regarding family breakdowns. The disputes that accompany them can last for years and cost many thousands of dollars. Independent social research reveals 78% of people with family law problems are

interested in using a platform of this sort to resolve their disputes. amica can be used by a wide crosssection of people dealing with family law issues. However, its dispute resolution feature - the online tool that helps people reach agreement - is best suited to separating couples who have a reasonably amicable relationship and a willingness to communicate and negotiate online. amica is not suitable for all situations and cannot replace the expert assistance provided by lawyers and the family courts. But it can empower many couples to better manage their separation and reduce the number of areas in which they disagree. By reducing pressures on courts and Legal Aid services, amica can help these bodies focus more closely on matters that cannot be solved online.

FEDERAL BACKING & NATIONAL RECOGNITION amica was created with Federal funding to cut the cost, stress and complexity of separation. The Family Court of Australia and the Federal Circuit Court were regularly consulted during its design. Commonwealth Attorney-General Christian Porter has encouraged amica’s development from concept to rollout, and he launched it on 30 June 2020. “I am very excited about the potential of this tool,” Mr Porter said.


INNOVATION & ADAPTION

“The government is absolutely committed to improvements in the family law system that will make the system cheaper, faster and less stressful for separating couples and their children. And that’s exactly what amica aims to do. Through smart technology it will support people to work out parenting arrangements, to split their assets and record their agreements in plain language.” amica has attracted Australian and overseas attention. It won the national iAward for Government and Public Sector innovation (the iAwards are presented by the Australian Information Industry Association, the ICT sector’s peak body). As part of that national competition it also won the SA and NT Government and Public Sector Solution of the Year award, plus the SA Premier’s iAward for Public Sector Innovation.

HOW AMICA WORKS amica delivers its assistance in two key ways. Firstly, a website that anyone can use to get information about family law issues. And secondly, a digital tool within that site that enables separating couples to negotiate online - about parenting and property matters - and reach agreement about those issues. amica guides the couple through a step-by-step dispute resolution process.

FAMILY AND DOMESTIC VIOLENCE Family violence is too often a feature of family law disputes. As a result, amica incorporates key features to protect vulnerable individuals who are dealing with issues relating to separation. amica’s dispute resolution feature is not appropriate for all couples (e.g. situations involving family or domestic violence) and it screens out people whose circumstances are not suitable for amica. It also incorporates sentiment analysis technology that detects inappropriate comments and stops them being communicated to a former partner. The technology also informs the person making the remark that their language is not appropriate and will not be permitted. amica does not leave separating couples on their own. At many stages of its online dispute resolution process it provides warnings about coercion or pressure to settle on unfair terms. It also provides information about professionals and services that can help the parties sort out particular issues. This ensures they have access - if required - to mediators, lawyers, counsellors and other professional support.

email to their former partner inviting them to sign up and take part in amica’s dispute resolution process. amica uses two-factor authentication (involving SMS and email validation) to avoid impersonation or coercion by either user.

QUESTIONS & ANSWERS To help users reach a written agreement, amica puts a series of questions to them. Users have the opportunity to provide additional information regarding their answers, and can engage in an online dialogue with the other party about the details they are providing. Users can upload supporting documents. This feature helps to provide a factual base for statements that are made by the parties (e.g. regarding the value of particular assets) and can lessen the potential for disputes. It is designed to encourage full and frank disclosure regarding the assets and liabilities of the relationship. The content provided by users is presented to them as proposed statements that users can consider, discuss and agree on. These agreed statements form the final document (the Agreement).

SIGNING UP TO AMICA amica begins by asking the user a series of questions so the user can determine if the service is right for them. Once a user signs up for amica, the system sends an

HOW AI HELPS RESOLVE PROPERTY DISPUTES Artificial intelligence is part of many technologies that Australians use every February 2021 THE BULLETIN

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INNOVATION & ADAPTION

PARENTING ARRANGEMENTS amica’s dispute resolution process helps families work out parenting arrangements for children. This process – focusing on the best interests of the child - does not involve artificial intelligence. amica’s technology is all based around the needs of the user. For example, it has an interactive calendar that helps parents to reach agreement, and record their agreement, about the care arrangements for their children. This feature enables users to easily select their preferred days and nights with their children. amica generates a Parenting Agreement for users, and also provides the option of adding an electronic signature and producing a Parenting Plan.

HOW MUCH?

day – and it plays a key part in amica by helping people to reach agreement about the division of their assets. amica provides a suggested split of a couple’s assets after the AI takes into account three factors: the couple’s assets and circumstances; the types of agreements commonly reached by other couples in similar situations; and how courts generally handle disputes of this nature. If the parties agree with the suggested property division, they can accept it and move on. The suggested property division is designed to guide the negotiation process; it is not meant to replace legal advice. Users have the option to either agree to the suggested division or use it as a guide to formulate their own agreed percentage split. If a user rejects the percentage split suggested by the AI and instead proposes an alternative split, they are required to provide their reasons as to why they believe their suggested split represents an appropriate division of the assets. Further, if both parties reject the AI suggestion and propose an alternative split that is 20% or more outside amica’s suggested

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division, they will not be able to use amica to finalise their agreement. Once users agree to a suggested percentage division of assets, they can put proposals to one another regarding how that division of money and property will take place (i.e. who gets what). Either party can nominate which assets they wish to keep, transfer or sell. A summary of the proposal is sent to the other party.

AGREEMENTS & CONSENT ORDERS Once users reach agreement about the division of their property, amica can produce an agreement that reflects the agreement reached. If users choose to formalise the agreement, they can use amica to produce an Application for Consent Orders for filing in the Family Court. amica takes them through a guided process that collects the additional information that is required for Consent Orders. Subject to the agreement of both users, amica will then produce the completed Application for Consent Orders and Consent Minute of Order. amica also gives users information about how to sign and file the Application with the court.

There is no charge for the information amica provides about issues regarding separation and family law. Modest fees are charged (between $165 and $440 per couple) for agreements and applications for consent orders. These fees fund ongoing maintenance of this service and are waived for users who receive a Centrelink income support payment. In amica’s first six months: almost 2,000 matters have been commenced on amica; more than 500 asset division suggestions have been provided by its AI; more than 220 property agreements have been finalised; more than 120 Parenting Plans and Agreements have been finalised; 75 consent order court application documents have been prepared; and the amica site has received more than 185,000 page views.

A CHANGE FOR THE BETTER When it comes to family law, Australia must embrace various solutions and combine the specialist knowledge of people from a range of disciplines. amica was created by consulting family lawyers, digital designers and everyday Australians with lived experience of divorce. amica arose from that collaboration and consultation. It adds to existing services and gives separating couples more options, more information, more guidance and more ways to resolve their problems. This is good for families, good for courts and good for the wider community. B


WELLBEING & RESILIENCE

Modern skills: making time for reflection GEORGINA PORTUS, NORTHERN COMMUNITY LEGAL SERVICE

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ur memories of law school – recent for some and more faded for others – all likely share some key commonalities. Endless case reading, anxious mooting, long lectures periodically interspersed with demanding exams. Typically, there is a noted absence of emotion in favour of sharp critical thinking and “emotionless objectivity”. However, this is changing. In a reflection of teaching shifts that are present worldwide, Matthew Atkinson at the University of South Australia has introduced reflective writing, emotional intelligence teachings and practical interpersonal soft skills into his student’s ultimate year.  These programs equip students with skills to thrive not only with challenges of legal work but also within their relationships with colleagues and clients. Atkinson’s program is an obvious curriculum addition in a changing legal education landscape where practical learning is being championed.  The course works on two complimentary components. Students develop experience and ‘soft skill’ through professional placement, legal clinic work and reviewing actual case files. This is paired with reflective practices which allow students to ‘build their reflective muscle’. Whilst reflecting and ruminating on your day is arguably an inherent human quality, courses such as Atkinson’s use teachings and guided reflection to help students develop new perceptions. By creating a generation of introspective lawyers with honed skills of self-reflection, you are creating a class of professionals with heightened analytical skills. These skills help with appreciating perspective, responding to issues with critical thought and understanding behavioural motivations.  In a profession that can be characterised by ethical dilemmas,

competing duties and complex relationships (with both colleagues and clients) within an adversarial paradigm, the ability to be able to step back and reflect should be viewed as invaluable. Law school typically teaches you to look to legislation or common law to find your answers. However, in practice and a professional setting, you often come across problems that cannot be solved by a book.  In any given legal workplace there are already a number of settings where these reflective behaviours can be implemented, such as case reviews, general meetings or performance reviews. By using these opportunities to engage in reflective practice, promote emotional intelligence and motivate colleagues to articulate their values, we can help build each other’s skills and encourage resilience.  Atkinson’s course structures its reflection in two distinct ways. He notes the benefits in both personal reflection, in the form of private blogging, and open discussions. Both hold distinct value and both can be used in a professional setting.  There are notable benefits to the anonymity of private blogging, with students being more willing to share vulnerability and truthfulness. This approach fosters an environment where mental health can be discussed with candour. Within our own professional settings, we can reach out to our colleagues to discuss the impact of work stress, their own capacity for balancing work and life and how they are meeting challenges.  Conversely, there are also great benefits in fostering and encouraging open dialogue. Speaking to these issues more broadly works to demystify others and the perception of others’ perfection. By encouraging reflective group discussion concerning workplace challenges, we can help others to realise that our colleagues

also meet challenges and are impacted by the stresses inherent in legal work.    The practical execution of these practices can be achieved in a range of ways, and are already being accomplished in many workplaces. With thoughts to the unique challenges of 2020 and COVID-19, the use of technology to achieve this is more relevant than ever. Technology can be used as another tool to help support those within our workplaces or wider fraternity and to encourage reflection and input. Atkinson found that young law students tend to be more comfortable with sharing on tech platforms. That in the days of social media “everything is up for grabs”, we have fast become a society with the capacity to share somewhat relentlessly. There is potential for this to be used in workplace communications.   Atkinson also notes that there are issues and anxieties that are created by our increased dependency on technology, which would benefit from open dialogue and shared expertise. We need to be mindful as to how technology, and tech communication, is influencing our ability to connect with colleagues and build relationships of trust with clients.  We can have discussions within workplaces that help to solve these issues and address any disconnect rather than allowing professionals to blame their own ability. It is important to view the systems that we are currently operating in and openly discuss the challenges they create.  To encourage these discussions, in whichever format or context suits, is to encourage emotional intelligence and reflection of values. Inspiring reflection encourages wellbeing and resilience and heightens a professional’s capacity to deal with stresses. B February 2021 THE BULLETIN

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CIVIL LIBERTIES

Surveillance in the 21st century: A legal and human rights perspective EMERITUS PROFESSOR RICK SARRE, PRESIDENT, SA COUNCIL FOR CIVIL LIBERTIES

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n the late 1970s I found myself wandering the mostly deserted streets of East Berlin, having successfully negotiated Checkpoint Charlie and a phalanx of East German border guards. I remember commenting to my companions at the time that the great difference between that repressive nation and the world that we had grown up in was the level of surveillance. We would never want to live in a world, we agreed, where suspicious eyes followed us going about our daily affairs. Fast forward forty years, and the citizens of the ‘free’ world now find themselves under far more pervasive visual and other scrutiny than the burghers of East Berlin ever did. Millions of closed-circuit television (CCTV) cameras are now in place and taken for granted throughout the world. In fact, no one has any idea how many cameras there are in any city at any given time because most are privately owned. There are, also, now tens of thousands of ‘unmanned airborne vehicles’ (sometimes referred to as ‘drones’) in public and private Australian hands, too. Originally aircraft-sized, and designed solely for military purposes, small drones are now available to the public for very little outlay. 1 Inside what appears to be a model aircraft is a sophisticated camera, along with a computer that drives the motor and tracking systems.2 And one cannot forget the ubiquity of the ‘smart’ phone, complete with recording devices. We are told that there are more active mobile phone accounts in Australia than there are people.3 Moreover, each time we upload to or simply access our accounts on YouTube, Instagram, Twitter, Facebook, Google and other social media vehicles, we are laying ourselves bare to the controllers of cyberspace.

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Make no mistake we are being watched, listened to and filmed constantly. Future generations may not be concerned about their individual privacy being invaded, driven by ever-increasing desire for global connectivity at a relatively minimal cost. On the other hand, however, many people are developing a heightened expectation of privacy given the massive amounts of electronic data that can be crossmatched for a variety of public and private purposes, for both good and ill. Let’s examine how the surveillance landscape is playing out, and how the law operates in response.

CCTV, PHONES AND DRONES In addition to the images pouring into databanks from public owned CCTV cameras, hundreds of hours of footage from privately owned CCTV and phone cameras are handed to journalists, lawyers and the police daily.4 This footage may contain displays of inappropriate or illegal behaviour. The images are provided by persons who wish to report, sue, defend themselves, or simply embarrass their targets. The law helps very little in these cases. Remember that Australia does not have a tort of ‘serious invasion of privacy,’ a remedy that is well established in New Zealand, the United Kingdom and in several states of the USA. Australian governments, in contrast, and under pressure from media moguls, have been pussyfooting around this area for many years, notwithstanding repeated calls from law reform bodies to enact such a tort. 5 The High Court twenty years ago gave a strong indication that they do not see it as their role to be the harbingers of any such change.6

All Australian states and territories have had laws regulating the use of listening devices for the past fifty years, but they are a dog’s breakfast. These governments have made no attempt to pursue uniform legislation. The laws regulating recording and distributing data are thus many and varied, which makes no sense in a national marketplace.7 Typically, statutes regulating surveillance devices make it an offence to listen to, film or record a private conversation. Broadly speaking, it is illegal to install a surveillance device without an appropriate police warrant. It is an offence in all jurisdictions to broadcast a recording of a covertly taped or filmed conversation or publish any information from it. Indeed, a person may be committing an offence in some jurisdictions by simply possessing a report that contains a summary of the contents of the recording. This is all well and good for civil liberties. But there are numerous defences, including the vague “public interest” defence. It is high time that all AttorneysGeneral came together to craft a consistent approach to surveillance laws so they better reflect public expectations regarding freedom from inappropriate scrutiny.

FACIAL RECOGNITION Facial recognition surveillance has a somewhat tawdry pedigree. It has been used to identify anti-Beijing protesters in Hong Kong.8 Chinese authorities allegedly use it to keep members of the Uighur minority in Xinjiang Province under surveillance.9 Surely, we console ourselves, this type of scrutiny of citizens is only deployed by authoritarian regimes in their dystopian worlds. Well,


CIVIL LIBERTIES

no. Facial recognition hardware has now been installed in a significant number of places in Australia too, the most obvious being the immigration channel for any person who holds an electronic passport departing or arriving in Australia. Less obviously, one can find facial recognition tools being linked to a growing number of State crime-fighting units10 and in screening any member of the public accessing sensitive precincts. Reports have emerged recently concerning facial recognition tools being trialled and deployed around Australia by private operatives, too. Indeed, the 7-Eleven convenience store chain in June this year reported that it is rolling out facial recognition scanners in their stores ostensibly for security and safety purposes. 11 But, I hear you say, immigration officials and police operate within frameworks over which we have some right of public scrutiny. Indeed, the Federal Government’s proposed new identity matching services laws are currently being scrutinised by the Parliamentary Joint Committee on Intelligence and Security.12 Shouldn’t that be enough? Well, no. The law that protects privacy in relation to government prying is half-hearted. And the rules do not necessarily apply to the private sector. Remember that a private landowner can do whatever it likes to protect itself, its wares and its occupants on its own property so long as it doesn’t break the law (for example, by an unlawful restraint or a discriminatory practice). This would include allowing for the installation and monitoring of staff and visitors by placing facial recognition scanners at entrance points, or indeed any sort of surveillance device. By contrast, on public land, any decision to deploy such tools must go through a more open decisionmaking process (say, a council meeting or parliamentary committee) where the public has an opportunity to respond. However, there is an immediate perception problem here, as many “public” properties (such as sports fields, schools, universities, shopping centres and hospitals) are privately owned or managed and thus are open to being privately secured.

SCANNERS, TRACING APPS, AND QR CODES Some of the other surveillance

instruments that have been developed include iris and retina scanners,13 GIS profiling,14 and internet data-mining.15 Our technological wizardry now also allows public health officials and private sector operatives to store and retrieve huge amounts of customer data from tracing apps and QR (‘quick response’) code scans. If there are regulatory guidelines in place regarding their use, they are typically ad hoc and hastily implemented. How should we respond to this massive uptake by the public and private sectors to these emerging surveillance tools? In an article in The Lancet in July last year, Bengio et al set out their ideal parameters for such tools as follows: Express consent at each step of data sharing is crucial and must be meaningful, not buried within lengthy privacy policies or vague language agreements …. No identifiable data should be shared with any public institution or private enterprise. … [D]ata should be kept encrypted on users’ devices and inaccessible to public authorities or private interests. The tracing application itself can [usefully] recommend that users voluntarily contact health authorities where relevant, thereby assisting markedly in contact tracing while minimising the potential for state surveillance, snooping, or vigilantism.16 Such an approach is measured and appropriate. Governments should ensure that these types of undertakings are set in stone.

CONCLUSION In the last half century, we have witnessed the juggernaut of surveillance tools sweeping over the privacy landscape. Parliamentarians, in response, have been loath to act other than to regulate the storage and sharing of data, to appoint privacy commissioners, and to establish ‘privacy principles.’17 I have some sympathy for lawmakers. It would not be easy to frame legislation that captures the balance required to be struck between an individual’s privacy, and the concerns of commercial operatives who have invested legally in electronic tools designed to enhance the security of their staff and stock. Moreover, governments will pay lip-service to confidentiality, but override its requirements if such a path is deemed necessary to keep citizens safe from harm. Ultimately, the fate of these surveillance

tools rests with us. If enterprises engage in prying behaviours that one disapproves of, they should be given a wide berth. If governments do the same, then the ballot box is the most appropriate recourse. In sum, new surveillance technologies are evolving rapidly and pervasively. While these current and emerging tools allow us to be far more connected, give us far greater access to information, and support us functionally, they throw down challenges to our privacy. Just how far we allow them to proceed is a matter for our careful consideration and ongoing vigilance. B

Endnotes 1 https://theconversation.com/drones-finally-getmps-talking-tougher-on-privacy-laws-29197 2 House of Representatives Standing Committee on Social Policy and Legal Affairs, Eyes in the Sky: Inquiry into drones and the regulation of air safety and privacy, 2014. 3 http://www.sbs.com.au/news/ article/2015/01/02/australia-has-more-phonespeople 4 https://theconversation.com/cctv-who-canwatch-whom-under-the-law-63046 5 https://theconversation.com/animal-activistsv-private-landowners-what-does-the-lawsay-110279 6 Lindsay, D. ‘Protection of privacy under the general law following ABC v Lenah Game Meats Pty Ltd: where to now?’ (2002) 9(6) Privacy Law and Policy Reporter 101. 7 Sarre, R and Prenzler, T, The Law of Private Security (2nd edition) 2009, Thomson Reuters, chapter 7. 8 https://www.nytimes.com/2019/07/26/ technology/hong-kong-protests-facialrecognition-surveillance.html 9 https://www.theguardian.com/news/2019/ apr/11/china-hi-tech-war-on-muslim-minorityxinjiang-uighurs-surveillance-face-recognition 10 https://www.theguardian.com/australianews/2020/jun/19/victoria-police-distancesitself-from-controversial-facial-recognition-firmclearview-ai 11 https://www.abc.net.au/news/2020-06-17/ facial-surveillance-slowly-being-trialled-aroundthe-country/12308282 12 https://journals.sagepub.com/doi/ full/10.1177/1037969X20920008 13 https://whatis.techtarget.com/definition/retinascan 14 https://www.sciencedaily.com/ releases/2014/09/140916102000.htm 15 https://www.datasciencecentral.com/profiles/ blogs/the-7-most-important-data-miningtechniques 16 https://www.thelancet.com/journals/landig/ article/PIIS2589-7500(20)30133-3/fulltext 17 http://classic.austlii.edu.au/au/legis/cth/num_ act/pa1988108/

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INNOVATION & ADAPTION

DESIGNING A NEW APPROACH TO THE LAW ROBERT CHALMERS, LECTURER IN LAW, FLINDERS UNIVERSITY

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aw’ and ‘innovation’ are sometimes seen as antithetical. This might stem from perceptions of the law as being stuck in precedent dating back hundreds of years, entrenched in inflexible and outdated legislation, and surrounded by anachronistic cultural trappings. The etymology of the word law itself references “something laid down or fixed”.1 Many have long bemoaned the seeming incapacity of the law to keep up with innovation.2

LEGAL INNOVATION But in many ways the law has always embodied and epitomised innovation. Case law is constantly and flexibly adapting. Legislation and regulation changes by the minute – especially in the rapidly evolving context we inhabit. Contracts are inherently and dynamically configurable. Legal practice models have also evolved: shifting more recently with the rise of incorporated and listed practices, inhouse lawyers and cross border practices. As in every other field of endeavour, technology is having a growing impact on the evolution and practise of the law. While this isn’t new (think of the impact of the printing press on the law) the pace has accelerated over recent decades. Word processing, facsimiles, legal databases and mobile phones were relatively novel technologies when I started practice. Now facsimiles are long dead and buried and we are moving into the era of AI and expert systems. It is worth noting in passing that thinking around the potential use of AI and expert systems in the law is not a new field: there were journals and publications dedicated to this topic in the 1980s, predating any of Richard Susskind’s work. But there is no doubt that the continuing rise of computing power and increased use of neural networks have

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transformed the approaches being used, and the applications are now practical and pervasive rather than theoretical and obscure. The law profession has recognised the significance of these and other changes, as witnessed in many reports and conferences over recent years.3 Large legal firms now commonly have not only designated innovation leads, but entire teams working on innovating how they and their clients work, often, but not only, assisted by technology.4 Legal start-ups are gaining increasing profile and funding.5 Innovation can also be seen in the field of social justice and access to justice.6 The public sector, including prominently in SA, is engaged in developing novel online solutions to disputes.7 Legal education is also evolving in response. Some of this adaptation is in the nature and range of topics that deal with the legal aspects of innovation: from transactional and rights-based issues in fields such as intellectual property to regulatory issues around new and emerging technologies. However, some institutions are now introducing topics not merely directed to the legal aspects of innovation but rather to upskilling students in new practices to enable innovation around legal practice business models, court systems, client self-service, education, and the law itself. This often involves use of “design thinking” style approaches discussed below. These offerings might take the form of extra curricula options such as “legal hackathons”, they might be threaded into existing topics, or they may form elective units or even core elements of degree programs. 8

LEGAL DESIGN THINKING So what is “design thinking” and what is its relevance? It is best considered not

as a concrete fixed area of practice but a suite of mindset, behaviours and tools which can be mixed and matched to suit the challenge at hand. It encourages a close focus on the lived experience of the people experiencing the pain or inconvenience of an existing situation. It tries to instil a discipline of not jumping to conclusions and rushing inappropriate fixes, but it also exploits time pressures in constructive ways and values iterative development and testing of approaches, consistent with “lean start-up” and “fast to fail” methodologies. Properly used, it enables teams to better define the problems they face, design innovative solutions to them, and then put those into practice through persuasion and engagement with stakeholders. Design thinking is not a panacea, but it can transform and accelerate problem solving. It is not without its critics, who have some valid points.9 Some critics highlight design thinking’s overlap with common-sense principles, but I believe this is a strength not a weakness. Design thinking emerged in the middle of the twentieth century in product and service design, before being applied within the legal sector over the last decade. One key proponent is Margaret Hagan, who graduated from Stanford Law School in 2013 and is now Director of the Legal Design Lab and a lecturer at Stanford Institute of Design.10 Her work has influenced approaches around the world including in Australia.

EDUCATING FUTURE PRACTITIONERS IN INNOVATION AND DESIGN THINKING APPROACHES Flinders University recently took the decision to incorporate innovation in an explicit and prominent way into its


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new law program that started in 2020, with multiple innovation topics included not as elective but core. Two of these topics are boutique topics tailored to the law program. The first of these (Legal Innovation & Creative Thinking) provides a general introduction to the evolving impact of innovation in the law before diving into an experiential workshop series. It requires students to learn and practice a range of innovation skills in defining and articulating meaningful problems in the current formulation or practice of the law and then develop and present potential solutions to them. The second (Innovation for Social Justice Impact) extends from this base, introducing additional skills around client profiling, risk, environmental scanning, stakeholder engagement and governance. The third topic (From Innovation to Impact) sees law students working alongside students from other programs in engineering, science, arts, health and other fields. The skills taught in this final topic relate to business model innovation and see students grouping up to tackle development of start-up proposals in cross disciplinary teams. Usefully there are many points of connection between innovation skills and legal skills. Basic skills introduced in the first topic are very relevant to interviewing, presentational and advocacy skills, as well as the type of deeper thinking around root causes and problems that is often key to effective outcomes in practice. The second topic references a range of social justice issues, but also introduces thinking around regulation and governance. The third topic includes elements of legal business structures and intellectual property. The program started in 2020, with the first cohorts going through the first two topics.11 Naturally the pandemic triggered further innovation in program delivery, with the first semester teams needing to

transition to fully online after the first three weeks of in-class delivery. The second semester saw the program being delivered both online and face to face, to two separate groups. Thankfully there have been some very pleasing student outputs in the form of the final group presentations that are made at the end of each semester – showing that learning objectives can be achieved in both modes. Naturally in innovation there is no fixed path to success, but so far this example of incorporating innovation and design thinking into legal education is progressing well. We look forward to continuing the engagement with colleagues in other institutions12 and with the broader profession to play a role in better equipping our students with the problem-solving skills they will need in an increasingly challenging world. B

Endnotes 1 <https://www.etymonline.com/word/law> 2 See eg CG Weeramantry, The Slumbering Sentinels – Law and human rights in the wake of technology (Penguin, 1983). 3 Law Society of NSW, Future of Law and Innovation in the Profession 2017 <https:// www.lawsociety.com.au/sites/default/ files/2018-03/1272952.pdf> ; Lexis Nexis Legal Frontiers: From AI to Ethics 2018 <https:// www.lexisnexis.com.au/en/insights-andanalysis/practice-intelligence/2018/the-ethicsof-ai-in-the-legal-industry> ; Legal Innovation Summit; ALTACon LegalTech Summit; ChillIQ. 4 See eg Gilbert + Tobin’s G+T Innovate <https:// innovate.gtlaw.com.au/>; Allens a+ solutions < https://www.allens.com.au/sectors-services/ services/aplussolutions/>. 5 See eg discussion of a funding round into a start-up that helped the Federal Court adapt to the pandemic: Yolanda Redrup, “A $3.75m verdict on legal tech” Australian Financial Review 9 December 2020 [23]; other Australian legal

start-up examples include amongst many others: Joseflegal <https://joseflegal.com/> ; Checkbox <https://www.checkbox.ai/> ; Plexus <https://www.plexus.co/> ; Lawpath <https:// lawpath.com.au/> . 6 See eg the Law Council’s Justice Project https:// www.lawcouncil.asn.au/justice-project ; the work of Justice Connect < https://justiceconnect. org.au/> and Portable < https://www.portable. com.au/>. 7 Amica <amica.gov.au> as developed by the Legal Services Commission: see eg Christian Porter “New ‘amica’ online service to assist couples to separate amicably” [Media release, online, 30 June 2020] <https://www. attorneygeneral.gov.au/media/media-releases/ new-amica-online-service-assist-couplesseparate-amicably-30-june-2020>. 8 The University of Western Australia and Flinders University amongst others ran legal hackathons in 2019, and there are global networks that facilitate cross border hackathon engagement; University of Sydney offered a Summer innovation program in January 2020; QUT have recently offered a Law and design thinking virtual masterclass; University of Technology Sydney now offers the Bachelor of Laws Bachelor of Creative Intelligence and Innovation with a focus on transdisciplinary problem solving; and the College of Law’s Centre for Legal Innovation has extensive innovation offerings – eg the Innovation and Legaltech week 8-12 February 2021 <https://clialpma-legaltech-and-innovation-virtual-summit. heysummit.com/>. 9 Lee Vinsel, The Design Thinking Movement is Absurd [online, 27 November 2018] <https:// medium.com/@sts_news/the-design-thinkingmovement-is-absurd-83df815b92ea>. 10 For more detail on her work and design thinking generally see eg <http://www.margarethagan. com/>. 11 the third topic has already been offered to other cross disciplinary groups in 2019 and will see the first major infusion of law students tackling it in 2021. 12 These initiatives were discussed with colleagues nationally on 2 October 2020 in the 2020 Professional Legal Education Conference hosted by Bond University <https://bond.edu.au/2020professional-legal-education-conference>. A copy of the recording of that discussion is available at <https://vimeo.com/bondolt/ review/480148797/1409fb8644>.

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CIVIL COURT RULES

Pre action protocols under SA’s new Uniform Civil Court Rules MARGARET CASTLES, MICHELLE HAMLYN & SHAVIN SILVA, CIVIL LITIGATION COMMITTEE

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he Uniform Civil Court Rules introduced in all SA civil court jurisdictions in SA in April 2020 revised the requirements for parties to engage in pre action negotiations before issuing proceedings. The new rules apply to all types of civil claims above the Magistrates Court Minor Civil jurisdiction. This article provides an overview of the key provisions.

SUMMARY AND OVERVIEW Although the new rules reflect the regime under old rule 33, and the practice directions applying to medical negligence claims, they go significantly further, both in specifying the nature and rationale for offers, requiring a pre action meeting, and the exchange of all relevant experts reports (not just those favourable to a party). The intent of the protocols is to equip the parties with as much cogent information as possible to enable them to make informed decisions about compromise before commencing litigation. The new rules provide greater scope for judicial enforcement of the pre action protocols, including immediate cost consequences for non-compliance (61.14(4), (5) and (6)), and for costs payable forthwith, on an indemnity basis. The requirement for reasoned explanation of claims, coupled with the exchange of expert and other relevant material, goes some way to avert the concern of lawyers that serious settlement discussions can’t occur until pleadings are exchanged and discovery is completed. There is a perception that these requirements demand front loading in litigation by requiring parties to carefully justify their claims both legally and factually and gather some evidence to support their position. In fact, in the majority of claims this preparation would be done in the normal course of determining if the claim is worth pursuing, and all that is required is for the parties to exchange this information with each other early, rather than waiting for the progress

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of a case through pleadings and discovery to do so.

• Identify any other medical records held by other providers

INFORMATION FOR APPLICANTS: PRE ACTION CLAIM REQUIREMENTS

TIME LIMIT TO ISSUE PRE ACTION CLAIM OF CLAIM

General claims Applicants planning to initiate a claim must provide a pre action claim to the respondent. UCCR 61.7 requires the pre action claim to: • Identify each cause of action in detail • If the claim is a liquidated sum, explain how the sum is calculated and breakdown the calculation of damages • Attach any expert report relevant to the claim • Provide sufficient material to enable the respondent to make an informed response • Provide indication of anticipated costs if the matter goes to trial (Form P3) • Make an offer to settle • Propose a date and time for a pre action meeting to negotiate the claim.

There are specific time limits for every step in the pre action claim regime, except for issuing the original pre action claim itself. An applicant should issue the claim sufficiently in advance of the expiration of the limitation period OR the proposed date of issue to enable all the timed pre action steps to be completed before issuing proceedings. In the case of general claims this is at least 42 days, in the case of personal injury claims, at least 51 days. If third parties are likely to be involved, or counter claims raised, the time limit could extend out to at least 63 days for a general claim and 81 days for a personal injury claim. Applicants would be prudent to issue the pre action claim sufficiently in advance of the expiration of the limitation period to cover these eventualities. Additional requirement: early claim of personal injury including medical negligence UCCR 61.6 requires claim of an injury to be given within six months of the injury occurring, or, if the person becomes aware of having suffered a personal injury after six months, within one month of becoming aware. Claims must be in writing and consist of: • Names of all potential parties • Details of when where and how the injury occurred • Specifying the reasons for liability • Identifying any medical records that the applicant requires from the other party. The other party must provide in response: • Address for pre action service • Copy of any medical records requested • For a medical negligence claim, explain why liability is denied including any alternative explanation for the perceived injury

Personal injury claims Additional details are required for personal injury claims (UCCR 61(7)): • Provide personal details (DOB and occupation) • Explain the conduct of the respondent that caused the injury, including date and occasion and reason the conduct was negligent • Outline any ongoing medical treatment Personal injury medical negligence claims If the personal injuries claim is a medical negligence claim, the applicant must also: • Identify the adverse effects of the alleged negligent conduct and the applicant’s current condition • Explain the causal link between the negligent conduct and the adverse effects, including stating the outcome had the negligent conduct not occurred • Identify medical records that the applicant seeks from the respondent


CIVIL COURT RULES

Photo: Courts Administration Authority

• Make suggestions for next steps (such as further investigation, expert evidence, ADR).

commence proceedings and in an urgent dust diseases claim, or for criminal injuries compensation.

Potential claimants who have already made a claim within 6 months under the Motor Vehicles Act 1959 or the Return to Work Act 2014 are exempt from this provision. As potential applicants may not be aware of this requirement, practitioners should check with clients at the first interview whether they have provided notice, and if not, do so promptly.

FINAL CLAIM OF CLAIM IN LIEU OF PRE ACTION CLAIM WHERE ACTION UNCONTESTED

EXEMPTIONS TO PRE ACTION CLAIM REQUIREMENTS Rule 61.8 provides for exemption from compliance with the pre action claims if the applicant is seeking a freezing order, a search order or an interim injunction, and does not want to alert the respondent. Applications for pre-action disclosure are also exempt. Parties may seek exemption if an ADR process similar to that proposed in the rules will be undertaken (for example pursuant to a statutory scheme or a binding ADR agreement between the parties). Proceedings commenced by originating application, which will include judicial review, some statutory proceedings, are exempt. Exemption is permitted when seeking recovery of monetary award under the SACAT Act or the Building and Construction Industry Security for Payment scheme, where there is a statutory time limit of 3 months to

UCCR 62.1 permits an applicant that believes that the claim will be uncontested to serve a Final Notice of Claim upon payment of a fee, giving 21 days’ notice. This provision avoids having to prepare a detailed pre action claim in limited circumstances.

INFORMATION FOR RESPONDENTS: RESPONSE TO PRE ACTION CLAIM A response to a pre action claim is required. If the respondent does not accept the offer made by the applicant, UCCR 61.9 requires the respondent to: • Respond to each claimed cause of action including any defences • Provide details of any proposed counterclaim in accordance with UCCR 61.7 • In construction claims, identify any dispute about the principal contractual terms or statutory provisions • Attach any relevant expert reports in their possession • Provide sufficient additional material to enable the applicant to respond to the respondents offer • Provide an estimate of the likely costs of pursuing the matter to trial

• Make a reasoned offer of settlement • Either agree to the pre action meeting proposed by the applicant or propose an alternative. In the case of a medical negligence claim, the respondent must also provide all records sought by the applicant or explain why any records provided are not complete. In construction claims, the respondent must identify any dispute about principal contractual terms or statutory provisions relied upon by the applicant in the response.

THIRD PARTIES AND COUNTERCLAIMS If this exchange of information discloses any third parties, they must be provided with pre action claims in accordance with this above regime. Issuing third party claims of claims will necessarily prolong the pre action process by at least 21 days (general claims) or 30 days (personal injury) from the date of issue of a claim of claim to a third party. If a counter claim is proposed, the same time limits apply for responses by the Applicant (UCCR 61.10)

PRE ACTION MEETINGS UCCR 61.12 specifies that the parties must convene a pre action meeting, which must be attended by the parties or someone with authority to settle on their behalf, and their legal representatives. This should be convened within 21 days February 2021 THE BULLETIN

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CIVIL COURT RULES

of the date for delivery of the last pre action document, but the parties can agree to a longer time frame for this meeting. The parties are required to negotiate in good faith, focussing on identifying the main issues in dispute, exploring ways to resolve the dispute without proceeding to litigation, identifying whether any third parties need to be brought into the action. Lawyers are required in the presence of the parties, to try to reach consensus about the likely cost and time scale if the matter proceeds to litigation. Parties are strongly encouraged to engage an ADR practitioner or other neutral third party to facilitate these discussions. If the parties find that they are unable to reach agreement, they should turn their focus to identifying what expert evidence will be needed, agreeing upon documents to be exchanged, and planning the forward steps with a view to minimising costs of litigation. At the end of the meeting the parties must prepare and sign a report covering attendance, compliance with the protocols, and recording any agreement for future ADR processes (Form P4). This record and all other pre action protocol documents must be filed in court on a restricted access basis 7 days after the Defence is filed (UCCR 61.13).

CONSEQUENCES OF NON-COMPLIANCE Applicants must note compliance with the pre action protocols on the

claim when issued, or specify reasons why there has not been compliance. Failure to comply without exemption presumptively precludes recovery by the applicant of any legal costs for preparing filing or serving the statement of claim (61.13) If a claim that is filed indicates on its face that the protocols were not complied with by one or both parties, the court will convene a special directions hearing to decide if the parties should be required to comply with part or all of the pre action steps (UCCR 61.14). There are costs consequences for parties who fail to comply with part or all of the protocols, including payment forthwith of costs on a lump sum indemnity basis against defaulting applicants or respondents. If either party asserts that the other party has not complied properly with the protocols, they may apply for an early directions hearing, or seek orders for compliance with pre action protocols at the first normal directions hearing (UCCR 61.15). In determining costs of a proceeding, the court may: • take into account any failure by parties to comply with the pre action protocol • compare the terms of non-accepted pre action offers with the result of the proceeding • take into account if a party unreasonably failed to accept pre action offers • general conduct of parties in relation to pre action steps.

IMPACT OF PRE ACTION PROTOCOLS Courts have been grappling for years with strategies to get parties to negotiate early in order to avoid the cost and delay of litigation. Traditionally alternative dispute resolution occurs some way through the litigation process, often after pleadings disclosure and some evidence gathering is completed. The pre action protocols seek to require parties to engage in serious negotiations pre action. This is often advantageous to parties, and fits with the known statistical observation that 95% of cases settle before reaching trial. The goal of moving settlement events early in process, if not before proceedings start, is consistent with civil court reform throughout Australia and the UK. Lawyers may be understandably, although perhaps unnecessarily, cautious about making compromise before the legal steps of pleadings, disclosure, case preparation and evaluation of risk are fully explored. The intent of the rules is to provide parties with the information they need to make decisions about compromise, against the backdrop of the likely costs of litigation. The requirement for a pre action meeting is an important advance on the previous Rule 33 that only mandated written communication. The rules are designed to make the meeting productive, requiring good faith, identification of main issues in dispute and the reasons why they are disputed, attempting to reach consensus on the costs of going to trial,

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CIVIL COURT RULES

and emphasises the value of seeking ADR prior to going further. There are robust procedures available to judicial officers to require compliance with pre action protocols, and cost penalties for failure to do so. Whether the protocols will have the desired effect is another matter entirely. A recent study1 into the pre action protocols that preceded the UCCR suggested that compliance was inconsistent, with many practitioners either not knowing about the protocols, or not seeing value in compliance, and some reluctance on the part of judicial officers to enforce the requirements. These are key bases for the strengthening of the protocols in the UCCR. The rules provide explicit guidance about the content and process of pre action communication between parties. Although the cost consequences of non-compliance are not significant when compared with the overall cost of litigation, judicial officers can make immediate costs orders for failure to comply, there are more robust processes for parties who are keen to attempt early resolution, and an explicit provision judicial officers to be asking questions about the potential to utilise these options

before progressing too far down the litigation track.

QUESTIONS ABOUT PRE ACTION PROTOCOLS: Are pre action communications privileged? UCCR 61.4 makes it clear that all communications between parties aimed at settling disputes are privileged, which includes pre action communications. This is consistent with existing common law negotiation privilege. Whilst these communications cannot be relied upon in determining the substantive dispute, they can be considered in terms of costs when the matter is settled or otherwise disposed of (UCCR 61.16). This is consistent with the approach to settlement privilege already adopted by Australian courts. Any documents filed pursuant to these rules are sealed except with respect to costs. Do respondents have to make an offer? The UCCR require the applicant to make an offer in a pre action claim. Whilst the rules infer that the respondent will make an offer in reply, it is well settled law that a party cannot be forced to make an offer of compromise in litigation. Where

a respondent is not in a position to make any offer of compromise, a reasoned response that explained why there was no offer forthcoming in response to a claim of claim would be consistent with this principle. Who pays the costs of pre action steps? UCCR 61.5 indicates that the costs are to be in the cause, except to the extent that such costs relate to matters not subsequently litigated. Service of pre action documents? UCCR 61.3 provides that all pre action documents can be service in person, in PDF or Word format by email, or by express post. Documents can also be served on an insurer or on a law firm in some cases. B

Endnotes 1 Sourdin, T, Muddle, M and Castles, M The Evaluation of Specific Pre-Action Processes in South Australia (2018). Available at SSRN: https:// ssrn.com/abstract=3269693 or http://dx.doi. org/10.2139/ssrn.3269693

TABLE OF PRE ACTION TIME FRAMES EARLY NOTICE OF PERSONAL INJURY 61.6 (2) 61.6(3) 61.6 (4)

Early notice of personal injury including medical negligence Response to early notice of personal injury

Within 6 months of injury or if after 6 months within 1 month of awareness injury sustained 6 weeks from date of receipt of notice

PRE ACTION NOTICES OF CLAIM Time for notice of claim

61.9 61.10 61.2 61.12 61.12 (6) 61.13 (4)

At least 42 days (general claims) and 51 days (personal injury) to allow time for response and to convene pre action meeting. 63 and 81 days if multiple parties or counter claim. Response to pre action claim/notice of counter 21 days claim 30 days personal injury Issue third party pre action claim 21 days from date of original notice of claim Response time for all pre action documents 21 days (general claim) 30 days (personal injury) Pre action meeting To be convened within 21 days after time for service of last pre action document, longer by agreement of parties Pre action meeting report At time of or shortly after meeting completed if matter not settled. Filing by applicant of pre action documents and pre 7 days after defence filed action meeting report

SPECIAL PROVISION WHERE NO DEFENCE ANTICIPATED 62.1

Final notice of claim in lieu of pre action claim

21 days. Only where no defence anticipated. Fee payable. February 2021 THE BULLETIN

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INSURANCE LAW

Landmark UK decision on COVID-19 business interruption claims: What does it mean for Australian insurers? NATHAN DAY, SPECIAL COUNSEL, ILES SELLEY LAWYERS

OVERVIEW

A

landmark decision of the highest court in the United Kingdom – the Supreme Court – has shed light on whether, and to what extent, a business can recover losses related to the COVID-19 pandemic. The decision will have widespread ramifications as it places a heavy burden on insurers to cover policyholders for COVID-19 related losses. Indeed, it is estimated that it will force UK insurers to pay out claims totalling at least £1.2 billion. This article examines the decision and assesses its implications for Australia.

BACKGROUND A standard business interruption policy will cover a policyholder against loss arising from damage caused to its premises due to various causes (for example, a natural disaster). Such a policy will typically include “extensions” that provide coverage in the absence of physical damage. In the context of the COVID-19 pandemic, the relevant extensions are categorised as follows: 1. disease extensions: generally covering business interruption losses caused by an infectious disease at or within a specified radius of the policyholder’s premises; 2. prevention of access extensions: generally covering business interruption losses caused by public authority intervention preventing access to the policyholder’s premises; and 3. hybrid extensions: generally covering business interruption losses caused by (i) government restrictions imposed by reason of (ii) an infectious disease

30 THE BULLETIN February 2021

at or within a specified radius of the policyholder’s premises. The UK Financial Conduct Authority (FCA) brought a test case against eight UK insurers to clarify how these extensions should be interpreted in relation to COVID-19 related claims. At first instance, the UK High Court of Justice largely found in the FCA’s favour. All but two insurers appealed.

FINANCIAL CONDUCT AUTHORITY V ARCH INSURANCE (UK) LTD [2021] UKSC 1 The Supreme Court unanimously dismissed the insurers’ appeals. Lord Hamblen and Lord Leggatt (with whom Lord Reed agreed) delivered the majority judgment. Lord Briggs (with whom Lord Hodge agreed) concurred with the majority judgment save for one “major” point (referred to in footnote 2 below) and “one minor point” of no immediate relevance. Disease Extensions The Supreme Court considered, as an exemplar, a disease extension covering business interruption losses “following” any occurrence of a “Notifiable Disease”1 at or within a 25-mile radius of the policyholder’s premises (“prescribed radius”). Whilst the Court below found that this extension covers the consequences of all COVID-19 cases provided that at least one COVID-19 case occurred within the prescribed radius, the Supreme Court rejected this view and instead found that it is limited to covering business interruption losses caused only by COVID-19 cases occurring within the prescribed radius.2 In interpreting the disease extension in this way, the critical issue becomes

causation. That is, did the COVID-19 cases occurring within the prescribed radius cause the UK Government to introduce measures which interrupted the policyholder’s business. For example, assume that a policyholder had one COVID-19 case within a 25-mile radius of its premises before the UK Government required it to close. Did that one COVID-19 case within the prescribed radius cause the UK Government to close the policyholder’s premises so as to trigger coverage under the disease extension? The Supreme Court considered a hypothetical case of 20 individuals working together to push a bus over a cliff. If one were to assume that only 14 individuals were needed to push the bus over the cliff, it could not then be said that the participation of any one individual was necessary to destroy the bus. And yet, it would be appropriate to regard each individual’s involvement as a cause of the loss. The Supreme Court acknowledged the difficulty in applying that hypothetical case to a scenario where the number of events required to bring about the loss is multiplied many times over so that, instead of there being 20 events, there are, say, 200,000 events. In the context of an insurance policy, whether one out of 200,000 events which, combined, bring about loss should be regarded as a cause of the loss so as to trigger coverage was found to depend upon the risks that the insurer agreed to cover. In undertaking that analysis, the Supreme Court had regard to the parties’ presumed background knowledge when entering into the policy that: 1. an infectious disease can spread rapidly


INSURANCE LAW

and widely such that an outbreak would most likely comprise cases both inside and outside the prescribed radius; and 2. any government restrictions would be imposed in response to the outbreak as a whole and not just to those cases which happened to occur within the prescribed radius. Taking this presumed knowledge into account, the Supreme Court found that the parties’ commercial intentions would be undermined if insurers could successfully argue that COVID-19 cases occurring outside the prescribed radius constituted a countervailing cause displacing the causal impact of COVID-19 cases within the prescribed radius. For these reasons, the Supreme Court concluded that each individual case of COVID-19 occurring by the date of any government response was a separate and equally effective cause of that government response. Accordingly, a policyholder will be entitled to coverage under a disease extension if it can point to at least one COVID-19 case within the geographical region covered by the extension (i.e. the prescribed radius) before a government restriction interrupted its business. Hybrid Extensions / Prevention of Access Extensions The Supreme Court considered a number of hybrid extensions, including one of which covered business interruption losses caused by the policyholder’s “inability to use” its premises due to “restrictions imposed by a public authority” following an occurrence of “a notifiable human disease within one mile of the business premises”. The Supreme Court considered that the “disease element” of the hybrid

extension should be interpreted in the same way as the disease extensions. The Supreme Court otherwise found that: 1. a “restriction” does not need to have the force of law (i.e. by way of legislative instrument) to trigger coverage; for example, the UK Prime Minister’s public statement instructing specific businesses to close constituted such a restriction; 2. whilst most “restrictions” would be directed at the policyholder’s premises (i.e. directions to close the premises), other restrictions preventing public access can also trigger coverage; and 3. a policyholder will demonstrate an “inability to use” its premises if it was unable to use its premises for a discrete part of its business or if it was unable to use a discrete part of its premises for its business. Quantifying the insured loss In quantifying the loss recoverable from the insurer, a comparison will generally be undertaken of the policyholder’s revenue during the 12-month period before the event triggering policy coverage as against the revenue for the period in which the policyholder was affected by the insured peril (otherwise known as the “indemnity period”). It was found that in undertaking that calculation: 1. the revenue for the indemnity period should be assessed on the assumption that there was no COVID-19 pandemic; and 2. any downturn in trade caused by the COVID-19 pandemic before coverage is triggered (otherwise known as “pre-trigger losses”) are not factored into calculating the revenue for the indemnity period; in other words, the

“assumption should be made that pretrigger losses caused by the pandemic would not have continued” during the indemnity period.

AUSTRALIAN IMPLICATIONS Australian insurers have to date been largely focused on the Quarantine Act exclusion. In particular, many Australian business interruption policies contain an exclusion in their disease/hybrid extensions excluding loss resulting from a disease declared to be a quarantinable disease under the Quarantine Act 1908 (Cth) “as amended”. From an insurer’s perspective, the difficulty with this exclusion is that the Quarantine Act 1908 (Cth) has been repealed. This has forced insurers to argue that: 1. the Biosecurity Act 2015 (Cth) should be read as an “amendment” to the Quarantine Act 1908 on the basis that it, in effect, replaced the Quarantine Act 1908 (Cth); and 2. as COVID-19 has been declared to be a listed human disease under the Biosecurity Act 2015 (Cth), all losses relating to COVID-19 are excluded. However, this argument was unanimously rejected by the New South Wales Court of Appeal in HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296 (“HDI Global”). Insurers are now anxiously awaiting the outcome of the Insurance Council of Australia’s application for special leave to appeal this decision to the High Court of Australia. To date, there has been no judgment in Australia dealing with the issue as to whether a disease/hybrid/prevention of access extension has been triggered in the February 2021 THE BULLETIN

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INSURANCE LAW

context of the COVID-19 pandemic. The UK Supreme Court judgment is the only guide we have on how these clauses will be interpreted. Assuming that HDI Global is not disturbed by the High Court of Australia and assuming that the UK Supreme Court judgment is followed in Australia, these cases will have massive implications for Australian insurers, forcing them to pay out upwards of an estimated $10 billion in business interruption claims. Having said that, Australian insurers will obtain some comfort from the UK Supreme Court decision insofar as it found that a policyholder will only be entitled to coverage under a disease/hybrid extension if it can prove that there was a COVID-19 case within the geographical region covered by the extension before Government restrictions were introduced.

32 THE BULLETIN February 2021

That finding may prove fatal to regional businesses if, for example, such businesses are unable to point to any COVID-19 case within the geographical region covered by its policy before the introduction of government restrictions.

CONCLUSION The UK Supreme Court judgment sounds an alarm bell to Australian policyholders to urgently check whether they may be entitled to coverage under their business interruption policy and, if so, to urgently notify their insurer accordingly. Once they have notified their insurer, it will then be a matter for insurers and policyholders to see whether the High Court of Australia disturbs the New South Wales Court of Appeal’s rejection of the Quarantine Act exclusion in HDI Global. If that decision is upheld

and if the UK Supreme Court judgment is followed, insurers will find themselves in the position of having to pay out very substantial business interruption claims. Ultimately, whether a policyholder is entitled to claim COVID-19 related losses will depend on its individual circumstances and policies. For this reason, it is prudent for policyholders to seek urgent advice tailored to their particular situation. B Endnotes 1 Defined in the subject policy as “an illness sustained by any person resulting from … any human infectious or human contagious disease … an outbreak of which the competent local authority has stipulated shall be notified to them.” 2 Lord Briggs (with whom Lord Hodge agreed) preferred the view taken by the Court below that the disease extension covers the consequences of all COVID-19 cases provided at least one COVID-19 case occurred within the prescribed radius.


FAMILY LAW CASE NOTES

Family law case notes KELEIGH ROBINSON, THE FAMILY LAW BOOK PROPERTY – HIGH COURT SETS ASIDE STAY ORDER – FULL COURT MISAPPLIED RES JUDICATA AND ANSHUN ESTOPPEL

I

n Clayton v Bant [2020] HCA 44 (2 December, 2020) the High Court (Keifel CJ, Bell, Gageler, Gordon & Edelman JJ) allowed with costs an appeal where the Full Court permanently stayed a wife’s application for property and spousal maintenance as she had failed to contest divorce proceedings in Dubai. A citizen of the United Arab Emirates, the husband issued divorce proceedings in Dubai in 2014. The wife did not appear, such that a Dubai court granted the husband an “irrevocable fault based divorce” ([8]) and ordered the wife to repay an amount of an advanced dowry and costs. The husband then sought a permanent stay of the wife’s property and spousal maintenance proceedings in the Family Court of Australia, arguing res judicata. Although unsuccessful at first instance, the Full Court stayed the proceedings, finding that the Dubai proceedings had determined the same cause of action and the wife’s failure to pursue her claim in Dubai meant she was estopped from pursing a spousal maintenance claim in the Family Court. The majority of the High Court (Kiefel CJ, Bell and Gageler JJ) said (at [26]): “Once it is appreciated that the rights in issue in the property settlement proceedings and in the spousal maintenance proceedings are the statutory rights of the wife to seek orders under ss 79(1) and 74(1) of the Act, it is apparent that the ruling made by the Dubai Court cannot give rise to a res judicata in the strict sense in which that term continues to be used in Australia. The rights created by ss 79(1) and 74(1) cannot ‘merge’ in any judicial orders other than final orders of a court having jurisdiction under the … The rights of the wife to seek orders under ss 79(1) and 74(1) continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted.”

October, 2020) Strickland J, sitting in the appellate jurisdiction of the Family Court of Australia, set aside an order that the husband pay the wife’s costs of $62,000. The wife, sought an interim release for $40,000, a child support departure order and spousal maintenance of $600 per week; and sent a settlement offer to the husband titled “property matters” where she proposed a transfer and refinance of properties and a payment to her of $40,000. At trial, the wife’s applications for child support and spousal maintenance were dismissed, but she was to receive a cash adjustment of $146,672, which primarily formed the basis of the subsequent costs order against the husband. On appeal, the husband argued that the wife’s offer could not have been reasonably accepted by him at the time, particularly where the offer was silent as to the child support and spousal maintenance issues. Strickland J said (from [33]): “There is ample authority to the effect that an offer must be expressed ‘with precision’ and ‘in terms which are objectively capable of being clearly understood’ (Harris and Harris [1987] FamCA 7) ( … ) [40] The proceedings had only commenced on 26 October 2017, and the wife, both at that time, and when she filed her Amended Initiating Application at the same time as the offer … was unable to identify for the court the order for property settlement she was seeking. ( … ) [57] … I am reminded … of what the Full Court said in Pennisi [ed. full citation: Pennisi & Pennisi [1997] FamCA 39], namely, it is critical to consider the context in which an offer is made … And, as was said by the Full Court in Cross & Beaumont [2008] FamCAFC 68 … at [51] that context can be that ‘[i]f the recipient of the offer is demonstrably unable to comply with his or her obligations under the proposed settlement, it is difficult to see how the offer could be relied upon in support of an application for costs’.”

COSTS – HUSBAND WINS APPEAL OF COSTS ORDER – WIFE’S SETTLEMENT OFFER DID NOT CONCLUDE ALL MATTERS IN ISSUE

CHILDREN – SINGLE EXPERT – GENERAL CHILD AND FAMILY PSYCHIATRIST PREFERRED OVER SPECIALIST PERINATAL PSYCHIATRIST

In Paradin [2020] FamCAFC 245 (7

In Lambard & Lambard and Ors (No.

2) [2020] FamCA 858 (14 October, 2020) McClelland DCJ considered a disagreement over the appointment of a single expert psychiatrist where the proceedings concerned the parties’ 19 month old daughter. Post-birth, the mother suffered an acute mental health episode which resulted in her attempting to take her own life and then while hospitalised, she sustained further injuries which resulted in her being confined to a wheelchair ([5]). The mother contended that any mental health concerns had been treated and were in remission, the father contending that the mother’s behaviour pre- and post-birth presented concerns as to the mother’s parental capacity and posed an ongoing risk to the child. Where the parties agreed that a single expert psychiatrist should be appointed, the Court was asked to determine whether such expert should be the specialist perinatal psychiatrist sought by the mother and maternal grandmother or any of the three general psychiatrists sought by the father and the paternal grandmother. The Court said (from [26]): [26] Having regard to the … issues, it can be seen that the postnatal aspect of the mother’s mental health is but one aspect of many issues to be considered …. It may be that a psychiatrist with specialty in perinatal psychiatry may not necessarily have expertise in respect to other potential issues including, for instance, the posttraumatic consequences of the mother’s attempted suicide and ongoing injuries and disabilities. ( … ) [34] … I am of the view that the appointment of a single expert from among the list of names of the three qualified psychiatrists proposed by the father and paternal grandmother is the appropriate course of action to pursue in this matter. That is despite the fact that it is acknowledged that none of those three psychiatrists are specialists in perinatal psychiatry. … [I] am satisfied that they each have the required training, study and experience that qualifies them as having specialised knowledge on the issue of the mother’s mental health and to provide a prognosis in respect to that issue.” B February 2021 THE BULLETIN

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EMPLOYMENT LAW

High Court to review casuals’ permanent employee entitlements BEN DUGGAN, DIRECTOR, DW FOX TUCKER LAWYERS

I

n WorkPac vs Rossato1 the full Federal Court held, for a second time, that it was unable to set off a casual loading against permanent employee entitlements where the true nature of the employment relationship of a worker engaged and paid as a casual was found to be permanent.

FAIR WORK (CASUAL LOADING OFFSET) REGULATION Earlier, on 18 December 2018, in response to the first WorkPac decision,1 in which a similar set off argument was unsuccessful, the Morrison Government had varied the Fair Work Regulations 2009 to give statutory effect to the ability to set off. The purpose of the casual set off regulation (Regulation 2.03A) was identified in the Explanatory Memorandum as being to prevent the ‘double-dipping’ of entitlements by a casual as set out in the first WorkPac decision. An employer was, under the casual set off regulation, able to set off in response to claims made by a casual as long as the worker satisfied all of the following criteria: • a person is employed by an employer on the basis that the person is a casual employee (subregulation 1(a)); • the employer pays the person an amount (the loading amount) that is clearly identifiable as an amount paid to compensate the person for not having one or more relevant NES entitlements during a period (the employment period) (subregulation 1(b)); • during all or some of the employment period, the person was in fact an employee other than a casual employee

34 THE BULLETIN February 2021

for the purposes of the National Employment Standards (subregulation 1(c)); • the person makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements (subregulation 1(d)). Regulation 2.03A applies to employment periods that occurred before, on or after 18 December 2018.

BACKGROUND OF THE SECOND WORKPAC DECISION WorkPac employed Mr Rossato under six contracts of employment to work at mines operated by Glencore in Australia in the period between 28 July 2014 and 9 April 2018. Mr Rossato was engaged and paid as a casual employee throughout the period of his employment with Workpac. A short time after Mr Rossato’s retirement in April 2018 he wrote to WorkPac claiming that he was incorrectly classified as a casual employee and made a demand for the following permanent entitlements: 1. A payment for 22.3 weeks of untaken annual leave. 2. A payment in respect of personal/ carers leave and compassionate leave that Mr Rossato took from early March 2018 when his partner became ill and was hospitalised. 3. A payment for public holidays, Christmas Day, Boxing Day and New Year’s Day, on which Mr Rossato did not work. In response, WorkPac made an application to the Federal Court seeking a declaration that Mr Rossato was a

casual employee and not entitled to these permanent employee entitlements.

ROSSATO FOUND TO BE PERMANENT EMPLOYEE OF WORKPAC WorkPac, which was faced with a similar factual situation to the first Workpac decision, argued that Rossato was a casual because of the absence of a ‘firm advance commitment’ as to the duration of his employment or the days and hours of work. A determination as to whether there was a ‘firm advance commitment’ should be assessed, it was argued, by reference to the presence or absence of such a commitment in the parties’ written contract of employment. In response, the Federal Court in holding that the parties description of the nature of their relationship as casual was relevant but not a conclusive consideration, rejected the argument founded upon the ‘primacy’ of the contract. The Federal Court considered all of the circumstances of the relationship, including a range of factors about the manner in which the contract was performed in practice, as follows: • The duration of Rossato’s employment with WorkPac. • Whether Rossato’s employment was regular or intermittent. • Whether Rossato’s employment was predictable. • The ability for WorkPac not to offer work to Rossato. • The ability for Rossato to decline an offer of work. All three members of the Full Bench found that Rossato was not a casual


EMPLOYMENT LAW

employee2 because ‘...the parties had agreed on employment of indefinite duration which was stable, regular and predictable such that the postulated firm advance commitment was evident in (all) contracts.’ Further, the Federal Court found that Rossato was not a casual employee for the purpose of WorkPac’s enterprise agreement indicating in doing so that the circumstances of his employment could not be distinguished in a material way to those of Skene.’3 Rossato was therefore found to be entitled to the entitlements that he claimed under the FW Act and WorkPac’s enterprise agreement. In response, WorkPac sought to argue that it was entitled to either restitution or to ‘set off ’ against these permanent employee entitlements, payments (in particular the casual loading) that it had made under the contracts of employment.

THE CASUAL SET OFF REGULATION WorkPac sought, amongst other set off arguments,4 to rely upon the casual set off Regulation, Regulation 2.03A. The Federal Government which had introduced the casual set off Regulation in response to the first WorkPac decision, supported the reliance upon Regulation 2.03A. Rossato, through his union the CFMEU, had identified various issues with Regulation 2.03A including a submission that it was ‘invalid.’ Justice White, with whom the other members of the full bench agreed, provided the Federal Court’s rationale for the rejection of WorkPac’s reliance upon the casual set off Regulation in his judgment.

His Honour noted that for the Regulation to apply the four conditions specified in subregulation 1 (i.e. subregulation 1(a) to subregulation 1(d) of Regulation 2.03A, as set out above) must all exist. Justice White then considered whether the fourth of these conditions (subregulation 1(d)) was satisfied in the circumstances, as follows: • the person makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements. His Honour then made observations about the character of the claims made by Rossato: 1. Untaken annual leave: the claim for annual leave is for payment of annual leave being the entitlement ‘bestowed by section 90(2) of the FW Act’. 2. Personal/Carers Leave: the claim with respect to paid personal/carers leave is for payment ‘in accordance with the NES for which section 96 and section 99 provide...’5 3. Public Holidays: the payment for public holidays is for payment for which ‘the NES in section 116 of the FW Act applies.’ None of Rossato’s claims were found to be directed towards a payment ‘in lieu’ of an entitlement under the NES: ‘To the contrary, Mr Rossato seeks payment of the entitlements conferred6 by the NES.’7 The Federal Court’s characterisation of the claims as being the payment of permanent employee entitlements ‘conferred’ by the NES, rather than a payment ‘in lieu’ of such entitlements, meant that the condition in subregulation 1(d) was not satisfied.

The Federal Court rejected WorkPac’s argument that Rossato was making a claim to be paid an amount ‘in lieu’ of relevant NES entitlements. In short, the Federal Court found, for technical legal reasons, that the set off regulation, Regulation 2.03A, ‘...cannot provide a basis for a claim for set off and need not be considered further.’ Rossato was ultimately found to be entitled to the permanent employee entitlements that he claimed under the NES.

THE FUTURE The Federal Government has welcomed the High Court’s decision to grant special leave for the second WorkPac decision made by the Full Federal Court. A ruling of the High Court, which upholds the validity of the casual set off Regulation, will avoid the need for the Federal Government to take any further action in response to its concern about the ability of casuals to “double-dip”. The High Court has recently made preparatory orders for the second WorkPac decision’s substantive appeal, which is expected to be heard in the first half of this year. B

Endnotes 1  WorkPac v Skene [2018] FCAFC 131. 2 At common law or for the purposes of the Fair Work Act. 3 being the employee in the first WorkPac decision. 4 None of which were successful. 5  The claim for payment of Compassionate Leave which was taken was found to be of the same character. 6 Our emphasis. 7 Paragraph 943 of the second WorkPac decision.

February 2021 THE BULLETIN

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TAX FILES

The future of tax in Australia STEPHEN HEATH, WALLMANS LAWYERS

I

t has been a source of little comfort to me to inspect the "Worldometer Coronavirus stats" website over the last 9 months; often to appease boredom in the early hours of the morning when struggling to sleep during March and April in particular. As I write, the United States of America is said to have suffered 16,543,687 cases of Corona virus infection and Australia 28,024. Notwithstanding the larger population, an average American is 50 more times likely to contract the virus than the average Australian. A case of “the tyranny of distance” as Professor Geoffrey Blainey once wrote? Alternatively, perhaps explicable by the fact that most Australians live on quarter acre blocks and can afford to buy hand sanitiser? Far from being an expert on the matter, the discrepancy between the American experience and Australian experience does give cause to ponder matters such as the relative quality of our institutions and the trust reposed by Australian society at large in those institutions. One might predict that institutions such as law enforcement, the Reserve Bank, the health system and the education system will not suffer from lack of relevance in the uncertain times ahead. The COVID response across Australia does suggest our society is more willing to follow and trust Government than one might have predicted and is likely to reinforce a strong belief in the quality of our health system. That then raises the spectre of the capacity of our taxation system to manage the obvious challenge of spiralling Government budget deficits as well as the question of the efficacy of our taxation policy settings.

STATISTICS Perhaps, surprisingly, Australia is not such a highly taxing country in relative terms; 28.7% total taxation revenue compared to OECD average in 2018: 33.8% (total tax revenue as a percentage

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of GDP). However, when one unpacks what makes up the taxation revenues of the 37 OECD reporting nations, Australia is very much an outlier (all rankings determined as a percentage of GDP in 2018): • seventh lowest in goods and services tax collections; • seventh highest in personal income tax collections; • lowest in social security contributions; mention is rarely made of this form of revenue raising but of the 37 OECD countries only Australia and New Zealand do not raise compulsory payments to Government to secure future contingent social security benefits; • third highest in corporate tax collections; • fourth highest in payroll tax; • tenth highest in taxing property. • [Source: Revenue Statistics – OECD Countries Comparative Tables]. Other information of interest is as follows: 1. In 1901-02, Commonwealth, State and local Government revenues were only 6.3% of national GDP. By 1998-99 that percentage had increased to 30% [Source: ABS Australian Taxation during the first 100 years of Federation]. 2. In the 2020-21 income year, the 37% personal income tax rate will apply to taxable income in the $120,000 - $180,000 band. The 45% top rate cuts in at taxable income exceeding $180,000. By 2024-25, the 37% rate will be replaced by a 30% rate for taxable income in the $120,000 $200,000 band with the 45% rate retained for taxable income exceeding $200,000 (all rates cited not including the 2% Medicare levy). 3. Currently, the $180,000 threshold for the highest tax rate in Australia “cuts in” at only 2.2 times the average Australian wage. By comparison, in the United States of America it is 8 times, in Japan it is 8.7 times and in the United Kingdom (a welfare state?) 4.1 times.

History tells us that as life in western society becomes more sophisticated and as the general populous lives longer and enjoys more wealth, overall tax rates increase. What then of the future of tax policy in Australia in the years to come? At some point, one must expect the belt to be tightened and therefore ongoing expenditure initiatives, JobKeeper and JobSeeker for example, will need to be tapered off. On the revenue collection side, one would need to be optimistic to think the economy will be capable of performing all the “heavy lifting”. If the rest of the world is any guide and gleaning whatever one can from what Australian Governments are currently thinking, one might predict trends towards: 1. a higher rate and more broadly based GST; 2. a reduction / elimination of stamp duty and payroll tax; 3. a broader and more uniform land tax system; 4. little pressure on increasing personal income tax rates and further pressure to elongate and flatten the income tax rating bands; 5. downward pressure on corporate tax rates but more pressure on foreign multi-national companies to pay more tax; 6. some discussion about what is referred to above as “social security contributions”. What then of the impact of the Coronavirus on tax policy? As commented above, Australian experience does suggest we have a more homogenous society than we might have thought and that our people will follow our leadership in times of national emergency. That suggests, for a Government with sufficient political capital, an increase in the GST would be capable of being “sold”. It also suggests considerable value and trust in our health system. That can only suggest political and electorate support for increasing aged care and health expenditure. An increase to the Medicare rate might not be surprising. National emergencies also accelerate the


TAX FILES

trends towards nationalisation of service delivery and so one might expect, postCOVID, consideration to the effectiveness of the interface between the States in health policy and service delivery and a further progression towards national coordination.

MORE SPECIFIC OBSERVATIONS ABOUT TAX One thing I have battled the most with over 30 years of tax practice is the logic of a tax system which sometimes rewards taxpayer indolence and which penalises hard working taxpayer enterprise. It is many the time that I have written (based on cases such as Jones v Leeming (1930) AC 415 and FCT v Whifords Beach 82 ATC 4031) that profit arising from an undertaking in the nature of trade will be on revenue account and that profit from the mere realisation of an asset will be on capital account. The significance of the distinction has been ameliorated by the introduction of the capital gains tax, though amplified again with the introduction of the 50% CGT general discount (Division 115 Part 3.1 Income Tax Assessment Act 1997) and the small business CGT concessions (Division 152 Part 3-3). Logic might dictate that tax be levied on gains, whether hard fought and a product of ingenuity and science or whether accidental. Whilst it may be considered something of a heresy perhaps the time has come for the distinction between income and capital to be downgraded as an arbiter of taxation outcomes. The capital gains tax main residence exemption also raises important policy issues (sub-div 118B Part 3-1 ITAA 1997). There are considerable latent profits hidden behind valuable residential premises and a noted trend towards taxpayers working from home. Notwithstanding the comment above regarding the obedience of the Australian population, it is accepted that reform in relation to the principal residence would be quite courageous.

Other revenue distortions are, or have been, created by tax concessions such as instant asset write offs, research and development, concessions for early stage innovation companies, farm management deposits and the wine producer tax rebate. In practice, unfortunately, one often finds industry chasing the concessions as the first priority rather than the concessions being used to promote commercial best practice. The combined effect of all this is an unduly complex tax system driven by grandfathering rules and myriads of exceptions to general principles. The difference between the lowest personal income tax rate and the highest personal income tax rate (0% and 45%) also causes tax distortions and structuring built around avoidance of incurrence of the 45% tax rate. The issue, however, is that if there is downward pressure on personal income tax rates and the corporate tax rate and if stamp duty is on the way out how is the Government going to raise sufficient revenue in the next 10 years. One would be optimistic to think that the economy could do it by itself. It would seem inevitable that the rate of GST will need to increase and that some other revenue raising initiatives will need to be introduced. There may also need to be a discussion about revenue raising through “social security contribution”.

returns. Possibly, the death knell of suburban accountants making a living from tax return lodgements? 3. Conversely, for those advisers with strong innovation and bespoke advisory capabilities, the future may be bright. 4. The big “unknown” is the question of the capacity and desire of the ATO and Government to simplify the tax system and the administration of it. For example, there might be something to be said for further flattening and reducing the income tax rates, eliminating some deductions and tax concessions together with increasing the rate of GST and broadening its base. One can see significant "Keating" type reform, together with enhanced information technology resulting in less return on labour for tax advice and more return on what might be coined “tax advice capital”. 5. Advisers providing general tax advice are likely to suffer as the ATO builds its Rulings database and private advice services as consumers of tax advice become more capable still at sourcing advice on-line. The quantity and quality of ready-made tax information, without the need to contact a real person can only be expected to grow exponentially into the future.

CONCLUSION EXPECTATION FOR TAX ADVISERS The future for tax advice may involve the following: 1. At some point, a more aggressive taxpayer audit and review program being conducted by the ATO and State revenue authorities. To date, the experience has been that the ATO has been a “soft touch” with respect to raising and chasing tax debts. This cannot be expected to continue. 2. The COVID experience can be expected to speed up what was an inevitable progression towards a cashless society, real time reporting of transactions and payroll and towards the automatic issuing of taxation

There is a conflict for Government in future budgetary management as between downward pressures on personal and corporate income tax rates and expenditure requirements to support valued public institutions. If the consequences of Coronavirus are sufficient to render Government budget deficits a matter of national emergency, then meaningful tax reform may become politically palatable. If not, we can expect a slow recovery to budgetary stability and tax advisers to remain mired in tax legislation which is complex and internationally uncompetitive. Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia B February 2021 THE BULLETIN

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RISK WATCH

Connected while apart: File management and practitioner supervision in the era of social distancing GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

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he Bulletin Committee requested that this article be on the topic of “file management when working remotely – confidentiality and security”. This request was no doubt made in light of the experience of 2020 where COVID-19 restrictions caused major changes to the manner in which law was practised. During the strictest of the “lockdowns” – which in SA at least were mercifully short compared to other jurisdictions – we had to come to grips with working from home, remotely from the office. There has been much written about the advantages and disadvantages of working remotely, including that the “new normal” will involve a much greater element of remote working, even when (hopefully not if) the COVID-19 beast has been tamed. The starting point for any consideration of confidentiality and security issues in file management when working remotely must be to recognise that the basic underlying duties of a practitioner to maintain their client’s confidentiality and to ensure the security of their client’s file and information are unchanged, whether you are working from your office, your home or anywhere else. The obligations set out in the Solicitor’s Conduct Rules regarding confidentiality (ASCR Rule 9) and the implied ethical obligation regarding keeping client files secure and any obligations under the Privacy Act will apply, pandemic or no pandemic, to your practice, whether that be conducted in your office or from your kitchen table. It is obvious, therefore, that all of the same precautions you would take in the office to keep client files secure (locked filing cabinets, locked office doors, computer systems secured by passwords,

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virus protection etc) must be taken whilst working remotely. Just as you would not allow people who are not associated with your practice to wander in and out of your office looking at client files, you should not leave client files or your computer on the kitchen table when your kid’s friends are over. It should go without saying that client files and/or your computer should never be left unattended, either in your car or, worse, at the coffee shop when ordering or going to the toilet. The Australian Cyber Security Centre’s tips for protecting personal information when working remotely include the following: • Use trusted Wi-Fi. No café Wi-Fi! • Secure devices when not in use— locked drawer, locked room, not sitting on a desk • Implement multi-factor authentication • Use a Virtual Private Network (VPN) • Use strong and unique passwords • Update your software and operating systems • Avoid using portable storage devices where possible • Use trusted sources for information • Be aware and increase your employees’ awareness of seams Further to this, use work email accounts, not personal accounts for all work-related matters. Proper file management when working remotely can also give rise to other challenges – file notes of telephone conversations should be consistently made and filed properly, as should all client letters and documents, whether you are running an electronic file or a paper file. Additional attention to these logistical considerations (e.g. consistent printing and filing for paper files) needs to be given if practitioners are not in the office and

lacking their usual administrative support. Supervision of staff is also a major issue when working remotely. Some lawyers might see supervision as a “soft skill” or a task that can be put to one side when client matters get busy. Such a view would dangerously underestimate the importance of proper supervision and, in respect of those practitioners supervising practitioners on restricted practicing certificates, be inconsistent with the applicable LPEAC Rules. As the LPEAC Guidelines for the Supervision of Newly Admitted Practitioners (approved 22 July 2016) make clear, supervision is the responsibility of the supervising practitioner and should not be delegated to others. The LPEAC Guidelines also say that supervision of a practitioner on a restricted practising certificate “must be distinguished from a lawyer’s general duty to supervise practitioners and other employees who are performing legal or paralegal work for which the lawyer is ultimately responsible. Supervision of this latter type of work is a risk management, productivity and profitability tool. Supervision in the context of the [LPEAC] Rules is entirely different, and while it contains elements of risk management, productivity and profitability, it fulfils a much wider purpose. It is the final formal component of a practitioner’s legal education and must be viewed as such by the supervising practitioner.” Despite the differing sources of the obligation to supervise identified above by the LPEAC Guidelines, it is good practice for those supervising practitioners to have regard to the LPEAC Guidelines even if they are engaged in general supervision (i.e. not necessarily just of those on restricted practising certificates). In this regard, the LPEAC Rules (Rule 5(3)) (written pre-COVID-19)


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state that the supervising practitioner and the junior practitioner should be located in the same or substantially the same physical location. On 30 March, 2020 LPEAC issued an addendum to the LPEAC Guidelines entitled “Remote Supervision of Practitioner Subject to Supervised Practice (Category CPC) During COVID-19 Restrictions”. It is said in this document that, for the duration of the COVID-19 requirements for social distancing LPEAC understands that it may be difficult for the requirement that the supervisor and the supervisee work at the same location to be complied with. The 30 March, 2020 document provides that there must be an initial meeting between the supervisor and the supervisee which must occur before commencing work remotely (or as soon as possible thereafter). This meeting is to address the following: • Method of communication. A primary method of communication must be agreed as well as a preferred secondary method of communication. The primary method of communication for contact that would usually occur face to face is video-conferencing software. The following are secondary methods of communication: - Email; - Phone call.

• Frequency of supervision meetings, including agreed times and days (subject to the requirements set out below). • How written work will be dealt with. • How new tasks will be assigned. • How ad hoc queries will be addressed. • The extent (if any) to which the supervised practitioner is permitted to engage directly with client. LPEAC considers that such direct contact between client and supervised practitioner should not involve providing substantive legal advice unless authorised in writing by the supervisor. Following the initial meeting, further meetings between the supervisor and the supervised practitioner may occur remotely. The supervisor and the supervised practitioner must meet using the agreed primary method of communication at least twice each week. There must also be contact between the supervisor and the supervised practitioner by a secondary method of contract at least once every day. The supervisee must keep a supervision diary (which must be counter-signed by the supervisor and provided to the Board of Examiners as part of any application to be issued with an unrestricted practising certificate) which sets out time, date and medium for each

supervision meeting. The LPEAC document also states that once the COVID-19 social distancing requirements have been relaxed, it is expected that normal, face-to-face (non-IT facilitated), in office meetings will resume. It is not clear what particular COVID-19 restrictions LPEAC had in mind when ratifying these additional Guidelines and whether the current looser restrictions applicable in SA are restrictions of the nature intended. From a Risk Management point of view, however, these Guidelines are a good starting point for remote supervision (whether that be required by the LPEAC Rules or otherwise) and all practitioners who are supervisors or supervisees should be familiar with them. Further, all such practitioners should also be familiar with the main LPEAC Supervision Guidelines adopted in 2016 as referred to above, see https://www.lawsocietysa.asn.au/pdf/ EP_Guidelines_for_the_Supervision_of_ Newly_Admitted_Practitioners.pdf. There are a number of other important points to be made about supervision in a more general sense and a Risk Management seminar concentrating on supervision issues will be held later in 2021. B February 2021 THE BULLETIN

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The limits of civil contempt in the South Australian Supreme Court: Time for an alternative approach to non-compliance? LACHLAN BLAKE, HONOURS STUDENT, ADELAIDE LAW SCHOOL

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he process of contempt in civil litigation in the South Australian Supreme Court (the Supreme Court) is a ‘last resort’ coercive power that allows the Court to compel litigious parties who obstruct or ignore court orders to obey and observe its authority. It is hindered by limitations that prevent it from adequately ensuring a just and efficient court process and, as a result, has been subjected to a number of law reform inquiries spanning many Australian jurisdictions.1 I argue that contempt in the Supreme Court has severely limited utility in dealing with non-compliance with court orders during proceedings due to its ambiguities and propensity to result in drawn-out disputes and unjust outcomes. These flaws are compounded by the overall disutility of coercion in the context of non-compliance. To compensate for this, law reform would allow the Supreme Court to use more flexible options to address and resolve non-compliance. In this context I focus on, and provide a critical analysis of, the oftrecommended creation of ‘non-compliance proceedings’ to replace contempt and encourage more utile, diverse and adaptable methods to manage Supreme Court process.

BACKGROUND OF CONTEMPT IN SOUTH AUSTRALIA The law of contempt in South Australia stems from both common law and statutory provisions and comes in a variety of forms.2 For a recent statutory example, see r 156.13 of the Uniform Civil Rules 2020 (SA) (UCR)3 which allows for contempt proceedings to be initiated where a party fails to comply with a subpoena. The Supreme Court can make orders of contempt for disobedience of court orders, for the dissemination of information that it has ordered not to be published, and for extremely disrespectful

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behaviour.4 The disobedience model of contempt is favoured in the civil courts and will be the focus of this paper. The law of contempt is designed to use coercion to ensure obedience to the Court, for the benefit of the applicant (where a contempt order is applied for by a party) as well as the court system and its perceived authority in society.5 There is some concern among superior courts that without the threat of punishment, parties bound by court orders will simply disregard them and thus endanger the ‘very foundation’ of the administration of justice and rule of law, leading to a collapse into anarchy.6 In this paper I suggest that coercion is not so central to the authority of the Supreme Court, or so effective as a process management tool, as these statements propose: other less severe, less coercive methods could be utilised to achieve a more just and efficient court process.

CONTEMPT AND NON-COMPLIANCE: WHAT ARE THE LIMITATIONS? Contempt has potentially extreme effects on the justice and efficiency of court proceedings. The common law recognises this and prescribes the use of contempt only if circumstances are drastic, or as a ‘final resort’.7 The UCR also recognise this, requiring that an applicant for contempt proceedings must first establish a prima facie case for contempt by providing details of the allegation and a supporting affidavit.8 The Court must also be satisfied that there are ‘reasonable grounds’ to suspect contempt to allow an interlocutory hearing, where further submissions may be made.9 Case law asserts that the Court must also have regard to ‘all the circumstances giving rise to the matter’ in order to avoid the commencement of contempt proceedings where there are ‘good reasons’ for not

commencing them.10 In McDonald v South Australia (McDonald) Sulan J helpfully lists relevant factors for judicial consideration, including reasons for the misconduct, its seriousness and relevant ‘personal circumstances’.11 Finally, the Supreme Court has also established sentencing principles to be used in contempt proceedings, which go some way towards informing judicial decision making and avoiding drawn-out disputes. These include considerations of the deterrence effect of the charge, seriousness of the contempt and reasons for the contempt.12 Nonetheless, despite these safeguards a number of limitations persist that make contempt unjust, inefficient and liable to fail at its goal of ensuring compliance. Ambiguity, Confusion and Paucity of Guidance South Australian contempt law bears ambiguities that make it both inefficient and unjust in dealing with non-compliance. One of the most conspicuous ambiguities is that there are no ‘upper limits’ for coercive penalties, which are seemingly restricted to the imposition of fines or a sentence of imprisonment, nor any statutory guidance for penalty selection.13 It was once stated by Perry J in the Supreme Court that there may be an inherent power to impose penalties ‘apart from those expressly referred to in the rules’.14 However, in that case the penalty of imprisonment was still selected as it was deemed an ‘appropriate vindication of the due administration of justice’ in light of a ‘conscious defiance of the authority of the Court’.15 Further ambiguity regarding penalty selection arises because criminal and civil contempt are often indistinct and conflated in South Australia.16 Previously, instead of considering the two as separate doctrines, Courts have simply noted that more serious contempt ought to


FEATURE

be penalised more severely.17 Under the UCR contempt ‘committed in the face of the Court’ (criminal contempt)18 remains undefined, and the process for dealing with both civil and criminal contempt is identical.19 At common law, contempt ‘in the face of court’ occurs where a party behaves in a disruptive, ‘contumacious’ way before the Court.20 The continued confusion between the doctrines increases risk of excessive penalties where the Court perceives some insult in the behaviour of the contemnor. This in turn increases the chance of drawn-out disputes and lengthy contempt proceedings leading only to the extensive punishment of the non-complying party, potentially to the benefit of no one. Regardless, the Court’s arsenal is limited to the imposition of fines and imprisonment in the context of contempt and there remains little guidance for penalty selection. This is particularly egregious as these very ambiguities also raise concerns about proportionality and excessiveness of these penalties. Excessive Penalties As a consequence of ambiguity in relation to penalty, there is little to curtail courts from issuing excessive, unjust or inefficient penalties.21 There are no defined ‘upper limits’ for penalties, allowing for ‘open-ended’ punishments such as debts that continue to accrue, or imprisonment that lasts, until an order is obeyed.22 The arbitrary nature of the power to impose hypothetically unlimited incarceration does not seem proportionate to the aims of contempt, to ensure obeyance and recognition of the Court’s authority. Interestingly, the Supreme Court has previously recognised the likelihood of unjust outcomes and the possibility that courts will have to monitor compliance for years, possibly intervening in detention where a contemnor will simply never comply.23 In Scotland, maximum penalties have been set in order to rectify this issue.24 In order to avoid such unjust outcomes, and the necessity for extensive periods of court supervision, it is recommended that the Scottish approach to setting maximum penalties be emulated in South Australia. There are a number of existing processes used by the Court to ensure compliance that do not require the compelling of good behaviour from the

non-complying party through use of coercive penalties. Where, for example, the Supreme Court is experiencing issues of non-compliance with an order to pay debts, it may issue a warrant of sale.25 These warrants do not run the risk of relying upon the whims of a particularly difficult or determined party. They also allow the Court discretion to determine the scope and aims of the warrant and have safeguards for circumstances in which it is impossible for the errant party to obey.26 For example, the aforementioned warrant of sale cannot be ordered in bankruptcy proceedings.27 This allows parties relief, and ensures that court orders are carried out, in a speedier and more just fashion. These options avoid many of the pitfalls of contempt and raise questions as to the relevance of contempt in modern civil procedure. Finally, these issues seem to disproportionately affect economically disadvantaged contemnors who are less able to pay fines and, as a consequence of inability to pay, may be targeted with imprisonment. Sufficiently economically privileged contemnors may be able to weather open-ended fines in pursuit of whatever goal is behind their noncompliance, and the Supreme Court may feel less obliged to use imprisonment where a contemnor has ‘deep pockets’28 The lack of guidance, ambiguous and theoretically unlimited powers, given the coercive nature of contempt, work in tandem to greatly limit its effectiveness in managing court process and introduce a disparity in treatment based on the socioeconomic status of the party. Suitability of Contempt for Dealing with Non-Compliance Having established the propensity of contempt to waste both court and litigants’ time and cause potentially unjust outcomes, it is worth exploring further whether fining or imprisoning a party will actually ensure compliance, and if so, whether the process is proportionate to achieving this goal. A number of reasons have been suggested as to why parties may be determined to refuse or fail to comply with orders.29 I posit that one could refuse to comply for emotional, ideological, or cultural reasons, or simply be unable to comply for mental, physical or material reasons. Motivations underlying the

conduct can vary; a Union, for example, may deliberately disobey an order to cease a picket line to show ideological commitment.30 A person may disobey an order because they fail to understand its scope and lack an understanding of the law.31 There is no reason to assume that coercion with fines or imprisonment will ensure that someone who is sufficiently determined to resist, or unable to properly obey, will comply with an order. A history of non-compliance only indicates a determination to resist and an increased likelihood of continued non-compliance in the face of the supposed deterrence effect of contempt charges. In fact, taking a strongly adversarial position by enforcing harsh penalties requested by an opposing party, or indeed by positioning the Supreme Court as the non-complying party’s adversary, may only increase oppositional behaviour.32 This would clearly result in an unjust and inefficient outcome, serving only to extend the dispute, potentially indefinitely. I refer to the case of an Indigenous activist who was jailed for criminal contempt after he and the Judge entered an inimical dispute over the Court’s authority.33 In this case, oppositional tactics were not able to defuse the dispute, seemingly escalating it instead. It has been suggested by the Australian Law Reform Commission (ALRC) that penalties should not be imposed ‘unless compliance is clearly within the capacity of the person bound, no reasonable alternative method of enforcement exists, and the sanction is likely to be effective’.34 This would mean that sufficiently determined non-compliers ought to be dealt with by processes other than contempt, such as the aforementioned warrants of sale. However, it is not always possible to be sure that these considerations will be met before penalties are imposed. These extensive limitations of contempt necessitate an examination of how alternative, less coercive and oppositional methods for managing court process could be adopted.

REFORMS TO CONTEMPT: NONCOMPLIANCE PROCEEDINGS? In this section I will focus on one of the central suggestions of the ALRC: to replace disobedience contempt with a series of ‘non-compliance proceedings’ which could be instituted to promote February 2021 THE BULLETIN

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FEATURE

compliance and, if necessary, coerce the disobeying party to comply.35 Essentially, these proceedings would be a fleshed-out, fully codified version of contempt, with a number of procedural safeguards designed to avoid the pitfalls of the confused criminal and civil doctrines, allow diverse and flexible penalties, provide guidance to courts and fill in many of the ‘grey areas’ identified above.36 While the purpose of these proceedings is to ensure that the Court’s coercive power is only engaged when necessary, and they emphasise the assessment of a party’s ability to comply, care should be taken that they do not result in similar problematic outcomes. In this section I will present some critical and constructive viewpoints in this context. As I have argued previously, it is difficult to assess the necessity of coercion and the disobedient party’s likelihood of compliance. The ALRC suggests that the respondent to a non-compliance application ought to prove that sanctions will be ineffective and that limits on the maximum penalties be imposed, which somewhat combats these concerns.37 However, the fact that the onus is on the respondent here is concerning: reasons for continued non-compliance despite sanctions may be illogical to the Court, which may not accept submissions this would render the penalty ineffective. As such, there should be an explicit necessity for the applicant party to establish the likelihood of compliance. Further, in some ways, the imposition of maximum penalties may advantage non-complying parties that have the ability to pay large fines. Care should still be taken that the Supreme Court does not disproportionately target poorer non-compliers with detention-based penalties, nor should it disproportionately target wealthier non-compliers with fines. Perhaps this consideration ought to be enshrined in statute, perhaps in the Endnotes 1 See Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Law of Contempt (Report, 2017) <https:// www.lawcouncil.asn.au/docs/4e8f6b8f-8ad4e711-93fb-005056be13b5/3368%20-%20 Law%20of%20Contempt.pdf>; Law Reform Commission of Western Australia, Contempt

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UCR, by ensuring judges take economic justice into account when formulating non-compliance measures and calculate penalties in a manner appropriate to actually coerce the non-complying party. In practice this would require a de-emphasis of fines where a non-complying party is impecunious, or perhaps appropriate leniency ought to be given where a party may struggle to pay fines. This is because a default on payment of fines may lead to a custodial sentence regardless of any initial avoidance of imprisonment as a sentence. In this context, it is interesting to examine Australian family law, where structured non-compliance proceedings have been present for some time. The Family Court recommends the use of dispute resolution to resolve compliance issues and allows access to comparatively broad penalties and solutions, including less financially significant ones such as participation in community service, or the variation of an initial order.38 Interestingly, Victorian family law allows courts to order parties to attend counselling.39 I argue that emulating these provisions could be effective in increasing the likelihood of compliance for those with less objectively ‘rational’ reasons for non-compliance. Less severe penalties and solutions are also more proportionate to the aim of ensuring compliance. Formal non-compliance measures for the Supreme Court should include elements of alternative dispute resolution (ADR) and an understanding of any emotional, psychological or other factor behind the disobeying party’s actions. These principles have been found to help predict future compliance, increase rates of compliance and reduce oppositional behaviour.40 This more cooperative approach would both ameliorate noncompliance and prevent it from occurring in the first place, avoiding escalation of disputes and reducing determination to in The Face of The Court (Discussion Paper No 92(1), August 2001) <https://www.lrc.justice. wa.gov.au/_files/P93(I)DP.pdf>; Australian Law Reform Commission, Contempt (Report No 35, December 1986) <https://www.alrc.gov. au/publication/contempt-alrc-report-35/>; Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) <

disobey.41 Ultimately coercive measures have a place, but the expansion of the Court’s non-compliance arsenal is crucial in resolving compliance disputes in a more just and efficient manner, potentially avoiding lengthy court appearances during non-compliance proceedings. Of course, the Supreme Court already has the power to refer parties to ADR at any stage in proceedings42 but the reformed law should emphasise this method of recourse, perhaps containing provisions which explicitly direct the Supreme Court to examine the possibility of referral to ADR in circumstances of non-compliance.

CONCLUSION The law of civil contempt in South Australia is a flawed legal doctrine, entwined with notions of coerced respect for the Supreme Court. Its usefulness as a weapon of last resort to ensure compliance with judicial orders is questionable and it can result in unjust and inefficient outcomes. This is due to its ambiguities, the lack of guidance it provides to the Supreme Court and its overall unsuitability in ensuring compliance. While the Supreme Court has the option of using existing alternatives, the law should be reformed to incorporate other methods to resolve issues of noncompliance. Non-compliance proceedings would provide guidance to the Supreme Court and approach disobedience in a more flexible, less coercive manner, especially where provisions ensuring economic justice and factors behind noncompliance are considered, and where recourse to ADR is possible. Far from ensuring a collapse into anarchy, the loss of the law of contempt as a last resort will produce more just, more efficient outcomes in South Australian litigation, and actually achieve its goal of ensuring compliance. B

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https://www.lawreform.vic.gov.au/projects/ contempt-court-judicial-proceedings-reportsact-1958-and-enforcement-processes/ contempt>. Supreme Court Act 1935 (SA) s 38(2); Enforcement of Judgments Act 1991 (SA) s 12; Uniform Civil Rules 2020 (SA) rr 156.13, 155.2(3)(a)-(b), ch 17, pt 5 (‘UCR’). See also UCR rr 11.1 (2), 103.2,


FEATURE

205.5; Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115. 3 Commenced Monday 18 May 2020. See South Australia, South Australian Government Gazette, No 41, 18 May 2020. 4 See, eg s 69A(1) Evidence Act 1929 (SA) for Sub Judice contempt; r 103.2 Uniform Civil Rules (SA) for disobedience contempt and r 205.3(1) for ‘contempt in the face of the court’. See also Senate Legal and Constitutional Affairs References Committee (n 1) 9-12. 5 Law Institute of Victoria v Nagle [2005] 6 VR 235, 237 (Gillard J); Attorney-General v Times Newspapers Ltd [1974] AC 273, 307 (Diplock LJ); Law Reform Commission of Western Australia (n 1) 1; Australian Law Reform Commission (n 1) 515; Victorian Law Reform Commission (n 1) 70 [6.4]. 6 Law Institute of Victoria v Nagle (n 2) [5]; Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596, [8] [9] (‘Vaysman’); Witham v Holloway (1995) 121 ALR 401, 406. 7 Vaysman (n 6) 638–40; Victorian Law Reform Commission (n 2) 75 [6.33]. 8 UCR (n 4) r 205.5(1). 9 Ibid r 205.5(2). 10 McDonald v South Australia [2008] SASC 309 [16] (Sulan J). See also Maxilift Australia Pty Ltd v Donnelly (n 2) [13], [22]. 11 McDonald v South Australia (n 9) [16]. 12 See Registrar of the Supreme Court of South Australia v Zappia (No 2) [2003] SASC 327 [45]-[48] (‘Zappia’). 13 UCR (n 2) r 205.8 (2). 14 Registrar of the Supreme Court of South Australia v Temple (No 3) [2000] SASC 199 [19] (Perry J) (‘Temple’). 15 Ibid [50]-[58]. 16 Witham v Holloway (n 6), 408. But see Maxilift Australia Pty Ltd v Donnelly (n 2) [11] citing Mane Market Pty Ltd v Temple [1998] SASC S6985 [5]-[6].

17 Registrar of the Supreme Court v Herald & Weekly Times Ltd [2004] SASC 129 [21]; Temple (n 13) [50]. 18 Victorian Law Reform Commission (n 1) 19 [2.46]. 19 UCR (n 4) r 205.3(1), ch 17, pt 5, div 4. 20 Witham v Holloway (n 6) 414; Judicial College of Victoria, ‘Chapter 8: Contempt in The Face of The Court’ Victorian Criminal Proceedings Manual (Web Page, 26 June 2014) <https:// www.judicialcollege.vic.edu.au/eManuals/ VCPM/48733.htm>. See also Registrar of Supreme Court v Herald & Weekly Times Ltd [2004] SASC 129 [45]. 21 For an example of a reconsideration of a contempt charge for similar reasons, see Vaysman (n 2) [185]-[187]: in this case it was determined that a sentence of imprisonment for contempt was ‘manifestly excessive’, with Bromberg J stating that it was not apparent why the primary judge was of the opinion that imprisonment was required. See also Kennedy v Lovell [2002] WASCA 226 [44]: in this case the Full Court of the Supreme Court of Western Australia unanimously ruled that a sentence of imprisonment should be reduced to a fine, with Murray J stating that imprisonment would not serve a ‘useful purpose’ in the circumstances. 22 Victorian Law Reform Commission (n 1) 73 [6.21]; Australian Law Reform Commission (n 2) 292 [493]. 23 Zappia (n 11) [24]. 24 Contempt of Court Act 1981 (UK) 15 (1). 25 See Victorian Law Reform Commission 75 [6.34]; Enforcement of Judgments Act (n 2) s 7. 26 See Enforcement of Judgments Act (n 2) ss 7, 8. 27 Ibid, s 7(2). 28 See Vaysman (n 2). In Vaysman at [64] Gray J remarked that, had he been sentencing the contemnor, he would have imposed a sentence of imprisonment as the contemnor was

bankrupt. Further, at [54] Gray J considered the appropriateness of fines for impecunious contemnors and discusses the imposition of imprisonment where they default on payment of fine. Finally, Courts have previously considered financial circumstances of contemnors in formulating charges: see Porter v Steinberg (No 2) [2019] WASC 473 [39], [58]-[59], [62]. 29 See Australian Law Reform Commission (n 2) lv [77]. 30 Cf Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98. 31 Cf Australian Securities and Investments Commission v Matthews (2009) 71 ACSR 279. 32 Tania Sourdin, Alternative Dispute Resolution (Lawbook, 6th ed, 2020) 577 [13.80]. 33 Arthur Gorrie, ‘UPDATE: Gympie Activist Serves Two Hours for Contempt’ The Gympie Times (online, 18 December 2017) <https://www.gympietimes.com.au/news/ update-gympie-activist-serves-two-hours-forcontem/3293365/>. 34 See Australian Law Reform Commission (n 2) lv [77]. 35 See ibid lxxxiv-lxxxvii [64]-[84]. 36 Australian Law Reform Commission, Contempt: Summary of Report (Australian Government Publishing Service, 1987) 55-6 < https://www. alrc.gov.au/wp-content/uploads/2019/08/ alrc_35_summary.pdf>. 37 Ibid 56; Australian Law Reform Commission (n 2) lxxxv [72], 335 [579]. 38 ‘Compliance with Parenting Orders’ Federal Circuit Court of Australia (Web Page); Family law Act 1975 (Cth) div 13A pt VII. 39 Victorian Law Reform Commission (n 1) 76 [6.35].  40 Sourdin (n 32) 488-89 [11.45], 660 [16.65]. 41 Ibid 34 [1.95], 577 [13.80]. 42 See UCR (n 3) rr 131.3, 131.4.

South Australian Legislation - 1936 and 1975 reprints now online LUCY BROWN, SECRETARY, SA COMMITTEE, AUSTRALIAN LAW LIBRARIANS’ ASSOCIATION

T

he Australian Law Librarians’ Association (ALLA) is pleased to announce the availability of a digital version of the 1936 and 1975 reprints of SA acts online. The digital reprints are the result of a joint project by the ALLA SA committee and the SA Office of Parliamentary Counsel

(OPC) to fund the production of digital sets of the historical reprints/consolidations. The consolidations simplify legislative research as they provide point-in-time versions as at 1936 and 1975. The 1936 and 1975 reprints are available online on the South Australian legislation website. See https://www.legislation.

sa.gov.au/Web/Information/Historical Consolidations/HC.aspx Special thanks to Louise Langridge (Librarian, Piper Alderman) and Peter Beacham (Manager, Projects & Technology, OPC, Attorney General’s Department SA) for coordinating and delivering the project so quickly. B February 2021 THE BULLETIN

43


GAZING IN THE GAZETTE

3 NOV 2020 – 2 JAN 2021 ACTS PROCLAIMED (3 NOVEMBER 2020 – 2 JANUARY 2021) Sentencing (Serious Repeat Offenders) Amendment Act 2020 (No 33 of 2020) Commencement: 14 November 2020 Gazetted: 12 November 2020, Gazette No. 87 of 2020 Statutes Amendment (Mineral Resources) Act 2019 (No 29 of 2019) Commencement except s126: 1 January 2021 Gazetted: 19 November 2020, Gazette No. 88 of 2020 Legal Practitioners (Senior and Queen's Counsel) Amendment Act 2020 (No 32 of 2020) Commencement: 26 November 2020 Gazetted: 26 November 2020, Gazette No. 92 of 2020 Landscape South Australia Act 2019 (No 33 of 2019) Commencement ss 15(4) and (5); 16: Gazetted: 26 November 2020, Gazette No. 92 of 2020 Statutes Amendment (Licence Disqualification) Act 2020 (No 20 of 2020) Commencement: 30 November 2020 Gazetted: 26 November 2020, Gazette No. 92 of 2020 Supreme Court (Court of Appeal) Amendment Act 2019 Commencement: 1 January 2021 Gazetted: 10 December 2020, Gazette No. 96 of 2020 Disability Inclusion Act 2018 (No 1 of 2018) Commencement Schedule 1 Part 3: 1 February 2021 Gazetted: 17 December 2020, Gazette No. 97 of 2020 Health Care (Safe Access) Amendment Act 2020 (No 39 of 2020) Commencement: 17 December 2020 Gazetted: 17 December 2020, Gazette No. 97 of 2020 Statutes Amendment (Bail Authorities) Act 2020 (No 15 of 2020) Commencement: 1 January 2021 Gazetted: 17 December 2020, Gazette No. 97 of 2020 Statutes Amendment (Screening) Act 2019 (No 9 of 2019) Commencement Part 4 except ss 21, 22, 23, 25: 1 February 2021 Gazetted: 17 December 2020, Gazette No. 97 of 2020

ACTS ASSENTED TO (3 NOVEMBER 2020 – 2 JANUARY 2021) Health Care (Safe Access) Amendment Act

44 THE BULLETIN February 2021

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA

2020, No. 39 of 2020 Gazetted: 19 November 2020, Gazette No. 88 of 2020 Training and Skills Development (Miscellaneous) Amendment Act 2020, No. 40 of 2020 Gazetted: 19 November 2020, Gazette No. 88 of 2020 Defamation (Miscellaneous) Amendment Act 2020, No. 41 of 2020 Gazetted: 26 November 2020, Gazette No. 92 of 2020 Spent Convictions (Decriminalised Offences) Amendment Act 2020, No. 42 of 2020 Gazetted: 10 December 2020, Gazette No. 96 of 2020 Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020, No. 43 of 2020 (amends Bail Act 1985, Criminal Law Consolidation Act 1935, Evidence Act 1929 and Sentencing Act 2017) Gazetted: 10 December 2020, Gazette No. 96 of 2020 Appropriation Act 2020, No. 44 of 2020 Gazetted: 10 December 2020, Gazette No. 96 of 2020 Evidence (Vulnerable Witnesses) Amendment Act 2020, No. 45 of 2020 Gazetted: 10 December 2020, Gazette No. 96 of 2020

APPOINTMENTS Acting Commissioner for Equal Opportunity on a temporary basis commencing on 28 November 2020 and expiring on 28 February 2021 Emily Rachel Strickland Gazetted: 26 November 2020, Gazette No. 92 of 2020

SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL SESSIONAL ORDINARY MEMBERS for a term commencing on 5 December 2020 and expiring on 30 March 2024 Alicia Mary Devitt Bills Maria Demosthenous Mark Ewart Fuller Allan Roy Hunter Anne Veronica Moroney Matt Murphy Kelly Anne Ryan Simon Neil Robson Kylie-Ann Pligl Graeme Brian Kirkham Joseph Hugh Ramsay Sanders

Leon Ralph Budden Gazetted: 4 December 2020, Gazette No. 93 of 2020

COURT OF APPEAL OF SOUTH AUSTRALIA PRESIDENT effective from 1 January 2021 The Honourable Patricia Kelly

JUDGES effective from 1 January 2021 The Honourable Justice David Cameron Lovell The Honourable Justice Samuel John Doyle, Gazetted: 10 December 2020, Gazette No. 96 of 2020

PUBLIC ADVOCATE for a period of five years commencing on 17 December 2020 and expiring on 16 December 2025 Anne Gale. Gazetted: 10 December 2020, Gazette No. 96 of 2020 Senior Counsel: From 1 December 2020 Ms Meredith Dickson SC Ms Lucy Boord SC From 2 December 2020 Mr Anthony Allen SC Mr Todd Golding SC Mr Benjamin Doyle SC From 3 December 2020 Ms Kerry Clark SC Mr Stephen McDonald SC Mr Kristopher Handshin SC Gazetted: 10 December 2020, Gazette No. 96 of 2020

CROSS-BORDER MAGISTRATES Youth Court of South Australia (on an ancillary basis) for a term of five years commencing on 17 December 2020 and expiring on 16 December 2025 Genevieve Marie Cleary Andrew Edward Matthews Gazetted: 17 December 2020, Gazette No. 97 of 2020 Youth Court of South Australia Magistrate a member of the Court's principal judiciary for a term of 1 year Oliver Rudolf Gerhard Koehn Gazetted: 17 December 2020, Gazette No. 97 of 2020


GAZING IN THE GAZETTE RULES Magistrates Court Rules 1992 Amendment No. 86 Gazetted: 26 November 2020, Gazette No. 92 of 2020 Magistrates Court Rules 1992 Amendment No. 87 Gazetted: 17 December 2020, Gazette No. 97 of 2020 District Court Criminal Rules 2014 Amendment No. 8 Gazetted: 24 December 2020, Gazette No. 99 of 2020

District Court Criminal Supplementary Rules 2014 Amendment No. 8 Gazetted: 24 December 2020, Gazette No. 99 of 2020 Magistrates Court Rules 1992 Amendment No. 88 Gazetted: 24 December 2020, Gazette No. 99 of 2020 Supreme Court Criminal Rules 2014 Amendment No. 9 Gazetted: 24 December 2020, Gazette No. 99 of 2020

Supreme Court Criminal Supplementary Rules 2014 Amendment No. 8 Gazetted: 24 December 2020, Gazette No. 99 of 2020 Uniform Civil (No. 3) Amending Rules 2020 Gazetted: 24 December 2020, Gazette No. 99 of 2020 Youth Court (Young Offenders) Rules 2016 Amendment No. 2 Gazetted: 24 December 2020, Gazette No. 99 of 2020

REGULATIONS PROMULGATED (3 NOVEMBER 2020 – 2 JANUARY 2021) REGULATION NAME

REG NO.

DATE GAZETTED

290 of 2020

5 November 2020, Gazette No. 86 of 2020

291 of 2020

12 November 2020, Gazette No. 87 of 2020

Development (Lapse of Consent or Approval) Variation Regulations 2020

292 of 2020

12 November 2020, Gazette No. 87 of 2020

Electricity Corporations (Restructuring and Disposal) (Mining at Leigh Creek) Variation Regulations 2020 Planning, Development and Infrastructure (General) (Planning and Development Fund) (No 2) Variation Regulations 2020 Work Health and Safety (Mine Manager) Variation Regulations 2020

293 of 2020

12 November 2020, Gazette No. 87 of 2020

294 of 2020

12 November 2020, Gazette No. 87 of 2020

295 of 2020

19 November 2020, Gazette No. 88 of 2020

Victims of Crime (Fund and Levy) Variation Regulations 2020

296 of 2020

19 November 2020, Gazette No. 88 of 2020

Summary Offences (Liquor Offences) Variation Regulations 2020

297 of 2020

19 November 2020, Gazette No. 88 of 2020

Fisheries Management (General) (Expiation Fees) Variation Regulations 2020

298 of 2020

19 November 2020, Gazette No. 88 of 2020

Fisheries Management (Demerit Points) (Expiated Offences) Variation Regulations 2020

299 of 2020

19 November 2020, Gazette No. 88 of 2020

Mining Regulations 2020—No. 300

300 of 2020

19 November 2020, Gazette No. 88 of 2020

Mines and Works Inspection (Mine Manager) Variation Regulations 2020

301 of 2020

19 November 2020, Gazette No. 88 of 2020

Opal Mining (Mineral Resources) Variation Regulations 2020

302 of 2020

19 November 2020, Gazette No. 88 of 2020

Children and Young People (Safety) (Covid-19 Exemption) Variation Regulations 2020

303 of 2020

20 November 2020, Gazette No. 89 of 2020

Electricity (General) (Retailer Energy Productivity Scheme) Variation Regulations 2020

304 of 2020

26 November 2020, Gazette No. 92 of 2020

Gas (Retailer Energy Productivity Scheme) Variation Regulations 2020

305 of 2020

26 November 2020, Gazette No. 92 of 2020

Landscape South Australia (Water Register) Regulations 2020

306 of 2020

26 November 2020, Gazette No. 92 of 2020

Work Health and Safety (Miscellaneous) Variation Regulations 2020

307 of 2020

3 December 2020, Gazette No. 93 of 2020

Superannuation (Prescribed Authority) (No 2) Variation Regulations 2020

308 of 2020

3 December 2020, Gazette No. 93 of 2020

Environment Protection (Mass Balance Reporting and Other Measures) Variation Regulations 2020 Planning, Development and Infrastructure (General) (Planning and Development Fund) (No 3) Variation Regulations 2020 Environment Protection (Variation of Act, Schedule 1) Regulations 2020

309 of 2020

10 December 2020, Gazette No. 96 of 2020

310 of 2020

10 December 2020, Gazette No. 96 of 2020

311 of 2020

17 December 2020, Gazette No. 97 of 2020

Environment Protection (Environmental Authorisations—Fees) Variation Regulations 2020

312 of 2020

17 December 2020, Gazette No. 97 of 2020

Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) Variation Regulations 2020

National Parks and Wildlife (Co-management Boards) (Dhilba Guuranda-Innes National Park) Variation Regulations 2020 Planning, Development and Infrastructure (General) (Lapse of Consent or Approval) Variation Regulations 2020

313 of 2020

17 December 2020, Gazette No. 97 of 2020

Criminal Law Consolidation (Criminal Organisations) (Prescribed Place—Cowirra) (No 2) Variation Regulations 2020 314 of 2020

17 December 2020, Gazette No. 97 of 2020

Criminal Law Consolidation (Criminal Organisations) (Premises in Burton) Variation Regulations 2020

315 of 2020

17 December 2020, Gazette No. 97 of 2020

Disability Inclusion (NDIS Worker Check) Regulations 2020

316 of 2020

17 December 2020, Gazette No. 97 of 2020

Bail (Bail Authorities) Variation Regulations 2020

317 of 2020

17 December 2020, Gazette No. 97 of 2020

Cross-border Justice (Bail Authorities) Variation Regulations 2020

318 of 2020

17 December 2020, Gazette No. 97 of 2020

Landscape South Australia (Water Management) (Forestry—Prescribed Period) Variation Regulations 2020

319 of 2020

17 December 2020, Gazette No. 97 of 2020

Fisheries Management (Abalone Fisheries) (Quota) Variation Regulations 2020—No. 320 of 2020

320 of 2020

17 December 2020, Gazette No. 97 of 2020

Fisheries Management (Marine Scalefish Fisheries) (Sardine Quota) Variation Regulations 2020

321 of 2020

17 December 2020, Gazette No. 97 of 2020

Fisheries Management (Miscellaneous Fishery) (Quota) Variation Regulations 2020 Fisheries Management (Prawn Fisheries) (Fishing Nights Entitlement) Variation Regulations 2020 Fisheries Management (Rock Lobster Fisheries) (Quota) (No 3) Variation Regulations 2020

322 of 2020 323 of 2020 324 of 2020

17 December 2020, Gazette No. 97 of 2020 17 December 2020, Gazette No. 97 of 2020 17 December 2020, Gazette No. 97 of 2020

February 2021 THE BULLETIN

45


BOOKSHELF

ONG ON ESTOPPEL

Denis SK Ong The Federation Press 2020 HB $135.00

Abstract from Federation Press Ong on Estoppel, by the prolific Professor Denis SK Ong, is one of the very few scholarly book-length treatments of the doctrine of estoppel published in Australia. Topics addressed with Ong’s characteristic meticulous examination of both Australian and English authorities include: estoppel’s origins as a rule of evidence; estoppel by conduct

(including representation); estoppel by deed and estoppel by convention; promissory and proprietary estoppel; estoppel and election; estoppel between banker and customer; and estoppel by representation is contrasted with the defence of the change of position. Readers are advised that the book does not deal with issue estoppel.

PROPORTIONALITY IN AUSTRALIAN CONSTITUTIONAL LAW

Shipra Chordia The Federation Press 2020 HB $120.00

Abstract from Federation Press Proportionality in Australian Constitutional Law considers the concerns that have been raised regarding the doctrine of proportionality and how these might be addressed. Since its first introduction into Australian constitutional law, there have been debates regarding its use. Recent cases, in particular, have seen a splintering on the High Court, with some judges expressing

support for proportionality as a useful tool in certain contexts, and others expressing deep reservations about it. Against this background, Chordia proposes a theoretical framework for proportionality, and uses it to explore a critical question: when, if at all, is proportionality an appropriate analytical tool in Australian constitutional adjudication?

JUDICIAL REVIEW OF NON-STATUTORY EXECUTIVE ACTION

Amanda Sapienza Federation Press 2020 HB $160.00

Abstract from Federation Press Dr Sapienza’s ground-breaking book attempts to bring clarity to this area of law by assessing the extent to which Australian judicial review principles are capable of application to an exercise of non-statutory executive power. It begins by categorising non-statutory executive power according to the manner in which an exercise of it is capable of having a legal effect. It then examines each element of judicial

review – jurisdiction, justiciability, grounds of review, standing and remedies – to determine which aspects of each element are likely to pose an obstacle to a successful judicial review application in respect of each category of nonstatutory action. In so doing, it lays a conceptual and doctrinal foundation from which legal practitioners and the courts can navigate this complex area of law on a case-by-case basis, as they are increasingly being called on to do.

CURRENT ISSUES IN AUSTRALIAN CONSTITUTIONAL LAW: TRIBUTES TO PROFESSOR LESLIE ZINES

John Griffiths and James Stellios (eds) Federation Press 2020 HB $165.00

46 THE BULLETIN February 2021

Contents from Federation Press 1. Constitutional Framework for the Establishment of an Australian International Commercial Tribunal Chief Justice James Allsop AO. Commentary by Professor James Stellios 2. Executive Power Following the Williams Cases Professor Anne Twomey. Commentary by Dr Will Bateman Punishment and Chapter III of the Constitution Professor Gabrielle Appleby and Mr Stephen McDonald. Commentary by Mr Tim Game SC, President of the Bar Association of NSW 4. The Law Applicable in Federal Jurisdiction Professor William Gummow AC. Commentary by Emeritus Professor Geoffrey Lindell

5. The High Court of Dual Citizenship: Zines and Constitutional Method 30 Years On Professor Rosalind Dixon. Commentary by Justice Stephen Gageler AC 6. Proportionality and Its Alternatives Professor Adrienne Stone. Commentary by Mr Stephen Free SC 7. The Kable Legacy: Its impact on the Australian Judicial System Robert French AC. Commentary by Emeritus Professor Fiona Wheeler 8. Section 92 in its Second Century Mr JK Kirk SC. Commentary by Associate Professor Amelia Simpson


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