BULLETIN THE LAW SOCIETY OF SA JOURNAL
VOLUME 42 – ISSUE 8 – SEPTEMBER 2020
IN THIS ISSUE
3 lawyers open up about the their experiences of the Adelaide Hills bushfires Legal assistance to bushfire victims Laws to protect CFS crews responding to emergencies PLUS
New surrogacy laws in SA Attorney General on major succession law reforms
DISASTER RECOVERY: REBUILDING AFTER RECENT DISASTERS & PREPARING FOR THE NEXT ONE
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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (8) LSB(SA). ISSN 1038-6777
CONTENTS DISASTER RECOVERY 6
FEATURES & NEWS
Pro bono legal assistance for fire victims - By Chris Boundy
8 The healing process in the aftermath of the bushfire disaster - By Michael Esposito 12 The push to give first responders PTSD protection in workers compensation laws - By Michael Esposito 14
Emergency management plans and the laws that underpin them By Sally Connell
The SA Country Fire Service: Protecting life, property and the environment - By Margaret Kaukas
Executive Members President: T White President-Elect: R Sandford Vice President: J Stewart-Rattray Vice President: E Shaw Treasurer: F Bell Immediate Past President: A Nikolovski Council Member: S Hooper Council Member: V Gilliland Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich F Bell M Mackie M Boyle E Shaw J Marsh C Charles R Piccolo 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
New surrogacy laws move towards national uniformity - By Julie Redman & Matilda Redman-Lloyd
From the Editor
5 President's Message
26 Tax Files: The definition of a Sexual harassment in the workplace: discretionary trust under the Land Make it your business to make sure it’s Tax Act - By Bernie Walrut not in your business - By Marissa Mackie & Leah Marrone 28 Risk Watch: Cybersecurity – a matter of when, not if - By Mercedes Eyers-White 22 Major reform of SA’s succession laws By The Hon Vickie Chapman MP 29 Members on the Move 23 Prohibiting impersonation of police in 35 Family Law Case Notes - By Rob an era of Deepfakes? Glade-Wright By Anthony Stoks & Tania Leiman 36 Gazing in the Gazette 30 Hang Jean Lee - By Dr Auke ‘JJ’ Steensma 38 Wellbeing & Resilience: Three little words can make a world of difference By Zoe Lewis 20
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THE BULLETIN Editor Michael Esposito firstname.lastname@example.org Editorial Committee A Bradshaw P Wilkinson S Errington T Shueard 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: email@example.com All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.
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FROM THE EDITOR
Bushfire victims still face an uphill battle: letâ€™s not forget them MICHAEL ESPOSITO, EDITOR
ith most of the year being dominated by the COVID-19 pandemic, it seems hard to believe that it was just last summer that Australia was gripped by deadly and devastating bushfires. Not only did they cause widespread destruction, but they highlighted the grim existential threat of climate change. Climate change, according to the majority of the scientific community, remains the biggest threat to life on Earth, but the COVID-19 pandemic has relegated it to minority status in the minds of many. The pandemic also shifted the focus away from bushfire victims. It was inspiring to see the Australian community rally around bushfire victims and devote so much time and money to help them recover. The residents of fire ravaged communities were particularly inspiring in how they helped their neighbours rebuild fences, bury dead animals, provide emergency accommodation and food, and perhaps just as importantly, offer moral support, despite many being personally impacted by the fires themselves. In this edition, three lawyers who live in the Adelaide Hills open up about their experience of the bushfires, and how they are dealing with the fall-out from the event. They talk about the gradual, exhausting, onerous path to recovery, which for many has been exacerbated by the pandemic. I commend the practitioners who reflected back on their harrowing experiences to help me tell their story. It would not have been easy but it is important that the plight of victims are not forgotten with everything else going on in the world. There is every likelihood that the upcoming summer will deliver similarly arid conditions to last year, and we will be largely relying on our emergency services to keep us safe. Margaret Kaukas writes in the edition
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about the legislative protections granted to the CFS to ensure they can respond to emergencies without fear of legal repercussions. As first responders, the CFS often have to make split-second decisions in stressful and life-threatening circumstances, and we cannot have them second-guessing their actions in the middle of a crisis. It is why they have legal rights to forcibly enter properties, take control of private land, and direct or prohibit peopleâ€™s movements in times of emergencies. A common consequence of first responders confronting such situations is the periodic re-living of traumatic events. The onset of Post-Traumatic Stress Syndrome (PTSD) is a serious risk that emergencies services personnel take when signing up for the job, and they have been pushing for reform to workers compensation legislation that would automatically assume a PTSD diagnosis was work-related. At the time of writing, there is no indication that the Government supports such a reform, but a Bill introduced by SA Best is due to be debated in Parliament this month. While perhaps not quite as heroic as our brave firefighters, several practitioners nominated to provide pro bono legal assistance to victims of the summer bushfires, following activation of a disaster recovery plan run by the Law Society and Legal Services Commission. Chris Boundy summarises the main legal issues that victims faced and were assisted with by lawyers. On behalf of the Society, thank you to the practitioners who volunteered their time to help victims, thank you to the emergency services who put their lives on the line to keep people safe, and thank you to all in the community who helped fight the fires and support recovery efforts afterwards. B
IN THIS ISSUE
WORKERS COMPENSATION PUSH The fight for PTSD protections for first responders
SURROGACY REFORM What SA's new surrogacy laws mean
NO TOLERANCE Strategies to address workplace sexual harassment
Disaster recovery plans critical for firms to navigate sudden disruptions TIM WHITE, PRESIDENT
mong the many upheavals and disruptions caused by emergency situations, disasters such as fires or pandemics can force us to change the way we run our firms. Whilst at the time these adjustments are stressful and difficult to deal with, many of the outcomes that occur are beneficial longer term to the business and the individuals working in it. It does however require us to be open to learning new skills, often technology based, and being adaptive to how we perform our work. With the COVID pandemic many of us continue to work from home, at least for some days of the week. Remote access to client documents and office data is now taken for granted and almost the norm. How secure then is your home computer or your remote devices to a cyber attack? The frequency and impact of cyber attacks on businesses continues to grow exponentially each year. It has been reported that cybercrime will cost the global economy $6 trillion per year by 2021. Cyber security should be a core focus and expenditure in your business to protect your clients and your own interests. A useful Riskwatch article was published in the February Bulletin relating to strategies you should adopt to minimise your risks. It might be a good time to re-visit this. A Legal Technology Conference the Law Society is running on the 17th September promises to provide a fascinating and informative insight into the use of technology to enable firms to work more productively and securely. One of the presenters is Tim Cummins, from the UK, who is talking on the use of blockchain in the law. It will be fascinating
to hear his views on the use of blockchain with contracts and in other commercial enterprises. The issue of cyber security will not be new to practitioners, but it is one that is not going away -indeed, reports are that in the 2020 world of COVID-19 lockdowns and restrictions the cyber fraudsters are upping their game and are more active than ever. Conscious of this, the Society is making available to practitioners insured with the SA Professional Indemnity Insurance Scheme a suite of useful documents (licensed from Lexon in Queensland). These documents -“8 steps to enhance your cyber- security while working remotely”, “Cyber offrisk email”, “Cyber Alert Funds transfer critical information”, “Cyber- Security 101-More than just the device you’re using”. “Key System Controls”, “CyberSecurity-IT Systems Checklist”, “Where to deploy MFA” and “Assessing risks with Electronic Service Providers becoming Agents” will be launched at the Society’s Legal Technology Conference, and will be available on the Society’s website. Practitioners and practice manager are strongly encouraged to read these materials, and we trust they will be extremely helpful for practices to ensure their practice is as cyber safe as possible. Thus far in South Australia we have been fortunate with being able to access our workplaces with few restrictions. Would you be able to run your practice effectively if the current restrictions in Victoria applied here? With the stage 4 restrictions applying in greater Melbourne many solicitors cannot access their offices. There exist some rare exceptions where personal attendance is allowed such as
attending an urgent or priority court hearing, or you are attending to a matter that cannot reasonably be undertake by remote communication, and the matter cannot be postponed. Stories of lawyers being required to attend court but without being permitted to access documents from their office have become common place in Victoria. Those lawyers that use electronic files and have remote access continue to be able to advice and act for their clients with little interruption. Those requiring access to their office and the hard copy file are essentially prevented from assisting their clients whilst these restrictions remain in force. Of course, we all hope such restrictions are never needed in South Australia. Being able to operate your business in such a restricted environment may be required of us in the near future. I am sure most firms by now have not just contemplated this but implemented technological systems to allow it to occur. It may be worth documenting more formally the major adjustments you have implemented due to this pandemic so you have a record of these. It is likely to be a useful document to refer back to if another significant threat to our businesses and society arises again. So, whilst technology is an enabling tool which we will inevitably use in different and increasing ways, we must remain hyper vigilant with protecting our own and our clients’ data and information. Cyber threats, like pandemics, can swiftly and easily bring our businesses to an abrupt halt, and it’s critical to have contingency plans ready to go in such emergencies. B
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Pro bono legal assistance for fire victims CHRIS BOUNDY, MANAGER OF ACCESS SERVICES, LEGAL SERVICES COMMISSION
have witnessed first-hand the despair, the damage and the legal difficulties that fire can inflict on people’s lives and property, having lost my own home in the Adelaide Hills when it was destroyed by a blaze more than twenty years ago. I am acutely conscious of the risk of fires, and the lasting damage they can inflict. Last summer’s catastrophic bushfires again highlighted the courage of SA firefighters and the life-changing contribution they make to our community in a time of crisis. Their bravery is extraordinary, their role is fundamental. After the bushfires of summer 2019-20 were extinguished by these firstresponders, SA lawyers stepped up to play their part in the rebuilding efforts. The Law Society maintains a register of practitioners who voluntarily provide free legal assistance to victims of disasters. In addition, the Legal Services Commission delivers legal advice, information and minor assistance to those affected by bushfires. This legal aid also takes the form of referrals to the legal assistance that can be provided via the Law Society and through Community Legal Centres. The legal help provided by the Legal Services Commission is delivered through its websites, face-to-face legal advice appointments (prior to the pandemic) and its legal advice Help Line (a service that handles more than 65,000 calls per year). In addition, Legal Chat is a feature that enables people to obtain legal information via a web chat conversation with Commission lawyers about a range of common legal issues, including those associated with the fires.
BUSHFIRE LEGAL ISSUES Bushfire-related legal problems are many and varied, and can include matters such as insurance claim disputes, and landlord and tenancy disagreements. Matters can relate not only to property damage caused directly by fire but also to additional losses due to the impact of storm damage on unprotected dwellings or thefts from those properties. The Commission has handled many legal enquiries about Centrelink benefits and other financial hardship options for individuals and small businesses still dealing with debt or income difficulties. There have also been enquiries regarding employment law protections for workers who assist with bushfire management measures. The bushfires destroyed a significant number of vital personal documents, and SA lawyers have provided important advice and assistance to ensure the swift replacement of these documents. They include insurance paperwork, tenancy agreements, drivers’ licences, property documents, Medicare cards, and certificates relating to birth, death, marriage or a change of name.
CURRENT AND EMERGING TRENDS Many civil law issues related to the destruction have become evident and more pressing well after the initial impact of the bushfires has passed. It is expected that the need for assistance will continue for the next twelve to eighteen months. For example, Commission lawyers continue to receive regular enquiries about
insurance disputes. They often relate to the wording and coverage of policies, the valuations involved in insurance assessments, and the extent of coverage in situations where an event or a holiday was cancelled due to the fires. Fencing disputes are not uncommon. We have handled plenty of questions about the circumstances in which urgent repairs can be undertaken, and about who should pay for the replacement or repair of a shared fence damaged by fire. The bushfires also raised family law issues for separated parents who had to make decisions about the care of children in circumstances where one parent lived in a fire danger area or had been impacted by the bushfires. Although most concerns have been expressed by individuals, we have been contacted by volunteer organisations with questions about the collection and distribution of donations, particularly monetary sums.
HIGHLIGHTING THE HELP OF LAWYERS Lawyers are just one piece of the puzzle when it comes to addressing the many problems caused by bushfires and their aftermath. It remains vital, however, that South Australians know about the free legal help that is available from both the Law Society and the Legal Services Commission. This legal assistance can play an important part in rebuilding the lives of people whose health, property, families and livelihoods were impacted by last summer’s terrible events. B
Insurance requests account for majority of inquiries to Law Society BY MICHAEL ESPOSITO
f the enquiries for bushfire legal assistance that came directly to the Law Society, 70% were in relation to insurance. While several callers asked for assistance with home and contents insurance following their fire-damaged properties, other insurance related queries concerned matters such as claiming
6 THE BULLETIN September 2020
business interruption insurance for a business that had been destroyed by the fires, a liability insurance query relating to a property owner’s trees that had fallen on power lines and sparked a fire, and an inquiry about insurance coverage for the loss of a birds that perished in the bushfire.
The Society also fielded requests for property advice regarding the provision of emergency accommodation for displaced bushfire victims, employment advice regarding an employers inability to pay staff due to losses caused by the bushfires, and advice regarding the rebuilding of fencing. B
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SCARS RUN DEEP: THE HEALING PROCESS IN THE AFTERMATH OF THE FIRES MICHAEL ESPOSITO The summer of 2019-20 was a black parade of devastating bushfires that raged across Australia, with several parts of South Australia, particularly Kangaroo Island, decimated by the horrific blazes. In this story, The Bulletin speaks to three South Australian lawyers who were all caught up in the Adelaide Hills fires. They all suffered losses but were lucky the consequences weren’t worse. Here they recount their experience of the Cudlee Creek fire and the community’s slow road to recovery in the middle of a pandemic.
ost South Australians would remember the 20th of December 2019. It was so suffocatingly hot that, at 46C, it set a new record for SA, and then, in a wild mood swing, the sky opened up and pelted the State with a drenching downpour. As the last Friday before Christmas, many people were sweltering through endof-year work parties, but for family lawyer Lisa Gough, it was “the worst Christmas party ever”. Lisa was on her way to her firm’s Christmas party when news emerged that the Cudlee Creek fire was out of control and heading for Woodside. At first she was not concerned that her small farm property would be in the fire’s path, but as she kept her eye on the CFS website it soon became apparent that her colleague’s house near Woodside was under threat. The fire tore through the property, destroying most of
8 THE BULLETIN September 2020
the stock, sheds and fences, but sparing the house. Lisa spent several anxious hours monitoring the news and waiting for word from her husband, before finally getting a call from her husband telling her that the fire had gone through their property and burnt large parts of their farm, but the house and the cattle were saved. Lisa is acutely aware that she is one of the lucky ones. The blackened earth that still characterises parts of the Adelaide Hills serves as a constant reminder that a number of people lost far more. But what was so heartbreaking for Lisa was seeing the wholesale destruction of the area she called home, an idyllic hillscape turned to ash. Karen Stanley, who lives on a 50-acre farm with her husband and three children, spent most of that fateful day not knowing if her husband had survived the fire, and
spoke of the collective grief that is felt by the community after such a tragic event. “I have friends and neighbours who lost everything,” Karen, a traffic and criminal lawyer, said. “There is survivor guilt because we still have the house, shared sadness with our friends who lost more than we did, community grief at the losses, and trauma of those who stayed to defend. I know kids in my children’s school classes who couldn’t evacuate in time and had to fight the fire on their property. It’s all a great big mess.” Recovering from such a harrowing ordeal, in both a practical and psychological sense, is a long and arduous road. “There is a public perception that people are quickly rebuilding, but that is far from reality,” Karen said. “Most of us are still cleaning up the mess. The first rains this year brought landslides on our property because there was no vegetation to hold the topsoil in place. The trees that didn’t fall during the fires are now falling with the rain and damp soil, so we are doing constant clean-up work.” “There is just so much to do. We need to rebuild sheds and fences and get feed for the stock. There is no feed around because so much pasture was lost. We can’t get contractors to do our fencing or spraying or re-pasturing. We are doing it all ourselves. We have had friends come up and help with work on the land which has been amazingly kind and generous.” While Karen considers herself extremely lucky to have escaped a far worse
Clockwise from left: The fire comes over the hill on to Karen Stanley's property; The property's sheds ablaze; The blackened earth immediately after the fire had gone through the property. Photos supplied by Karen Stanley
fate, she said the experience of the day still bears a heavy emotional toll. Her husband had to battle a 30m high wall of fire to save the house – it’s not an experience you can simply erase from your mind and move on. Karen and her children evacuated in the morning but had not received any word from her husband until 5pm that night, when police advised Karen that they had been in contact with him. The first time Karen had spoken to her husband since evacuating early that morning was 9pm, when he called via a neighbour’s satellite phone to tell her that the fire front had moved on and was incinerating neighbouring properties. “I remember driving up early the next morning, not sure whether my husband or house had survived,” Karen said. When she did return, she saw kilometres of blackened earth, razed houses, scores of dead animals, and charred trees. And in the middle of this terrible scene was Karen’s verdant garden. Lisa’s property was also defended by her husband, and, like Karen’s home, looked like “a green oasis in a sea of black”. “Returning home after two days of trying to get through the roadblocks was an experience of jubilance,” Lisa said. “Words cannot describe how lucky I felt that we were all alive, safe and well.” “However, driving through the carnage each day after that, and seeing the large-scale devastation of this event was an ordeal. The burnt fences, trees and
paddocks are still etched in my mind, even though it is now difficult to see where the fires went through in many places. Tell-tale black patches on the road side where the heat of the fires was particularly high, or vacant lots where houses once stood are now the only reminder in some places.” Anyone who has experienced a bushfire knows how unpredictable they can be, and that that main threat to property is flying embers. Solicitor Graeme left work to defend his 15-acre hobby farm. As the fire took hold in the Mount Crawford forest, it descended on the lawyer’s property from the north, while a separate fire front headed towards his property from the south west. The property was showered with embers and he spent all night patrolling his property and fighting off ember attacks. Graeme’s wife had also rushed to the property earlier to evacuate the cats and dogs. With the property surrounded by fire, Graeme had no choice but to abandon his newly established orchard and the sheds, and to focus on defending the house. The sheds provided some cover and apart from one which burnt down, remained mostly intact. The fire destroyed most of the pasture, a number of tools and implements, almost all fencing, and all of the sheep. While the experience defending one’s home against a monstrous fire can trigger its fair share of anguish, Graeme suggests
that the experience of those who evacuated but were completely in the dark about the safety of those who remained in the fire zone is particularly traumatic. “The toll on us has been very hard to measure,” Graeme said. “In many respects the stress for my wife and children was significant - not knowing what was happening and then coming back to a scene of devastation.”
EMERGENCY SERVICES CAN’T DO IT ALL The experiences of Lisa, Karen, Graeme demonstrate the critical role that the community plays in fighting bushfires. The MFS and CFS are rightly hailed as heroes, but without the residents themselves joining the effort, the losses would have been even worse. Graeme said he did not see the CFS until 11.30pm on the night of the fire. “The CFS cannot be everywhere and cannot help everyone,” Graeme said. “If you make a decision to stay and defend, you have to assume that you will not receive any assistance.” Karen was listening to the CFS scanner when she heard a commander advise that they were pulling out of the area her property was on because it was too dangerous, meaning her husband defended the house on his own. “On my road, which was particularly badly hit, with several houses destroyed, there is a small group of houses that survived. I have no doubt that without my husband and neighbour, all the houses September 2020 THE BULLETIN
would be have been destroyed” Karen said. “Of course, the firefighters were amazing… but I hear time and time again about property owners saving not only their own properties, but driving around through the smoke looking out for their neighbours. The losses would have been far worse without the property owners staying and defending.” Lisa’s husband also managed to save their house without the assistance of a fire crew. “The reality of the sheer scale of the disaster meant that they were unable to assist many people as the front tore through their properties,” Lisa said. “By that time of day the fires had extended beyond Lobethal, Woodside, Harrogate and Mount Torrens and the CFS were understandably inundated.” “The CFS, including air crew, were invaluable in the early hours of the 21st December and the following days. Flareups continued even as late as New Year's Day and they were dedicated and tireless.” Just as dedicated and self-sacrificial were the community who banded together in the wake of the heart-wrenching destruction. “The community sprang into action immediately with individuals stepping up to take on and allocate various roles - getting houses ready for families whose homes had burned, organising donations, collecting and distributing generators, arranging information sessions, cooking and supplying food at the disaster relief centre that sprung up the next day,” Karen said. “It’s very hard to think about the outpouring of kindness and support without getting emotional.” Lisa said her days following the fires consisted of “digging up smouldering tree roots, putting out tree stumps, checking the CFS website and the news, then falling in a heap with a cold drink before doing it all over again.” “This was a gruelling and exhausting time of hyper vigilance for us and a time
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Blazeaid volunteers help rebuild fences in Lobethal. Photo: Blazeaid Inc
when the community really had to pull together,” Lisa said. “The unsung heroes were the local people who took it upon themselves to go out to neighbours and friends and work tirelessly containing stock, safely containing flareups with their fire-fighting rigs on the backs of their utes, or just talking and listening and providing support.” Lisa said that the fires brought together unlikely groups who worked together to deliver critical items, such as food, to affected areas, including Kangaroo Island. “BlazeAid also deserve a special mention as volunteer fencing efforts secured many properties.” She said. Lisa said she has been humbled by the inner strength and resilience of Adelaide Hills residents, and has heard inspiring stories of people sneaking behind police lines and travelling back roads to save houses, animals and people. Graeme said that despite the outward stoicism of the community, there is unquestionably a profound suffering among those who have borne significant
losses. “While much of the hills area appears reasonably robust, there is a very deep scar which is just below that surface,” he said.
LEAVE OR STAY? In spite of the carnage wrought by the fires, neither Karen, Lisa or Graeme and their families have any plans to move to a less fire-prone location. Karen summed her reasons up succinctly: “We are staying put. It’s our home.” Graeme said he thought his wife would want to move after the ordeal, but to his surprise, the family unanimously chose to remain at their home. All three mentioned the importance of having a detailed fire plan in place and ready to activate at the drop of a hat, and the imperative to prepare your property so it is as fire resistant as possible. Graeme’s property has a number of European trees strategically placed to block ember attacks. “No tree will stop a fire,” Graeme
explained, “but these trees are quite lush and are intended to block the initial burst of embers and slow the fire down.” Graeme said he was surprised at how many Hills residents admitted to him that they did not do not have a bushfire plan. Pledging to evacuate in the event of a fire is not enough. “We are all aware that we may wake up in the middle of the night to discover that there is a bushfire around us and that there is no escape. Because of this, we have tried to make sure that our firefighting response is comprehensive,” Graeme said. “The system has to work because once the fire arrives, there is no escape from the house. I saw this first hand as I spent the following two days working with my tractor and chainsaw, clearing the roads around our house. In two cases, I cleared a road and went back a little later only to find that another tree had fallen.” Graeme said the most important measure he took was filling his 25,000-litre header tank (while he still had power), and gravity feeding the water to all of the hoses and sprinklers. Karen said her family grazes stock all year round to create a firebreak around the house. “We pack our valuables at the beginning of every bushfire season, ready for an evacuation,” Karen said. Despite this level of preparation, Karen and her three children still had only three minutes to escape once it became apparent their property was genuinely threatened by a building fire storm.
FROM ONE EMERGENCY TO ANOTHER During the bushfires and in the immediate aftermath of the catastrophe, there was a massive outpouring of support from Australians, in the form of multimillion-dollar fundraising efforts, fire relief concerts, and people donating goods, money and time to help victims recover. But by March the focus of the country shifted squarely on the COVID-19 pandemic.
As the pandemic understandably commanded our attention, bushfire victims were still in the early stages of piecing their lives back together. Lisa said that the pandemic set fire recovery efforts back. “The fear and alarm of this new disaster, particularly in March when Australians we were not sure whether we would be emulating Singapore on the one hand or Italy (at that time), exacerbated elements of post-traumatic stress for some who had probably considered they had survived the fires relatively unscathed, or who thought they had bounced back successfully, only to find that they were not travelling as well as they thought they were,” she said Graeme saw the enforced isolation as a double-edged sword for victims. “For one group, I think it's actually been good for them to focus on their properties,” he said. “However, there is another group who have happily isolated but what they really needed was access to other people as much as possible. For those people, I suspect that the cost of the fires and the pandemic will not be obvious for some time. While those persons really need professional support, access to others would be the next best thing, but I fear that the obligation to isolate will give them an excuse not to seek that camaraderie.” Karen acknowledged the extra burden that COVID-19 would have placed on already suffering families, but for her, the pandemic offered an opportunity to take stock of the ordeal. “I think everyone affected by the bushfires reacted differently to COVID. For me, the pandemic was a chance for our family to finally have the break that we didn’t get over Christmas. For my family, it was the first time we really breathed in months.” “I know for others the pandemic has been terribly traumatic, particularly those who relied on assistance from people such as volunteers and counsellors.” Lisa said she hoped the pandemic would not stall necessary improvements to the
State’s fire response infrastructure, such as ensuring that more fire vehicles had GPS tracking capabilities. “Obviously the CFS staff and volunteers would have valuable insight into changes and improvements which should be made before summer arrives again, but I fear that the pandemic has shifted focus from these issues,” she said. “I would hope that those in charge will remember calls in December and January for a national effort to coordinate funding for more large fire-fighting aircraft for example, and that focus can remain on supporting these vital services and fine tuning their strategies and methods.” “In the Australian landscape it is difficult to see how fires can be prevented entirely and obviously some flora require the heat of fire to germinate.” Graeme was similarly surprised the lack of technology available to provide information to emergency services about the precise position of fires. “The technologies that are available ought, as much as possible, to equip them to not only fight a fire, but to ensure the safety of those who are fighting the fire,” he said. Karen was philosophical about the experience, acknowledging the inevitable risks of living in the Hills. “Fires are what makes our native vegetation regenerate,” she said. “We can hardly build houses in densely vegetated areas and expect that there won’t be any fires.” There’s no doubt that the Adelaide Hills abounds with natural beauty and spectacular scenery. But this idyllic environment can suddenly turn grotesque, and that is the trade-off that all those who live in fire-prone areas implicitly accept. “Living among trees is wonderful but problematic,” Graeme said.” Come what may, you need a plan and to plan for the worst.” B
September 2020 THE BULLETIN
THE PUSH TO GIVE FIRST RESPONDERS PTSD PROTECTION IN WORKERS COMPENSATION LAWS MICHAEL ESPOSITO
irst responders have been on a mission to effect legal reforms that would provide stronger protections for emergency service workers who suffer post-traumatic stress disorder. In 2018, the Commonwealth Senate Standing Committees on Education and Employment conducted an inquiry into the mental health conditions experienced by first responders and came up with 14 recommendations to improve mental health outcomes for emergency workers. The report acknowledged that first responders are highly skilled people who provide assistance in emergency situations that are often life threatening and time critical. Due to the high pressure, confronting, physically and mentally demanding, and often harrowing nature of the work, the prevalence of adverse mental health impacts among first responders is significantly higher than in the general community. A landmark National Mental Health and Wellbeing Study of Police and Emergency Services by Beyond Blue reported that: • 10% of employees have probable PTSD, while 25% of former employees have probable PTSD. The prevalence of PTSD in the general Australian population is estimated to be four per cent. • 21% of employees have high psychological distress, and 9% experience very high psychological distress. Among the general population, those figures are 8% and 4% respectively.
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• 39% of employees reported having been diagnosed with a mental health condition by a mental health professional at some point in their life, compared to 20% of the general population. • 51% of employees indicated that they had experienced traumatic events which affected them deeply. • The risk for psychological distress and PTSD increased with length of service. Two per cent of employees with less than two years’ service have probable PTSD, while 12% of employees with more than 10 years’ service exhibit signs of probable PTSD. One of the key recommendation of the Senate report, which was tabled in February 2019 was as follows: The committee recommends that the Commonwealth Government establish a national stakeholder working group, reporting to the COAG Council of Attorneys General, to assess the benefits of a coordinated, national approach to presumptive legislation covering PTSD and other psychological injuries in first responder and emergency service agencies. This initiative must take into consideration and work alongside legislation already introduced or being developed in state jurisdictions, thereby harmonising the relevant compensation laws across all Australian jurisdictions. The Federal Government, in its formal response to the Senate Committee report, noted that it supported “in principle” a nationally consistent approach to covering PTSD and other psychological injuries for first responder and emergency services agencies in workers compensation schemes. However, it noted that “as workers’ compensation is primarily a state and
territory responsibility, any such working group would depend on the cooperation of the states and territories.” The Australasian Council of Ambulance Unions (ACAU) criticised this response in a report card published in the Autumn/Winter Ambulance Active Journal 2020. The report card read: This is a key area that needs harmonising across jurisdictions. The Senate Recommendation was based squarely on an ACAU call to coordinate a national approach to presumptive legislation. A number of states and territories have already gone it alone in this area. We need to ensure consistency so that no paramedic is disadvantaged.” In February this year, SA Best Member of the Legislative Council Frank Pangallo re-introduced a Bill (after it lapsed in 2019) that would presume that a PTSD diagnosis for a first responder was work-related, with the onus shifting on the employer to prove otherwise. The Bill has not progressed beyond the second reading on 20 February this year. Debate on the Bill is scheduled to resume in the Legislative Council on 9 September. However, State Treasurer Rob Lucas indicated in January this year that the Liberal Party was not likely to support the Bill.1 The Return to Work (Post Traumatic Stress Disorder) Amendment Bill 2019 sought to amend section 9 of the Return to Work Act to include the following provision: “…subject to the qualification that if a worker
who has been employed as a first responder is diagnosed with post traumatic stress disorder, the disorder is presumed, in the absence of proof to the contrary, to have arisen from employment”
submission stated: “We see it as a risk to those who are misdiagnosed and would receive treatment for PTSD when in fact they are suffering from a different psychiatric condition. If the Bill were to be progressed we would see it as very important that there be a requirement that any diagnosis of PTSD must be made or verified by a psychiatrist with experience in the diagnosis and treatment of PTSD.” Ambulance Employees Association of South Australia, in support of the Bill, stated: “Our members are exposed to a significant amount of trauma throughout their career. They are required to walk towards danger, death and suffering. It stands to reason that for those unfortunate enough to develop PTSD, it is most
The Bill would cover first responders including: • paramedics; • police officers; • firefighters; • nurses; • doctors, and; • SES and CFS volunteers The Self Insurers Association expressed concerns with the Bill, noting that PTSD was a complex condition that can be misdiagnosed by doctors who do not specialise in the area. SISA’s
likely as a result of exposure to traumatic events in the workplace. We will continue to advocate for our members to receive support from the Government which will acknowledge the inherently dangerous and unpredictable nature of their work.” The Police Association of SA has also publicly supported the Bill, with PASA President Mark Carroll saying the Bill was “very significant legislation which, if passed, will greatly assist members recovering from PTSD.” B Endnotes 1 https://www.adelaidenow.com.au/news/southaustralia/proposed-laws-to-help-emergencyservices-personnel-with-ptsd/news-story/ ecd4271482c962330893846cd0a20df8
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Emergency management plans and the laws that underpin them SALLY CONNELL, SENIOR SOLICITOR, COMMERCIAL, ENVIRONMENT AND NATIVE TITLE SECTION, CROWN SOLICITOR’S OFFICE
he current COVID-19 outbreak has brought to public attention South Australia’s capacity to manage emergencies, by declaring a major emergency and the giving of directions. However, South Australia’s emergency management legislation provides a much broader and multi-faceted framework for managing any emergency.
THE EMERGENCY MANAGEMENT ACT South Australia’s emergency management framework is established under the Emergency Management Act 2004 (EM Act).1 Under the EM Act, an emergency may be declared an identified major incident, a major emergency or a disaster (“emergency declarations” and “declared emergencies”).2 However, the legislative framework applies to all emergencies, regardless of whether any declaration is made pursuant to the EM Act. The definition of emergency means an event that causes, or threatens to cause: 3 • the death of, or injury or other damage to the health of, any person; • the destruction of, or damage to, any property; • a disruption to essential services or to services usually enjoyed by the community; or • harm to the environment, or to flora or fauna. The guiding principles under the EM Act require emergency management arrangements to:4 • address emergency prevention, preparedness, response and recovery; and • reflect the collective responsibility of all sectors of the community; and • recognise that effective arrangements require a co-ordinated approach from all sectors of the community. The EM Act therefore contemplates emergency management arrangements to include collaboration between State and local government, the business and nongovernment sectors, and individuals.
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THE STATE EMERGENCY MANAGEMENT PLAN The EM Act requires the preparation, maintenance and review of the State Emergency Management Plan (SEMP). The SEMP is prepared, reviewed and maintained by the State Emergency Management Committee (SEMC) and is comprised of four parts and accompanying annexures. The SEMP must include strategies for the prevention of emergencies, the preparedness for emergencies, the containment of emergencies, the co-ordination of response and recovery operations, and the orderly and efficient deployment of resources and services in connection with response and recovery operations.5 It provides the roles and responsibilities of specified agencies, including the command structure for emergency management.
COMMAND STRUCTURE The EM Act and the SEMP provide a command structure and specific functions and powers for responding to, and managing emergencies. The SEMC is established by the EM Act.6 In addition to its role of preparing, reviewing and maintaining the SEMP, the SEMC maintains oversight of, and provides leadership and advice with respect to, emergency management planning for South Australia.
operations in accordance with the EM Act and the SEMP.8 Where an emergency declaration is in force the State Coordinator must implement the SEMP and cause appropriate response and recovery operations to be carried out.9 The State Co-ordinator may appoint Assistant State Co-ordinators to assist with the exercise of the State Co-ordinator’s functions and powers. Assistant State Coordinators have the functions and powers that are delegated to them by the State Coordinator or assigned by SEMC.10 The State Co-ordinator may also appoint authorised officers.11 The State Coordinator may direct authorised officers to take action for the purposes of carrying out recovery operations in accordance with the SEMP.12 SAPOL is the Co-ordinating Agency for all emergencies except where the SEMP has designated otherwise.13 During an emergency, the Co-ordinating Agency is responsible for consulting with the Control Agency and facilitating the exercise of functions or powers by the Control Agency. The State Co-ordinator and authorised officers have significant powers which may be exercised in relation to declared emergencies while the declaration is in force.14 The powers in section 25 include the power to give directions. Failure to comply with a requirement or direction of the State Co-ordinator or an authorised officer given during a declared emergency is a criminal offence.15
EMERGENCY CO-ORDINATION The co-ordination of response and recovery operations during an emergency are the responsibility of the State Coordinator, Assistant State Co-ordinators, the Co-ordinating Agency, and Authorised officers. The State Co-ordinator is usually the person holding or acting in the position of Commissioner of Police.7 The State Co-ordinator is responsible for managing and co-ordinating response and recovery
EMERGENCY CONTROL The State Controller is the leader of a Control Agency.16 A Control Agency and a State Controller will have responsibility for a particular emergency. The State Controller of the Control Agency for an emergency provides overall control to the operations at the emergency. The SEMP assigns to a person or agency the function of exercising control of persons and agencies involved in
response operations relating to a specified kind of emergency.17 Any such person or agency is then the Control Agency for emergencies of that kind. The SEMP states that “Authority for control carries with it the responsibility for tasking and directing other organisations according to the needs of the situation.” Unless otherwise provided by the EM Act, all other persons and agencies involved in response operations in relation to an emergency are subject to the control of the Control Agency. The SEMP has assigned particular Government agencies and volunteer organisations as the Control Agency for specified types of emergencies. For example, SAPOL is the control agency for road transport, marine, aircraft and rail accidents, siege or hostage situations, terrorist incidents and bomb threats. SA Health is the Control Agency for food or drinking water contamination and human epidemics. The CFS is the Control Agency for rural fires. The responsibilities of a Control Agency in resolving an emergency include: 18 • taking control of the response to the emergency (including the appointment of an incident controller and incident management structure); • ensuring a safe working environment; • ensuring effective liaison, communication and cooperation; • continually assessing the situation, identifying risks and sharing information; • developing and sharing plans and strategies that meet the requirements of all agencies responding to the emergency, and implementing and monitoring those plans; • the effective allocation and use of available resources; • ensuring the public is adequately informed and warned to enhance community safety; • facilitating the investigation of the emergency and review of response activities; and • the transition from response to recovery.
EMERGENCY SUPPORT AND PARTICIPATION The SEMP provides for other
organisations to support and assist a Control Agency during an emergency. It states that where a Control Agency is not the Control Agency for a specific emergency, they will be referred to as a Support Agency”. A Support Agency must support the Control Agency for a particular emergency and is subject to direction by the Control Agency for that emergency. The SEMP lists the roles and functions of Support Agencies during a particular emergency when those agencies are not the Control Agency for that emergency.19 For example, during a fire for which the CFS is the Control Agency, a number of other Control Agencies will be Support Agencies during the emergency. Primary Industries and Regions SA, as the Control Agency for animal, plant & marine disease emergencies, will be the Support Agency responsible for providing immediate animal relief services and rehabilitation assistance to primary producers. The Department of Premier and Cabinet, as the Control Agency for telecommunications crises will be a Support Agency responsible for coordinating any significant disruptions to major telecommunications infrastructure resulting in the loss of telecommunications services to a widespread area. SA Health will be the Support Agency with responsibility for providing hospital, specialist health and medical services required for the treatment and care of casualties. SAPOL will be the Support Agency with responsible for maintaining law and order and protecting life and property. When a Support Agency is supporting the Control Agency during an emergency, the Support Agency may be assisted by Participating Agencies20. The Participating Agencies which may assist a Support Agency are identified in the SEMP and include government, business and volunteer organisations. The SEMP provides general responsibilities of a Support Agency21, which include • supporting and following reasonable direction of the Control Agency and regularly reporting to the Control Agency; • commanding its own resources and ensuring it can provide staff and
resources within its scope of operations to support the Control Agency and recovery operations; planning for and implementing procedures within their agency to be able to deliver the required support in times of an emergency response or recovery; ensuring that any Participating Agencies that work with the Support Agency can provide their services in support of the Control Agency and recovery operations; ensuring that the role of any Participating Agency is clearly defined and supported by appropriate plans and procedures; and maintaining partnerships, and clearly describing the roles undertaken by with Participating Agencies or organisations in the supply of its scope of support.
CONCLUSION South Australia’s emergency management legislation acknowledges that the effect management of an emergency event may require the expertise and resources of multiple organisations. It therefore provides a framework, which not only sets out levels of command, but which also provides for the effective collaboration between government and non-government organisations for managing any emergency. B Endnotes: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
18 19 20 21
Section 2(1) of the EM Act Part 4 Division 3 of the EM Act Section 3 of the EM Act Section 2(3) of the EM Act Section 5A(1) of the EM Act Section 6 of the EM Act Section 14 of the EM Act Section 15 of the EM Act Section 25(1) of the EM Act Section 16 of the EM Act Section 17 of the EM Act Section 27(1) of the EM Act Section 19 of the EM Act Sections 22-24A of the EM Act Section 28 of the EM Act Section 5.4.1 of the SEMP Section 20 of the EM Act. A Control Agency may be assigned by a particular law or Act or the SEMP. Section 5.4.3 of the SEMP Section 5.6.1of the SEMP Listed in section 5.6.1 of the SEMP Section 5 of the SEMP
September 2020 THE BULLETIN
NEW SURROGACY LAWS MOVE TOWARDS NATIONAL UNIFORMITY JULIE REDMAN, ACCREDITED FAMILY LAW SPECIALIST AND MATILDA REDMAN-LLOYD, FAMILY LAWYER, ADELTA LEGAL
he rapid change and evolution of society's acceptance of new ways to create a family has made it very difficult for the law to keep abreast of societal attitudes in the area. There remains a diversity of opinions. The reality of increasing infertility amongst young people of child bearing years is a reality that has driven this area of the law. On 1 September, 2020 we saw the commencement of the South Australian Surrogacy Act 2019 (SA) and its Regulations (2020). This Act repealed the previous State surrogacy laws contained in Part 2B of the Family Relationships Act 1975 (SA) replacing them for the first time with a standalone Act. This Act regulates access to non-commercial surrogacy in South Australia and continues to outlaw commercial surrogacy. It makes no provision for recognition of overseas surrogacy agreements or children born overseas pursuant to overseas surrogacy agreements. The parentage of these children still remains unlegislated and is not covered in either State or the Family law jurisdiction since Masson v Parsons  HCA 21. The new State Surrogacy Act is a culmination of the work of the Honourable John Dawkins MLC, the South Australian Law Reform Institute (SALRI) and the Government after submissions from both members of the public and stakeholders in order to present a suitable and legislative framework for surrogacy in South Australia. Congratulations must go to the SALRI whose 2018 Report on the law regulating surrogacy in South Australia and their 69 recommendations have been adopted in their entirety and have paved the way for
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effective, modern and appropriate reform of surrogacy in South Australia. The Act incorporates for the first time three surrogacy principles; 1. That the best interest of the child must be the paramount consideration 2. The acknowledgment of the human rights of all parties to a lawful surrogacy agreement including any child born as a result of the agreement to be respected 3. The surrogate mother under a lawful surrogacy agreement should not be financially disadvantaged as a result of her involvement in the lawful surrogacy agreement. Legal recognition of surrogacy arrangements first occurred in 2010 with the Family Relationship (Surrogacy) Amendment Act 2010. The initial surrogacy requirements under the Family Relationships Act in 2010 required the surrogate to become pregnant, carry the pregnancy and give birth to a child for another couple known as the “Commissioning Parents”. The commissioning couple needed to be a woman and a man and to be married or in an established de facto relationship. In 2015, the Family Relationships (Surrogacy Amendment Act) 2015 broadened accessibility to allow the commissioning parents to be two people in a qualifying relationship being a marriage-like relationship who were partners irrespective of their sex or gender identity. Gay couples had access to surrogacy; single persons did not. The Surrogacy Act 2019 has now extended accessibility such that an “Intending Parent” (no longer a commissioning parent) can now be a single person and does not need to be the member of a couple.
The Act for the first time allows cross jurisdictional service provision by removing the requirements for fertility treatment to take place in South Australia and allowing interstate lawyers and counsellors to fulfil advisory functions under the Act. One intended parent must be domiciled in South Australia at the time of entering into the lawful surrogacy agreement to invoke the jurisdiction. The previous requirement that one member of the intending couple must provide genetic material for the production of the embryo has been removed. This leaves the door open for traditional surrogacy and surrogacy arrangements where neither intending parents provides genetic material. Traditional surrogacy is where the surrogate mother uses her own egg for the creation of the embryo. The Youth Court has already recognised traditional surrogacy in South Australia. The identity of the donor of any human reproductive material used in relation to the lawful surrogacy agreement must be provided to the Youth Court at the time of the application for parentage. The surrogate mother must now be at least 25 years of age or older, must not have impaired decision making capacity and must be an Australian Citizen or a permanent resident of Australia. The surrogate mother must provide to each intended parent a criminal history report provided by the South Australian Police or the Australian Crime Commission within the 12 months prior to entering a lawful surrogacy agreement. The surrogate mother must not be pregnant at the time the lawful surrogacy agreement is entered into. Previously the surrogate mother needed to be only 18 years of age and the other conditions were not imposed.
All parties are still required to enter into a lawful surrogacy agreement which must contain a lawyer’s certificate of independent legal advice in respect of the surrogate mother and each intended parent and the surrogacy agreement drafted by lawyers, must comply with the requirements set out in the regulations. Counselling prior to entering into the legal requirements is mandatory. Parties must have attended upon an accredited infertility counsellor and received counselling regarding the implications of the agreement that they are about to enter into. Intended Parents are now also required to ensure that counselling is available to the surrogate mother during the pregnancy and after the birth and the Act establishes an offence with a maximum penalty of $5,000 if the Intended Parents do not provide the reasonable costs associated with the counselling during these stages for the surrogate mother. These counselling costs are enforceable as a debt in the Court of competent jurisdiction. Given these arrangements must not be commercial, an area requiring greater clarity has been what reasonable costs incurred by the surrogate should be covered and expected to be paid by the Intending Parents. While the surrogacy arrangement remains altruistic, reasonable costs can be incurred and must be paid for by the intended parent including costs relating to the pregnancy, to the birth of the child, to postnatal care of the child, to medical counselling, legal services and reasonable out of pocket expenses in relation to the surrogacy agreement and payments representing loss of income. The 2020 Surrogacy Regulations define reasonable surrogacy costs as “loss of income
where the surrogate mother was unable to work due to attendance at medical appointments” and “loss of income during any period of pregnancy when the surrogate mother was unable to work on medical grounds” and “loss of income during any period within 2 months after the end of the pregnancy when the surrogate mother was unable to work on medical grounds”. A lawful surrogacy agreement is not enforceable other than for reimbursement of the reasonable surrogacy costs in the Court of competent jurisdiction. These costs are not claimable if the surrogate mother refuses or fails to relinquish the custody or rights in relation to the child and does not consent to an Order for the change of parentage of the child born as a result of the lawful surrogacy agreement. The new Surrogacy Act maintains the position that South Australia has taken since the 2010 introduction of surrogacy and that is to retain the birth mother, being the surrogate mother, as the lawful mother on the birth certificate until changed by Parentage Orders in the Youth Court at a subsequent date. Some jurisdictions recognise on the birth certificate the Intended Parents at the date of birth. The Intended Parents may make an application to the Youth Court not less than 30 days and no more than 12 months after the child is born for Parentage Orders. If the Court considers it is in the best interest of the child it can make an Order declaring that the relationship between the child and the Intended Parent(s) to be that of parent and child and to remove any relationship of the surrogate to the child. The Court must notify the Registrar of Births Deaths and Marriages of the identity of the donor of any human reproductive material for
recording with the Registry. The records of Court proceedings will not be open to inspection except as authorised by the Court. Prior to making this declaration, the Court has discretion to order further assessments from an accredited counsellor, in particular to ensure that the consent of the surrogate mother is freely given, that the parents are fit and proper to assume the role of parent and the Order is in the best interest of the child. The Registrar of Births, Deaths and Marriages is subsequently notified of the Orders made in the Youth Court and the Registrar will on application change the birth certificate. The Act sets out offences relating to surrogacy agreements to emphasise the continued ban on commercial surrogacy, an offence to arrange a surrogacy agreement for another person or to induce by threat of harm or by dishonesty or undue influence induce a person to enter into a surrogacy agreement. It continues to be an offence to advertise an advertisement, statement, notice of other material to seek the agreement of a person to act as a surrogate mother for valuable consideration. There remain cross jurisdictional complexities as each State and Territory maintains their individual legislation. Whilst the surrogacy laws are now becoming more uniform across the States, until we have national legislation to regulate surrogacy arrangements in Australia there will continue to be legal complexities for parties wanting to utilise surrogacy as a recognised form of family formation in Australia. South Australia has built in a review of these laws in five years which is certainly necessary in the changing field of family formation. B September 2020 THE BULLETIN
The SA Country Fire Service: Protecting life, property and the environment MARGARET KAUKAS, SPECIAL COUNSEL, ANDERSONS SOLICITORS
he Australian community dreads bushfire season. Last summer we again witnessed the devastating effects of bushfires with tragic loss of life (human, livestock and wildlife), and damage to property and the environment. Over recent years it seems that bushfires have become more ferocious – some attribute this to climate change, others to the build-up of wood and vegetation fuel loads and the encroachment of homes on bushland. Whatever the reasons, surely none of us can forget the distressing images of people sheltering on ovals, riverbanks and beaches from fast approaching fires, or dismiss the horrifying thoughts of the last moments of those who perished in the fires. The SA Country Fire Service (CFS) is a volunteer based “all hazards” agency. The CFS responds to bushfires, building fires, motor vehicle accidents and hazardous material spills in country regions of SA, but is perhaps best recognised as the front line in fighting bush fires. In addition, the CFS assists local government with fuel reduction and assists to educate the community about bushfires and fire safety. The majority of rural towns in SA rely on the CFS and even some suburban locations – particularly those that contain scrubland – have CFS brigades. The dedicated women and men of the CFS fight to save and protect the lives, homes and property of others in their community, often while their own families, homes and properties are at risk, and often endangering their own lives by doing so. The CFS maintains brigades in over 434 locations, staffed by over 16,000 volunteers of which around 11,500 are dedicated firefighters. It has over 780 fire trucks and attends over 8000 incidents each year. The CFS often works alongside the SA Metropolitan Fire Service and assists the State Emergency Service with problems associated with flooding and other weatherrelated damage.
LEGISLATION AND FUNDING The CFS was established in 1976 with the passage of the SA Country Fires Act. In 2005, the SA Fire and Emergency Services
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Act (the Act) was passed, which pulled the CFS, Metropolitan Fire Service and State Emergency Service together under a single administrative body and funding source. The CFS’s paid staff, equipment, protective clothing and training is funded by the State Government, primarily through the Emergency Services Levy.
POWERS AND PROTECTIONS / RIGHTS OF CFS VOLUNTEERS The Act outlines some general powers of CFS volunteers and also provides them with some important legal protections. The Act empowers CFS members to take any action that appears necessary or desirable for the purposes of protecting the life, health or safety of any person or animal, or protecting property, or the environment, even if those actions could result in damage to or destruction of property or the environment, or cause financial loss to any person. Such actions can include: • entering any land or structure, even breaking in with force if necessary; • taking possession or assuming control of any land, structure, vehicle, body of water or other thing; • removing or causing to be removed any person or animal to any place; • directing or prohibiting the movement of persons, animal or vehicles; • causing firebreaks to be cleared or ploughed, and carry out excavation or earthworks; • making use of the gratuitous services of any person; or • directing, so far as reasonably necessary, any person to assist in any of the above. It is an offence for any person to fail to comply with a requirement or direction of a CFS officer or volunteer, with maximum penalties of $75,000 for a corporation and $20,000 for a natural person. Most importantly, the Act protects a CFS volunteer from civil or criminal liability for acts or omissions done honestly in the exercise of their powers or functions under the Act. Liability for any loss arising from personal injury or
damage to property will not lie against the volunteer but, instead, against the Crown (except in very limited circumstances). Similarly, the SA Volunteers Protection Act 2001 protects a CFS volunteer acting in good faith and without recklessness from civil liability for any act or omission done in the course of carrying out their duties. Certain exceptions apply to this protection (e.g. it does not apply to defamation, does not operate if the volunteer was significantly impaired by recreational drugs, or was acting outside of the scope of authorised activities or contrary to instructions). Importantly, the SA Return to Work Act 2014 extends the protection of the workers compensation scheme in SA to CFS volunteers, despite the fact that, legally, they are not “employees”. A CFS volunteer who is injured while undertaking volunteer duties, or the family of a volunteer who is killed while undertaking volunteer duties will be entitled to be compensated for lost income and medical expenses, in addition to other entitlements in certain circumstances. In addition, the CFS Foundation provides financial assistance to volunteer firefighters and their families when needed. The CFS is an integral part of the South Australian community. Without their service, many more lives, homes and wildlife would be lost to bushfires each year. It is therefore vital that their powers and rights continue to be protected under the law. If you are interested in volunteering for the CFS call 1300 364 587 or submit an application through the CFS website at https://cfs.sa.gov.au/site/volunteer.jsp. B
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Sexual harassment in the workplace: Make it your business to make sure it’s not in your business MARISSA MACKIE, CHAIR, WOMEN LAWYERS COMMITTEE & LEAH MARRONE, MEMBER, WOMEN LAWYERS COMMITTEE; VICE-PRESIDENT, AUSTRALIAN WOMEN LAWYERS
hilst it has been prevalent in the media recently, we know sexual harassment in the legal profession is not new. We all know about it, we have seen or heard about it, from the media, from a number of reports,1 but for so many reasons we still don’t really talk about it and it is becoming increasingly evident that many still do not understand exactly what behaviour constitutes sexual harassment. We know that victims do not come forward to report conduct as they are often ostracised for doing so or warned that this will happen. In the long term addressing sexual harassment in the workplace and profession will require determined cultural change, realising gender equality in the workplace, and addressing power imbalances. We know this is going to take time and a lot of work. We have been working on it for years. It will be slow and sometimes that distracts us, thinking it is all too hard but there are small changes that we can take now that will have immediate benefit and chip away at that end goal. A lot of firms, especially the larger ones, have existing policies in place in an attempt to deal with all types of harassment in the workplace. You may have seen your firm’s policy as part of your induction, but have you ever seen it since? Do you even know it exists or where to go for help if a situation arises? Having a no-tolerance policy against bullying and sexual harassment is one thing, ensuring its effectiveness is another. So, what can you do to make those changes and create a workplace culture that is inclusive and safe, where a no-tolerance attitude to harassment is ingrained in all staff ? Australian Women Lawyers Ltd. has published a policy paper identifying seven
20 THE BULLETIN September 2020
strategies for addressing sexual harassment in the legal profession which provides practical guidance for employers and the profession generally.2 We have expanded on some of these strategies below in providing some tips for firms in reviewing their policies and giving practical effect to them. Workplace policies • Be clear and transparent on the consequences for perpetrators. There is no point in a small slap on the wrist, or if the person’s conduct will be overlooked because they are a high fee earner. • Consider the effectiveness of bystander policies, if you have one, to provide mechanisms and a requirement for staff to report poor behaviour if they see it happening.3 • Provide a confidential complaints mechanism which enables both complainants and bystanders to report incidents of bullying and sexual harassment. • Have a trauma-informed approach for complaints, one aspect of this is ensuring that they do not have to re-tell their story on multiple occasions. • Provide a mechanism that encourages staff who may have concern that they acted inappropriately to raise these issues and seek guidance. • Ensure that any grievance processes seek to reinforce consequences for the perpetrator. • Do not simply try and ‘fix’ the problem by re-assigning the victim to a different area of the firm. They should not be punished. • Consider whether the use of nondisclosure terms in resolution are indeed appropriate or whether greater
transparency is necessary to show staff what is and isn’t appropriate. We consider non-disclosure agreements are generally only appropriate only where the complainant requests them, or perhaps having an agreement to not disclose settlement sum, but where the substance of the complaint, and behaviour alleged, can be discussed. • Consider other policies, including those relating to events outside of the workplace, including networking events and parties. Training A survey conducted as part of the International Bar Association’s (IBA) Report ‘Us Too? Bulling and Sexual Harassment in the Legal Profession’4 illustrated that those who received training in their workplace were ‘significantly less likely to have been bullied or sexually harassed…’. The introduction of a mandatory CPD unit in bullying and sexual harassment is a step in the right direction, but for this training to have any effect it needs to be practical and not simply an overview of the legislation. Many people are unclear about what conduct can amount to sexual harassment. It is not limited to the blatant examples we have seen in the media; it can be as simple as a remark about someone’s appearance. Consider developing hypothetical and interactive scenarios to really gauge whether your staff can identify what amounts to sexual harassment, what they would do about it as a victim or a bystander, if they know where they can go to speak to someone for support either within the organisation or externally. Training should also address issues of unconscious bias and underlying gender inequity.
Reporting Be aware of what is going on in your workplace. Reporting provides some an opportunity for the profession to monitor what is going on and the nature of complaints. Depending on the size of the firm, it may not be practical to conduct reporting internally but can become a part of the ongoing dialogue with staff about what has been reported in the profession generally. Employee declarations and performance reviews Employees are often required to make a number of declarations when commencing at a new firm including noncompete clauses. You may only see it as a little thing but you could encourage your employees to sign a declaration (ideally on a yearly basis) that they are aware of their obligations under relevant legislation and the conduct rules. You could make it a part of ongoing performance reviews. Talk about it Dealing with harassment requires an ongoing dialogue. Fear of retribution and professional consequences is clearly a factor which weighs on complainants and bystanders. Reducing the stigma associated with reporting misconduct, either by a victim, a bystander or the perpetrator themselves, is key. By talking openly about it, people feel the confidence to speak up. It also ensures the problems with bullying and sexual harassment remain at the front of our minds. Check in with staff about whether they feel safe, consider this especially at work social events. Small Firms Smaller or boutique firms may think there is no practical way to implement policies within their practices. We understand it can be more difficult, but
it is not impossible. There are a number of services available to support smaller firms and their employees, whether it be through setting up an arrangement with an independent third party who can field inquiries or simply ensuring your employees are aware of the existing services available. Support Services The Law Council of Australia5 is working closely with its constituent bodies to develop a resource hub to assist firms and the Law Society of South Australia is also updating its website to facilitate accessing relevant guidelines with ease.6 Members of the Women Lawyers Committee of the Law Society and other professional bodies such as the Women Lawyers Association of SA7 are more than happy to field enquiries to support firms in developing their policies and training, to provide referrals to various bodies that can assist in navigating sexual harassment complaints, especially for those smaller firms where it may be difficult for people to report. If your employees do not have access to an EAP service, get one. If that is not practical, ensure your staff are aware of the many support services available through the Law Society and other organisations. Benefits The effect of harassment (both sexual and other types of discrimination) are felt across the profession. It can lead to staff disengagement and higher attrition levels. In some cases, practitioners become so disengaged that they leave the profession completely. The benefits of appropriately addressing and dealing with sexual harassment are endless. Not only will it reduce the likelihood of this conduct
occurring in the future, but it will assist practitioners to feel more comfortable at work resulting in greater morale, increased productivity and higher retention rates. Firms will more likely be seen as employers of choice, attracting quality employees and, in turn, new clients. We look forward to the day where the secret whispers of ‘make sure you’re not alone late at night with such and such’ are finally gone. B
Endnotes 1 International Bar Association, Us Too? Bullying and Sexual Harassment in the Legal Profession (2019) https://www.ibanet.org/bullying-andsexual-harassment.aspx; Law Society of South Australia, ‘Survey results trigger action plan to make workplaces safer’, Bulletin (Law Society of Australia), Vol 41, No 11, December 2019, 24-25 https://www.lawsocietysa.asn.au/pdf/ LSB_December_2019_survey.pdf; Australian Human Rights Commission, Respect@Work: Sexual Harassment National Inquiry Report (2020) https://humanrights.gov.au/our-work/sexdiscrimination/publications/respectwork-sexualharassment-national-inquiry-report-2020. 2 https://australianwomenlawyers.com.au/ wp-content/uploads/2019/07/Seven-Strategiesfor-addressing-Sexual-Harassment-in-the-LegalProfession-AWL-9-July-2019.pdf. 3 For more details on bystander responsibilities see https://womenlawyersnsw.org. au/wp-content/uploads/2020/07/ SexualHarassmentMeasures_R.pdf. 4 https://www.ibanet.org/bullying-and-sexualharassment.aspx at p 101. 5 https://www.lawcouncil.asn.au/policy-agenda/ advancing-the-profession/equal-opportunitiesin-the-law/bullying-and-harassment-in-theworkplace. 6 https://www.lawsocietysa.asn.au/Public/ Lawyers/Practitioner_Support/Bullying_ Discrimination_Harassment. 7 https://www.womenlawyerssa.org.au/.
September 2020 THE BULLETIN
FROM THE ATTORNEY GENERAL
Major Reform of South Australia’s Succession Laws THE HON VICKIE CHAPMAN MP, ATTORNEY-GENERAL & DEPUTY PREMIER OF SA
outh Australia’s succession laws will soon be overhauled. Many of you will recall that the South Australian Law Reform Institute (SALRI) conducted a number of reviews into various areas of succession law that are most in need of reform. This was a huge body of work which involved extensive consultation with the South Australian judiciary, key legal stakeholders, the profession and the general public. SALRI published several reports focussing on the following topics: • Sureties guarantees and letters of administration • State schemes for storing and locating wills • Small estates and minor succession disputes • South Australian rules of intestacy • Management of the affairs of a missing person • Review of the Inheritance (Family Provision) Act 1972 (SA) • Who may inspect a will Together, these reports contain over 100 recommendations, the bulk of which have now been accepted by the Government. One of the most significant is that the numerous pieces of legislation that currently govern our succession laws will be amended and combined to form one, new, Succession Act. This will involve combining the Administration and Probate Act 1919, the Wills Act 1936 and the Inheritance (Family Provision) Act 1972 as well as making
22 THE BULLETIN September 2020
amendments to the Public Trustee Act 1995, the Stamp Duties Act 1953 and the Law of Property Act 1936. By combining these into one consolidated Act, with better organised provisions, we hope to make the legislation much more user friendly and accessible, especially for laypersons. This will also provide an opportunity to update and modernise the language which has become outdated. During consultation, a common view conveyed to SALRI was that our current family provision laws have served to dilute the notion of testamentary freedom, which has increased the number of family members pursuing opportunistic or vexatious claims. To address this, the draft Bill will place greater focus on deterring baseless, opportunistic or undeserving claims. It will also include a non-exhaustive list of factors for a court to have regard to when considering claims, with the lead item to be the views and reasons of the testator for distributing their estate in the way they did. This will help ensure there is an increased focus on the rights of the testator, while also providing greater clarity and guidance to the court when determining claims. There have also been many social changes in recent times which are not currently reflected in our succession laws. The last systematic review regarding the rules of intestacy was conducted as long ago as 1974! Since then, we have seen a huge increase in the diversity of family structures with divorce and re-partnering
now very common. Despite this, adult stepchildren currently have no status to make a claim under the Inheritance (Family Provision) Act. A common case example is when a person’s natural parent remarries but predeceases their stepparent. The stepparent then makes a will but leaves no provision for their stepchildren, even though a large proportion of the stepparent’s estate may have been amassed by the child’s natural parent. A strong view presented to SALRI was that given the increase in blended families, there should be exemptions in place to address this. The Government has accepted SALRI’s recommendation in this regard, and the Bill will be drafted to include adult stepchildren as a separate new category of claimant. However, their eligibility will be restricted to certain circumstances, for example if they are significantly vulnerable, if they significantly contributed to the testator’s wealth or wellbeing, if they were genuinely dependent on the testator at the time of their death, or if the assets accumulated by the stepchild’s natural parent significantly increased or contributed to the estate of the testator. Work is now underway on the massive task of drafting a consolidated Bill. Once that is done, consultation on the draft Bill will commence. I will continue to keep you updated on this work as well as other things happening in my portfolio over the coming months. B
PROHIBITING IMPERSONATION OF POLICE IN AN ERA OF DEEPFAKES? ANTHONY STOKS, LLBLP HONOURS STUDENT, FLINDERS UNIVERSITY AND TANIA LEIMAN ASSOCIATE PROFESSOR & DEAN OF LAW, FLINDERS UNIVERSITY
ustralia’s recent bushfire crisis has highlighted the critical importance of announcements from public authorities including police – via still or moving images and sound on traditional news media, websites or social media platforms. But what if we couldn’t be sure that videos were trustworthy, or if images and sound had been manipulated to spread misinformation or cause harm? ‘Deepfakes’ first appeared online in 2017, created by a machine learning algorithm that digitally “face swap[ped] celebrity faces onto porn performers’ bodies”.1 Deepfakes include “the full range of hyper-realistic digital falsification of images, video, and audio…[at] the “cutting-edge” of increasingly realistic and convincing digital impersonation”.2 In the physical world, people can be expected to realise when someone is being impersonated.3 In the digital world, how can we know these videos are ‘fake’? For now, many Deepfakes are labelled as such in the original posts and are simply used for entertainment purposes4 primarily via YouTube clips depicting celebrities in films they have never featured in.5 But as more are generated it is less likely they will be. Where content is re-posted on social media without reference to the original site, there may already be no indication it’s a Deepfake. Creation of these hyper-realistic images, video, and audio requires “some part of the editing process [to be]
automated using [artificial intelligence or] AI techniques”.6 The machine learning algorithm involves two competing AI systems working together to “form … a generative adversarial network (GAN). The first step in establishing a GAN is to identify the desired output and create a training dataset for the generator [AI system 1]. Once the generator begins creating an acceptable level of output, video clips can be fed to the discriminator [AI system 2]”.7 The generator continues to create ‘fake’ video clips which are spotted by the discriminator until the discriminator is no longer able to detect a ‘fake’ - a Deepfake clip almost impossible for humans to detect. Deepfake technology is increasingly accessible,8 including by children and hackers, raising concerns
about “unforeseen and unintended consequences. It is not that fake videos or misinformation are new, but things are changing so fast… challenging [the public’s] ability to keep up”.9 Proposed responses include creating in-built indicators to “verify photos and videos at the precise moment they are taken”10 using metadata and blockchain to create a record of when the original picture or video is made11 - a solution unlikely to be scalable, given the vast number of images uploaded online every day.12 Incorporating fake-video detection in social media platforms13 has also been suggested but may not combat Deepfakes targeted to specific individuals,14 and risks regulating lawful creation of videos for satirical, educational, or entertainment purposes or for sharing privately. September 2020 THE BULLETIN
PROTECTING THE PUBLIC: PROHIBITING IMPERSONATION OF POLICE It is critical that we can rely on information we receive and interactions we have with our emergency services. To protect and enable us to clearly identify a police officer with state authority, legislation in every Australian jurisdiction prohibits impersonation of police. As society and technology has changed, what makes police distinctive has changed, and these offences have changed too. Provisions enacted in the 1850s and early 1900s assumed a context of in-person human interaction, specifying that certain accessories were to be owned and used only by police. Amendments in the 1930s and 1950s (after widespread adoption of photography where police could be identified in still images; and paralleling a rise in ‘private police’ possessing similar items and accoutrements to police but not required to dress like police) created separate offences for the wearing or possession of police uniforms or clothing. In the 1990s and 2000s (after widespread introduction of CCTV), conduct impersonating police become a separate additional offence in most jurisdictions. Common legislative prohibitions generally cover those situations where the position of ‘police’ is used to intimidate, threaten, or inconvenience the public.15 Exceptions allow impersonation for ‘social entertainment’ or ‘satire’. The limited caselaw16 involves individuals who said/ did something in a physical context usually whilst possessing intention or recklessness to impersonate, and it was clear who to charge - the person who said or did the prohibited action. Several key principles emerge: • I mpersonation of police is a serious matter warranting serious penalties; • Elements of the offence focus on the act itself rather than its impact, with the latter relevant to sentencing; • Context and conduct are critical; • Any representation is assessed objectively - would a reasonable member of the public perceive a person’s appearance, statements, or conduct to be that expected of a police officer?;
24 THE BULLETIN September 2020
• C onsideration of the implicit power of police (i.e. inherent power to intimidate) is relevant to sentence.
EXISTING PROHIBITION NOT SUFFICIENT TO MEET NEW RISKS Existing provisions17 may not be adequate to address the challenges now posed by Deepfakes. Who should be charged? What elements should be proved for the offence to be made out? If a ‘real’ person is portrayed in a Deepfake,18 they may not even be aware such a depiction existed, so neither committed an act nor had any requisite intention.19 If a Deepfake depicts a ‘person’ who no longer exists or has never existed, then who is doing the impersonation? What about those who share or re-post Deepfakes? For images generated by GANs, what about those who upload the data training sets? What about developers of the AI algorithms? Even if an appropriate actus reus could be identified, what, if any, mens rea should be required - intent to impersonate, intimidate, threaten, or inconvenience? Proving this might be difficult, especially as these videos are often created for ‘entertainment’ purposes by those testing the capability of the technology.20 While posting a Deepfake online may be a representation, context will continue to be critical in determining whether someone should be charged. Posting content with a clear title, statement, or description that it is a Deepfake suggests no intent to deceive, intimidate, threaten, harm, or inconvenience the public. However, even if clear warnings are added to ensure the Deepfake is not taken seriously,21 once it is posted online there is no longer any control over what happens to that content. Interpreting provisions as prohibiting simply the act of impersonation without any mens rea requirement will apply oppressively to those using Deepfake apps or programs for creative purposes. If provisions are interpreted as prohibiting the outcome of impersonating a police officer, then who should be charged if content is subsequently shared or re-posted without acknowledgement the video is ‘fake’? The viral nature of the internet means posting and sharing content happens
almost instantaneously, often without consideration about whether the content is ‘real’ or ‘fake’, sometimes even shared by news and verified social media accounts without rigorous fact-checking. Perhaps one response to this challenge could be a new offence prohibiting dissemination of material that is not appropriately factchecked. Convincing Deepfakes cannot be created without machine learning. While humans may code or design the GAN algorithm, it is machine learning which creates the Deepfake. The GAN ‘decides’ when a ‘fake’ video will be indiscernible from a ‘real’ video while “not completely under the control of human ‘handlers’”.22 This raises new questions about whether criminal prohibitions can effectively address acts or outcomes that humans can never commit on their own, or whether criminal liability should and could be attributed if and where artificial intelligence is involved in an offence. Even doing so would not account for multiple parties potentially involved in the wider (and possibly entirely innocent) online dissemination of Deepfakes. Existing provisions include exceptions for ‘social entertainment’ or ‘satire’ without reference to mens rea. ‘Social entertainment’ is not defined,23 and may encompass anything from blogging to online gaming to using social networking sites24 – potentially covering a wide variety of online interactions with other people. Posting a Deepfake online that depicts a human image wearing a police uniform, whether viewers of the content know it is a Deepfake or not, might be ‘social entertainment’. Proving it was shared for other purposes would be difficult because the context in which it was originally posted or shared may not be known. Even if the Deepfake purported to be social entertainment or satire, it might still intimidate, threaten, or inconvenience the public. When they portray figures of authority such as police or other public figures making public interest announcements, Deepfakes pose risks to the public and Australia’s justice system. Their impact on our society now so reliant on social media for information is a threat the law cannot ignore. Historically, criminal prohibitions
against impersonating police have addressed the need for clarity, certainty and reliability when dealing with police and others with state power to direct our lives and impact our liberty and autonomy. The existing legal framework has significant limitations in responding to the new challenges of Deepfakes purporting to be police. The new issues which have been identified can be used as a catalyst for further reform. Protecting the credibility of police is now as important as maintaining peace, order, and good government. B
Samantha Cole, ‘We are truly fucked: everyone is making AI-generated fake porn now’, Vice (online, 25 January 2018) <https://www.vice. com/en_us/article/bjye8a/reddit-fake-pornapp-daisy-ridley> cited in Bobby Chesney and Danielle Citron, ‘Deep Fakes: a looming challenge for privacy, democracy, and national security’ (Research Paper No 692, University of Texas Law, August 2018) 4. 2 Bobby Chesney and Danielle Citron, ‘Deep Fakes: a looming challenge for privacy, democracy, and national security’ (Research Paper No 692, University of Texas Law, August 2018) 3-4. 3 Marshall v Mielke  TASMC 28, ; Medlycott v Redman  SASC 2932, 2935; Police Act 1998 (SA) s 74(3). 4 Delfino, Rebecca A, ‘Pornographic deepfakes— revenge porn’s next tragic act: the case for federal criminalization’ (Research paper no 2019-08, Loyola Law School, July 2019)
5 Ctrl Shift Face, ‘The Dark Knight’s Tale [DeepFake]’ (YouTube, 19 May 2019) 00:00:00— 00:00:59 <https://www.youtube.com/ watch?v=TgcvQA6-qBg>. 6 James Vincent, ‘Why we need a better definition of “deepfake”’, The Verge (online, 22 May 2018) <https://www.theverge. com/2018/5/22/17380306/deepfake-definitionai-manipulation-fake-news>. (emphasis added) 7 Margaret Rouse, ‘deepfake (deep fake AI)’, whatis. com (Web Page) <https://whatis.techtarget.com/ definition/deepfake>. 8 See eg Miles O’Brien, ‘Why ‘deepfake’ videos are becoming more difficult to detect’, PBS (online, 12 June 2019) <https://www.pbs.org/ newshour/show/why-deepfake-videos-arebecoming-more-difficult-to-detect>. 9 Tom Chivers, ‘What do we do about deepfake video?’, The Guardian (online, 23 June 2019) <https://www.theguardian.com/ technology/2019/jun/23/what-do-we-do-aboutdeepfake-video-ai-facebook>. 10 Kaveh Waddell, ‘1 big thing: tracing deepfakes’, Axios future (online, 11 July 2019) <https:// www.axios.com/newsletters/axios-future38439855-c7ae-405f-b6ad-19105515d27e. html?utm_source=newsletter&utm_ medium=email&utm_campaign=newsletter_ axiosfutureofwork&stream=future>. 11 See eg Haya R Hasan and Khaled Salah, ‘Combating deepfake videos using blockchain and smart contracts’ (2019) 7 IEEE Access 41596, 41598. 12 Waddell (n 10). 13 Ibid. 14 See eg Nick Statt, ‘Thieves are now using AI deepfakes to trick companies into sending them money’, The Verge (online, 5 September 2019) <https://www.theverge. com/2019/9/5/20851248/deepfakes-ai-fakeaudio-phone-calls-thieves-trick-companiesstealing-money>.
15 Australian Federal Police Act 1979 (Cth) s.63; Criminal Code 2002 (ACT) s.362; Crimes Act 1900 (NSW) s. 546D; Police Act 1990 (NSW) ss.203 and 205; Police Administration Act 1978 (NT) s.156; Police Service Administration Act 1990 (Qld) s 10.19; Police Act 1998 (SA) 74; Police Service Act 2003 (Tas) s.78; Victoria Police Act 2013 (Vic) s.256; The Police Act 1892 (WA) ss.16 and 16A. 16 14 Australian cases and 1 UK case - Doolan v Cooper (1962) 62 SR (NSW) 719; Turner v Shearer  1 WLR 1387; Schroeder v Samuels (1973) 5 SASR 198; Keynes v Kowald (1976) 13 SASR 354; Cameron v Holt (1980) 142 CLR 342; Fogarty v Brown (1989) 17 NSWLR 21; Medlycott v Redman  SASC 2932; Medlycott v Redman  SASC 2932; DPP v Burrow  NSWSC 433; Arndt v Sao  QDC 419; Clarkson v R (2007) 209 FLR 387; Michael v State of Western Australia  WASCA 66; Marshall v Mielke  TASMC 28; Opacic v R  NSWCCA 294; DPP v Morgan  VCC 476. 17 Above note 17 18 eg YouTube ‘You Won’t Believe What Obama Says In This Video!’ https://www.youtube.com/ watch?v=cQ54GDm1eL0 19 See eg Ryan v The Queen (1967) 121 CLR 205, 213. 20 Rebecca A Delfino, ‘Pornographic deepfakes— revenge porn’s next tragic act: the case for federal criminalization’ (Research paper no 2019-08, Loyola Law School, July 2019) 14. 21 Medlycott v Redman  SASC 2932, 2935. 22 Subramanian, Ramesh, ‘Emergent AI, social robots and the law: security, privacy and policy issues’ (2017) 26 Journal of International Technology and Information Management 3 23 Police Act 1998 (SA) s 74. 24 Yuan-Hsuan Lee and Jiun-Yu Wu, ‘The indirect effects of online social entertainment and information seeking activities on reading literacy’ (2013) 67 Computers & Education 168, 170-172.
September 2020 THE BULLETIN
The definition of a discretionary trust under the Land Tax Act BERNIE WALRUT, MURRAY CHAMBERS
hilst the recent land tax changes1 have fixed on some trusts for the imposition of a surcharge, they have singled out for even harsher treatment those trusts that are defined in the Land Tax Act 1936 (SA) (LTA) as discretionary trusts. The definitions that have been adopted are in the main, different from those that have been used in this State in the Stamp Duties Act 1923 (SA). The LTA did not, prior to the recent amendments have any definitions of a trust. Though there was a definition of a special disability trust, it was the only type of trust that was expressly identified. Now there are many definitions of different types of trusts, including excluded trusts,2 unit trusts, discretionary trusts and fixed trusts.3 It must also be recognised that the definition of a discretionary trust that has been adopted is extremely broad. A discretionary trust is one under which the vesting of the whole or any part of the trust property may occur in either of two situations. The first is where the vesting is determined by a person either in respect of the identity of the beneficiaries or in respect of the quantum of the interest or both. The second is where the vesting will occur in the event that a discretion is not exercised. The reference to property appears to apply to both capital and income of the trust. This will require a close examination of each trust deed to identify whether there are any such powers vested in the trustee. As the High Court has stated on a few occasions, the expressions discretionary trust and unit trust are descriptive and not normative. Whether a particular trust satisfies one of those descriptions is dependent on the definition to be found in the particular legislation.4 The problem is further compounded by the structure of the LTA in classifying the different forms of trusts for the purposes of the Act. In the case of discretionary trusts and unit trusts there is a potential to satisfy both definitions. In the case of both definitions there is an express exclusion for an excluded trust but
26 THE BULLETIN September 2020
no tiebreaker for a trust that satisfies both definitions.5 If the trust does not satisfy either of those definitions and is not an excluded trust, then it is deemed to be a fixed trust.6 Discretionary trusts are then singled out in a number of ways. The first is that only one person may be nominated as a designated beneficiary.7 A designated person is in effect deemed to be the owner of a 100% of the land subject to the discretionary trust as at the prescribed time (i.e. 16 October 2019).8 The second is that the nomination of a designated person can only be made up to 30 June, 2021. The third is that the designated person must be a natural person.9 Subject to the exception for the trustee of a discretionary with no natural person beneficiaries, having regard to the scheme of the LTA, the natural person requirement most likely means that a natural person as trustee of a trust cannot be the designated person. The fourth requires that the designated person was a beneficiary at the prescribed time (i.e. 16 October 2019).10 The fifth requirement is that the designated person over 18 years at the time of designation.11 The sixth requirement is that the designated person consents to being designated and such consent is verified by statutory declaration.12 If there is no beneficiaries over 18 years of age the trustee, if a natural person, can be nominated as the designated beneficiary.13 The following discussion focuses on two aspects of the operation of those provisions. As mentioned, the nomination of a person as a designated beneficiary only applies to land that was subject to the trust at the prescribed time (pre-existing land). In effect any non pre-existing land the subject of the discretionary trust will be the subject to the surcharge. Initially, the Commissioner indicated that preexisting land would include land of which the trustee of the discretionary trust was deemed to be the owner under one of the other provisions, if that land was held as at the prescribed time (i.e. land held by a trustee of a fixed trust or the trustee
of a discretionary trust the subject of a nomination).14 However, more recently the Commissioner has indicated that is no longer her position, so a trustee of a discretionary trust holding units in a unit trust, where the unit trustee makes a nomination, will not be able to include the deemed landholding in the pre-existing land of the discretionary trust on any nomination.15 The Commissioner has also indicated that pre-existing land will cease to be pre-existing land if it is subdivided.16 This view appeared to encompass not simply a subdivision but even a request for new titles where two existing lots are in the one title and a simple request for new titles is lodged. Obviously, the position taken by the Commissioner has been questioned. Where there are two existing lots in the one title there is not even a subdivision on a request for new titles, the lots already exist. Even in the case of a simple subdivision the land does not alter, simply the description and titles alter. As mentioned by Griffith CJ and Gavan Duffy and Rich JJ in Clifford v The Deputy Commissioner of Land Tax 17 in a Federal land tax context, land is a portion of the earth’s surface. This would suggest that a simple subdivision should have no effect on the status of land as pre-existing land. Even if on a subdivision some land is vested in a local government authority one may query why the remaining land is still not pre-existing land. The lots that are created remain the same portions of the earth’s surface subject to the same trust as at the prescribed date. The title and description may simply be different. Obviously, the situation becomes much more complicated if, say, adjoining land is added to pre-existing land. Is that the same land to the extent of the portion of the earth’s surface that was held at the prescribed time or is it now different?18 Does it make any difference if it is an encroachment that is added to the title under the Encroachments Act 1944 (SA) where the land the subject of the encroachment has long been
regarded as part of the parcel but in effect not included in the title and the land description? It is unlikely that where preexisting land the subject of a discretionary trust is the subject of a plan under the Community Titles Act 1996 (SA) that it remains the same land, at least based on some interstate Duties Act decisions.19 However, there is a Goods and Services Tax decision, that appears to adopt the view that the land remains the same after subdivision by the community plan.20 The other issue for consideration is whether a person should be nominated as a designated beneficiary prior to 30 June, 2021 notwithstanding such a nomination may not have any immediate benefit. A few examples highlight some situations that require consideration. A couple have their principal place of residence in one of their names and no land tax is paid. The beach house, where they intend to retire to in five or six years is in the name of a corporate trustee of a discretionary trust. If the trustee nominates one of them as a designated beneficiary prior to 30 June, 2021, then when the beach house becomes their principal place of residence, they should be able to claim the principal place of residence exemption. In the meantime, the beach house will be assessed at base rates. If the principal place of residence was in their names as trustees of a discretionary trust, they most likely have already been receiving a principal place of residence exemption.21 When they move to the beach house it is likely to be too late to nominate a designated beneficiary. So, unless they nominate a designated beneficiary prior to 30 June, 2021 on their residence ceasing to be their principal place of residence, assuming they retain it, they will be liable for land tax at surcharge rates. Another example of where a nomination might be of benefit is where there is primary production land near a township that will be ripe for development in a few years. The title includes a number of existing lots. Currently the
owner of the land is the trustee of a discretionary trust that share farms that land and so obtains the primary production exemption. At some point the owner is likely to ask for separate titles for those lots and proceed to subdivide each lot progressively. If, contrary to the Commissioner’s current view, it is accepted that the subdivision does not change the land from pre-existing land to non preexisting land and there is a nomination in place, then when that subdivision occurs and the primary production exemption ceases, the base rate should apply to the land and the designated beneficiary will be assessed in respect of it (who will also receive the benefit of a credit for the tax paid by the trustee). There are no doubt other situations where land subject to a discretionary trust is currently exempt, but that exemption may be lost in the future and it is then no longer possible to nominate a designated beneficiary. They need to be identified prior to 30 June, 2021 and an appropriate nomination made. As Charles Darwin said in respect of variation under domestication and which may be apposite here “Many laws regulate variation, some few of which can be dimly seen…”.22 Tax Files is contributed on behalf of the South Australian based members of the Taxation Committee of the Business Law Section of the Law Council of Australia. B
Endnotes 1 The amendments that came into effect on midnight of 30 June 2020. 2 An excluded trust is defined to mean any one of seven different types of trust that are further described and defined. 3 The fixed trust appears to be the default form of trust. The definition in section 2(1) provides that a fixed trust is not an excluded trust, discretionary trust or in effect a unit trust. There is a further exclusion in section 12(9) for public unit trusts. 4 Chief Commissioner of Stamp Duties (NSW) v Buckle  HCA 4, 192 CLR 226 ; CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria  HCA 53; (2005) 224 CLR 98 .
5 In MSP Nominees Pty Ltd v Commissioner of Stamps (SA)  HCA 51, (1999) 198 CLR 494  the unit trust was described by the High Court as follows: “The significant provisions made by the Trust Deed for the exercise of powers and discretions by the Trustee with respect to distributions to Unit Holders support the description of the trusts established by the Trust Deed as discretionary trusts.” 6 There is a further exclusion in section 12(9) for a public unit trusts. 7 Section 13A(1). 8 Sections 13A(1) and 13A(9)(a). 9 Section 13A(13(a). 10 Section 13A(13)(b). 11 Section 13A(13)(c). 12 Section 13A(13)(d). 13 It is unclear whether in this situation the nominated trustee’s own land is aggregated with the discretionary trust’s land or not. There appears to be no reason, on the wording, for the discretionary trust land not to be aggregated with the trustee’s own land. 14 See trust example 9 in the Commissioner’s Land Tax Overview of the Land Tax (Miscellaneous) Amendment Act 2019 (Overview) previously available at http://www.revenuesa.sa.gov.au/ taxes-and-duties/land-tax/land-tax-changes/ Overview-of-Land-Tax-Changes-2019.pdf (it appears no longer available at that site). 15 Commissioner’s Land Tax Guide to Legislation Changes for Joint Owners, Land Held on Trust & Related Corporations dated 18 May 2020 (Guide) 9 and 16. 16 As at the time of the preparation of this article the Commissioner has indicated that her view in respect of subdivided land remains, though it is still being reviewed. 17  HCA 57, (1914) 19 CLR 593, 598, 607 and 619. 18 Under section 16 of the Valuation of Land Act 1971 (SA) the Valuer-General may make separate valuations of portions of land forming part of a larger parcel. It is such valuations and designations from the valuation roll that the Commissioner uses under the LTA. 19 Growing Wealth Pty Ltd v Commissioner of Stamp Duties (Qld)  2 Qd R 603; Commissioner of State Revenue (Vic) v Pattison  VSC 113;  3 VR 520; and Sportscorp Australia Pty Ltd v Chief Commissioner of State Revenue (NSW) (2004) 213 ALR 795. 20 Sterling Guardian Pty Limited v Commissioner of Taxation  FCA 1166 . 21 Section 13A(10). 22 Charles Darwin Origin of Species (H M Caldwell & Co 1900) 10.
September 2020 THE BULLETIN
Cybersecurity – a matter of when, not if MERCEDES EYERS-WHITE, PII RISK MANAGEMENT CO-ORDINATOR
t feels good to see progress. Plodding along in our day-to-day, it’s easy to miss the little gains. These days there are loads of tools out there to measure our progress and track our improvements. If you are a runner, a swimmer or a cyclist, chances are you use a GPS-enabled device to do just that. You let it track where you’ve been and when, at what speed and with whom. That information could be a bit sensitive, and if like me you’ve been using a Garmin device, you might be wondering just who now has access to that information after the ransomware attack on that company on 23 July. As I write the servers are just now beginning to restore after nearly five days out of action. While Garmin has no indication that any customer data has been accessed, lost or stolen, such an attack serves to remind us that even substantial tech companies with their resources and technical knowledge and IT departments are vulnerable. The disruption to the business is enormous, the remediation task prodigious and the tarnish to reputation enduring. Law firms are also valuable targets for criminals because they are obvious repositories of sensitive client and transactional information. The high profile attack in May, 2020 of US entertainment firm Grubman Shire Meiselas & Sacks points to a worrying trend in ransomware attacks. Aside from the eye-watering $42m ransom demand to unlock the law firm’s systems, nearly a terabyte of sensitive information is reported to have been stolen and threatened to be released publicly. Gone are the days, it would seem, when the ransom was moderate compared to the remediation exercise and the information was merely encrypted rather than stolen. Restoration of systems upon the payment
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of the ransom is no longer de rigueur either, and this trending lack of honour amongst thieves has prompted the Australian Cyber Security Centre to recommend ransoms are not paid, though they are still often the most economical solution. It’s not just large firms, either. Indeed, smaller firms are attacked more often than you would think because hackers, like most people, go for low-hanging fruit. They figure small firms have fewer resources, less technical knowledge internally and less time to pay attention to these things. And generally, they’d be right, which means your risk is higher than you may have thought. Failure to take appropriate steps to protect and impose proper cyber security practices includes a risk of breaching your professional obligations as a legal practitioner in South Australia (under the Australian Solicitors’ Conduct Rules). Unfortunately, this is more a matter of ‘when’ than ‘if ’. If your system was locked by a ransomware attack today, what would you do? Do you have a plan? Do you have an up-to-date back-up of your critical information available to you? Cyber-security has been a hot topic for some time now, so if you have put it in the ‘later’ pile, the time for action is now. So, what can you do? In short, you need to stop being low hanging fruit. To assist you in this, in addition to the resources and information already provided on our website, the Society’s Risk Management section has licensed and adapted several useful cyber tools and checklists from the Queensland PII insurer Lexon. We also recommend engaging with your IT service provider – there is a checklist to help you have a meaningful discussion about your needs. To get you started, insured practitioners can access the following on the Law Society website (www.lawsocietysa.asn.au):
• 8 Steps to enhance your cybersecurity while working remotely Working from home increases the cyber risks to a legal practice; consider these eight steps to better protect yourself, your family and your practice. • Cyber Off-Risk Email Conducting basic checks on an unsolicited email purporting to be from a potential new client can leave you in doubt of its legitimacy; consider using this email template to prompt voice communications instead. • Cyber Alert – Funds transfer critical information An information sheet for clients, insureds and all known transfer parties on procedures for the transfer of funds, including reading out and reading back account and BSB numbers. • Cyber bookmark Cut it out and keep it by your screen; a bookmark-sized reminder on simple cybersecurity steps for all staff. • Cyber Security 101 Defending your assets in cyberspace is about more than just the device you’re using; do you know the four layers of a computing system? • Key System Controls Many steps can be undertaken to limit a cyber criminal’s ability to adversely use your systems. These are some core components. • Cyber Security – IT Systems Checklist Use this checklist to inform a meaningful discussion with your IT service provider. • Where to Deploy MFA Multi-factor authentication is one of the most powerful things you can do to limit the risk of an Account Takeover attack – but there is no point locking the front door if the back door is wide open…
• Assessing Risks with Electronic Service Providers Electronic service providers who offer to act as an agent to facilitate rapid access to and sharing of information between you and your clients pose specific risks; consider these points in your assessment of their services. These system-focussed tools will make it much harder for the technical penetration of your systems by cybercriminals but you also need to manage that other layer of system security: people. If you’re thinking only clueless people fall victim to cyber-attacks, think again. Social engineering, or the art of deceiving someone into divulging confidential information, can be pretty sophisticated. It is an art that has been around as long as any confidence trickster.
You can have all the dead-bolts, alarms and locks available – but they will be of no use if you let a thief into your house thinking he or she is just delivering pizza. This is not just about clicking links in phishing emails, although the successful “spear-phishing” attack on Hillary Clinton’s campaign manager via an “account reset” email purporting to be from Google shows these scams still work. The more sophisticated “pretexters” see hackers spending months developing relationships with staff to build trust or monitoring email traffic before carrying out their attacks. Phishing attacks happen over email, phone and text message. They can be embedded in advertising and turn up in web search results. Ensuring that you have a cybersecurity training programme in place that is regularly updated is paramount. There are
also companies who deliver cybersecurity awareness training for staff. Raising awareness of what is out there, and what the latest forms of attack are (pop quiz: what are smishing, vishing, pharming and BEC?) will also go some way to mitigating your risk. You should be doing those small things like hovering over links, inspecting email addresses and thinking before complying with an urgent request for information or payment. All staff should be aware of what to look for and reminded to look for them. Even if not a single cent of client money is lost, the thought of being locked out of your systems, unable to service your clients and being liable for the cost of getting your business up and running again should be prompt enough to sort this out. Don’t put it off any longer - start today.
MEMBERS ON THE MOVE JOHN DOYLE
iper Alderman has welcomed back experienced projects, energy and infrastructure lawyer John Doyle as a partner in its projects, infrastructure and construction practice. John joins the Projects and Construction Team in Adelaide with partners Martin Lovell and Kathryn Walker. John brings experience in the electricity, mining, construction and
infrastructure project delivery space having prepared, negotiated and advised on connection agreements, supply arrangements, construction related agreements including EPC, design and construction, procurement, equipment supply contracts, operation and maintenance agreements, ECI, alliance and partnering arrangements and other related project documents.
John is returning to Piper Alderman after starting his career with the firm in 2001. Since leaving the firm in 2004, John has worked in both Australia and the UK in internationally recognised law firms, and in senior in-house roles with Piper Alderman clients, electricity transmission network service provider ElectraNet, and construction and mining services company Lucas Total Contract Solutions. September 2020 THE BULLETIN
Hang Jean Lee DR AUKE ‘JJ’ STEENSMA, BARRISTER & SOLICITOR, STEENSMA LAWYERS
told them it was me that did the kill, you know I love you, I always will. And the papers say it was all due to me, everybody wants to hang Jean Lee. - Hang Jean Lee, Ed Kuepper & Judi Dransfield-Kuepper, Sep 2007
THE PROTAGONISTS OF THIS STORY
her cell. The Executioner and assistant were both “wearing steel-rimmed welders goggles and soft felt caps pulled well down”.6 Lee would be carried to the gallows, on “the first level of a dim-lined corridor’ in the remand section of the gaol.7 The Mirror newspaper reported that: an extra-large trapdoor was built between two narrow catwalks which join cells on the first floor. The three condemned with taken from cells only a few yards away. The hanging ropes were tied to a heavy white wooden being about 35 feet from the ground level.8
Robert David Clayton
Norman Thomas Andrews
(Photographs courtesy of Australia’s Dark Heart website: https://australiasdarkheart.weebly.com/ jean-lee.html)
BOB ASCENDS HEAVENLY STAIRS/ BIG ROAD BLUES At 8am on Monday, 19 February, 1951, on a ‘grey drizzling sky’,1 Jean Lee, born Marjorie Jean Maude Wright was executed at Melbourne’s HM Prison Pentridge for the murder of William George ‘Pop’ Kent. No other woman had been executed in Victoria since the execution of Emma Williams on Monday, 4 November, 1895, some 56 years earlier.2 Jean Lee was the 191st person executed in Victoria,3 the fifth woman hanged in Victoria,4 and has the dubious honour of being the last woman executed in Australia. Lee would leave no last words, for she had collapsed to the floor when the Executioner5 and his assistant entered
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Barely conscious, she was strapped to a chair that was facing sideways on the scaffold.9 The 31-year-old single mother would leave behind a daughter, who she had left with her mother, Florence Wright, who had successfully gained the legal custody of her grandchild, some years earlier.10 Two hours later, at 10am, her accomplices Norman Thomas Andrews and Robert David Clayton met the same fate. As they both stood at the scaffold, Clayton quietly bid farewell to Andrews, saying simply; “Goodbye Charlie.”11, to which Andrews replied; “Goodbye Robert.”12 Following the executions, the Government Medical Officer, Dr JD Whiteside, signed the certificates stating; “that the sentences of the law had been properly carried out”.13 The Governor of the Gaol; declared that an inquest would be held that afternoon at 4pm on the bodies of Lee, Clayton, and Andrews. Lee, Clayton, and Andrews were buried at the HM Prison Pentridge Cemetery.
DADDY’S GIRL Jean Maude Wright was born on Wednesday, 10 December, 1919, at Dubbo in New South Wales.14 She was the youngest of five children born to Florence and Charles Wright, a railway ganger. When Jean was eight years old, the family moved to Sydney. She went
to school at Chatswood Public School, a Convent in North Sydney, and Willoughby Central Domestic High School.15 She was considered intelligent but had a rebellious nature.16 She left school without finishing her intermediate certificate. The Herald newspaper wrote that: Jean didn’t like school very much. But, of course, there are tens of thousands of boys and girls who dislike school, yet grow into welldisciplined men and women. Jean was a trifle rebellious; she felt that she didn’t get on well with the teachers. But if this childish resentment of authority was the first suggestion of a shadow, that is all it was. In other ways, Jean Wright’s girlhood progressed normally.17 Jean was in and out of jobs. She worked in a can goods factory, waitress and even tried a hand at being a milliner.18 While at Chatswood Public School, Jean had learnt typing and shorthand and was employed as an office junior at a William Street motor firm.19 And Ed Kuepper sings; “Can’t you see she is Daddy’s Girl, I tell ya she’s my darling”.20
SKINNY JEAN On Saturday, 19 March, 1938, life would then to change for 18-year-old Jean, Jean Maude Wright married Raymond Thomas Brees, a house painter, at the Methodist Church in South Chatswood.21 She had known Brees since she was a young woman at school. In April 1939, Jean gave birth to a daughter. The marriage lasted only about nine years. Brees was often out of work and began to drink heavily. Jean did not drink nor even smoke. When World War II broke out, Jean moved to Brisbane where she worked in service canteens. It was at this time that her life began to change. She began to drink which increased; “in that town of hotels beleaguered by thousands Allied
servicemen”.22 As Demousi would write; Increasingly she became caught in a cycle of poverty, petty crime and prostitution in Sydney and Brisbane, using numerous aliases, among them ‘Jean Lee’.23 By 1943, Jean had fallen into prostitution, being ‘pimped’ by a small-time criminal named Morris Dias. In 1944, Jean left Dias and returned to Sydney. The Herald observed that; “in that year (she) passed through the hands of the Sydney police, not once but often”.24 Despite this spiral in her life, the Molong Express and Western District Advertiser noted that; “she helped to look after an American servicemen who had lost both his legs fighting the Japanese north of Australia”.25 Jean would work as a waitress at a small café in Pitt Street and live in a small room near the disabled American servicemen. In 1946, she met Robert David Clayton. Clayton was born in Sydney, NSW in 1917. Clayton was discharged from both the Royal Australian Air Force and the Army. The reason for his discharge was described as ‘anxiety neurosis’. He was a hard drinker, gambler and con man, and would spend six months in goal for stealing and false pretences.26 Clayton and Lee developed what Damousi describes as; ‘an enduring if violent, relationship’.27 Lee fell madly in love with Clayton, and it would appear that Clayton was very fond of Lee. The relationship would lead to Lee becoming a prostitute, and also other criminal activities. Between May ,1945 and July, 1948, Jean Lee would appear before the Central Police Court on 23 occasions.28 One of the main pursuits that they both became involved with was the ‘Badger game’. The ‘Badger game’ involved the attractive Jean Lee picking up men, enticing them to a hotel, where once they were in an exposed position, Clayton would emerge and lay the role of the ‘outraged husband’. In the insuring moments of fear, or embarrassment for being caught in a compromising position; Clayton would demand money from the hapless victims, or Clayton would subject them to a beating. Most would pay up, as it was easier than having to explain to the
wives of their seduction. In April, 1949 she divorced Brees. Later in October, 1949, Lee would move to Melbourne on Clayton’s behest. And Ed Kuepper sings; “he looks me up and, he tells me I’m a real good soul. He calls me Skinny Jean, I sit on his knee”.29
YELLOW DOG It was in Melbourne that Clayton met up with Norman Thomas Andrews. Clayton had met Andrews while serving in the Middle East during World War II. Andrews had been decorated for bravery, but in an interesting juxtaposition had been charged and convicted for desertion.30 Later Clayton and Andrews met again while both serving in the notorious Long Bay Goal, south of Sydney. Lee, Clayton, and Andrews began to commit minor offences, and continued with the ‘Badger game’. On Monday, 7 November, 1949, their world would turn to undertake a far more severe crime. That evening, Lee, Clayton, and Andrews attended the University Hotel in Carlton. It is here that they meet 73-yearold part-time SP Bookie, William George ‘Pop’ Kent. He invited the trio back to the boarding-house where he lived for a few drinks. The boarding-house was located in Dorrit Street in Carlton. The trio considered that ‘Pop’ Kent would be a soft target, having seen him with a roll of cash and heard that he might have kept more money in his room. Jean had tried to pick the pockets of ‘Pop’ Kent. And Ed Kuepper sings; “I am the yellow dog, I turned her for the crime”.31
JEAN BRINGS HIM GASOLINE When no more money was forthcoming, ‘Pop’ Kent was tied to a chair, by Jean Lee. Over the next several hours, ‘Pop’ Kent was tortured and beaten and had been stabbed several times. Eventually, Andrews strangled ‘Pop’ Kent. The next-door neighbours heard the screams emanating from the room of ‘Pop’ Kent, and called the police. The trio
fled. When the Carlton Police arrived, they found that the room of ‘Pop’ Kent had been ransacked and his body was found under some clothing and loose sheets. The thumbs of ‘Pop’ Kent had been tied behind his back by a bootlace. Later, a post-mortem was conducted on his body. The post-mortem found that the cause of ‘Pop’ Kent’s death was strangulation. The post-mortem noted that his nose had been broken and that his throat displayed deep fingernail marks. At 4am on Wednesday, 9 November, 1949, the trio were arrested at their hotel room at the Great Southern Hotel, in Spencer Street, where the police found bloodstained clothing belonging to both Lee and Andrews. They were taken to the Police Headquarters and interrogated. Initially; Jean Lee confessed to the murder of ‘Pop’ Kent, and she alone had committed the act, stating that Clayton was not there. Lee, Clayton, and Andrews were charged with murder. The police accepted that Jean Lee had not stabbed the victim, nor had she strangled him. However; Jean Lee had been charged under the principle of ‘common purpose’,32 and despite not having taken part in the murder, she was in the eyes of the law; equally culpable.33 The trial was set. And Tommy Johnson sings, and Ed Kuepper plays; “I asked for water, and she gave me gasoline”.34
EVERYBODY WANTS TO HANG JEAN LEE By the time the trial began, Lee, Clayton, and Andrews started to turn on each other. Each was shifting the blame for the crime onto the other two. Jean continued to plead her innocence throughout the trial and stated that she was merely a bystander, and did not partake in the torture and murder of ‘Pop’ Kent. The trial of Lee, Clayton, and Andrews lasted until Monday 20 March, 1950. All three were found guilty by the jury, and they were sentenced to death. Lee was said to have become hysterical when the September 2020 THE BULLETIN
sentence of death was passed. Lee, Clayton, and Andrews applied for leave to appeal to the Full Court of Victoria under Part the of the Crimes Act 1928 (Vic).35 On Friday, 19 May, 1950, the Full Court of Victoria, and held that the confessions had been improperly obtained. The Full Court of Victoria: gave leave to appeal, allowed the appeal, quashed the convictions and ordered that a new trial of the three accused be had. The court consisted of O’Bryan, Barry and Smith JJ., and the decision was that of the majority of the court, O’Bryan J. dissenting.36 The case moved to the High Court of Australia and was heard by the honourable quorum of Latham CJ, McTiernan, Webb, Fullagar, and Kitto JJ.37 On Friday 23 June, 1950, the honourable quorum held: The duty of police officers to be scrupulously careful and fair is not, of course, confined to such cases. But, where intelligent persons are being questioned with regard to a murder, the position cannot properly be approached from quite the same point of view. A minuteness of scrutiny, which in the one case may be entirely appropriate, may in the other be entirely misplaced and tend only to a perversion of justice. Each case must, of course, depend upon its own circumstances considered in their entirety. No better guidance is, we think, to be found than in the passages from the judgment of Street J. in R. v. Jeffries (1947) 47 SR (NSW), at p 312; 64 WN 71 which we have quoted above.38 The honourable quorum overturned the decision: 35. In our opinion the appeal should be allowed in the case of all three respondents, the order of the Full Court of Victoria should be discharged, and the convictions and sentences restored.39 The trio sought to appeal to the Privy Council and pursued financial aid from the State of Victoria. Cabinet refused. On Monday, 17 July, 1950, the Attorney General declared that the decision made by the High Court would stand, as that decision was unanimous by the honourable quorum.
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On Friday, 15 December, 1950, the Argus newspaper of Melbourne reported that; “a senior cabinet minister said last night that he would ask State Cabinet on Monday to Approve Jean Lee… Inter-alia.. .on the grounds of mercy because she is a woman… Inter-alia… It is terribly hard to condemn a woman on the gallows”.40 On Monday 18 December, 1950, the Barrier Daily Truth newspaper reported that; “from street poles and letters to the newspapers there is little public sympathy for 29-year-old Jean the who’s hanging the State Government has set down for 8 January”.41 The Barrier Daily Truth newspaper also reported that; “according to a Gallup poll in January, 1948, 67% of Australians favoured the death penalty for brutal murder”.42 Five days later, the Daily News Newspaper of Western Australia, in its “Opinion on Many Things’ column, printed a comment made by Nix of Claremont, where Nix stated:
EYE FOR AN EYE: THE CASE OF JEAN LEE Why all the fuss over the intended hanging of murderous Jean Lee? A person who breaks the law must be prepared to take the consequences. The fact that no woman has been hanged in Victoria for 50 years or that a political party doesn’t approve should be no deterrent to the course of justice. Let’s not be squeamish; she must take a punishment.43 Some, however, felt it prudent to show some mercy. On Tuesday 26 December, 1950, the Reverend Dr C. Irving Benson, a clergyman of the Wesley Church in Melbourne, paid a visit to Jean Lee; ‘out of a spirit of Christian humility’,44 stating; “I feel extremely sorry for the condemned woman in this Christmas time”.45 The Armadale Express and the New England General Advertiser both reported that: Melbourne: The State Governments decision to hang Andrew Robert (sic), David Clayton and Jean Lee at Pentridge Goal next Monday will stand. The Premier (Mr McDonald) announced this today after a meeting of State Cabinet. He said the decision would be reviewed only if definite evidence was forthcoming that appeal proceedings have been
instituted in the Privy Council.46 During this time; telegrams protesting the execution, representations to the Premier, Mr John McDonald (later Sir John MacDonald), but to no avail, all legal appeals lodged by the trio failed. The dates continued to be pushed back, on Thursday, 15 February, 1951, an ‘11th hour bid was made to the State Cabinet to reprieve Jean Lee; however, Cabinet had already decided that the sentences will stand’.47 Jean Lee was said to have aged considerably due to the pressure and fear put on her. She became angry and would suffer from aggressive mood swings. The Mirror newspaper reported that: Wardresses became scared to enter her cell. When one entered Jean Lee threw the dinner pail at her, spat and tried to claw her, and at the end, male warders were brought on in an effort to control her.48 Jean Lee continued to claim that she was not involved in the brutal murder, and believed that they would not execute a woman. However; the Government of Victoria, the Courts, the majority of people of Victoria, and probably all of Australia, wished to see the ‘Demolition’ of Jean Lee. And Ed Kuepper sings; “Everybody wants to hang Jean Lee”.49
DEMOLITION The day before the executions were to take place, Clayton confessed that he alone was accountable for the murder of ‘Pop’ Kent, and begged that the other two exonerated. The confession was given to government officials but fell on deaf ears.50 Jean Lee was weighed, which was recorded at seven stone six lbs, and her height was recorded as 5’7”.51 The Executioner determined that the drop for Jean Lee was to be set at 8 feet exactly.52 Lee, Clayton, and Andrews were moved from their cells, into separate cells on the first level of the remand section of the goal. That evening, Jean Lee was given a sedative to help her with her sleep. Just before 8am on the morning of Monday, 19 February, 1951, Jean Lee was taken to the execution chambers some metres from her cell. The Melbourne based representative of the Mirror reported that; “Lee was dressed in a pale
yellow skirt and jumper. Her hands had been handcuffed in front of her, both legs bound together, and her head and face were concealed by a large white hood”.53 The Illawarra Daily Mercury newspaper reported that Jean Lee was wearing neatly pressed khaki slacks rolled to the knees and a white shirt’.54 Who knows which paper was right, it doesn’t matter… The Governor asked if she had anything to say? She gave no response. It has been often speculated that Jean Lee may have been unconscious. At 8an, Jean Lee all was strapped to the seat. The noose was placed over her head, with the knot on the left side of her face, then pulled tightly. The lever which was pushed and Jean Lee fell the full 8 feet.55 The chair upon which she was sitting on fell away from Jean Lee but had been tied off to prevent it falling the 35 feet to the floor below. The Barrier Daily Truth Newspaper reported that; “Bells began to toll signifying that the execution had taken place, but the sound of the bells was drowned outside the jail by the sound of planes passing overhead”. In accordance with the death sentence, her body was left suspended for half an hour before it was taken down.56 At 8:05am, while the body remained suspended for the mandatory half an hour, the prison doctor found Jean Lee had no heartbeat. He signed the death certificate at 8:20am. The autopsy report on Jean Lee read: Autopsy Performed at 11 AM Moderate bruising of the neck tissues at level hyoid cartilage and occurring posterically. No Life. No PM staining. No cyanosis. All internal organs normal. Skull normal at death. Brain Normal at death Cervical Vertebrae dislocation between the first and second vertebrae. Cause of Death (Coroner’s finding) Dislocation of the neck caused by hanging.57 And Ed Kuepper sings; “it’s gonna be your demolition, it’s gonna be your demolition, it’s gonna be your demolition baby”.58
SHAME And what of Clayton and Andrews?
Just before 10am, both Clayton and Andrews were taken by the Executioner and his assistant, from the awaiting cells to the gallows. Andrews was led first. The Mirror newspaper reported that Andrews was; “wearing a white shirt, white trousers, a navy blue jacket, and ordinary dark shoes”.59 Clayton was wearing the same, except the colour of his shirt was a faded blue.60 Both men remained calm instead fast, though the Barrier Miner newspaper stated that when the Executioner tried to place the noose over Clayton’s head; ‘[Clayton] kept his chin down and the official had to force it up three times before he could tie the knot properly’.61 “Goodbye, Robert,” “Goodbye, Charlie.” The executions were witnessed by: the Supreme Court Sheriff, Mr W. Daly, the Assistant Sheriff, the gaol Governor, Mr Edwards, the Government Medical Officer, Dr D. J. Whiteside, two clergymen, the chief warder of Pentridge, about 12 other warders, and seven Pressmen.62 At the formal inquest; Mr Tingate SM found that; “each of the three persons had been executed in conformity with the sentence of the Supreme Court”.63 The Coroner noted that Jean Lee and Norman Andrews had died instantaneously. Clayton was not so lucky. The Coroner found that his death was caused by; “Cerebral contusion, shock and asphyxia caused by hanging” rather than a broken neck.64 And Ed Kuepper sings; “some things never last very long at all isn’t that a shame. Wish I could have seen the way that this would end…”.65 B Endnotes 1 The Mirror, ‘He saw Jean Lee, Clayton and Andrews hang’, The Mirror, (Perth WA, Saturday, 3 March 1951), 9. < https://trove.nla. gov.au/newspaper/article/75701882>. 2 Emma William’s was executed on 4 November 1895, at the Melbourne Goal, for the murder of her two year old son John Williams, at Port Melbourne on 11 August 1895. 3 Trevor Poultney, Victims of the Rope - Executions in Port Philip & Victoria 1842-1967 (Trevor Poultney, 2016), 197. Of note; Poultney lists Jean Lee as the 193rd person executed in Victoria. Poultney lists Andrews and Clayton as 191 and 192 respectively. Jean Lee was executed at 8 AM, two hours before Andrews and Clayton were executed. Jean Lee is in fact the 191st person executed in Victoria.
4 The Mirror, ‘Jean Lee never awoke from a drugged sleep’, The Mirror, (Perth WA, Saturday, 24 February 1951),9. < https://trove.nla.gov.au/ newspaper/article/75706998/7363410>. 5 The name of the Executioner and his assistant remain anonymous to this day. 6 Trevor Poultney, Victims of the Rope - Executions in Port Philip & Victoria 1842-1967 (Trevor Poultney, 2016), 193. 7 The Mirror, ‘Jean Lee never awoke from a drugged sleep’, The Mirror, (Perth WA, Saturday, 24 February 1951), 9. < https://trove.nla.gov.au/ newspaper/article/75706998/7363410>. 8 The Mirror, ‘He saw Jean Lee, Clayton and Andrews hang’, The Mirror, (Perth WA, Saturday, 3 March 1951), 9. < https://trove.nla. gov.au/newspaper/article/75701882>. 9 Daily Mecury, ‘Jean Lee carried to scaffold unconscious’, Daily Mecury Newspaper (Illawarra, Tuesday, 20 February 1951), 2. < https://trove.nla.gov.au/newspaper/ article/133996736?searchTerm=Jean%20 Lee&searchLimits=>. 10 Murderpedia, Jean Lee, <https://murderpedia. org/female.L/l/lee-jean.htm>. 11 Ibid 192. 12 Trevor Poultney, Victims of the Rope - Executions in Port Philip & Victoria 1842-1967 (Trevor Poultney, 2016), 191. 13 The Northern Miner, ‘Jean Lee carried to the scaffold’, The Northern Miner Newspaper, (Charters Towers, QLD, Tuesday 23 February 1951), 1. <https://trove.nla.gov.au/newspaper/ article/81594227?searchTerm=Jean%20 Lee&searchLimits=>. 14 Joy Damousi, ‘Lee, Jean (1919–1951)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/leejean-10804/text19161, < http://adb.anu.edu.au/ biography/lee-jean-10804>. 15 Ibid. 16 Capital punishment UK, ‘Jean Lee-the last woman to hang in Australia’, <http://www. capitalpunishmentuk.org/lee.html>. 17 The Herald, ‘Portrait of a Murderess - Two chapters in the life of Jean Lee’, The Herald, (Melbourne, Victoria Tuesday, 13 February 1951). 7. <https://trove.nla.gov.au/newspaper/ article/143797957?searchTerm=Jean%20 Lee&searchLimits=>. 18 Joy Damousi, ‘Lee, Jean (1919–1951)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/leejean-10804/text19161, < http://adb.anu.edu.au/ biography/lee-jean-10804>. 19 The Herald, ‘Portrait of a Murderess - Two chapters in the life of Jean Lee’, The Herald, (Melbourne, Victoria Tuesday, 13 February 1951). 7. <https://trove.nla.gov.au/newspaper/ article/143797957?searchTerm=Jean%20 Lee&searchLimits=>. 20 Ed Kuepper, Judi Dransfield-Kuepper, ‘Daddy’s Girl’, Ed Kuepper and the Kowalski Collective, (Jean Lee and the Yellow Dog, (Directors Cut), September 2007). Track 4.
September 2020 THE BULLETIN
21 Joy Damousi, ‘Lee, Jean (1919–1951)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/leejean-10804/text19161, < http://adb.anu.edu.au/ biography/lee-jean-10804>. 22 The Molong Express and Western District Advertiser, ‘Tragic story of Jean Lee - thee murder of bookmaker William Kent’, The Molong Express and Western District Advertiser, (NSW, Friday, 19 January 1951), 5. <https://trove.nla.gov.au/newspaper/ article/134115435?searchTerm=Jean%20 Lee&searchLimits=>. 23 Joy Damousi, ‘Lee, Jean (1919–1951)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/leejean-10804/text19161, <http://adb.anu.edu.au/ biography/lee-jean-10804>. 24 The Herald, ‘Portrait of a Murderess - Two chapters in the life of Jean Lee’, The Herald, (Melbourne, Victoria Tuesday, 13 February 1951). 7. <https://trove.nla.gov.au/newspaper/ article/143797957?searchTerm=Jean%20 Lee&searchLimits=>. 25 The Molong Express and Western District Advertiser, ‘Tragic story of Jean Lee - thee murder of bookmaker William Kent’, The Molong Express and Western District Advertiser, (NSW, Friday, 19 January 1951), 5. <https://trove.nla.gov.au/newspaper/ article/134115435?searchTerm=Jean%20 Lee&searchLimits=>. 26 Trevor Poultney, Victims of the Rope - Executions in Port Philip & Victoria 1842-1967 (Trevor Poultney, 2016), 192. 27 Joy Damousi, ‘Lee, Jean (1919–1951)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/leejean-10804/text19161, <http://adb.anu.edu.au/ biography/lee-jean-10804>. 28 Joy Damousi, ‘Lee, Jean (1919–1951)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/leejean-10804/text19161, < http://adb.anu.edu.au/ biography/lee-jean-10804>. Damousi state that most of the charges brought against Jean Lee were for offensive behaviour. 29 Ed Kuepper, Judi Dransfield-Kuepper, ‘Skinny Jean’, Ed Kuepper and the Kowalski Collective, (Jean Lee and the Yellow Dog, (Directors Cut), September 2007). Track 5. 30 Trevor Poultney, Victims of the Rope - Executions in Port Philip & Victoria 1842-1967 (Trevor Poultney, 2016), 191. 31 Ed Kuepper, Judi Dransfield-Kuepper, ‘Yellow Dog’, Ed Kuepper and the Kowalski Collective, (Jean Lee and the Yellow Dog, (Directors Cut), September 2007). Track 6. 32 Wikipedia, ‘Jean Lee (murderer) ’, (website, 11 October 2019). <https://en.wikipedia.org/wiki/ Jean_Lee_(murderer)>. 33 Ibid. 34 Tommy Johnson, Ed Kuepper, Judi DransfieldKuepper, ‘Jean brings him gasoline’, Ed Kuepper
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and the Kowalski Collective, (Jean Lee and the Yellow Dog, (Directors Cut), September 2007). Track 15. Ed Kuepper integrated the recording of the 1928 classic blues song by Tommy Johnson; ‘Cool drink of water blues’, to create ‘Jean brings him gasoline’. Tommy Johnson (1896 to 1 November 1956), born Terry, Mississippi. Johnson was a blues musician ‘known for his eerie falsetto which are prevalent in his songs. <https://genius.com/artists/Tommy-johnson>. 35 R v Lee  HCA 25; (1950) 82 CLR 133, 1. A full decision can be found at: <http://www6. austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/ HCA/1950/25.html> 36 Ibid. 37 Ibid. 38 Ibid, 34. 39 Ibid, 35. 40 The Argus, ‘Minister to plead for Jean Lee’s life’, The Argus newspaper, (Melbourne, VIC, Friday 15 December 1950), 1. 41 Barrier Daily Truth, ‘Victorians endorse Jean Lee’s fate’, Barrier Daily Truth, (Broken Hill, NSW, Monday 18 December 1950), 1. <https://trove.nla.gov.au/newspaper/ article/143797957?searchTerm=Jean%20 Lee&searchLimits=>. 42 Ibid. 43 The Daily News, ‘Eye for an eye: The case of Jean Lee’, The Daily News, (Perth, Western Australia, Friday 22 December 1950), 6. <https://trove.nla.gov.au/newspaper/ article/80844875?searchTerm=Jean%20 Lee&searchLimits=>. 44 Barrier Daily Truth, ‘Jean Lee visited by Minister for Xmas’, Barrier Daily Truth, (Broken Hill, NSW, Wednesday, 27 December 1950), 1. <https://trove.nla.gov.au/newspaper/ article/143797957?searchTerm=Jean%20 Lee&searchLimits=>. 45 Ibid. 46 The Armadale Express and New England General Advertiser, ‘Jean Lee to hang’, The Armadale Express and New England General Advertiser newspapers, (NSW, Wednesday, 31 January 1951), 2. <https://trove.nla.gov.au/newspaper/ article/193955598?searchTerm=Jean%20 Lee&searchLimits=>. 47 The Herald, ‘11th hour bid to save Jean Lee’, The Herald, (Melbourne, Victoria Thursday, 15 February 1951). 1. <https://trove.nla.gov.au/newspaper/ article/248316327?searchTerm=Jean%20 Lee&searchLimits=>. 48 The Mirror, ‘He saw Jean Lee, Clayton and Andrews hang’, The Mirror, (Perth WA, Saturday, 3 March 1951), 9. < https://trove.nla. gov.au/newspaper/article/75701882>. 49 Ed Kuepper, Judi Dransfield-Kuepper, ‘Hang Jean Lee’, Ed Kuepper and the Kowalski Collective, (Jean Lee and the Yellow Dog, (Directors Cut), September 2007). Track 1. 50 Trevor Poultney, Victims of the Rope - Executions in Port Philip & Victoria 1842-1967 (Trevor Poultney, 2016), 192. 51 Capital punishment UK, ‘Jean Lee-the last woman to hang in Australia’, <http://www. capitalpunishmentuk.org/lee.html>.
52 Ibid. 53 The Mirror, ‘Jean Lee never awoke from a drugged sleep’, The Mirror, (Perth WA, Saturday, 24 February 1951), 9. < https://trove.nla.gov.au/newspaper/ article/75706998/7363410>. 54 Illawarra Daily Mercury, ‘Jean Lee carried to scaffold unconscious’, the Illawarra Daily Mercury newspaper, (Wollongong, NSW, Tuesday 20 February 1951), 2. <https://trove.nla.gov.au/newspaper/ article/133996736?searchTerm=Jean%20 Lee&searchLimits=> 55 UK executioner, Albert Pierrepoint, in his autobiography ‘Executioner Pierrepoint’ stated the routine that was conducted during his training; ‘draw on the white cap, adjusts the noose, whip out the safety pin, push the lever, drop., Noose, pin, push, drop. Push the lever, never pull it. The lever is like a railway signalman’s points lever. When the traps are closed the lever is sloping towards the drop. You’ve got to be quick, not take time to get to the other side and pull. There is a cotter pin on the lever near the floor, a safety catch, never to be drawn while there are more men than the prisoner on the drop. See Albert Pierrepoint, Executioner Pierrepoint, (Eric Dobby Publishing Ltd, 2005), 94-5. The set up and manner of execution were the same in Australia as in the UK. 56 The Mirror, ‘He saw Jean Lee, Clayton and Andrews hang’, The Mirror, (Perth WA, Saturday, 3 March 1951), 9. < https://trove.nla. gov.au/newspaper/article/75701882>. 57 Always ask EW Wordpress, ‘Launched into Eternity - The exection of Jean Lee 1951’. (Website, 3 January 2014): <https://alwaysaskew. wordpress.com/2014/01/03/the-execution-ofjean-lee-1951/>. 58 Ed Kuepper, Judi Dransfield-Kuepper, ‘Demolition’, Ed Kuepper and the Kowalski Collective, (Jean Lee and the Yellow Dog, Part 1, September 2007). Track 7. 59 Ibid. 60 Ibid. 61 Barrier Miner, ‘Jean Lee carried to scaffold’, Barrier Miner newspaper, (Broken Hill NSW, Monday 19 February 1951), 1. <https://trove.nla.gov.au/newspaper/ article/48632563?searchTerm=Jean%20 Lee&searchLimits=> 62 Always ask EW Wordpress, ‘Launched into Eternity - The exection of Jean Lee 1951’. (Website, 3 January 2014): <https://alwaysaskew. wordpress.com/2014/01/03/the-execution-ofjean-lee-1951/>. 63 The Mirror, ‘Jean Lee never awoke from a drugged sleep’, The Mirror, (Perth WA, Saturday, 24 February 1951),9. < https://trove.nla.gov.au/ newspaper/article/75706998/7363410>. 64 Trevor Poultney, Victims of the Rope - Executions in Port Philip & Victoria 1842-1967 (Trevor Poultney, 2016), 192. 65 Ed Kuepper, Judi Dransfield-Kuepper, ‘Shame’, Ed Kuepper and the Kowalski Collective, (Jean Lee and the Yellow Dog, (Directors Cut), September 2007). Track 8.
FAMILY LAW CASE NOTES
Family Law Case Notes ROB GLADE-WRIGHT, THE FAMILY LAW BOOK FINANCIAL AGREEMENTS – AGREEMENT “CAME INTO EFFECT” PURSUANT TO S 90UI UPON SEPARATION, NOT WHEN IT WAS SIGNED
n Salvage & Fosse  FamCAFC 144 (12 June, 2020) Tree J at first instance made an interim spousal maintenance order of $516.05 per week in favour of the respondent, notwithstanding that a Part VIIIAB financial agreement precluded the claim. The respondent sought that the agreement be set aside for unconscionable conduct or undue influence, arguing that a maintenance order could be made by virtue of s 90UI of the Act. Ryan & Aldridge JJ said (): “ … Section 90UI(2) examines the circumstances of the applicant … ‘when the agreement came into effect’ and if at that time the applicant … is unable to support themselves in the manner described in that subsection, the exclusion … clause is rendered inoperative. This subsection requires that the … party’s circumstances are to be examined ‘taking into account the terms and effect of the agreement’. Reference to s 90UI(3) makes it clear that where the … agreement provides that the property or financial resources of a de facto spouse are to continue in the ownership of that party, that property or … resource is to be taken into account in determining the circumstances of the party. If the applicant’s circumstances were to be considered when the agreement was signed rather than on the breakdown of the relationship, this provision is otiose. The work it does is to ensure that the applicant’s circumstances include property and financial resources which the applicant already has (and will retain) are taken into account as well as any property or … resource that the applicant is to receive at the breakdown of the relationship. This lends strong support for the proposition that s 90UI is to be considered at the breakdown of the de facto relationship. Any disquiet is dispelled by asking how could the fact that when a party signs an agreement, which means that at some distant time the party will receive property,
mean that at that earlier point in time, the party is unable to support himself or herself without an income tested pension etc.? …[I]t could not.” Watts J in separate reasons () also held that the agreement came into effect at separation.
CHILDREN – CHILDREN HAD REFUSED TO SEE FATHER FOR 2 YEARS – ORDER ERRONEOUSLY MADE IN HOPE In Masih & El Saeid  FamCAFC 152 (25 June, 2020) the Full Court (Ryan, Watts & Austin JJ) allowed the father’s appeal in a case where two children had spent equal time with the father pursuant to interim orders for five years, but then refused to see him at all for the next two years. The father alleged parental alienation. A single expert recommended that the father have sole parental responsibility and that the children live with him. Loughnan J ordered that the children live with the mother and that the father’s time with them increase incrementally over time. Watts & Austin JJ said (from ): “The central feature of the case was the children’s alienation from the appellant and what orders should be made in response thereto ... There is no reference in the reasons for judgment to the single expert’s evidence as to how the problem of the children’s alienation from the appellant should be best addressed. ( … )  Given the uncontested findings of the primary judge to the effect that the children have meaningful relationships with the appellant and derive benefit from it ( … ) the respondent’s proposal offered little hope of any restoration of the children’s relationships with the appellant … the children would suffer significant harm if denied relationships with the appellant … and it is likely the respondent has not fully supported the children’s relationships with the appellant … the orders made by the primary judge appear to be an exercise in hope rather [than] the experience of compliance. ( … )  Since the respondent had demonstrated her inability to implement
an ‘equal time’ residential arrangement for the children over the preceding period of about two years, the reasons for judgment provide no answer to the question of how she would be able to instead comply with orders requiring her to immediately restore the children’s visits with the appellant …” The case was remitted for re-hearing by another judge.
CHILDREN – REGISTRAR’S REFUSAL TO FILE INITIATING APPLICATION DUE TO NON-PROVISION OF A S 60I CERTIFICATE WAS IMPROPER In Valack  FCCA 1354 (29 May, 2020) Judge Jarrett considered a case where an Initiating Application seeking both property and parenting orders had been lodged via the Court portal. No s 60I certificate was provided. The applicant contended that there had been abuse of a child or there had been family violence. The Registrar stated () “that pursuant to rule 2.06 of the Federal Circuit Court Rues 2001… the application has not been accepted” and that “The Registrar has not approved your request for the non-filing a current” s 60I certificate. The applicant sought a review of the Registrar’s decision pursuant to r 20.02 of the Federal Circuit Court Rules. The Court said (from ): “ … The work done by s 60I(7) is to proscribe a court from hearing an application for a Part VII order in relation to a child unless certain circumstances exist. ( … ) [T]he use of the phrases exercising jurisdiction and must not hear are more consistent with proceedings that are on foot, rather than proceedings that a party is attempting to initiate. Were it otherwise, the text of the section would be directed to the commencement of proceedings rather than the hearing of them. ( … )  ( … ) In the absence of an extant application no occasion for the exercise of the power set out in s 60I(9) arises. The purported exercise by the Registrar to decide whether s 60I(7) did not apply in this case was improper.” After considering s 104(1) of the Federal Circuit Court Act, the Court said (): September 2020 THE BULLETIN
FAMILY LAW CASE NOTES
“ … [A] decision about whether to accept the application in this case … was an administrative decision. It was not a judicial decision. ( … ) That decision is not amenable to review using the mechanism provided for in s 104(2) and FCCR 20.02 …” The Court directed the parties to file submissions as to whether the Registrar’s decision should be set aside pursuant to the Administrative Decisions (Judicial Review) Act 1977.
CHILDREN – VEXATIOUS LITIGANT’S LEAVE APPLICATION FAILS – PRIMARY MOTIVATION IN SEEKING PARENTAL RESPONSIBILITY TO CHALLENGE DECEASED MOTHER’S WILL In SCVG  FamCAFC 147 (12 June, 2020) the Full Court (Strickland, Ainslie-Wallace & Austin JJ) dismissed an appeal in a case where a vexatious proceedings order had been made in 2015 prohibiting the father of two children from instituting proceedings. The mother had since died, the father seeking leave to file fresh parenting proceedings in 2020 where the mother had appointed
her siblings as the children’s guardians. The father sought parental responsibility orders, contending that such orders would enable him to challenge the mother’s will on behalf of the children (). The Full Court said (from ): “The application must be dismissed if the intended proceedings are vexatious proceedings (s 102QF(2)). Alternatively, leave may be granted only if satisfied that the proceedings are not vexatious proceedings (s 102QG(4)). The applicant bears the burden of proving the intended proceedings are not vexatious. (…)  From the applicant’s evidence it is manifest that his principal objective is to bring the proceedings …, to obtain parental responsibility … for the collateral purpose of facilitating his prosecution of separate testamentary proceedings in a different jurisdiction … (…)  It is accepted as being plainly abusive of civil process to institute proceedings for an improper purpose … which include the use of the proceedings for the predominant or substantial
3 JUL 2020 – 2 AUG 2020 ACTS PROCLAIMED Labour Hire Licensing (Miscellaneous) Amendment Act 2020 (No 18 of 2020) Commencement: 20 July 2020 Gazetted: 16 July 2020, Gazette No. 59 of 2020 Gambling Administration Act 2019 (No 42 of 2019) Commencement: 3 December 2020 Gazetted: 30 July 2020, Gazette No. 65 of 2020 Statutes Amendment (Gambling Regulation) Act 2019 (No 44 of 2019) Commencement s56(1) insofar as it inserts ss 42B(3) and (3b) into Casino Act 1997; s56(2): 28 September 2020 Commencement Part 2; ss 41(1) to (7); 41(9), but only insofar as it deletes the definition of statutory default from s 3(1) of Casino Act 1997; 42; 44; 49; 50; 52, but only insofar as it inserts ss 40B and 40C into Casino Act 1997; 54; 55; 56(1), but only insofar as it inserts s 42B(3a) into Casino Act 1997; 57; 62; 63; 66; 67; 70 104; 106, but only insofar as it inserts ss 40A, 40B and 40C into Gaming Machines
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purpose of obtaining some collateral advantage rather than for the purpose for which the proceedings are designed and exist (Williams v Spautz  HCA 34; (1992) 174 CLR 509 at 522, 528–529, 532 and 536–537).  In Goldsmith v Sperrings Ltd  1 WLR 478 at 503 … it was said: ‘ ... [I]f it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process ... ’  While the applicant’s immediate purpose in bringing the Part VII litigation is to secure an order vesting him with parental responsibility … being an order within the scope of power wielded by the Family Court of Australia, the applicant admits he has an ulterior motive for pursuing an order in those terms. He called it the ‘decisive’ reason for bringing the proceedings. His pursuit of the Part VII order for the predominant and ulterior motive of prosecuting other civil … converts the intended Part VII proceedings into an abuse of process.” B
A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA
Act 1992; 107 – 110; ss 112 - 122; ss 126 - 127; ss 129 - 136; Parts 5 - 7; Sch 1, cl 1;Sch 1, cl 2(2), (5) and (6); Sch 1, cl 3(1) (3) and (5): 3 December 2020 Commencement remaining provisions except s 128: 30 July 2020 Gazetted: 30 July 2020, Gazette No. 65 of 2020
Measures) (No 2) Amendment Act 2020, No. 23 of 2020 Gazetted: 24 July 2020, Gazette No. 61 of 2020
ACTS ASSENTED TO
Statutes Amendment (Electricity and Gas) (Energy Productivity) Act 2020, No. 25 of 2020 Gazetted: 30 July 2020, Gazette No. 65 of 2020
Statutes Amendment (Licence Disqualification) Act 2020, No. 20 of 2020 (amends Motor Vehicles Act 1959 and Road Traffic Act 1961) Gazetted: 9 July 2020, Gazette No. 58 of 2020 First Home and Housing Construction Grants (Miscellaneous) Amendment Act 2020, No. 21 of 2020 Gazetted: 9 July 2020, Gazette No. 58 of 2020 Emergency Management (Quarantine Fees and Penalty) Amendment Act 2020, No. 22 of 2020 Gazetted: 24 July 2020, Gazette No. 61 of 2020 COVID-19 Emergency Response (Further
Waite Trust (Vesting of Land) Act 2020, No. 24 of 2020 Gazetted: 30 July 2020, Gazette No. 65 of 2020
Fair Trading (Fuel Pricing Information) Amendment Act 2020, No. 26 of 2020 Gazetted: 30 July 2020, Gazette No. 65 of 2020
APPOINTMENTS Magistrate Magistrate of the Youth Court Member of SACAT commencing on 20 July 2020 Police Disciplinary Tribunal Protective Security Officers Disciplinary Tribunal
GAZING IN THE GAZETTE
Panel Member: from 20 July 2020 until 28 April 2023 Antonietta Vozzo Gazetted: 9 July 2020, Gazette No. 58 of 2020 Legal Practitioners Disciplinary Tribunal Presiding Member: from 10 July 2020 until 9 July 2023 Maurine Teresa Pyke Deputy Presiding Member: from 10 July 2020 until 14 November 2021 Simon David Ower Member: from 10 July 2020 until 9 July 2023 Michelle Louise Barnes Franco Camatta Anne Gordon Burgess Gary Davis Michael John Dean Dawson Patsy Alison Kellett
Sandra Gail Lilburn Lesley Hastwell Robert Lindsay Kennett Maurine Teresa Pyke Roger Sallis Gazetted: 9 July 2020, Gazette No. 58 of 2020
2020 and expiring on 1 September 2027 The Honourable Ann Marie Vanstone Gazetted: 27 July 2020, Gazette No. 63 of 2020
Magistrate commencing on 27 July 2020 Mark Steven Semmens in place of his earlier appointment on 8 November 2018 to the office of Magistrate on a parttime basis (0.6 full-time equivalent) that commenced on 3 December 2018 Gazetted: 24 July 2020, Gazette No. 61 of 2020 Independent Commissioner Against Corruption Judicial Conduct Commissioner for a term of seven years commencing on 2 September
Youth Court Magistrate member of the Court’s principal judiciary for a term of 1 year from 29 September 2020. Magistrate David John White from 23 November 2020. Magistrate Alison Frances Adair Gazetted: 30 July 2020, Gazette No. 65 of 2020 Youth Court Cross-border Magistrates Meredith Clare Day Huntingford Elizabeth Jane Morris Erin Louise O’Donnell Gazetted: 30 July 2020, Gazette No. 65 of 2020
REGULATIONS PROMULGATED (3 JULY 2020 – 2 AUGUST 2020) REGULATION NAME Electricity (General) (Retailer Energy Efficiency Scheme) (Public Health Emergency) Variation Regulations 2020 Gas (Retailer Energy Efficiency Scheme) (Public Health Emergency) Variation Regulations 2020 South Australian Public Health (Notifiable and Controlled Notifiable Conditions) (SARS-CoV-2) Variation Regulations 2020 Planning, Development and Infrastructure (Fees, Charges and Contributions) (Miscellaneous) Variation Regulations 2020 Labour Hire Licensing (Miscellaneous) Variation Regulations 2020 Valuation of Land Regulations 2020 Survey Regulations 2020 Real Property (Survey) Variation Regulations 2020 Petroleum (Submerged Lands) Regulations 2020 Planning, Development and Infrastructure (General) (Miscellaneous) (No 2) Variation Regulations 2020 Urban Renewal Act 1995 COVID-19 Emergency Response Act 2020 Authorised Betting Operations Act 2000 Casino Act 1997 Casino Act 1997 Casino Act 1997 Gaming Machines Act 1992 Gaming Machines Act 1992 Gambling Administration Act 2019 Planning, Development and Infrastructure Act 2016 Planning, Development and Infrastructure Act 2016
232 of 2020 9 July 2020, Gazette No. 58 of 2020 233 of 2020 9 July 2020, Gazette No. 58 of 2020 234 of 2020 16 July 2020, Gazette No. 59 of 2020 235 of 2020 16 July 2020, Gazette No. 59 of 2020 236 of 237 of 238 of 239 of 240 of
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16 July 2020, Gazette No. 59 of 23 July 2020, Gazette No. 60 of 23 July 2020, Gazette No. 60 of 23 July 2020, Gazette No. 60 of 23 July 2020, Gazette No. 60 of
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241 of 2020 23 July 2020, Gazette No. 60 of 2020 242 of 243 of 244 of 245 of 246 of 247 of 248 of 249 of 250 of 251 of 252 of
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30 July 2020, Gazette No. 65 of 30 July 2020, Gazette No. 65 of 30 July 2020, Gazette No. 65 of 30 July 2020, Gazette No. 65 of 30 July 2020, Gazette No. 65 of 30 July 2020, Gazette No. 65 of 30 July 2020, Gazette No. 65 of 30 July 2020, Gazette No. 65 of 30 July 2020, Gazette No. 65 of 30 July 2020, Gazette No. 65 of 30 July 2020, Gazette No. 65 of
2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020
DISALLOWANCE OF REGULATIONS Planning Development and Infrastructure Act 2016, made on 18 June 2020 and laid on the Table of this Council on 30 June 2020. Gazetted: 30 July 2020, Gazette No. 65 of 2020 September 2020 THE BULLETIN
WELLBEING & SUPPORT
Three little words can make a world of difference ZOE LEWIS, LEGAL SERVICES COMMISSION
t isn’t always easy. But the truth is that we all have ups and downs and we need to get better at talking about them. R U Ok? Day was spawned from some tragic events – someone lost a loved one to suicide and decided that a national awareness campaign was needed. These days, R U Ok? Day is a reminder to us that asking someone how they are going can make such an important difference. And it is a conversation we can have on any day, not just on September 10th (R U Ok? Day). Lawyers have the capacity to be pretty perceptive. We are trained to be critical thinkers and to notice details. So, we might notice that a colleague seems more tired or stressed than usual. We might notice them reaching for painkillers or extra coffee, or showing up to work late… But where we might let ourselves and each other down is in following this up. Sure, maybe the person has something private going on which they won’t want to share with us. And maybe they would prefer to just be left alone. But how will we know if we don’t ask? Perhaps they are soldiering on but would actually really benefit from a bit of human connection. “R U Ok?” was specifically chosen as a non-threatening, non-clinical, easy way to start a conversation. Much like “how are you?” it rolls off the tongue easily. But unlike “how are you?” it actually invites a considered response and reveals that you have noticed something different and that you have concern and interest in this individual. You might start with something like “I’ve noticed that you aren’t quite yourself lately. How are you travelling?” But what then? What do you do once you get the person talking? As lawyers, we are natural problem solvers and it can be difficult not to jump in with helpful advice. But the experts remind us that actually the most important part is the listening. It gives the person the chance to be heard, and maybe the chance to disclose some struggle they have been denying they were experiencing. For some people, talking gives them a chance to “think aloud” and it might make them realise how hard things have actually been.
38 THE BULLETIN September 2020
Or they might be feeling quite alone in their struggle and so someone taking the time to just listen makes them feel valued and connected. In any case, listening is hugely important and if it feels a bit awkward, that’s OK too. Here are some phrases you might find useful to encourage the person to keep talking: “That’s tough. Keep talking. I am listening.” “Have you been feeling this way for a while?” “What else is concerning you? Once someone has disclosed their struggle, it is easy to feel overwhelmed. Maybe they are feeling under the pump at work and this is an experience you can relate to. But maybe they have disclosed that they have considered taking their own life and now you feel really out of your depth. It is important not to panic in that moment. There are lots of tools to keep up your sleeve. It isn’t your job to solve anything – you have done the most important thing of all by connecting with them. Now is a good time to consider referring them to one of the many support services available: their GP, the Employee Assistance Program if your workplace has one, Beyond Blue, Lifeline or the Suicide Call Back Service. The Law Society also provides some specific support services
including free and confidential counselling (LawCare). An average of eight people die by suicide every day in Australia alone. And many more attempt suicide or know someone who does. Research has shown that the three biggest risk factors are social isolation, the belief that they are a burden on others, and access to the means to taking their life. R U Ok? is all about addressing the first of these factors – if people feel connected to one another they are somewhat protected from suicide. This year it is perhaps more important than ever to ask each other “R U Ok?” Lawyers across SA have had all the usual challenges to deal with – high workload, difficult clients, and personal struggles – as well as a whole lot of changes and challenges none of us could have imagined this time last year. In addition, most of us are more isolated than ever before – from our colleagues, family and friends. Thursday 10th September is R U Ok? Day. If you aren’t back in the office with your colleagues, please find another way to check in – perhaps an email or a coffee via Zoom. Remember, it is a conversation which could change a life. If you would like to know more, check out the website: www.ruok.org.au
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Family Law - Melbourne LITIGATION ASSISTANCE FUND The Litigation Assistance Fund (LAF) is a non-profit charitable trust for which the Law Society acts as trustee. Since 1992 it has provided funding assistance to approximately 1,500 civil claimants. LAF receives applications for funding assistance from solicitors on behalf of civil claimants seeking compensation/ damages who are unable to meet the fees and/or disbursements of prosecuting their claim. The applications are subjected to a means test and a merits test. Two different forms of funding exist – Disbursements Only Funding (DOF) and Full Funding. LAF funds itself by receiving a relatively small portion of the monetary proceeds (usually damages) achieved by the claimants whom it assists. Claimants who received DOF funding repay the amount received, plus an uplift of 100% on that amount. Claimants who received Full Funding repay the amount received, plus 15% of their damages. This ensures LAF’s ability to continue to provide assistance to claimants. LAF recommends considering whether applying to LAF is the best course in the circumstances of the claim. There may be better methods of obtaining funding/ representation. For example, all Funding Agreements with LAF give LAF certain rights including that funding can be withdrawn and/or varied. For further information, please visit the Law Society’s website or contact Annie MacRae on 8229 0263.
The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems. If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you. Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse. The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year. All information divulged to the LawCare counsellor is totally confidential. To contact Dr Jill 08 8110 5279 8am-8pm, 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher
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