0709_PDF_ISSUE_LSSA_Bulletin

September 2007 VOL. 29. NO.08

Anti-Money Laundering: Why You Need to Act Now...

www.lawsocietysa.asn.au

“Another great shot by one of our very clever clients.”

There’s nothing wrong with a friendly game of tennis but if one of our clients invites you to compete be prepared to lose. Chances are they’ve been practising.

You see our clients are very cluey people. They know how to win...and they know a good stockbroker and financial adviser when they see one. That’s why they chose us, Prescott Securities. We focus on their needs and on the overall structure of their investments to ensure all tax and related issues are carefully considered.

Our clients know that share trading falls short of the whole story and that we will plan for long term, solid

DH&B_1098_LSB_ENNIS

growth of their wealth. Clever people our clients.

Prescott Securities Limited | ABN 12 096 919 603 | ASX Market Participant | Australian Financial Services Licence No. 228894

S TO C K B RO K I N G & F I N A N C I A L A D V I C E

245 Fullarton Road Eastwood SA 5063 | Telephone (61-8) 8372 1300 | info@prescottsecurities.com.au | www.prescottsecurities.com.au

SEPTEMBER 2007 Volume 29 Number 08 September 2007 VOL. 29. NO.08

Anti-Money Laundering: Why You Need to Act Now...

Law and Justice Essay Prize 2007 - Part One.

By Brendan Lim

www.lawsocietysa.asn.au

8

Cover Image - SXC

Cover: Anti-Money Laundering: Why You Need to Act Now .............22

CONTENTS

Columns:

Features:

President’s Message ......................................................................................................... 4 Opinion ................................................................................................................................................................. 6 Taxfiles.............................................................................................................................................................12 Web Watch..........................................................................................................................................25 Murray Information Resource Centre ...............30 On the Road.....................................................................................................................................31 Gazing in the Gazette.........................................................................................32 Moving On, Moving Up .................................................................................35 Judgments..............................................................................................................................................36 Conference Listing.......................................................................................................37 Diary Dates ........................................................................................................................................40 Classifieds...............................................................................................................................................41

Law and Justice Essay Prize 2007: Part One ........................................................................................................................................................... 8 Community Legal Practice Update: Access to Justice ......................................................................16 Anti-Money Laundering: Why You Need to Act Now................................................................................................................22

Legal News: A Decade of Service: Jan Grundy ......................................20 HREOC Case Spotlight ....................................................................................28

Anti-Money Laundering: Why You Need to Act Now...

By Peter Nguyen and Stephanie Rowland

22

From the Editor - September 2007

t’s no surprise the public is afraid of crime and what is seen as any increase in crime - in particular youth crime. The media in many instances continues to fan this fear by sensationalising youth anti-social behaviour.

When governments seek to calm the populist outcry on such an issue by rolling-out a ‘tough on law and order’ platform, this can in itself prey on community fear of perceived youth ‘crime’.

I

instead offers little more than a pur p o se su ch a hard lin e sent encin g st ance real ly strategic response. serves, and where do we want A recent US documentary to position our own juvenile screened by ABC’s Four Corners justice system. Indeed the US gave a disturbing and dark d o c u m e n t a r y c o n c l u d e s glimpse into a reality of the US by asking does a society wish juvenile justice system where to stem juvenile crime and an ‘adult time for adult crime’ deal with it in a systemic way, stance on juvenile sentencing o r s i m p l y p u n i s h , a n d punish severely? has been adopted.

The documentary ‘Kids Doing Time’ examined the application of ‘felony murder’ sentencing in some states of the US where over 2,000 US juveniles now have been sentenced to life imprisonment in adult prisons with no parole, for murder by association.

Few would refute there exists a need for a review to juvenile offending and its social causes and relationships. Australian legislators, the legal profession and community alike must conduct an informed discourse as to where our own juvenile justice system is to head.

Afghan Legal Outreach: SA lawyer in Kabul

By Sarah Callaghan

26

Reactive approaches to youth crime will always miss their mark as they continue to ignore the complex social problems underlying youth anti-social and criminal behaviours. Policy by media spotlight and political quick fixes can never offer real Australia needs to look at NICK RAMAGE solutions to juvenile crime, and the US system and ask what bulletin@lawsocietysa.asn.au

3

September 2007

Margaret Kelly

President’s Message

Shoring up a solid future for the Graduate Diploma in Legal Practice Course n 1998 when the Univ ersity of S o uth Australia withdrew its offering of the Graduate Certificate of Legal Practice, the Society, with the full backing of the profession, decided to takeover the course in 1999. Since that time some extremely talented lawyers have graduated from the Course and it continues to attract large numbers of students.

Like any university-standard Course, the GDLP is subjected to rigorous accreditation processes both by the D e p a r t m e n t of Fu r t h e r Education , Employment, Science and Technology (DFEEST) and by the Legal Practitioners Education and Admissions Council (LPEAC).

I

At the last accreditation review in 2004, DFEEST endorsed the Course and gave approval for its offering for a further five years to the end of 2009. As in any accreditation review the accreditation panel made suggestions for improvement.

I am pleased to report that as well as adopting those suggestions a number of other changes have been achieved in the last twelve months which will shore up a solid future for the Graduate Diploma in Legal Practice. In particular:-

4

•The development of the Course as a one semester option. This will not only give students the flexibility to complete their coursework in one or two semesters

w w w w.lawso cietysa.a s n. a u

but it will ensure that our Course remains competitive with other providers. The one semester option will commence in January 2008. It already has a strong endorsement from the University of Adelaide.

• The University of South Australia, which during the year received approval to offer Law as a degree course is also extremely keen to investigate the possibility of its students undertaking their Practical Legal Training with the Society.

• Adoption of a wider range of assessment methodologies and more individual responsibility placed on students.

• Many units now incorporate a client file that is used as a vehicle around which to base all of the relevant unit competencies. Ultimately all units, where relevant, will go that way to ensure that the learning is more practically based.

• Letters of advice, professional conduct issues, and tax issues have been integrated into most units. These are areas which are built into the Law Practice Unit and have now been repeated in all other units to improve the rigour of the Course.

• The Policy and Procedures Manual has been completely

rewritten. This has been particularly important to ensure that all stakeholders know their rights and obligations from the outset.

• Significant changes have been made to the Law Practice Unit. This is the first unit which students are scheduled to undertake. They have often had no experience of a legal firm and what it is like to work in a legal office.

They are unsure of what is expected of them. The unit now requires that they dress as if attending a legal office. This change has been well-received and students have reported that it helps them position themselves in the profession in terms of personal presentation.

• The Course has been significantly strengthened by the incorporation of Advanced Advocacy into the Professional Skills B and Criminal Law Units.

Nationally there is a push to accept the training offered by the Australian Advocacy Institute as the benchmark for advocacy instruction. We are fortunate that the advocacy instructors within the GDLP Course have been trained in the Australian Advocacy Institute methodology.

• Administratively the upgrading of the GDLP database has resulted in a number of improvements.

Maintenance of student’s

records has been improved.

A new presenter database has been established which greatly assists with the formulation of the timetable and automated sign-on sheets and payment tools have also been developed.

Many of the changes are as a result of feedback from both students and facilitators as part of the ongoing process of evaluation. Many of the students have already finished their GDLP by the time the changes are made so they are not always obvious to them but we very much value their input during the time they are with us.

Graham Jobling, the Manager (Education) and Sophia Lemke (GDLP Course Director), with the assistance of the Executive D ire ctor, Jan Mar tin , th e Chair of the GDLP Education Committee, the Honourable Justice John Mansfield , Members of the GDLP Education Committee and the Course Coordinators and facilitators can feel justifiably proud of w hat they have achieved within the last twelve months. This all augers well for the future of the Course.

The Professional Standards section of the Society has had reason recently to be reminded once again of the pitfalls of sole practice when the practitioner suffers a serious illness, accident or, in the worst case, dies.

September 2007 What happens to the practice if its sole bread winner is unable to continue? Who has the authority to run the practice, who can sign cheques and who can dispose of the practice if necessary?

An enduring power of attorney may be the answer – but only if that power is given to another legal practitioner, since only a legal practitioner can conduct a law practice. A power of attorney to a spouse or family friend will not provide the protection the practice needs. In the absence of a legal practitioner able to operate under an enduring power of attorney, the provisions of the Legal Practitioners Act 1981 permit the Society to appoint a Manager to the practice and a

"A power of attorney to a spouse or family friend will not provide the protection the practice needs."

Supervisor to the trust account of the practice. However this is obviously not the preferred option of mo st practic e s particularly if the practitioner anticipates recovering to the extent that he or she can pick up the reins of their practice in the reasonably short term.

In the event of the death of a practitioner, Section 50 of the Legal Practitioners Act 1981 allows the personal

representative of a deceased legal practitioner, with the authority of the Supreme Court and subject to any conditions the court imposes, to carry on the practice for up to 12 months from the date of death. Without proper succession planning, the necessity to manage a practice can impose significant stress on a personal representative with no experience or knowledge of the practice.

Ev e r y l e g a l p r a c t i t i o n e r principal should look carefully at the various issues associated with the continuation of his or her practice in the event of accident, illness or death.

Unfortunately there is usually no opportunity to rectify the situation after the event has occurred. I urge practitioners to prepare for events such as these, no matter how unlikely they may appear.

President’s Activities 12 July 2007– 11 August 2007 he President attended the New Lawyers’ Ball on 13 July; a meeting of Lawguard Management Pty Ltd and chaired a meeting of the Executive on 16 July; attended a meeting of the Professional Standards Committee on 17 July; met with the Leader of the Opposition, Mr Martin Hamilton-Smith MP and the Shadow Attorney-General, Ms Isobel Redmond MP in relation to the draft Legal Profession Bill 2007 on 19 July; attended a meeting of the GDLP Education Committee on 20 July; provided an interview to ABC TV in relation to the d el ay in th e prov i sion of anger management sessions in accordance with court

T

orders on 22 July; chaired a meeting of the Council on 23 July; spoke to the Australian Financial Review in relation to the media rule of the rules of professional conduct and practice on 24 July; chaired a joint meeting of the Executives of the Law Society and the Bar Association on 26 July; spoke on air on ABC Radio in relation to judicial discretion/mandatory minimum sentencing on 30 July, appeared before the Senate Inquiry into Older People and the Law on 31 July 2007. Mr G Mancini and Mr N Niarchos AM responded to media requests ( from ABC TV, ABC Radio and the NT

News) in relation to proposed legislation for restraining orders for paedophiles; and the Trevorrow compensation decision, respectively, on 1 August 2007. The President a tt e n d e d a m e e t i n g o f the Joint Rules Advisory Committee, and spoke on ABC Radio re the Trevorrow compensation decision on 2 August; met with the team conducting the Review of Workers Compensation, and attended a luncheon hosted by the Judges of the District Court on 3 August; chaired a meeting of the Executive and took a call from the ABC re charges laid against a Judge of the District Court on 6 August;

spoke to journalists from The Advertiser, The Australian, Channel 9, Channel 10 and ABC TV, and on air on ABC Radio (x2) in relation to proposed changes to double jeopardy legislation on 7 August; spoke to a reporter from Channel 10 re Monsignor Cappo’s report on Social Inclusion, and attended the Lord Mayor’s Civic Reception for the Chief Justice and Justices of the High Court on 8 August; attended the opening of new premises for the Australian Institute of Conveyancers on 9 August; met with the President and President-Elect of the Australian Lawyers’ Alliance on 10 August 2007.

September 2007

5

Opinion JUSTICE DELAYED

by John Emerson its actions have the opposite effect. If someone assaults me in the street or runs me down and keeps driving, as a victim, what justice am I really going to see done?

ince the Rann government has been in office the South Australian justice system has been groaning under the weight of a series of legislative changes, and if justice delayed is justice denied, then at the moment what real justice do we have in this State?

S

Colin James’s article in The Advertiser at the end of June publicised the extent of the problem. Over one thousand matters referred by magistrates to the District Court were waiting to be heard. Of those, more than half had no dates set for trial. Of those lucky to have a date set, when the lawyers and witnesses have turned up to court they discover no judge is available or that there is no spare court room.

The Rann government states clearly and unequivocally in official publications such as ‘Justice for Victims’ that it wants

6

justice. More efficient justice was one of its key election promises. No one of course would dispute these aims. But the implementation has been ad hoc and overly sensitive to immediate political gains.

convicted offenders walk out of the District Court with the same penalty as they would have got from a magistrate, regardless of the increased maximums.

The biggest single contributing factor to the present clogging has been the upgrading of what were formally summary offences to minor indictable.

These offences include new types of assault charges, driving offences and serious criminal trespass. Instead of the Police prosecuting these relatively quickly in the Magistrates Court, the ODDP must prepare th em for a lon ger, more expensive and more complex trial in the District Court.

T h e Att o r n e y - G e n e r a l ’s solution is currently to pay for a consultant to look for more court rooms. He has said that the government does not have tens of millions of dollars to spend on erecting more criminal courts, for example, on the vacant land behind the Supreme Court complex fronting Wright Street. Yet his government is perfectly happy to spend tens of millions on a new tramway which - no matter how wonderful – could have waited in turn behind a seriously ailing justice system.

Neither the ODDP nor the D i str i c t C o u r t h a s b e e n given sufficient increase in their resources to deal with this increased load. And the net result at the end is that

Official publications such as ‘Justice for Victims’ claiming that the Rann government aims to ensure that justice is carried out effectively in this State have no value at all if in practice

"The Rann government states clearly and unequivocally in official publications such as ‘Justice for Victims’ that it wants justice." w w w w.lawso cietysa.a s n. a u

Indeed, the Rann government has increased police numbers.

But without funding the rest of the system the triumph of seeing my offender arrested quickly meets the failure of seeing them wander free for years before a trial can be held.

South Australia is really falling behind the rest of the world.

We are one of the few places in the world not to have a formal law reform commission. As I have pointed out in articles before, even places like Namibia and Bangladesh have one. A properly consulted law reform body would oversee legislative changes and plan for the long term to prevent changes mad e in hast e to sati at e tomorrow’s headlines.

Knowing that as long as seventy years ago former Chief Justice Sir George Murray was anxiously hoping the government would fund more court facilities on that very same land facing Wright Street doesn’t help. But both the Liberal and Labor governments in the 1960s and 1970s had the foresight to establish the District Court and its permanent home, the Sir Samuel Way building. The current government is in a better financial position than perhaps any in South Australia’s history. Have they got the same foresight and courage as their predecessors to fully carry out what is ultimately their own stated goal?

New Releases

‘Migration and Refugee Law in Australia: Cases and Commentary’

By Mirko Bagaric, Kim Boyd, Penny Dimopoulos, Sue Tongue and John Vrachnas Cambridge University Press ISBN 978-0-52169-137-6 PB RRP AUD$120.00 (inclusive of GST)

and Refugee M igration Law in Australia: Cases and Commentary provides an invaluable overview of the legal rules and principles governing the entry of people into Australia. As a result this book proves both a comprehensive stand-alone resource, or it can be also used as a companion to the earlier migration textbook: Migration and Refugee Law: P rinciples and P ractice in Au strali a (C ambri d ge University Press, 2005).

Migration law has clearly proved a very controversial area over the past twenty years.

The global movement of people

and the plight of refugees has in turn led to a series of controls on people entering into, and remaining in, Australia. The legislation containing the rules have been changed many times and the courts have considered hundreds of cases.

In Mi g ra ti on a n d R ef u g e e Law in Australia : Cases and Commentary, the main principles of law are extracted and explained so that the law can be understood. The book is written for all people who have an interest in migration and refugee law, including judicial officers, migration agents, lawyers and students.

Your handbook to Australian family law

The 499 page book contains the most relevant extracts from leading cases in the area of immigration and refugee law, and gives detailed analysis of th e p o li cy and moral considerations underpinning migration law. It suggests an overarching framework for developing migration law and critiquing existing policies and practices, with migration and refugee law analysed through the lens of Australian and international human rights law and conventions.

Immigration is expected to be one of the many important issues facing Australia this century. This text contains

numerous extracts from cases and other sources showing th e hi stor y of p o l ari sed confrontation of ‘charge and counter charge’ in Australian migration law to date.

The book concludes by examining the impact of human rights in international migration and gives a comprehensive study of viewpoints on the G o v e r n m e n t ’s p o l i c y o f mandatory detention also.

Works such as Migration and Refugee Law thus also highlight the valuable role immigration law can play in providing a barometer to the interaction of our three branches of government and the rule of law.

The Australian Master Family Law Guide is an exciting new addition to CCH’s leading family law product range.

This Master Guide is an invaluable reference guide to all aspects of family law in Australia, including: family legal system and practice, children, property, financial agreements, financial support for children, de facto relationships, court process, evidence and costs.

NEW

Also available as an online subscription.

With expert commentary covering principles and developments in legislation and cases, the Australian Master Family Law Guide is suitable for any professional needing a quick, comprehensive and practical reference to Australian family law.

For more information or to order the Australian Master Family Law Guide in print, online or both visit www.cch.com.au/mflg or contact 1300 300 224.

CCH – The Professional’s First Choice.

A Principle of Legality for an Age of Statutes: Part One. The emerging presumption against legislative displacement of statutory rights

by Brendan Lim* The following paper published was one of the two equal first place recipients of this year’s ‘Justice Essay Prize’ awarded by the Law Foundation of South Australia. Brendan is currently Associate to Justice Besanko of the Federal Court.

The author advocates an extension of the presumption against legislative displacement of common law rights so as to afford the same protection to certain statutory rights. In the first part of the two-part article, the author introduces his argument and identifies the basis for the traditional presumption. In the second part, published in the next edition, the author will articulate the basis for the extension advocated and explain its possible operation as an element of the test for inconsistency between statutes.

"Legislative encroachment upon individual rights, outside of the Parliament's democratic mandate, is political injustice."

Her open eyes desire the truth.

The wisdom of a thousand years Is in them. May perpetual youth Keep dry their light from tears; That her fair form may stand and shine, Make bright our days and light our dreams, Turning to scorn with lips divine The falsehood of extremes! 2 1. The Falsehood of Extremes

8

THERE I S no doubt that an Act of Parliament may invade common law rights, for Parliament is supreme.

But its words will not be so interpreted unless they are express or necessarily require the implication. There is also no doubt that an Act of Parliament may withdraw those privileges found in the statute books, for that is nothing more than repeal. But why, in this latter context, are the same express words, or words of necessary w w w w.lawso cietysa.a s n. a u

intention, not required? The thesis of this paper is that they ought to be.

This paper is concerned with an intersection between law and political justice. Statutes represent democratic, political will. Legislative encroachment upon individual rights, outside of the Parliament’s democratic mandate, is political injustice.

Such injustice is, of course, to be corrected in the political sphere, via the democratic electoral process. The law is not concerned with the political agendas behind statutes; courts may adjudicate the legality, but not the wisdom, of a statute.

Nevertheless, the law has a role to play. Techniques of statutory interpretation, developed in the courts, can ensure that legislation is properly tested in the political arena.

A presumption against an intention to abrogate rights or to interfere with individual liberty ensures that Parliament must

manifest any such intention with clarity. Therefore, invasive statutes cannot, by employing vague or uncertain language, escape proper political scrutiny.

In statutory interpretation, the law promotes justice, even as understood in the broad, political sense.

Th e pre sumption a gainst abrogation of common law rights is well-established. By way of extension, this paper contends that the courts should presume also that Parliament does not intend to displace certain statutory rights. It is acknowledged that although such an approach is not unknown to the law,3 neither has it found broad acceptance.4 Nevertheless, it is submitted that this emerging presumption is a natural extension of that against invasion of common law rights.

Section II of this paper explains the traditional and

uncontroversial principle of legality, identifying its true rationale. Upon this found ation , Se ction III articulates an extension of the principle of legality, to encompass statutory rights, as well as common law rights. It observes the phenomenon of statutory activism; it explains why there is no material difference between common law rights and rights which, though owing their existence to legislation, nonetheless shield the individual from the exercise of governmental power; finally, it dismisses any suggestion that existing and long-standing maxims of interpretation preclude the extension. Section IV describes the proper locus of operation for the contended presumption, namely, as an element of the test for inconsistency between competing statutes.

2. Foundation: The Principle of Legality It is settled that the courts will not impute to the legislature an intention to abrogate common law rights unless such intention is manifested very clearly. This paper refers to this as ‘the principle of legality’.

That phrase originated in England, and was expressed to be protective of ‘fundamental rights [recognised] as constitutional’.5 The phrase was

J

C b c b D A

T D R M

used in Australia first by Chief Justice Gleeson in his Honour’s Boyer Lectures6 and has been explained subsequently by Chief Justice Spigelman as: A unifying concept, which should be used to encompass a range of more specific interpretive principles that have been developed over many centuries of common law development of the law of statutory interpretation.7 Presumptive preservation of ‘fundamental rights, freedoms and immunities’ is just one of the ‘interpretive principles’ encompassed. His Honour also identified presumptions against denial of procedural fairness, interference with vested property rights, overriding of legal professional privilege and others. Relevantly, they all can be described as protecting ‘common law rights.’ Therefore, this paper uses the phrase ‘principle of legality’ interchangeably with the presumption against displacement of common law

rights, which rights are to be considered in no narrow sense.

Although the nomenclature is modern, the principle is not. In Potter v Minahan,8 O’Connor J said: It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.9 The relevant intention may be expressed by clear and unambiguous words. It may

also be inferred by necessary implication, where, for example, the Act would otherwise be ‘inoperative or meaningless’.10 Mere inconvenience will not suffice.11 Nevertheless, the true rationale of the principle is less than clear.

Potter v Minahan12 engaged in a search for legislative intention.

One possible intention, namely, intention to ‘overthrow fundamental principles’, was presumed to be ‘improbable’.

An alternative basis for the principle is the active judicial protection of common law principles, rather than a presumed legislative intention.

Upon this basis, the reason that judges should read statutes conformably with common law rights, at least where legislative intention is unclear, is because

enforceability of those rights is entrusted to them. J J Doyle (as his Honour then was) once suggested that the courts, responding to a declining f a i t h i n re s p o n s i b l e a n d representative government as the sole safeguard of freedoms, had ‘become more assertive of their role in the protection of basic rights’.13 In Balog v ICAC14 the Court said that ‘where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred’.15 As the Court cited Potter v Minahan16 in support of this contention, it is perhaps unwise to treat the decision as a departure from that case. Nevertheless, the Court’s apparent concern was not any presumed intention vis-à-vis fundamental rights, but rather a preference for consonance with the common law.

"Such injustice is, of course, to be corrected in the political sphere, via the democratic electoral process."

Join a band for fun - support charity!

Calling all Lawyers! Do you know at least 3 guitar chords, or can you ou u bang a drum, or sing? If yes to one or more, then you are a prime candidate to join a Weekend Warrior band. It’s a great fun team building exercise. Why not consider your whole firm for the program. m m.

Don’t forget the next jam is 1pm at DeafSA, 262 South Terrace Adelaide 14 October 2007.

To register your expression of interest send an email, to Dom Disisto, National Co-ordinator on weekendwarriors@bigpond.com or Ron Bellman of Windevere Bellman Solicitors, President of the Warrior Music Association SA Chapter on ronbellman@windeverebellman.com

on 14 n at 1pm o o rn e ft f . a Adelaide llved. Jam Terrace, get iinvo th d u e to o id y S v s 2 a ro 6 g is p i so e fSA, 2 in a I is It th e y D r t e a v ,e session 2007 truments the jam s f October in o y d n n a e the need t the and then ents). A d You don’t n m a u b tr a s in in wind put you will have (e (except will have eks you e h c w a o 6 tuition in c to d ing and hin 4 h it th t e lea c a W o . c s l, in the end earsa y beg ision. At fu fun reall v m of reh r ra e g p u ro s p da l perform oach band wil complete g studio under c r u o y d an nd rkin tion, sou riod, you a full wo e produc week pe ed g 6 id ta v s to ll ro 4 of the with fu hs all p c d te w r a ro c it ight! live d gu for one n drum an before a rs , ! ta ts S h k g c li o regret it gR ring, ou won’t and bein enginee y b , r o u g o y a d e it h you an ith arity, giv wit go to ch s d e e c Allll pro

A Principle of Legality for an Age of Statutes: Part One.

"Judges … have a responsibility for the common law, but in my opinion they have none for statute law; their duty is simply to interpret and apply it and not to obstruct."

4

5

6

This alternative basis might appear more attractive in a practical sense because it does not entertain the fictional presumed legislative intention.

That the presumed intention is a legal fiction has been frankly acknowledged by the courts.17 It has been suggested that the truth lying behind that fiction is ‘a refusal by the judicial arm of government to assist the legislative or executive arms of government’18 or ‘a judicially imposed restriction on the legislature.’19

10

Howe ver, overriding constitutional reasons demand recognition of the presumed legislative intention, and not judicial guardianship of the common law, as the basis of the principle of legality. Parliament is supreme.20 Its Acts represent the democratic will of the people for whom it legislates.

Of course, this doctrine of parliamentary sovereignty is inherited from the common law of England, and cannot stand without qualification in the Australian federal system.

The Australian Constitution imposes limitations on the Federal Parliament, and also on State parliaments. The extent of the limitations on State parliaments is not settled. On one view, State constitutions are ‘subjugated to the [Australian] Constitution as a whole by s 106’.21 On another, s 106 ‘does not serve to apply to the States

w w w w.lawso cietysa.a s n. a u

provisions of the Commonwealth Constitution which otherwise have no application to them’.22 For present purposes, it suffices to observe that statutory conformity with the common law is not required by the Australian Constitution.

Similarly, State constitutions impose no such limitation.

Concordance with the common law not being constitutionally required, discordance is no ground of review.23 Therefore, the alternative basis, that is, judicial guardianship of the common law, undermines parliamentary supremacy. 24 The judicial arm of government is ultimately incapable of ‘protecting’ the common law from the intrusions of the legislative arm; but the legislative arm is not so incapacitated. For that reason, it is always legislative intention which must prevail, though the courts may demand its unambiguous expression .

The alternative basis is not to be preferred: its analytical deficiencies cannot be remedied, even by its practical attractions.

Making clear this true rationale underlying the principle of legality is important for the thesis of this paper. Lord Devlin, writing in the Modern Law Review, said: Judges … have a responsibility for the common law, but in

my opinion they have none for statute law; their duty is simply to interpret and apply it and not to obstruct.25 Were the principle of legality reli ant up on th e judi ci al responsibility for common law rights, any attempt to extend the principle in aid of statutory rights would be futile, for statutory rights would not enjoy the same mandate for protection. But, as has been shown, the principle is not so reliant; the propriety of the extension turns on whether it should be presumed that Parliament does not intend to withdraw statutory rights.

Therefore, the next sections proceed to explain why and how it should be extended.

In the next edition, the author articulates the basis for the advocated extension of the principle of legality and its potential operation as an element of the test for inconsistency between statutes. * Hons. LL.B., B.Mus., B.Ma. & Comp. Sc. (Adel).

2 Excerpt from Alfred, Lord Tennyson, ‘Freedom’ in Poems (1842).

3 See Ferdinands v Commissioner for Public Employment (2006) 224 ALR 238 (‘Ferdinands’) (Kirby J); Ferdinands v Commissioner for Public Employment (2004) 233 LSJS 110, 111 (Debelle J); Buck v Comcare (1996) 66 FCR 359, 364-365 (Finn J); R v Cain [1985] 1 AC 46 (Lord Scarman).

7

8 9 10

11

12 13

14 15

16 17

18 19 20

21

22

23

24 25

See especially Ferdinands (2006) 224 ALR 238. See also Penny v Penny [1965] NSWR 495 discussed in D C Pearce and R S Geddes, Statutory Interpretation in Australia (2006, 6th ed.) [5.19].

Johan Steyn, ‘The Intractable Problem of the Interpretation of Legal Texts’ (2003) 25 Sydney Law Review 5, 18. See also R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539, 575D; R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 (‘Simms’).

The Hon Murray Gleeson AC, 2000 Boyer Lectures: The Rule of Law and the Constitution (2000) 136-137. See also Al-Kateb v Godwin (2004) 219 CLR 562, [19]; Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309, [21] and [23].

Hon J J Spigelman AC, ‘Principle of Legality and the Clear Statement Principle’ (2005) 79 Australian Law Journal 769, 775.

(1908) 7 CLR 277.

Ibid, 304.

Coco v The Queen (1994) 179 CLR 427, 436 (Mason CJ, Gaudron, Brennan and McHugh JJ).

Plenty v Dillon (1991) 171 CLR 635, 654 (Gaudron and McHugh JJ); Coco v The Queen (1994) 179 CLR 427, 436 (Mason CJ, Gaudron, Brennan and McHugh JJ).

(1908) 7 CLR 277.

J J Doyle, ‘Common Law Rights and Democratic Rights’ in P D Finn (ed), Essays on Law and Government Vol. 1 (1995) 144, 144.

(1990) 169 CLR 625.

Balog v ICAC (1990) 169 CLR 625, 635636.

(1908) 7 CLR 277, 304 (O’Connor J).

Mills v Meeking (1990) 169 CLR 214, 234 (Dawson J); Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, 322 (Brennan J), 346 (McHugh J); Doyle, above n 11, 158.

Doyle, above n 12, 158.

Ibid.

At least, this is the prevailing orthodoxy.

The orthodox view is assumed for the present argument, but the author entertains doubts, not presently relevant, as to its correctness: See Brendan Lim, The Constitution of a People (Honours Dissertation, University of Adelaide School of Law, 2007).

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 165 (Deane J).

McGinty v Western Australia (1996) 186 CLR 140 (Dawson J).

Cf. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 562566.

See Doyle, above n 12, 144.

Lord Devlin, ‘Judges and Lawmakers’ (1976) 39 Modern Law Review 1, 13.

LSSA Member Awarded CSC Andrew McLachlan, Australian Executors, Conspicuous Service Award recipient Service Cross (“CSC”) in the Queen’s Birthday Honours List 2007. It was awarded for his outstanding achievement as the South Australian Panel Leader, Australian Army Legal Corps in support of Australian Defence Force units in South Australia, in particular the 9th Brigade.

Andrew McLachlan CSC McLachlan is a A ndrew longstanding member of the Law Society and was awarded the Conspicuous

Andrew is better known in legal circles as the head of Australian Executor Trustees and as a leading figure in the national estate planning and financial services community.

He has also been for many years in charge of a team of Army lawyers in this State.

The team provides legal ser vices to all Army units

operating in South Australia but is increasingly being called upon to provide legal services to soldiers and their commanders in other States.

The C SC is a specifically Australian militar y award and recognises exceptional dedication to duty or outstanding achievement in skills or judgment. It is awarded to members of the Australian Defence Force by the Governor-General on the recommendation of the Minister for Defence.

Andrew was admitted 1988 and is a graduate law of the Universities Adelaide and Edinburgh.

in in of He

also holds an MBA from the Australian Graduate School of Management. He joined the Army Reserve in 1993 and now holds the rank of Lieutenant Colonel.

Notable local members of the Australian Army Legal Corps h av e b e en Ju sti c e s Ke v in Duggan and Peter Herriman.

Judge Duggan has held the post of Judge Advocate General.

Judge Herriman recently retried from the post of Deputy Judge Advocate General.

The Law Society is proud that one of its members has been recognised and extends its warmest congratulations to Andrew.

Australian Family Law Act 1975 with Regulations and Rules

The 26th edition provides you with the latest developments in family law and is fully consolidated to 8 August 2007.

The book includes key changes to dispute resolution, filing of children’s proceedings, superannuation and Court forms.

Contents include: Introduction outlining recent changes Family Law Act 1975 Family Law Regulations 1984

Family Law Rules 2004 Practice Direction No 3 of 2004: Case Management Directions Federal Magistrates Court Rules 2001 (extracts) Indexes.

For more information or to order, please contact CCH on 1300 300 224 or visit www.cch.com.au/afl CCH – The Professional’s First Choice.

ADRIAN CARTLAND, Tax Files| BY PIPER ALDERMAN.

If a tree fell in a forest, and no-one was there to see it, would you still get a tax deduction? he answer to Bishop G e o r g e B e r k e l e y ’s question, which I have taken liberty with, is yes, but only since the beginning of the current financial year.

T

P r i o r t o 1 Ju l y 2 0 0 7 t a x deductions for payments made for investments in forestry plantations were only available to investors if they were considered to be carrying on a business for the purpose of section 8-1 of the ITAA 97. If the investors were carrying on a business they were able to claim deductions for items such as lease and management fees, as well as normal outgoings associated with forestry, such as employing tree fellers (but obviously not non-business related expenses, such as employing “three fellas”).

The viability of these “schemes” (which included schemes ranging from the technical descriptive sense – Managed Investment Schemes (MISs) - and from the contrived avoidance sense) depended on the investor satisfying the commissioner that they were not merely passive participants, that is they had to “see” the trees being felled, and not just be told about it.

12

Many schemes involved finance and the claiming of a deduction for interest expenses (including the late 1990’s tax avoidance schemes, which ultimately failed). Expenses were usually paid at least partially up front, accelerating allowable deductions.

Therefore if y ou c oul d sati sf y th e w w w w.lawso cietysa.a s n. a u

Commissioner of Taxation that a tree was going to fall, and that you would be there to s e e it , y ou c ou l d get a t a x deduction now.

A new approach by the tax office, as enunciated in Draft Taxation Ruling TR 2007/D2, produced the result that the contributions under such schemes would be considered to be capital in nature and hence not deductible under section 8-1. This dramatic shift in philosophy produced the result that the forestry industry and many forestry investors collectively spat their (wood) chips.

Evidently the spitting of chips of avocado, pistachio or ostrich flavour did not resonate the same angst on the part of industry or investors as compared to the spitting of wood chips because when the government stepped in to intervene the resulting amendments only applied to forestry schemes and not nonforestry schemes. Perhaps it can be posited that if an Ostrich puts its head in the sand, and no-one sees it, there will be no tax deduction?

Amendments The amendments (enacted in Tax Laws Amendment (2007 Measures No 3) Bill 2007) allow 100 per cent of upfront and ongoing contributions to be claimed as a tax deduction for initial investors in forestry MISs, provided that there is a reasonable expectation that for each amount paid at least 70 per cent (by market value) will be used on Direct Forestry Expenditure (“DFE”)(“70 per

cent DFE rule”). DFE is actual or notional expenditure that is attributable to establishing, felling and harvesting trees.

Secondary (and subsequent) investors will also be entitled to a tax deduction, but only for their ongoing contributions under a scheme (which meet the 70 per cent DFE rule). If you reasonably expect a tree will get at least 70% of the money that is paid for it, then when it falls, you don’t need to see it to get a deduction.

Besides having to satisfy the 70 per cent DFE rule, the other prerequisites for obtaining a tax deduction for a forestry MIS scheme under the amendments are: • The purpose of the scheme is for establishing and tending trees for felling in Australia;1 • The investor pays an amount under the scheme 2(therefore the acquisition of shares in forestry companies is not eligible); • The investor does not have day-to-day control over the scheme;3 • The trees intended to be established under the scheme are all established within 18 months of the first investor in the scheme making payments4; and • Either there is more than one investor or the scheme manager or their associate arranges or promotes similar schemes for other entities.5

While these rules may appear to impinge upon the purity of philosophical thought, it would not be proper to have all trees that fall cause a tax deduction, o t h e r w i s e t h e resulting cacophony would be deafening, regardless of whether there is anyone there or not!

Investors are able to get d eductions for amounts paid at their direction, such as payments made by a financial institution as part of funding a loan to the investor. However interest payments, borrowing and processing costs, stamp duty, and GST are not deductible expenses6. Trees are evidently amicable to monies directed at them from any source, but not, however, the costs of the direction.

Trading of interests It has been possible to trade interests in forestry schemes b efore th e am endm ents, however such trading has been a rare occurrence.

This is because the disposal of an interest in a forestry scheme would be treated as a disposal of trading stock.

Such a disposal would be outside the ordinary course of business and any proceeds would constitute assessable i n c o m e f o r the disposing investor. If, at the time of purchase, an investor intended to dispose of their interest in the scheme before harvest, their contributions would not have been deductible (this is because there would be no expectation of profit or gain, a prerequisite for deductibility under section 8-1). You cannot

expect to see a tree fall if you sell your right to be there to another.

Because under the amendments there are no specific requirements that a business be carried on by the investor in order to obtain a deduction , t h e a b o v e m e n t i o n e d income tax barrier to the trading of interests will n o l o n g e r e x i s t . I n i t i a l investors (and subsequent investors) are now able to hold any intention they wish (including sale b e f o re h a r v e st ) , without risking their initial (and subsequent) deductions. If you don’t need to see a tree fall, you can sell your right to see it to another, and intend never to see the tree, while still retaining the benefit of seeing it.

However an initial investor will have their deductions for acquisition costs and contributions to a forestry scheme denied if a CGT e v e n t h a p p e n s t o t h e interests in the forestry scheme within four years of their first payment (“four year holding period

rule”).7 This forces investors to wait four years before they can decide not to intend to see the tree. If the investor is not the first relationship for the tree, they do not need to wait, perhaps because the tree has grown up by then and would not be as upset?

Also an initial investor is taken to receive the market value of their interests in a forestry scheme when a CGT event happens to those interests (“pricing rule”).8 If an initial investor still holds their interests in a forestry scheme after a CGT event occurring to those interests, then any decrease in market value will be included in their assessable income. Both proceeds from a CGT event and proceeds from a harvest are assessable income on revenue account for an initial investor.

To dispose of a tree is to realize its true value.

Secondary Investors Although secondary investors will not obtain a deduction for their initial

outlay,9 they will be able to obtain a deduction for any contributions to the forestry scheme provided that such payment would be deductible by an initial investor. The four year h o l din g r ul e an d th e pricing rule do not apply to secondary investors. You may step into the shoes of another to watch a tree fall, and will not have to wait where they did, but you cannot gain the same benefit as them of waiting for the tree.

Where a secondary investor subsequently disposes of an interest, the proceeds received will be assessable i n c o m e o n r e v e n u e account to the extent that the proceeds m a t c h t h e d eductions obtained under the deduction provision in the amendments (w hich for secondar y investors will only be for continuing c ontri butions).

If th e investor holds the interests on revenue account (i.e. the investor holds the investment as trading stock), the balance of the proceeds (i.e. the amount of proceeds

which exceed the amount of deductions) will be assessable income. If the investment is on capital account then the balance of the proceeds will be subject to CGT treatment.

Harvest proceeds received by secondar y investors are treated in the same manner as sale proceeds. However, amounts received for thinnings of trees will b e a sse ss abl e in c om e on revenue account ( for both initial and secondary inv e stors) . Thu s it i s important to know how the tree is held if you are not going to see it, and still claim a tax deduction.

1 s394-15(1) 2 s394-10(1)(b) 3 s394-10(1)(d) 4 s394-10(4) 5 s394-10(1)(e) 6 s394-40 7 s394-10(5) 8 s394-25(2) 9 s345-10(3)

Contributed by Adrian Cartland, Piper Alderman, on behalf of the South Australian based members of the Taxation Committee of the Law Council of Australia, Business Law Section.

Contact: Hugh McPharlin Brenton Ellery Brian Morris Ben Miels

Forensic Accounting and Litigation Support Services. Edwards Marshall are leading providers of Forensic Accounting and Litigation Support Services. Our personnel have extensive

experience in the assessment of damages, the adequacy of audit opinions, the identification of fraud and accounting reconstructions. We are particularly adept at analysing and

Angas House 4 - 8 Angas St Kent Town SA 5067 Tel 08 8139 1111 Fax 08 8139 1100

distilling complex information and enabling efficient comprehension of financial and accounting issues.

Simple, clear and unbiased advice, without fear or favour.

edwardsmarshall.com.au

Legal Shorts are the beneficiaries H ow of a testamentary trust assessed upon the income derived by the trust?

A testamentary trust is a trust that is created within and by your Will but does not take ef fe ct unti l y our d eath . It differs from a family trust (also known as an inter vivos trust) as a family trust is created by deed and commences during your lifetime.

By Bosio Ivana, Manager of the Wills Department for Australian Executor Trustees.

their normal marginal tax rate plus Medicare Levy.

(reinvested) - $7,000 making a taxable income of $30,000

A key difference between a TDT and a family trust lies in the tax rates applicable for beneficiaries under 18 years of age. For a typical family trust is created by a Deed, penalty tax rates apply to minors so that they are effectively taxed at the top marginal rate on a distribution exceeding $1,307. However, on income distributed from a TDT,

From this income, the cash received will be $20,000.

"A testamentary trust is a trust that is created within and by your Will but does not take effect until your death."

A testamentary trust may be created using specified assets, a designated portion of your estate or the entire remaining balance of your estate. The most common form of testamentary trust included in a modern Will is a testamentary discretionary trust (TDT).

Some testamentar y trusts involve fixed entitlements to trust income, that are clearlyâ‚Ź set down within the Will. In the case of a TDT, the trustee is given discretion over to whom the trust income is allocated each year, and makes an annual declaration establishing entitlements.

Once a beneficiary is entitled to a share of trust income, they are generally taxed upon the corresponding amount of taxable income. For an individual, their share of taxable income must be disclosed at Item 12 in the 2007 year income tax return, and is assessed at

14

w w w w.lawso cietysa.a s n. a u

beneficiaries under 18 years of age are taxed at normal adult rates (with up to $11,000 per annum tax free) rather than at penalty tax rates.

The potential for tax savings when TDT income is allocated to children is an important consideration in deciding whether to take an inheritance v i a a TDT or dire ctly, as demonstrated in the following example: John and his wife have incomes that give them both the top marginal tax rate of 46.5%. They have three children under 18, none of whom has a personal income.

John is about to inherit $400,000 in a combination of shares and fixed interest securities. The anticipated annual investment returns from the inheritance are:Interest - $10,000; Dividends - $10,000; Imputation credits $3,000; Discounted capital gain

John compares how much disposable cash his family will have each year if the $400,000 is inherited directly by him or through a testamentar y discretionary trust.

Scenario 1: John inherits in his own name.

Tax on $30,000 (46.5% tax rate) $13,950; less imputation credits - $3,000; tax payable - $10,950.

Cash received - $20,000. Less tax of $10,950 Disposable cash - $9,050 Scenario 2: John inherits as trustee of a testamentary discretionary trust.

John can allocate the trust’s income to the three children in equal shares. The taxable income for each child is $10,000. Tax on $10,000 $nil. Less imputation credits - $1,000. Tax refund for each child - $1,000. Cash received $20,000. Add tax refund for all three children $3,000.

Disposable cash - $23,000 In summary, the disposable annual cash return is: Direct inheritance by John (Scenario 1) $9,050 Testamentary discretionary trust (Scenario 2) $23,000 The difference is $13,950, which is the after-tax cash saving of using the testamentary discretionary trust. If John’s inheritance can be taken in the form of a testamentary discretionary trust, John and his family will have an additional after-tax income of $13,950 each year.

LSSA 2007 Mock Trial Grand Final: urt Room 8 of the C oSamuel Way Building saw the LSSA 2007 Mock Trial Grand Final staged between tw o t e a m s f r o m S e y m o u r College with the Judges for this year's mock trial being: Chief

Judge: Magistrate Simon Milazzo, Assisting: Michael D oy l e , A ssi sti n g : D av i d Riggall. The winning team of received a cheque for $600.00 and Runner-up received cheque for $400.00

LSSA 2007 Mock Trial - Seymour College -(Team 1) runnersup with teacher Frank Rieuwers.

LSSA 2007 Mock Trial winning team - (Team 2) and teacher Leland Dutcher.

Magistrate Simon Milazzo, Chair of the Mock Trial C'tee who acted as Chief Judge for the night awards Marie-Ellen Karykis 'Best Barrister' for the trial. She received a trophy and 'Borders' voucher for 100.00.

Are you giving your clients

all the options?

Next time you are preparing a Will, give your client the option of leaving a bequest to their charity of choice.

You can help your clients create a brighter future for new generations of Australians. Their legacy will make a real difference and will continue helping people in need for many years to come. Include a Charity can provide you with free information for your clients about giving something back to the community in their Wills.

SA_245632

Call 1800 400 300 for free client information packs or visit our website at www.includeacharity.com.au

COMMUNITY LEGAL PRACTICE Access to Justice, Pro Bono Publico in South Australia & PILCH Part One.

By Cate Edwards & Bronwyn Thomas Law students at Flinders University

INTRODUCTION: ACCESS TO JUSTICE ustice should always be the major concern of any legal system.

Notwithstanding the fact that justice itself is a subjective c on c e pt w hi c h w i l l v a r y depending on each individual’s values and interests they may have at stake, there appear to be definite ideas within our society about how the legal system best promotes a just outcome.

J

Most would agree that a just l egal sy st em i s on e w h ere the laws apply equally and indiscriminately to all persons;[i] where legal disputes are dealt with in a timely and transparent manner ; [ii] and where every person has access to quality legal services regardless of their personal means of wealth.[iii] It is hard to comprehend how there can be justice at all if a people are unaware of their legal rights and cannot access legal advice.[iv] There is certainly no shortage of highly qualified and skilled legal professionals in our community. However, the fact remains that lawyers and courts are expensive.[v] The reality is that personal wealth is a major determinant for people being able to access legal services,[vi] and ultimately has the potential of affecting whether a just outcome is achieved.

16

PRO BONO LEGAL SERVICES AND ROLE THEY PLAY IN IMPROVING ACCESS TO JUSTICE FOR THE COMMUNITY Pro Bono Publico (‘pro bono’) literally translates as ‘for the

w w w w.lawso cietysa.a s n. a u

public good’[vii]and pro bono work carried out by the legal profession has a long tradition in Australia and elsewhere. [v i i i ] There are dif ferent interpretations of exactly what pro bono work entails, but it has been commonly thought of as either legal assistance for those unable to afford ordinary market prices or legal assistance where the case raises issues of public interest. [ix] Arguably any provision of legal ser vices to low income or disadvantaged clients without fee, or for a substantially reduced fee, is in the public interest per se, even if the legal issues do not necessarily raise issues of public interest.

In 1992 the Law Council of Australia settled on a definition of pro bono work to be where a lawyer, without fee or at a reduced fee, advises and/or represents a client in cases where: (a) the client has no other access to the courts and the legal system; and/or (b) the client’s case raises a wider issue of public interest; or ii) the lawyer is involved in free community legal education and/or law reform; or iii) the lawyer is involved in the giving of free legal advice and/or representation to charitable and community organisations. ‘.’[x] This definition of pro bono work is relatively broad and covers work undertaken in a variety of circumstances. For the purpose of this article, any references to pro bono work will include all work within this definition.

In 2003, the Attorney- General, the Honourable Phillip Ruddock, expressed his strong support for the ‘legal profession being involved in pro bono work’,[xi] and drew attention to the important role it plays in the delivery of justice in Australia.[xii] The president of the Law Council of Australia, Bob Gotterson QC, also acknowledged the vital role that pro bono services play in supplementing legal aid, yet stressed that ‘pro bono resources are finite’ and they should not be seen as a substitute for ‘inadequate public funding of the justice system.’[xiii] There appears to be a clear expectation upon the legal profession to provide pro bono legal assistance. This expectation is justified by the fact that access to justice is a fundamental interest for low income earners and disadvantaged people, and also that our legal system is one which is monopolised by lawyers and those who attempt to navigate the system without the assistance of legal professionals are likely to be disadvantaged.

There also appears to be an expectation for the provision of pro bono work from within the profession. Through pro bono work, lawyers are able to develop new areas of expertise and new skills. For commercial practitioners, pro bono work can satisfy the expression of values that possibly directed them into legal careers in the first place. It is a way for the profession to ‘give back to the community and promote social justice.’[xiv]

PRO BONO LEGAL SERVICES: SA BACKGROUND Whatever one’s philosophical, moral, political or sociological stance towards pro bono work may be, the Australian Bureau of Statistics in 2001-02, indicated that the legal profession contributed 2.3 million hours of pro bono work which suggests that the demand amongst the community and the dedication in the profession is out there.[xv] In South Australia, the Legal Services Commission provides a number of free legal advice and referral services to all members of the public, in addition to legal aid for those who pass means testing. [xvi] The Law Society of South Australia also provides support with legal fees for individuals and companies who pass a means and merits test in civil cases through their Litigation Assistance Fund.[xvii] In addition to these services, there are numerous Community Legal Centres throughout South Australia in both rural and metropolitan areas. Community Legal Centres are independent not for profit organisations providing free legal advice, referral, case work and in some cases legal representation to members of the community,[xviii] thus falling within the Law Council of Australia’s definition of ‘pro bono’.

Research was carried out to determine what kinds of ‘pro bono’ work individual Community Legal Centres were undertaking in South Australia, and how the individual centres are run.

The majority of the Community Legal C entres that were contacted offer free advice from legal practitioners or referral to legal practitioners.

Some provide free court representation provided that a matter passes merits and conflict testing, but charge clients for the preparation of court documents.

to justice for disadvantaged persons in our community.

However the resources of these not for profit organisations are obviously very limited and hence it would appear that the likelihood of people in need slipping through the cracks is reasonably great.

The staffing arrangements appear to vary considerably.

Some centres have five, six or seven solicitors employed full time, whereas others had none.

Some have administrative support staff and the degree to which they utilise volunteers varies considerably. A number of the metropolitan centres have outreach programs to people in rural areas, and also provide mediation services to the Adelaide metropolitan region. Several provide evening services one day a week for legal advice and case work.

It would appear that pro bono work in South Australia is possibly being conducted in a fragmented and unstructured w a y, a n d i n 1 9 9 4 a s u b committee of the law Society of South Australia recommended the establishment of a ‘Law Access Scheme’ to coordinate the provision of pro bono legal ser vices by the profession where there was a ‘substantial public interest or justice aspect involved’ or where there were serious consequences for the applicant.[xix] Despite the fact that the scheme was approved, it never took off due to lack of funds to promote, coordinate and control the program.[xx]

The findings from the research indicate that South Australia’s Community Legal Centres are playing a vital role in the delivery of pro bono services and are significantly improving access

PILCH

In the last decade a number of Public Interest Law Clearing Houses (PILCH) have been

established in some Australian states. PILCH essentially op erat e s as a formal pro bono referral scheme to link members of the community in need of legal assistance with members of the profession.

PILCH currently exists in New South Wales, Queensland, We s t e r n A u s t r a l i a n a n d in Vi ctori a , and it has revolutionised the way in which pro bono legal assistance is administered to the community.[xxi] The community and the profession both benefit from the coordinated and formal approach that PILCH takes to the provision of pro bono legal services. The community benefits because a formal scheme with clear eligi bi lity crit eri a ensure greater equity of access.[xxii] The legal profession benefits because this arrangement channels the client’s needs to appropriate legal practitioners with particular interests and skills in certain areas. [xxiii] PILCH is modelled on an organisation founded in the 1970’s in the United States k n o w n a s t h e “ N e w Yo r k

Lawyers for the Public Interest’ (NYLPI). [xxiv] The NYLPI was developed during the civil rights movement of the 1960’s and 1970’s where previously marginalised sections of American society, i.e. racial and ethnic groups, women and the poor, were having their rights addressed.[xxv] The NYLPI combines the pro bono activities of major law firms and companies’ legal departments with a public interest practise staffed

by NYLPOI lawyers.[xxvi] As w e l l a s pro v i di n g dire c t representation to clients, the NYLPI also provides a ‘clearing house’ function by recruiting, screening and referring requests for pro bono legal assistance to member law firms and corporate legal departments. [xxvii]

VICTORIA’S PILCH Any following references to PILCH are based upon the Victorian model only.

Th e majority of m emb ers involved with PILCH comprise private law firms, the

COMMUNITY LEGAL PRACTICE Access to Justice, Pro Bono Publico in South Australia & PILCH Part One.

Victorian Bar, corporate legal departments, community legal centres and university law faculties. The support by members varies from purely monetary to accepting referrals from PILCH for legal assistance.

The Victorian PILCH administers the following four schemes: 1. The Public Interest Law Scheme: This Scheme provides assistance to community groups, not-for-profit organisations and individuals who raise legal issues of public interest and are not eligible for a grant of legal aid or have insufficient means to afford legal assistance and/or representation. However assistance is only granted where the legal issue affects a significant number of people, the general public at large or has an impact upon disadvantaged or marginalized groups.

2. Victorian Bar Legal Assistance Scheme: Cases which necessitate the need to retain a barrister may be referred to this Scheme. 400 barristers offer their skills and expertise to eligible clients for a reduced

Hanover. Private law firms and legal departments throughout Victoria provide their services and are responsible for the provision of assistance to one or two of the host organisations weekly. Bill Manallack was the manager of The Big Issue and was heavily involved in setting up the first Clinic in Victoria.

fee or in certain cases for free. The Scheme was established to assist those who are ineligible for legal aid but have a meritorious case and are unable to gain the appropriate assistance via other legal schemes as the specialised assistance of a barrister is required 3. Law Institute of Victoria Legal Assistance Scheme: Access to justice is provided to the public at large who do not have the means to retain a solicitor, have a meritorious case and cannot access appropriate legal assistance from other departmental bodies or community based organisations. The Scheme refers clients to firms within the private legal profession therefore making pro bono services more easily accessible for the public.

In the next edition of the Bulletin the authors conclude by examining specific South Australian pro-bono legal services such as the Adelaide Housing Legal Clinic and the Homeless Persons Legal Advice Clinic. They also examine the call for a PILCH-type structure overseeing these South Australian agencies which could then coordinate the growing enthusiasm and support for pro-bono initiatives.

[ix]

[x]

[xi]

[xii] [xiii]

[xiv]

[xv]

[xvi]

[xvii]

[xviii]

[xix]

4. Homeless Person’s Clinic: The Clinic was established in October 2001 and provides legal assistance to the homeless or those at risk of becoming homeless.

This assistance is provided directly to the clients via host organisations. Several of the host organisations include Melbourne Citymission, The Big Issue, Anglicare, Urban Seed and

Cate Edwards & Bronwyn Thomas are law students at Flinders University. [i]

[ii] [iii] [iv] [v] [vi] [vii]

[viii]

Kathleen Mc Evoy, ‘Access to Justice’ (2005) 17 LegalDate, 1,2.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Jill Anderson and Gordon Renouf, ‘Legal Service for the Public Good’ (2003) 28 Alternative Law Journal, 13, 13.

Jill Anderson and Gordon Renouf, ‘Legal Service for the Public Good’ (2003) 28 Alternative Law Journal, 13, 13.

[xx] [xxi]

[xxii]

[xxiii] [xxiv]

[xxv] [xxvi] [xxvii]

Jill Anderson and Gordon Renouf, ‘Legal Service for the Public Good’ (2003) 28 Alternative Law Journal, 13, 14.

Margaret Camilleri Project Officer: Voluntas: Pro Bono Secretariat National Community Legal Centre conference 2nd – 4th September 2002 – Melbourne, ‘Will the Real Pro Bono please stand up?” (http:// www.naclc.org.au/docs/Real_ProBono_ Stand_Up.pdf) at 10 May 2007.

National Pro Bono Resource Centre, ‘Opening Remarks (by video) the Hon Phillip Ruddock, Attorney- General of Australia.‘(presented at the 2nd National Pro Bono Conference, October 2003) 7.

Ibid 9.

National Pro Bono Resource Centre, ‘let me give you a bit of free advice… Bob Gotterson Qc, President, Law Council of Australia.’ presented at the 2nd National Pro Bono Conference, October 2003) 10.

Deborah L Rhode, Pro Bono in Principle and in Practice (2005) 30.

National Pro Bono Resource Centre, ‘let me give you a bit of free advice… Bob Gotterson Qc, President, Law Council of Australia.’ presented at the 2nd National Pro Bono Conference, October 2003) 11 Legal Services Commission of South Australia, Legal Advice Service (http:// www.lsc.sa.gov.au/legal_advice.asp) at 7 May 2007 Law Society of South Australia, Litigation Assistance Fund, <http://www. lawsocietysa.asn.au/community/laf.htm> at 7 May 2007 South Australian Community Legal Centres, Accessible and professional Legal Services for the Community: What we do, (http://www.saccls.org.au/?check=1) at 7 May 2007.

John Harley, ‘Moves on Law Clearing House’ (1998) March, Law Society Bulletin, 6, Ibid.

Samantha Burchell and Emma Hunt, ‘From Conservatism to Activism: The evolution of the Public Interest Law Clearing House in Victoria’ (2003) 28 Alternative Law Journal, 8.

John Harley, ‘Moves on Law Clearing House’ (1998) March, Law Society Bulletin, 7.

Ibid 7.

Samantha Burchell and Emma Hunt, ‘From Conservatism to Activism: The evolution of the Public Interest Law Clearing House in Victoria’ (2003) 28 Alternative Law Journal, 8,9.

Ibid.

Ibid.

Ibid.

Email Contact For Supreme Court Chambers: Please be advised that the Chambers of all Supreme Court Judges may now be contacted via the following email addresses:

18

chambers.doyle@courts.sa.gov.au chambers.duggan@courts.sa.gov.au chambers.debelle@courts.sa.gov.au chambers.nyland@courts.sa.gov.au chambers.bleby@courts.sa.gov.au chambers.gray@courts.sa.gov.au chambers.sulan@courts.sa.gov.au chambers.vanstone@courts.sa.gov.au w w w w.lawso cietysa.a s n. a u

chambers.anderson@courts.sa.gov.au chambers.white@courts.sa.gov.au chambers.layton@courts.sa.gov.au chambers.david@courts.sa.gov.au chambers.kelly@courts.sa.gov.au The above addresses are intended for communication directly with Judge’s Chambers e.g. for providing outlines of argument and lists of authorities prior to hearings, or for communicating with the Judge’s Associate. Any documents required to be filed under the Rules of Court must be filed in the appropriate Registry.

2007 Federal High Court Reception Adelaide Town Hall 8th Lord Mayor Michael Harbison hosted O na August Civic Reception in the Adelaide Room of the Town Hall to honour the Federal High Court Justices and the Courts annual visit to South Australia. The evening function was well attended by representatives of the local judiciary, legal profession and guests.

19

September 2007

Law Claims will not be producing a Riskwatch article this month. Instead we have dedicated this section to a brief thank you and farewell to Mrs Janet Grundy who resigned as Director of Law Claims and has taken up a senior appointment with the University of Adelaide.

By Tracey Nelson

JAN GRUNDY: ‘A DECADE OF DEDICATION’

Insurance Scheme, Brokers, Un d e r w r i t e r s , L a w g u a r d Management and most importantly members of the profession who have relied upon her advice, leadership and superior understanding of the insurance scheme and management of notifications and claims. This is evidenced by th e pl ethora of card s and good wishes Jan has received from members of the profession since her resignation was announced.

Jan Grundy, Director, Law Claims, 2001 -2007. you place your hand W hen into a bucket of water and remove it, no one will ever know that it had been there”.

20

This is often said of employees who leave a workplace to take up employment elsewhere.

Indeed it is true that no one person is indispensable, but there are occasions however when the departure of one creates ripples that are felt by a large circle of individuals and organisations. This can be said w w w w.lawso cietysa.a s n. a u

of Jan Grundy who leaves Law Claims after a decade of d e d i c a t e d s e r v i c e . Ja n’s departure will leave a huge gap and her contribution over the years an indelible mark.

Jan has given so much to the Law Society of South Australia and Law Claims in particular. Her departure represents an exciting time for Jan professionally, but will be felt by Law Claims staff, the Professional Indemnity

Jan commenced at Law Claims in 1997 as senior solicitor under the Directorship of Ms Carolyn Richards. Jan’s appointment at Law Claims coincided with the Lawguard initiative of Law Claims changing from operating as a claims handling agency to the expansion of an in-house claims resolution program with all the administrative details which this entails. In 1997 Risk Management programs also began in earnest as did the formal appointment of the Panel Solicitors. During these early days of the Scheme, not only was the work challenging, so too were the surroundings!

Jan recounts that in the early days of her employment at Law Claims her office was a converted cupboard.

When asked to describe the decade spent as senior solicitor and th en D ire ctor of L aw Claims, Jan’s overwhelming sentiment was that “we have

always been in a constant state of flux”. This is due in part to the nature of claims work; it is also due in part to the influences of the external insurance market.

The Professional Indemnity Insurance Scheme was witness to and affected by the collapse of HIH in 2000 and the consequent reduction in the number of insurers in the market place and the inevitable hardening of the insurance market. The net result of these significant events meant that Law Claims and Lawguard had to work very hard to ensure premiums did not sky rocket. It was during this difficult period in 2001 that Jan moved from being Deputy Director to Director.

Jan’s term as Director of Law Claims commenced against a backdrop of the “professional indemnity insurance crisis” fuelled by the collapse of HIH and the devastating events subsequent to 911.

Jan’s extensive experience in insurance litigation as a partner at Thomson Simmons and Co ( later Thomsons) prior to commencing at Law Claims no doubt contributed to the efficient in-house management of claims, clarity of understanding of insurance and reinsurance issues and the continuing good rapport had with practitioners when notifying claims or potential claims.

In addition to providing ongoing claims management support and direction , Jan has also been involved with many of the key changes to the structure and operation of the legal profession’s Professional Indemnity Insurance Scheme in South Australia.

These changes include: • The increase of the Professional Indemnity Fund deductible to $200,000 with the support of Underwriters beyond the retained limit.

• The introduction of the $1.5 million aggregate sum insured.

• Altering the insurance year to fall in line other jurisdictional schemes • Managing exposure to insolvent insurers and liaison with liquidators including the introduction of a new provision enabling the Professional Indemnity Fund to make payments not made by insolvent insurers

the Law Claims team: Jessica Guare; Anita King, Nicolle Jardine; Jan Grundy; Ricky Kilpatrick; Tracey Nelson and Jodie James Jan has al s o b e en actively involved in national issues and initiatives including: • Dealing with the Financial Services Reforms and its impact upon the Scheme.

• Interfacing with peak bodies including APRA and ASIC • Development of national practice issues including

interstate risk sharing, assisting in the Model Laws Project Jan has been a key participant in national initiatives relating to insurance, claims and risk management for the legal profession.

As Jan said during her farewell morning t ea on h er f inal working day “I came for a year

and stayed for ten”. There may be some guests who would have outstayed their welcome at this point, but Jan’s intellectual c ontri bution , know l edge, integrity and unspoken kindness and concern for her staff at Law Claims are attributes which will make Jan remembered with great respect and fondness for many years to come.

Do you want to know who the father is?

Medvet is South Australia’s Accredited DNA Parentage Testing Laboratory t Accredited to forensic standards, Medvet DNA testing provides conclusive results t Medvet reports are accepted in the Family Law Court of Australia and by the Registry of Births, Deaths and Marriages t Clients can provide samples at convenient regional and national collection centres t Samples are taken via a painless mouth swab, blood samples are not required t Reports are available within ten working days t Other DNA tests include – pre-natal parentage testing, deceased estates, twin testing (zygosity), and maternity testing t Medvet also provides Drug Testing, Food Analysis, Pathology and Medical Services

Free call — 1800 MEDVET (63 38 38)

e-mail — dna@medvet.com.au

ANTI-MONEY LAUNDERING: WHY YOU NEED TO ACT NOW…

By Peter Nguyen and Stephanie Rowland

Stephanie Rowland

Peter Nguyen

BACKGROUND ollowing the September 11 b ombin gs, authorities embarked on extended investigations into the underlying causes of the terrorist attacks including how the attacks were made p o ssi bl e. Th e se various investigations identified the use of laundered money as a component of facilitating t errori st activ ity. It i s estimated that up to $4.5 billion of laundered money is passed through the Australian economy each year[i].

F

22

In response to these findings, anti-money laundering legislation was strengthened around the world beginning with the USA Patriot Act of 2001. (The USA Patriot Act of 2001 itself is interesting, if for nothing more, then the fact it is an acronym for the long title of the act - “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”). The European Parliament followed suit via Directive 2001/97/ EC which, amongst other legislation, led to the adoption in the United Kingdom of the Money Laundering Regulations 2003. Other jurisdictions to revise their anti-money laundering legislation include Canada and New Zealand.

The Commonwealth government has legislated to bring Australian anti-money laundering laws into line with international standards w w w w.lawso cietysa.a s n. a u

Peter Nguyen is a Senior Analyst at Deloitte and specialises in the area of Anti-Money Laundering. Stephanie Rowland is a Senior Associate at Thomson Playford Lawyers and works for their Corporate division. laid down by the Financial Action Task Force on Money Laundering (“Task Force”), an inter-governmental body comprising of 33 member countries and organisations.

The standards are based on the ‘40 recommendations’ made by the Task Force and the related nine special recommendations on terrorist financing that were made in the period following the September 11 terrorist attacks.

The Anti-Money Laundering and C o u n t e r -Te r r o r i s m Financing Act 2006 (the “AML CTF Act”) received royal assent on 12 December 2006 with the related Anti-Money Laundering and C o u n t e r -Te r r o r i s m Financing Rules (the “AML CTF Rules”) coming into force on 12 June 2007.

T h e A t t o r n e y - G e n e r a l ’s Department has commented that “The reforms ensure that the Australian financial sector and related businesses are able to compete in other countries that have implemented the Task Force standards and will enhance the international reputation of individual companies and the Australian financial market in general”[ii].

These reforms are to be rolled out in two tranches. The first tranche, already in place, covers the financial services sector, bullion dealers, and the gambling industry.

providing a designated service when providing ordinary legal services. For example, lawyers may technically be providing a designated service by providing the following services:

The second trance, currently being developed, will cover a broader range of activities including those of real estate agents, lawyers, accountants and jewellers and will focus more closely on the small business sector.

• safekeeping services for important documents; and

WHAT THIS MEANS FOR LAWYERS First tranche Lawyers should be aware that they will be directly affected by the first tranche to the extent that they are providing services in direct competition to the financial sector. Such services may include, for example, acting as an agent of a person to acquire or dispose of a security [iii].

Where lawyers provide such services they will need to ensure they meet any new compliance requirements generated by the AML CTF Act. The Law Council has recently voiced concern to AUSTRAC that lawyers will be classified as

• transferring funds on behalf of clients.

It is unlikely that the Commonwealth government intended to capture such activities in the first tranche of the reforms. As a result, the Law Council has sought an exemption from AUSTRAC that excludes the AML CTF Act from applying to “a designated service which is provided as a legal service by a law practice”.

Second tranche Lawyers, notaries, other independent legal professionals and accountants are only likely to come within the scope of second tranche of the AML CTF Act as designated nonfinancial professions. The Explanatory Memorandum for the AML CTF indicates that this will be limited to preparing for or carrying out transactions concerning the following:

"It is estimated that up to $4.5 billion of laundered money is passed through the Australian economy each year."

to report physical currency movements to $11 million for incorporated entities that provide false or misleading information to AUSTRAC. Imprisonment penalties can be up to 10 years. This compares with a maximum penalty of 25 years imprisonment and 1500 penalty units for an actual act of money laundering.

As the legislation is newly enacted, there have been no reported cases to indicate the severity of penalties in Australia.

However some examples from the UK experience have indicated the hard line approach that regulators have taken.

• buying and selling of real estate; • managing of client money, securities or other assets; • management of bank, savings or securities accounts; • organisation of contributions for the creation, operation or management of companies; and • creation, operation or management of legal persons or arrangements, and buying and selling of business entities.

The draft designated services to for the second tranche, released on 13 July 2007, provide more specific details on the areas identified in the explanatory memorandum. By way of example, some proposed designated services include: • Making arrangements or preparations in connection

with the sale or purchase of a business • Making arrangements or providing advice on behalf of the promoters of a new company in relation to the formation of the company • Making arrangements or providing advice on behalf of the promoters of a new company in connection with equity finance or debt finance for the new company • Making arrangements or providing advice in connection with the creation of a trust or partnership • Providing a registered office, business address, business accommodation, correspondence address or administrative address It should be noted that he Task Force requires the obligations on lawyers and accountants to apply to professionals who are

sole practitioners, partners or employed professionals within professional firms but not to “in-house” professionals who are employees of other types of businesses, nor to professionals working for government agencies[iv]. This is because their employer are already likely to be subject to money laundering measures.

As the Commonwealth government has only drafted the second tranche, there is as yet, no definitive position.

What is clear is the intent of the legislators to bring some key services offered by lawyers within the scope of AML/CTF Act. PENALTIES AND ENFORCEMENT Penalties under the AML/CTF Act are severe and include imprisonment and fines, or both. Maximum fines range from $240 infringement notices for minor instances of failing

The Royal Bank of Scotland was fined £750,000 for failing to have adequate Anti-money laundering controls in place. It was interesting to not that the regulatory body, the Financial Services Authority, comments: “The good news in this case is the prompt and effective way in which the shortcomings were addressed once senior management became aware of them. As a result of this, and RBS’s open and constructive a p p r o a c h t o t h e F S A’s investigation, the fine imposed is very substantially lower than it otherwise would have been.

The other good news is that there is no evidence of actual money laundering having taken place” [v] Other major fines for failure to have adequate Anti-Money Laundering controls include Abbey National[vi] (£2 million) and Bank of Irel and [v ii] (£375,000).

23

It should also be noted that the FSA has been willing to impose fines on senior management as in the case of Investment Service UK Limited, where the

September 2007

ANTI-MONEY LAUNDERING: WHY YOU NEED TO ACT NOW… firm was fined £175,000 and the Managing Director, Ram Melwani was also personally fined £30,000[viii].

Whilst in the case of R v McC a r t a n [i x] , a s o li citor was imprisoned for a failure to di sclo se a su spicious transaction.

A grace period of 18 months is provided for in the legislation h ow e v er AU ST R AC h av e indicated that reporting entities will need to show effort of compliance with the legislation for fines to be remitted[x].

AUSTRAC Chief Executive Neil Jensen has provided insight into AUSTRAC’s (the regulator) approach to compliance: “If there are issues, we need to know about them and we’ll

attempt to resolve those issues in whatever way we can … If it’s just purely ‘we don’t want to do it’, then obviously the approach will be more stringent”[xi] Jensen has also said: “If … there are recalcitrant reporting entities, we do have the powers to take matters further. It is focused on risk.

If they are going to abuse that, well then all of these [enforcement] provisions will come into effect”[xii].

WHAT SHOULD YOU BE DOING NOW? There is much to be done to prepare for the impact of the AML CTF Act on your practice.

In particular, the following ke y activ iti e s shoul d b e undertaken:

Magistrates Positions The Hon. Michael Atkinson, Attorney-General invites expressions of interest from legal practitioners of at least five years’ standing for consideration to be appointed to the magistracy, for full-time or part-time Magistrates.

Expressions of Interest should be forwarded with 3 copies of your curriculum vitae to:

24

Magistrates Position Attorney-General’s Office GPO Box 464, ADELAIDE SA 5001 And marked ‘Confidential’ Expressions of Interest should be received no later than w w w w.lawso cietysa.a s n. a u

close of business 15 October, 2007 and should include: • the names of three referees; • an undertaking to adhere to the guidelines for judicial conduct promulgated by the Council of Chief Justices; • an undertaking to participate in such after hours telephone rosters as are established by the Chief Magistrate; and • an undertaking to serve, if required, at a country location for a period and at a time directed by the Chief Magistrate.

Any eligible practitioner who has previously sought consideration may again forward an expression of interest.

• Become familiar with the AML framework and the AML CTF Act, not only to advise clients, but also to understand where you may come within the scope of the AML CTF Act.

[i]

• If you are providing financial services, assess whether you are meeting the current requirements of the AML CTF Act.

[iv]

[ii]

[iii]

[v]

[vi]

• Begin considering how you are going to meet the compliance requirements when the second tranche has the force of law. This will almost certainly require a dedication of resources to tackle issues such as conducting a risk assessment of your practice, improving customer identification processes and training of staff.

Annual General Meeting Law Society members are advised that the Annual General Meeting of the Law Society will be held at Law Society House, 124 Waymouth Street, Adelaide on Monday 22 October, 2007 at 5.15 pm AGM and election information and nomination forms have already been for warded to members.

Nominations for Of ficebearers and designated positions on Council have now closed.

[vii]

[viii]

[ix] [x]

[xi]

[xii]

Attorney General’s Department Fact Sheet – Why are Anti-money laundering and Counter terrorism financing reforms required?

Attorney General’s Department Fact Sheet – Why are Anti-money laundering and Counter terrorism financing reforms required?

Item 33 of Table 1, Section 6 of AMl/ CTF Act 2006 Financial Action Task Force on Money Laundering – the Forty Recommendations, 22 October 2004, Page 12 Financial Services Authority FSA/ PN/123/2002 Financial Services Authority FSA/ PN/132/2003 Financial Services Authority FSA/ PN/077/2004 Financial Services Authority FSA/ PN/117/2005 [2004] NCIA 43 ‘Banks Face Terrorism Crackdown’, The Australian Financial Review, 12 July 2007 ‘Banks Face Terrorism Crackdown’, The Australian Financial Review, 12 July 2007 ‘Banks Face Terrorism Crackdown’, The Australian Financial Review, 12 July 2007

Free Bequest Packs Available: Include a Charity are of ferin g l aw yers fre e bequest information packs for display in their offices, designed to initiate conversation with clients about including a charity in their will.

These packs can be ordered by calling 1800 400 300.

Web Watch Clearly the Internet has had a most profound effect on how we not only gather information but interpret it both socially and professionally. The Bulletin now introduces a new column, Web Watch, to highlight online legal resources of note, with special application to Australian and overseas law.

To suggest a legal site or blawg of interest please forward details to bulletin@lawsocietysa.asn.au Portals: www.worldlii.com - In the vein of AustLii – Worldlii and its regional counterparts are invaluable for links or full text legislation databases for literally hundreds of countries. www.weblaw.edu.au - This site, Weblaw, is a collaborative project maintained by various universities, which provides a subject gateway to resources for Australian legal researchers.

Incredibly impressive expanse of legal areas covered as well as publications links.

www.glin .gov – The Global Legal Information Network site is a ‘public database of official texts of laws, regulations, judicial decisions, and other complementary legal sources contributed by governmental agencies and international organi zations’ und er th e coordination of the Library of Congress Local: www.slsa.sa.gov.au/legislation_ index - Subject Index to South Australian Legislation - A comprehensive SA site that is a collaborative effort of the South Australian Division of

the Australian Law Librarians’ Association. This index to the subject matter of South Australian legislation is primarily an index to the principal public Acts of South Australia. Acts of local or restricted application and private Acts have only been indexed at a minimal level.

Links are provided from the Act titles to the legislation on the SA Attorney-General’s: ‘South Australian Legislation’ web site at www.legislation.sa.gov.au Overseas: www.thomas.loc.gov - The

Thomas site provides access to US legislation and is an initiative of the Library of Congress Resources: www.babelfish.altavista.com – When sourcing overseas legislation Hitch Hikers Guide/ Douglas Adams fans will instantly be enamored to this site as it provides an instant and admirable online foreign language translation. Simply cut and paste your foreign text. Select the ‘from’ and ‘to’ languages, and the page is translated.

Jirga’s and jingle trucks: Running a legal aid centre in Kabul.

By Sarah Callaghan, Norwegian Refugee Council, Kabul

South Australian lawyer, Sarah Callaghan, who now works with the Norwegian Refugee Council in Kabul this month reports on how the NRC in Afghanistan provides legal assistance to refugee-returnees and Internally Displaced Persons.

The Author in Afghanistan he Norwegian Refugee Council (NRC) provides a busy Information, Counselling and Legal Aid program based in Kabul, where I work as Project Coordinator. Our program in Afghanistan provides legal assistance to refugee-returnees and Internally Displaced Persons (IDP’s) on obstacles to their return and resettlement. Mostly these are property related problems although we also have some water, family and money recovery cases. Based in Kabul we employ about 40 Afghan lawyers who provide legal advice, representation at court and primarily work with the informal justice system to resolve disputes through ‘jirgas’.

I

One of my favourite memories of my time in Afghanistan so far was attending a traditional dispute resolution forum (jirga) with my Afghan colleagues to discuss a water rights case involving over 1500 families.

26

The dispute was between two villages of different ethnicities, one of which is mostly refugeereturnees. The refugee village downstream claimed that the local commanders from the w w w w.lawso cietysa.a s n. a u

village upstream were restricting access to water during the summer. Several children died in this village last summer because of a lack of access to potable water and health services and hundreds of people had returned to Pakistan.

My Afghan colleagues had urged the parties in the above case to hold a ‘jirga’ and about 50 elders of the two villages met in the local district school building to discuss the problem.

My colleagues outlined the relevant sharia law, gave advice and kept discussions focused on resolving the dispute. After a series of such meetings the parties agreed to approach the District Governor for help in widening the river so there would be a greater flow of water and to appoint water representatives who would monitor usage and be the focal point for any discussions or problems.

with NRC since August 2006.

NRC is a NGO with 60 years experience of working with refugees and IDPs worldwide.

In Afghanistan we have 7 offices across the country and are the only civil legal aid provider.

I manage the legal aid office in Kabul , w hich involves monitoring the substantive work of the staff as well as all logistical, financial, administrative and security matters. Of the lawyers in the Kabul office all 5 women are former judges and the 2 men are a former prosecutor and an anti-corruption commission lawyer.

Our lawyers have a great reputation and I believe that is because they work with

the people to obtain practical resolution to problems through a mechanism they know and trust. They also have the luxury of not being corrupt as our services are free, and most of them were refugees themselves so understand the difficulties their clients are facing.

Another memory that will stay with me is visiting the encashment centre. This is where the returnees come after they have crossed the border from Pakistan, to register with the UN High Commission for Refugees (UNHCR) and collect their entitlements. The refugees arrive exhausted after their journey in ‘jingle trucks’ loaded with their possessions. The trucks are so-called because they are covered in murals

Although discussions about reconstruction are ongoing and it will take time to see how these villages work together during the drier summer months, it is rewarding to see my Afghan legal colleagues help these villages resolve a problem fundamental to their survival and coexistence. It is witnessing moments like these that make up for the lack of personal freedom and unbelievably cold winters that go hand in hand with living in Afghanistan.

I have been in Afghanistan since Februar y 2006 and working

NRC colleagues on one of the Bamian Buddhas destroyed by the Taliban

painted in bright colours and decorated with bells and threads of metal that jingle as they slowly make their way across the potholed roads of the region.

At the encashment centre the families are registered with the UN and receive a cash allowance to assist them with return. They also receive vaccines and medical checks for the children, information about land mines and information from NRC about how we can help if they have legal problems.

We also link our clients to social services such as medical help, shelter projects, vocational training programs, employment and assistance with getting documents authorized by government agencies.

The families of often up to 30 look exhausted after their journey with still days to go to reach their home village. Yet they wait patiently and are grateful for the advice and assistance that our counselors can give them.

Watching my colleagues talk to these returnees with compassion and understanding and seeing how their knowledge and advice can help them makes me feel privileged to be involved in such

A village on the road to Kabul a project. I go back to the office with a greater understanding of the problems facing returnees and a new determination not to get frustrated by the delays, misunderstandings and lack of capacity issues that face me daily.

Despite the work of many national and international organizations, the overall capacity of the justice sector in Afghanistan is still weak,

10th Annual Hawke Lecture: Consensus revisited?

A decade of Annual Hawke Lectures.

As the only civil legal aid provider we are in a unique position and have developed strong relationships with local authorities and communities across the country. If you are int ere st ed in f indin g out more about NRC’s legal program, or NRC local salary sponsorship partnerships with your firm that will help to rebuild the Afghan justice system, please contact me on ICLA.PCAf1@nrcafpk.org

Examining consensus and dissent in Australia This year’s Hawke Lecturer, Justice Kirby, has the highest dissenting rate in the history of the High Court, even outflanking the dissents of Justice Issacs, Justice Evatt and Justice Murphy.

In his Hawke Lecture, Justice Kirby will explore consensus and dissent in society. When is it appropriate, in the law and in the community, to seek agreement? And when do we have to stand up and disagree?

By reference to law and life, the tenth Annual Hawke Lecture will examine consensus and dissent in Australia.

Admission FREE Adelaide Town Hall Wednesday 10 October 2007, 5.15 for 5.30pm Don’t miss the future – register now.

8302 0215 or online at www.hawkecentre.unisa.edu.au

Experience. The Difference.

2148D_LSB CRICOS PROVIDER NO 00121B

To be delivered by The Hon Justice Michael Kirby AC CMG.

with limited resources and infrastructure particularly outside Kabul. NRC is working to build the capacity of the justice system in various ways.

For example, we hire law students to work in our legal aid centers to gain practical work experience, we train elders and government officials in property law and we are encouraging development of the profession by helping our staff to improve their skills and networks.

HREOC case spotlight Lee v Smith & Ors [2007] FMCA 59 (‘Lee’), A new direction in vicarious liability?

Employer held responsible for rape committed by an employee

By Alex Newton, Human Rights & Equal Opportunity Commission

he Federal Magistrates Court’s recent decision in Lee v Smith & Ors [2007] FMCA 59 (‘Lee’), confirms the broad scope for an employer to be held vicariously liable under Federal discrimination laws for acts of their employees occurring outside the workplace.

are liable for the unlawful actions of an employee carried out ‘in connection with the employment of the employee’.

An employer can avoid liability if it is able to establish that it had taken ‘all reasonable steps to prevent the employee ... from doing acts of the kind referred to’.[ii]

S attended an after-work dinner party at the home of two colleagues, also employed by the Australian Defence Force (‘ADF’). Ms. L became intoxicated at the dinner and passed out. When she woke up the next day, she was in S’s house and he was sexually assulting her.

Thi s case i s par ticul arly significant given the nature of the act for which the employer was held vicariously responsible (a crime – rape) and the context in which the act occurred (a private, social function).

The decision in Lee

The Court’s finding that the dinner itself would not have occurred but for the collusion with Smith of his ADF colleagues, was also significant to its conclusion that the rape occurred ‘in connection with’ Ms. L’s employment and, accordingly, that the Commonwealth was vicariously liable.

T

Lee demonstrates that the vicarious liability provisions under the Sex Discrimination Act 1984 (Cth) (‘SDA’) are much wider than those at common law.

Accordingly, in cases of sexual harassment and discrimination, a lower standard will apply to establish a connection between an employee’s actions and their employment.

Section 106 of the SDA Sections 28A and 28B of the SDA make sexual harassment in employm ent unl aw ful , including sexual harassment of one employee by a fellow employee (s 28B(2)). Sex discrimination is also prohibited under s 5 of the SDA.

28

Section 106 of the SDA makes employers vicariously liable for the actions of their employees in certain circumstances. [i] Under s 106(1), employers

w w w w.lawso cietysa.a s n. a u

In Lee, Federal Magistrate Connolly found the Commonwealth (through the agency of the Department o f D e f e n c e) v i c a r i o u s l y liable under the SDA for the rape, sexual discrimination, harassment, and victimisation of CL, a civilian administration officer at a Cairns naval base.

O v er a p er i o d of s e v e ral months, Ms. L was sexually harassed by naval officer Mr S. Mr. S repeatedly intimidated her with inappropriate and offensive comments. After Ms. L demanded that these activities cease, Mr. S stopped harassing her for about two weeks.

Around this time, Mr. L and

While the Commonwealth attempted to rely on the defence under s 106(2), that it ‘took all reasonable steps to prevent’ S’s conduct, this defence failed.

The Court found that, while the ADF had comprehensive equity and diversity guidelines in place, these were not followed. In addition, the ADF’s gross mismanagement of L’s complaint, and the fact

that she had not received any training on equal employment opportunity during the period of h er employm ent, w ere factors considered by the Court in rejecting this defence.

Vicarious liability under common law A general principle of torts is that an employer will only be responsible for the actions of an employee which occur during the course of their employment. Accordingly, to establish vicarious liability, there must be a sufficiently strong nexus between the act and the employment to prove that the employee was not merely off ‘on a frolic of their own’.[iii] In South Pacific Hotels Pty Ltd v Trainor,[iv] a case which also involved sexual harassment, the common law doctrine of v i car iou s li abi lity w a s contrasted with the provisions under the SDA. In this case, the Court adopted an expansive interpretation of the phrase in s 106(1), ‘in connection with the employment of the employee’.

"Lee demonstrates that the vicarious liability provisions under the Sex Discrimination Act 1984 (Cth) ('SDA') are much wider than those at common law."

"The broad operation of s 106(1) of the SDA means that the employers must be vigilant in preventing and policing such conduct wherever it arises."

While both employees were off-duty, one employee sexually harassed another late at night in accommodation provided (an d c ontro l l ed) by th e employer. Finding that there was a sufficient connection between the acts of the harasser and his employment, the Court held the employer liable for the employee’s actions.

Similarly, in McAlister v SEQ Aboriginal Corporation,[v] the Court held that the words ‘in connection with’ in s 106(1)

sho ul d b e g iven a more expansive meaning than that given to phrases such as, ‘in the course of ’ or ‘in the scope of ’.[vi] In this case, VM was sexually harassed by lawyer CL when he went to her home to provide her with legal services in relation to her divorce. Even though L was a lawyer with an Aboriginal legal service and, as a non-Aboriginal, M was not eligible to receive the organisation’s assistance, the Court found that L’s acts were sufficiently connected to his

employment to bring them within s 106(1). However, after making out a defence under s 106(2), the employer was not held vicariously liable in this case.

Applying the common law test of vicarious liability, it seems highly unlikely that the Commonwealth would have been held liable for the rape in Lee. However, applying the much broader provisions set out in the SDA, the Court reached the opposite conclusion.

What are the implications for employers?

Lee provides guidance on the extent to which an employer may be held vicariously liable for the sexual discrimination and/or harassment of one employee by another, occurring beyond the workplace. The broad operation of s 106(1) of the SDA means that employers must be vigilant in preventing and policing such conduct wherever it arises. [i]

[ii] [iii]

[iv] [v] [vi]

Section 106 also applies to relationships of principals and agents.

Section 106(2) SDA. F Trindale & P Cane, The Law of Torts in Australia (3rd ed), Oxford University Press, Oxford (1999), p735.

(2005) FCAFC 130.

[2002] FMCA 109.

McAlister v SEQ Aboriginal Corporation [2002] FMCA 109 at 135.

LAW SOCIETY CONTACTS

This issue of The Law Society of South Australia: Bulletin is cited as (2003) 25(7) LSB(SA). ISSN 0157-8952 EXECUTIV E MEMBERS President: President-Elect: Vice-President: Treasurer: Immediate Past President: LCA Director: Council Members:

MJ Kelly GK Feary JR Goldberg RP Mellows DJ Eszenyi AJ Ward TJ Mellor R Bonig

GENERAL COUNCIL MEMBERS AM Brookman DA Sheldon JL Schammer PI Boylan TM Rymill CM O’Connor MF Crichton MW Henderson SG Henchliffe G Davis

CM Parsonage GC Anderson JR Goldberg The Hon. MJ Atkinson MP RK Genders JB Jarvis SD O wer CJ D’Arcy SK Rowland R Owens

Executive Director Jan Martin jan.martin@lawsocietysa.asn.au Director of Business Operations Stephen Hodder stephen.hodder@lawsocietysa.asn. au Manager (Finance) Ciro Pipolo ciro.pipolo@lawsocietysa.asn.au Member Services Manager Michelle Griffith michelle.griffith@lawsocietysa.asn.au Legal Practitioner’s Registrar David Milne david.milne@lawsocietysa.asn.au Director (Prof. Standards) Denise Watkinsdenise.watkins@lawsocietysa.asn.au

Director (Law Claims) Manager (LAF) GDLP Course Director Manager (Education) Librarian

Jan Grundy jgrundy@lawguard.com.au Mary Walters mary.walters@lawsocietysa.asn.au Sophia Lemke sophia.lemke@lawsocietysa.asn.au Graham Joblinggraham.jobling@lawsocietysa.asn.au Lorna Hartwell lorna.hartwell@lawsocietysa.asn.au

THE BULLETIN

PUBLISHER/ADVERTISER

Editor

Published monthly (except January) by:

Nick Ramage Email: nick.ramage@lawsocietysa.asn.au

Editorial Committee G Canny B Krupka R Spencer T Roccisano

D Crocker J Martin K Gluche I Bosio

L Detmold J Emerson E Olsson (Chair) M Senior S Kljun M Kaukas

The LAW SOCIETY BULLETIN is published monthly (except January) by: The Law Society of South Australia, 124 Waymouth Street, Adelaide. DX 333 Ph: (08) 8229 0222 Fax: (08) 8231 1929 Email: bulletin@lawsocietysa.asn.au All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.

Publisher Boylen Publishing Production Manager: Cindy Ridgwell Graphic Designer: Aaron Vander Wyst 1 Richmond Road (2nd building), Keswick SA 5035.

PO Box 70, Marleston SA 5033.

Ph: (08) 8233 9433 Fax: (08) 8351 5633 Email: admin@boylen.com.au Advertising Nadine Hardwicke Email: nhardwicke@boylen.com.au Printer

29

Lane Print Group 101 Mooringe Ave, Camden Park SA 5038.

Ph: (08) 8376 1188

Views expressed in the Bulletin in its ‘Opinion’ column and advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions.

September 2007

Bookshelf CREATIVE PRACTICE AND THE LAW

By M Leiboff, Thomson Lawbook 2007, PB $69.95 Abstract from Thomson Lawbook his book explores the relationship between law and creative practice, or m o r e p a r t i c u l a r l y, h o w creative practices can be shaped by law.

T

Not a ‘law book’ in the usual sense, Creative Practice and the Law has been written with a non-legal audience in mind.

Drawing on key principles of

the law to provide ‘basics’ that can be used to guide creators in their use of content, the book shows why the law may affect their practice, rather than describing or instructing on the law itself. It includes an overview of the legal landscape - legal method, approach and system – to provide a background as to why the law affects creators as it does.

LAWYERS IN AUSTRALIA

By A Lamb & J Littrich, Federation Press 2007, PB $66.00 Abstract from Federation Press

L

aw yers i n Au strali a is a wide-ranging and detailed examination of the legal profession. It c ont extu ali se s th e ro l e, responsibilities and ethics of lawyers in contemporary Australian society and discusses recent trends and issues.

30

There are chapters about: who lawyers are and what they do; legal education in Australia including trends and developments; the structure and regulation of the legal profession ; l egal culture, including demographic and sociological trends; the judiciary, focussing on accountability and the processes by which judges and magistrates are appointed; the changing nature of legal services delivery due to the development of a national legal services market; access to justice, including legal aid and pro bono services; equality

w w w w.lawso cietysa.a s n. a u

before the law with specific att ention to indigenous peoples and refugees; ethics and professional responsibility, including complaints and the disciplinary process; the lawyerclient relationship, covering the ‘retainer’, the duty to advise, the duty of competence and care, and the duty of loyalty; the lawyer’s duty to the court and the proper administration of justice; the future of the legal profession and legal services.

Ainslie Lamb and John Littrich are solicitors with 38 years of practice experience between them. They now teach at the Legal Practice Unit at the University of Wollongong of which Lamb was Foundation Director. Associate Professor Lamb has prior experience with the Leo Cussen Institute in Victoria and the Law Society of Upper Canada in Ontario and, in 2003, was made a Member of the Order of Australia.

On The Road |

Nick Ramage

Alfa Romeo 159 Ti Sportswagon: A modern classic is born.. and the oh-so-right suspension and brakes, the Alfa 159 makes for one very rewarding driving experience. And the turbo howl will grow on you – quickly.

The 2.4’s 147kW of power at 4000rpm and 400Nm of torque from 2000rpm is more than impressive for its class. On the road the engine’s refined, effortless delivery and rapid acceleration makes for a stated 0 -100kmh in just 8.6 seconds.

Alfa Romeo 159 Sportswagon s it a sports car? Is it a turbo-charged hatch w ith an extrem ely l arge boot? No, it’s actually the Alfa Romeo Sportswagon 159 Ti and definitely not your typical ‘wagon’. Whatever it is, it’s fast, fun and sounds like a ‘real’ Italian car. And it’s a new classic for the Alfa marque.

functional interior offers good load volume. The Alfa 159 Sportwagon really does deliver, having the performance and dynamic handling of a sports car, and satisfies the demands of those who need a stylish car with room to spare for gear and shopping - or the small family that wants a car with zip.

The Alfa 159 Sport wagon represents the performance and handling of a genuine sport scar, combined with the flexibility of use and versatility of space you’d expect from a prestige estate wagon. The Alfa 159 is distinctive and stylish as only Italian cars can be, and has none of the rear end expanse which characterises the typical station wagon. The raked lines of the long roof give it a coupé feel, as does the roof spoiler and the edgy aerodynamic styling, while the superbly

Sliding into the driver’s seat the Alfa felt typically snug yet comfortable, everything being within easy reach yet with plenty of headroom to spare.

The 159 must have one of the most comfortable sports steering wheels ever, and together with the overall sports styling of the interior with its’ extensive use of brushed aluminium, the finish and attention to detail inside and out is extremely high. Combined with the wrap around upholstered leather seats, the effortless diesel torque

I

The 2.4 diesel model, with its turbo-charged performance and diesel economy represents exceptional value and should sell well as a capable sports allrounder. The 159 is available with a choice of four engines: a 136kW, 2.2-litre four-cylinder ($49,990 +ORC); a 191kW, 3.2litre V6 petrol (with all-wheeldrive, from $74,990); a 110kW, 1.9-litre, four-cylinder turbo diesel from $51,990; and a 147kW, 2.4-litre, five-cylinder

turbo diesel ( from $55,990).

Both turbo diesels and the 3.2litre V6 are also now available with a six-speed automatic; it’s standard on the 1.9-litre but costs an extra $3000 on the 2.4litre and 3.2-litre V6.

You get a generous features list with the 159 which also includes high-quality leather trim, a stack CD player, stylish 17-inch alloy wheels, seven airb a gs, st abi lity c ontro l , Brembo front brakes, dualzone air-conditioning and rear parking sensors.

With the 159 being such a great performer on all types of roads you will find yourself heading off for a drive on the flimsiest of excuses – and enjoying it immensely. And as you sweep out of the apex with the boost needle swinging you will again grin and thank Alfa for putting the 'sport' back into sportswagons.

Car supplied by Prestige Formula – Frewville.

Gazing in the Gazette A monthly review of Acts, Appointments, Regulations and Rules compiled by Mellor Olsson’s Elizabeth Olsson.

21 JULY 2007 – 20 AUGUST 2007

ACTS PROCLAIMED (21 JULY 2007 –20 AUGUST 2007)

Natural Resources Management (Water Resources and Other Matters) Amendment Act 2007, No 24 of 2007 Commencement ss 12, 18, 21(2) and (3), 23, 24(1), (3), (4), (5) and (6), 25, 26, 27, 28(2), 29, 30, 31, 32, 33, 34, 35(1), (2), (3), (8), (9), (10), (11) and (12), 36, 37, 39, 40, 41, 45, 46, 47 and 48 : 26 July 2007 Gazetted: 26 July 2007,

Gazette No. 48 of 2007 Fisheries Management Act 2007, No 4 of 2007 Commencement except ss 6, 21 to 39 (inclusive), 51 to 59 (inclusive), 62 to 116 (inclusive), Schedule 1 (other than clause 2), Schedule 2: 1 September 2007 Gazetted: 9 August 2007.

Gazette No. 51 of 2007

ACTS REPEALED

Local Government Act 1934 Repeal of ss 720, 735, 743, 747, 748, 792, 793, 794, 873 and 873A. Gazetted: 26 July 2007, Gazette No. 48 of 2007

ACTS ASSENTED TO (21 JULY 2007 – 20 AUGUST 2007)

32

Natural Resources Management (Water Resources and Other Matters) Amendment Act 2007, No. 24 of 2007 (amends Natural Resources Management Act 2004 and Ground Water (QualcoSunlands) Control Act 2000.

Gazetted: 26 July 2007, Gazette No. 48 of 2007

w w w w.lawso cietysa.a s n. a u

Protective Security Act 2007, No. 25 of 2007 Gazetted: 26 July 2007, Gazette No. 48 of 2007 Correctional Services (Miscellaneous) Amendment Act 2007, No. 26 of 2007 Gazetted: 2 August 2007, Gazette No. 49 of 2007

Statutes Amendment (Budget 2007) Act 2007, No. 33 of 2007 (amends Land Tax Act 1936 and Pay-roll Tax Act 1971) Gazetted: 9 August 2007, Gazette No. 51 of 2007 APPOINTMENTS

Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007, No. 27 of 2007 Gazetted: 2 August 2007, Gazette No. 49 of 2007 Statutes Amendment (Real Estate Industry Reform) Act 2007, No. 28 of 2007 (amends Conveyancers Act 1994, Land Agents Act 1994 and Land and Business (Sale and Conveyancing) Act 1994) Gazetted: 2 August 2007, Gazette No. 49 of 2007 Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007, No. 29 of 2007.

Gazetted: 2 August 2007, Gazette No. 49 of 2007 Appropriation Act 2007, No. 30 of 2007 Gazetted: 9 August 2007, Gazette No. 51 of 2007 Murray-Darling Basin (Amending Agreement) Amendment Act 2007, No. 31 of 2007 Gazetted: 9 August 2007, Gazette No. 51 of 2007 Public Finance and Audit (Certification of Financial Statements) Amendment Act 2007, No. 32 of 2007 Gazetted: 9 August 2007, Gazette No. 51 of 2007

Legal Practitioners Disciplinary Tribunal Member: ( from 26 July 2007 until 25 July 2010) Jonathan Charles Clarke Member: ( from 9 August 2007 until 8 August 2010) Neville Wayne Morcombe Malcolm George Montgomery Presiding Member: ( from 9 August 2007 until 8 August 2010) Neville Wayne Morcombe Gazetted: 26 July 2007, Gazette No. 48 of 2007 Public Trustee for a term of five years commencing on 4 September 2007 and expiring on 3 September 2012, Mark Ian Bodycoat Gazetted: 26 July 2007, Gazette No. 48 of 2007 Equal Opportunity Tribunal Presiding Member: ( from 30 August 2007 until 29 August 2010) Terence Anthony Worthington Deputy Presiding Member: ( from 19 August 2007 until 18 August 2010) Steven Millsteed Gazetted: 16 August 2007, Gazette No. 53 of 2007 RULES

Nil

Regulations Promulgated (21 July 2007 – 20 August 2007) REGULATION NAME ...............................................................................................................REGULATION #

DATE GAZETTED

Liquor Licensing Act 1997 .........................................................................................................................205 of 2007 Road Traffic Act 1961...................................................................................................................................206 of 2007 Road Traffic Act 1961...................................................................................................................................207 of 2007 Road Traffic Act 1961...................................................................................................................................208 of 2007 Road Traffic Act 1961...................................................................................................................................209 of 2007 Development Act 1993 .................................................................................................................................210 of 2007 Adelaide Festival Centre Trust Act 1971 ...........................................................................................211 of 2007 National Parks and Wildlife Act 1972 ................................................................................................212 of 2007 Liquor Licensing Act 1997 .........................................................................................................................213 of 2007 Justices of the Peace Act 2005 ..................................................................................................................214 of 2007 Prevention of Cruelty to Animals Act 1985 ......................................................................................215 of 2007

9 August 2007, Gazette No 51 of 2007 9 August 2007, Gazette No 51 of 2007 9 August 2007, Gazette No 51 of 2007 9 August 2007, Gazette No 51 of 2007 9 August 2007, Gazette No 51 of 2007 16 August 2007, Gazette No 53 of 2007 16 August 2007, Gazette No 53 of 2007 16 August 2007, Gazette No 53 of 2007 16 August 2007, Gazette No 53 of 2007 16 August 2007, Gazette No 53 of 2007 16 August 2007, Gazette No 53 of 2007

2008 LAW SOCIETY DIARIES You can now place your orders…

If you are interested in purchasing a 2008 Law Society of South Australia Diary, please go to the following website to order on-line: www.lssa.3pmarketing.com.au It is a very simple process. Just enter your order details, place your order and follow the simple instructions for payment.

PRICES LAW SOCIETY EXECUTIVE WEEK TO VIEW = $56.65 each LAW SOCIETY EXECUTIVE DAY TO PAGE = $62.70 each (Prices include GST and Freight) Also now available for 2008, pocket size diaries and name personalisation for the Executive diaries.

Please contact Collins Debden Diaries - Customer Service on 1800 803 429 should you have any questions or if you have any problems ordering on-line.

Statutes Amendment (Public Sector Employment) Act 2006 amended: Sections 25 to 27 of the Statutes Amendment (Public Sector Employment) Act 2006 amended the Commercial Arbitration Act 1986, now known as the Commercial Arbitration and Industrial Referral Agreements Act 1986 with the amendments taking effect on 1 April this year.

he key change was the insertion of a new Schedule 1 entitled ‘Industrial Relations Commission may act on a referral of a matter by agreement’. (the Schedule)

T

The Schedule was included in the Commercial Arbitration Act 1986 because accessing the new referral agreement jurisdiction requires the agreement of the parties (much like a private commercial arbitration).

It was inserted as a Schedule to the Act to make clear that ‘referral agreements’ are separate from other parts of that Act. Although the amendments to the Commercial Arbitration Act 1986 were included in a bundle of amendments to various Acts in the Statutes Amendment (Public Sector Employment) Act, the Schedule applies beyond the public sector.

The effect of the Schedule is the creation of a consent based “referral agreement” jurisdiction for the Industrial Relations Commission of South Australia (the Commission).

What this means in practice is that employers and employees, including those covered by Work C h o i c e s , c a n rea c h agreement to select the State Commission as the provider of alternative dispute resolution processes.

34

It means that employers and employees can access the State Commission to hear and determine industrial disputes and matters, if all parties agree to take that path.

w w w w.lawso cietysa.a s n. a u

The Schedule also includes the potential to provide a remedy for unfair dismissal disputes.

A party to a referral agreement can be an employer, a group of employers, an employee, a group of employees, a registered association or SA Unions.

A referral a g re em ent can relate to a specific matter or to matters of a specified class (the latter is called a general referral agreement).

A referral agreement must be in writing.

A referral agreement can sit alongside a workplace a g re em ent or it can st and alone.

A referral agreement can specify whether the Commission is required to act as a conciliator, mediator or arbitrator, to make recommendations to the parties or to make determinations or orders that the parties agree to accept or observe.

The Schedule provides for the Commission to make determinations as to the scope or operation of the referral agreement or as to the meaning of any provision of the agreement. The Commission can also determine not to take any action, or further action in relation to a request for assistance.

The Schedule calls up the Fair Work Act 1994 (FW Act) in a number of ways.

A word or expression used in the Schedule that is the subject of a definition under section

4 of the FW Act will have that same meaning.

Importantly, on a referral under the Schedule, the Commission may, subject to any contrary agreement between the parties, exercise its functions and powers as contained in section 26 of the FW Act. A determination, order or other decision of the Commission on a referral under the Schedule may be enforced under the FW Act in the same way as any other determination, order or decision of the Commission or the Court under that Act. A party to a referral agreement in respect of which the Commission has made a determination may appeal against that determination under section 207 of the FWA unless the referral agreement provides that a determination is final and conclusive and not subject to appeal.

The President of the Commission has promulgated new rules to deal with the Referral Agreements jurisdiction. These can be found in Part V of the Industrial Proceedings Rules 1995.

The Rules deal with the • form and content of referral agreements (Rule 72) • lodgement of a General Referral Agreement (Rule 73) • form and content of the Request for Assistance (Rule 74) • time within which the Commission will commence its assistance (Rule 75)

• conduct of the Dispute Resolution (Rule 76) • Commission’s Powers (Rule 77) • notification of suspension or discontinuance of a matter (Rule 78) • appeals process (Rule 79) The Commission has also developed a Model Referral Agreement (Form 42).

The trigger for the involvement of the Commission is filing a Request for Assistance Form (Form 43). Both forms are available at the Commission’s website www.industrialcourt. sa.gov.au The advantages of the Referral Agreement process for parties include: • there is no cost • parties can nominate a specific Commission member as their ADR provider • the process is easily accessible, informal and speedy • parties can agree to the process without restrictions.

Please note that this is a basic guide for information purposes only. Further more detailed information is presently being f in ali sed by S afe Work S A .

Contact Marie Boland on 8303 0267 for more details.

Parties contemplating entering into a referral a g re em ent should refer to Schedule 1 of the Commercial Arbitration and Industrial Referral Agreements Act 1986.

Moving On, Moving Up Di Rosa Lawyers D ino welcome the recent arrival to the firm of Amanda Gregory, formerly of Turner Freeman. Amanda specialises in all areas of personal injury and can be contacted on 8354 2846, or email amanda@ dirosalawyers.com.au.

Lindh has also commenced with the firm having joined the Corporate team as a solicitor.

Kelly Ryan, an associate in the Commercial Litigation team has left the firm.

Barossa Chambers has relocated to 41 Gawler St in Nuriootpa.

T: 0429 195 585 F: (08)8562 1081 E: karenkoerner@ barossachambers.com.au

Andrew Barnett has commenced practice as a barrister at Christopher Legoe Chambers. Andrew is accepting briefs in the following areas - Building and Construction, Commercial, Criminal , Environment, Insurance, Planning and Local Government and Property law.

Minter Ellisons is pleased to welcome Elizabeth Reed who has commenced as a special counsel in the Insurance team.

Thomas Rice has also joined the firmâ&#x20AC;&#x2122;s Commercial Litigation team as a solicitor. Jonathan

Doman Lawyers is pleased to welcome Danai Georgiadis and Claire Jarrett. Danai will be practicing in Wills and Estate planning. Claire will be assisting in litigation as a Law Clerk. It is anticipated

that Claire will be admitted to practice in December this year.

Kelly & Co. is delighted to announce the recent appointments to the firm of lawyers Veronica Mignone and Henna Taneja. Kelly & Co. congratulates Veronica and Henna on their recent admission to practice. Henna was part of Kelly & Co.â&#x20AC;&#x2122;s highly regarded law clerk program.

Lynch Meyer Lawyers is pleased to announce the appointment of Sylvia Papadimitriou as a new solicitor in its' Taxation, Superannuation and Estate Planning division.

The Refugee Review Tribunal and the Migration Review Tr i b u n a l h a v e b o t h r e appointed Deborah Morgan for a further three years.

L to R : Sylvia Papadimitriou, Veronica Mignone, Claire Jarrett, Henna Taneja, Danai Georgiadis

Judgments employ a full-time interpreter to attend the Magistrates’ Court and District Court at Port Augusta on a full-time basis for a month had not been

continued and the situation in respect of the provision of Pitjantjatjara interpreters has reverted to an unacceptable situation.

TORTS TREVORROW v STATE OF SOUTH AUSTRALIA (NO 5) [2007] SASC 285 1 August 2007 http://www.austlii.edu.au/au/cases/sa/SASC/2007/285.html

FRANK v POLICE [2007] SASC 288 2 August 2007 http://www.austlii.edu.au/au/cases/sa/SASC/2007/288.html his was an appeal against sentence. The appellant, an Aborigine, did not speak English and required an interpreter.

He pleaded guilty. The proceedings were adjourned on several occasions due to the absence of an interpreter.

The Magistrate ultimately sentenced the appellant in the absence of an interpreter.

T

Sulan J allowed the appeal. His Honour said it is a fundamental right which must be afforded to all defendants who face criminal prosecutions to have an interpreter who can explain the nature of the proceedings and ensure that a defendant understands what is being said in Court. It is not uncommon during Counsel’s submissions on sentence that a defendant will correct Counsel’s submissions,

36

or instruct Counsel to add something that has not been put to the Court which is of relevance. A failure to afford a defendant an interpreter, in circumstances where the defendant cannot understand the proceedings, will render proceedings unfair. If the Court is unable to provide an interpreter and the defendant is, therefore, unable to receive a fair hearing, the Court possesses the power to stay the proceedings.

The general circumstances giving rise to the litigation were that the plaintiff, an Aboriginal child then aged 13 months, was sent by his father with neighbours from Meningie to the Adelaide Children’s Hospital on Christmas Day 1957. He recovered a short time later and was then taken from the hospital and placed in longterm foster care. His parents were unaware of the removal or fostering.

The Magistrate should have ordered a stay of proceedings until he could be assured that a Pitjantjatjara interpreter would be present. The Magistrate shoul d hav e rel eased th e appellant on bail.

In 1949 and 1954 the State had received legal advice that it did not have the authority to remove Aboriginal children absent certain procedures being followed. In lengthy reasons for decision Gray J found the removal and placement of the plaintiff was without statutory warrant or legal authority and ultra vires.

His Honour noted that a recent initiative of the Courts Administration Authority to

Prepared by Casandra Francas from ‘Caseweek’: Caseweek has been developed as the most accessible and cost effective way of keeping up to date with major decisions handed down in Commonwealth and State jurisdictions as they appear on the Internet.

It contains comprehensive casenotes with hotlinks included in each summary, which gives you access to the full text of the judgment. w w w w.lawso cietysa.a s n. a u

h e pl ainti f f brou g ht an action against the State claiming misfeasance of public office, false imprisonment, breach of duty of care and breach of fiduciary and statutory duties.

T

CRIMINAL LAW

His Honour found the statutory board and Government department involved in the plaintiff ’s removal, placement and return to his natural family were emanations and agents of the State. The State was liable for the actions of the board and departmental officers. His Honour found the State owed a duty of care to the plaintiff at the time of his removal, fostering and subsequent return to his natural family and that the State had breached its duty of care. The plaintiff was falsely imprisoned and subject to misfeasance in public office.

The State had a fiduciary duty to inform the plaintiff of the circumstances of his removal and to ensure he received independent legal advice.

Declarations were made and damages including exemplary damages were awarded. His Honour granted the plaintiff ’s application for an extension of time pursuant to the Limitations of Actions Act. The State’s defence of laches was rejected.

The annual cost for subscribers is currently: Law Society Members: $240 small firms, $480 large firms; Non-members: $475 small firm, $790 large firm, Students $125.

15% discount on the subscription price is available for Law Society Judgement Scheme. Subscribers contact Sonia Hamilton on 8229 0241 for further information or to register for our FREE ONE MONTH TRIAL.

Conferences and Events INTERNATIONAL October 2007 2nd - 4th Lisbon Wars, Women and Law Host: International Federation of Women in Legal Careers Contact: Rua Manuel Marques 21-P, 1750-170 Lisboa Portugal Phone: 351 21 7594499 Fax: 351 21 7594124 Website: www.fifcj-ifwlc.net/ Email: headoffice@fifcj-ifwlc.net

9th - 12th Washington DC, USA Fourth Annual Seminar on International Commercial Arbitration Host: Washinton College of Law Contact: Washington College of Law 4801 Massachusetts Avenue, N.W. Washington D.C. 20016-8181 Phone: 202-274-4321 Fax: 202-274-4226 Website: www.wcl.american.edu/ arbitration Email: arbitration@wcl.american.edu

Negotiators Phone: +33 1 49 53 29 71 Fax: +33 1 49 53 30 30 Website: www.iccwbo.org/ events/display12/index. html?CodeICMS=S0722 Email: events@iccwbo.org

AUSTRALIA September 2007 14th - 15th Banco Court, Supreme Court, Georgr St , Brisbane,QLD Second National Indigenous Law Conference Host: Bar Asscociation of Queensland Contact: Helene Breene Phone: 07 3238 5100 Fax: 07 3238 5123 Website: www.qldbar.asn.au Email: helene@qldbar.asn.au 19th Sydney www.legalwiseseminars.com.au[The Fairness Test] Host: Legalwise Seminars Contact: Courtney Green Phone: 02 9387 8133 Fax: 02 9387 8711 Website: www.legalwiseseminars.com.au Email: info@legalwiseseminars.com.au

14th - 19th Singapore International Bar Association Conference Host: International Bar Association Contact: 10th Floor 1 Stephen St London, W1T 1AT United Kingdom Phone: +44 (0)20 7691 6868 Fax: +44 (0)20 7691 6544 Website: www.ibanet.org/Conferences/ singapore2007/

19th Sydney www.legalwiseseminars.com.au[India Unravelling the Legal System] Host: Legalwise Seminars Contact: Courtney Green Phone: 02 9387 8133 Fax: 02 9387 8711 Website: www.legalwiseseminars.com.au Email: info@legalwiseseminars.com.au

17th - 20th Paris, France QLS European Perspectives on Law Conference Host: Queensland Law Society Contact: Sharon Burke Phone: 07 3842 5931 Fax: 07 3221 9329 Website: www.qls.com.au Email: s.burke@qls.com.au

20th Adelaide - Stamford Plaza Annual Public Sector Update Host: Chartered Secretaries Australia Contact: Susan Bradbrook, Manager, South Australia and Northern Territory Phone: 08 8132 0266 Fax: 08 8132 0822 Website: www.CSAust.com/ PublicSectorUpdate Email: susan.bradbrook@CSAust.com

29th - 30th Paris, France; International Chamber of Commerce Dispute Resolution in the International Oil & Gas Business Host: ICC International Court of Arbitration & Association of International Petroleum

26th - 28th Hyatt Hotel Canberra 34th Annual Conference: Policy, Practices and Perspectives Host: The Maritime Law Association of Australia and New Zealand Contact: The Meetings Manager Pty Ltd

Phone: 02 9810 7322 Fax: 02 9810 7320 Website: www.mlaanz.org Email: mlaanz@tmm.com.au October 2007 3rd Melbourne International Industrial Dispute Resolution Conference Host: Australian Industrial Relations Commission Contact: Kate Purcell Phone: (03) 8661 7829 Email: kate.purcell@airc.gov.au 9th - 10th Brisbane, QLD Business Law Conference QLD Host: LexisNexis Professional Development Phone: 1800 772 772 Fax: 02 9422 2338 Website: www.lexisnexis.com.au/aus/ conferences Email: registration@lexisnexis.com.au 22nd - 25th Gold Coast, Queensland 4th Australasian Drug Strategy Conference Host: Queensland Police Service Phone: +61 (0) 7 3364 4605 Fax: +61 (0) 7 3364 6931 Website: www.police.qld.gov.au/ ADSC2007 Email: ADSC2007@police.qld.gov.au 23rd - 24th Rendezvous Hotel, Melbourne Prison Planning, Design and Construction Host: Informa Australia Contact: Customer Service Team Phone: 61 2 9080 4307 Fax: 61 2 9290 3844 Website: www.informa.com.au/ prisonplanning Email: resgistration@informa.com.au 25th Melbourne The World Masters of Law Firm Management Host: Australian Law Management Group, Law Council of Australia Contact: Gerard Oâ&#x20AC;&#x2122;Neill Law Council of Australia GPO Box 1989 Canberra ACT 2601 Phone: 02 6246 3722 Fax: 02 6248 0639 Website: www.lawcouncil.asn.au/lps/ worldmasters.html Email: gerard.oneill@lawcouncil.asn.au

37

September 2007

Law Society Charity Feature

Our world has been changed by terrorism and other threats around the globe and the ADF is increasingly being called on to provide security and defend our way of life.

The picture depicts a Timor veterans widow and child. In South Australia, Legacy cares for some 12,000 widows and dependants of deceased veterans.

Legacy’s funding is not Government based and it must rely on the generosity of the public to fund its services of caring and support.

In today’s hazardous environment Legacy stands ready to help the families of all veterans of those who die in war or subsequently. It includes members of today’s Defence Forces who lose their lives as a result of their service.

38

Your support, by a personal recommendation to your clients, citing Legacy as a very worthwide recipient for a bequest, endowment or donation would be most appreciated.

For further information contact Geoff Banks, Legacy Club of Adelaide Incorporated, 102 Franklin Street, Adelaide 5000.

Telephone: (08) 8231 9812

w w w w.lawso cietysa.a s n. a u

Website: www.legacy.com.au

Law Society Charity Feature CanDo4Kids-Townsend House provides community services to Blind/vision impaired and Deaf/ hearing impaired children and young adults around South Australia.

CanDo4Kids is about highlighting the potential of children instead of focusing on their disabilities.

Townsend House has been helping South Australian kids since 1874, and your support will ensure that we can continue this tradition.

Your gift or bequest will make a real difference in the lives of children who need it the most.

For more information please contact: CanDo4Kids, 28 King George Ave, HOVE SA 5048 P (08) 8298 0933 F (08) 8377 1933 TTY (08) 8298 0960 E: info@cando4kids.com.au I: www.cando4kids.com.au

we care CONSULTING

Are you looking for a trusted charity to benefit from your will?

Consider Australian Red Cross.

Red Cross has a presence in almost every city and town across the country. The people we help, range from elderly Australians living alone, to whole communities devastated by emergencies such as floods and bushfires.

The most valuable way to help Red Cross is to leave a legacy or bequest in your will. All bequests received

by Red Cross go into a perpetual fund to ensure future generations will benefit from our work.

UK ESTATE ADMINISTRATION We offer specialist help at a highly competitive price for: ••Full FullEstate Estateadministration administration including of all all assets assets including collection collection of ininthe theUK UK ••Property Property sales/transfers sale/transfers ••Contested ContestedEstates/Will estates/Willdisputes disputes ••Proven and fast Proven track track record record and efficient efficientservice service For a comprehensive service contact Sarah Walker or Mark Abrol Tel: 00 44 121 233 4333 Fax: 00 44 121 233 4546 Email: swalker@wilkes.co.uk or mabrol@wilkes.co.uk

To find out how you can support Australian Red Cross, call us on 8100 4618 for your free booklet ‘Your Guide to Making a Will’.

39 41 Church Street Birmingham B3 2RT England www.wilkes.co.uk

September 2007

7

200

Diary Dates CPD and Events Calendar To purchase copies of papers from earlier CPD sessions please telephone us on (08) 8110 5200 We invite practitioners to contact the Education Section on 08 8110 5200 or email cpd@ lawsocietysa.asn.au with any suggestions for potential CPD topics and speakers.

PLEASE NOTE All weekly and half day CPD seminars, unless otherwise advised will be presented in the LAW SOCIETY SEMINAR ROOM LEVEL 2 / 132 FRANKLIN ST, ADELAIDE To register contact: Law Society (Education Section) Telephone: 08 8110 5200 or email us at cpd@lawsocietysa.asn.au

SEPTEMBER

40

Wednesday 26 September AN OVERVIEW OF THE CRIMINAL CONFISCATION OF ASSETS ACT 2005 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters: Matthew Mead, Christopher Legoe Chambers & Sophie Downey, Bar Chambers Chair: His Honour Judge Barrett, District Court

OCTOBER Friday 5 October PROPERTY LAW UPDATE 1.00pm - 5.00pm w w w w.lawso cietysa.a s n. a u

Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters: Dennis Bluth, Chair, Australian Property Law Group, Law Council of Australia & Partner, Home Wilkinson Lowry, Con Costi, Costi & Co, David Dew, Brown & Associates, James Neate, Lynch Meyer, further presenters to be advised Chair: David Johnson, Johnson Lawyers Wednesday 10 October NEGOTIATING WITH DPP & POLICE PROSECUTIONS 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenter: Philip Crowe, DPP (State), Rocco Perrotta, DPP (Commonwealth) & Robert Gray, SAPOL Chair: The Honourable Justice Kelly, Supreme Court of South Australia Friday 12 October COUNTRY UPDATE SEMINAR 9.15pm - 5.00pm with dinner to follow Barossa Motor Lodge 182 Murray St, Tanunda Presenters: Hugh McPharlin, Edwards Marshall, Kathryn Waite, Legal Services Commission, Cathy Parsonage, Duncan Basheer Hannon, John Harley, Public Advocate, Paul Kolarovich, Legal Practitioners Conduct Board & Larissa Detmold, Howard Zelling Chambers Dinner Speaker: David McLeod, Lempriere Abbott McLeod

Thursday 16 October WEALTH PROTECTION FOR PROFESSIONAL PRACTITIONERS 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters: Ken Schurgott, Cosoff Cudmore Knox Chair: Malcolm Blue QC, Bar Chambers Thursday 18 & Friday 19 October AUSTRALIAN EXECUTOR TRUSTEES SUCCESSION LAW CONFERENCE THE FUTURE OF SUCCESSION LAW AND UNIFORM LEGISLATION Hilton Hotel Victoria Square, Adelaide Keynote Presenters: The Honourable Justice Gummow AC, High Court of Australia & Professor Rosalind Croucher, Commissioner, Australian Law Reform Commission Lunch Presenter: Alex Ward, Edmund Barton Chambers Other Presenters Include: David Haines QC, Victoria Chambers, Michael Willmott SC, St James Hall Chambers, John McGinn, Hugh Burton Chambers, Stephen Roder, Howard Zelling Chambers, Carolyn Sparke, Owen Dixon Chambers West, Dr Steven Churches, Elliott Johnston Chambers, Arlene Macdonald, Edmund Barton Chambers, Brian Carpenter, Carpenter & Associates, & Bill Thompson, Commins Hendriks Solicitors Wednesday 24 October CORNERSTONE LAW SERIES: TIPS & TRAPS FOR YOUNG

LAWYERS 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenter: His Honour Judge Withers, Supreme Court of South Australia Chair: Jonathan Wells QC, Hanson Chambers Wednesday 31 October DIVISION 7A AND FAMILY LAW PROPERTY SETTLEMENTS 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenter: Arlene Macdonald, Edmund Barton Chambers Chair: To Be Advised Advance Notice Saturday 10 & Sunday 11 November CRIMINAL LAW CONFERENCE: CHANGING TIMES Whalers Inn Resort, Victor Harbor Further details to be advised

CONSULTING

Philip Scicluna

Licence no ISL115256

Investigator, Process Server and Commercial Agent.

• Process serving documents • Investigation services • Locating and skip tracing services Phone: (08) 8373 1466 or 0407 797 382 Fax: (08) 8373 3622 Email: Phils@frontierisp.net.au Postal: P.O. Box 403, Marleston B.C, SA 5033

CONSULTING

CONSULTING

CONSULTING

ENGLISH LAW AGENCY SERVICES

LITIGATION ASSISTANCE FUND LAF

AUST. WIDE SERVICE

Fearon & Co

SOLICITORS Established 1825 Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular: • Obtaining Grants of Representation for Estates in England, Channel Islands, Isle of Man and elsewhere.

• Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including debt Recovery and Matrimonial VISIT OUR WEBSITE - www.fearonlaw.com Westminster House, 6 Faraday Road, Guildford, Surrey GU1 1EA, United Kingdom Tel: 0044 (0) 1483 540840 Fax: 0044 (0) 1483 54844 General Email: enquiries@fearonlaw.com LITIGATION Martin Williams 0044 (0) 1483 540843 mw@fearonlaw.com

PROPERTY John Phillips 0044 (0) 1483 540841 ajp@fearonlaw.com

PROBATE Francesca Nash 0044 (0) 1483 540842 fn@fearonlaw.com

Regulated by the Solicitors Regulation Authority of England and Wales

PROCESS SERVING REPOSSESSIONS INVESTIGATIONS MISSING PERSONS

The Litigation Assistance Fund is available to civil litigants unable to pay their own legal expenses. It is available to companies as well as individuals.The Fund will pay reasonable solicitor/client costs according to the scale appropriate to the jurisdiction. If the litigation is successful, the Fund will receive a Fund fee being 15% of any judgement or settlement monies.

Level 24, Santos House, King William Street, ADELAIDE SA 5000 P.O. Box 591 PORT AUGUSTA SA 5700 T. (08) 8641 2111 F. (08) 8641 2100 M. 0418 838 807 outbackbusiness@ozemail.com.au

In the alternative, the Disbursements Only Fund – DOF – is available. This enables payment of disbursements such as court filing, experts reports, witness fess, transcripts and trial fees. Barrister’s and solicitor’s costs are excluded If the DOF matter is successful, a Fund fee will be levied being repayment of the disbursements paid by the Fund together with an uplift of 25% to 100% thereof.

For further information about the fund contact Mary Walters.

132 Franklin Street, Adelaide SA 5000 Ph - 8110 5263 Fax - 8231 2995 mary.walters@lssa.asn.au

CONSULTING ENGINEER

LAWcare The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely effected by personal or professional problems.

If you have a problem, speak to the LawCare counsellor Dr Joe before it overwhelms you. Dr Joe is a medical practitioner highly qualified to treat social and psychological problems.

The Law Society will pay $250 per annum of Dr. Joe's professional fees where a gap payment is required.

All information divulged to the LawCare counsellor is totally confidential. Participation by the legal practitioner or family member is voluntary.

To contact Dr Joe 08 8229 0299 8am-8pm, 7 days a week LawCare is a member service made possible by the generous support of Willis Australia Ltd

confidential

professional counselling

PETER MADDERN

PETER MADDERN & ASSOCIATES PTY LTD Substantial experience in matters involving: •

Product liability

•

Workcover recovery

•

Public liability (slips, trips, stairs)

•

Statutory enforcement

Seek the weight and reliability of engineering/safety opinion based upon experience measured by: •

Decades of professional experience, including over 25 years as an expert engineer and witness

•

Thousands of expert related reports

•

Court appearances numbering well into the decades

41

Peter Maddern Chartered Engineer Phone 8267 6337 Fax 8267 6338 pmaddern@olis.net.au PO Box 96, North Adelaide SA 5006

September 2007

CONSULTING TETLOW TIGWELL WATCH

Solicitors GPO Box 389, Canberra, ACT 2601 DX 5650 Canberra Tel (02) 6162 5999 Fax (02) 6162 5955 Email mail@ttwlaw.com.au We are prepared to accept referrals and agency work in Litigation, Probate, Conveyancing, Commercial and related matters

LOST WILL

LOST WILL KUSKO, CHESTER late of Unit 2, 15 Hinkler Road, Glen Waverley, Victoria but formerly of the Morphett Arms Hotel in Adelaide.

Would anyone holding or knowing the whereabouts of any Will for the said Chester Kusko please contact: Mian Phillips & Co Lawyers.

Phone: (03) 9808 9133 or Email: lawyer@alphalink.com.au

CONSULTING

CONSULTING ACTUARIES Brett & Watson P TY. LTD.

For professional actuarial advice on • economic loss • workers compensation • all superannuation issues Contact Laurie Brett or Bruce Watson Phone 08 8232 1333 Fax 08 8232 1324

Ground Floor 157 Grenfell Street Adelaide SA 5000

Phone (08) 8271 7521 Fax (08) 8271 4745 Email info@halltechnicalservices. com.au

w w w w.lawso cietysa.a s n. a u

PROCESS SERVERS

Investigation summons and examination summons attendances.

We will accept instructions for attendances at Adelaide, Port Adelaide, Elizabeth, Christies Beach and Holden Hill.

Refer instructions to Lesley Cogan.

GPO Box 1967, Adelaide SA 5001 Phone 8352 3288 Fax 8352 3277 DX 269

FORENSIC PSYCHOLOGY Assessment • Reports • Treatment

CIVIL & CRIMINAL EXPERTISE Dr Jack White

0416 232 606

Suite 3, 459 Morphett St, Adelaide SA 5000

Dr Carol Cayley

0412 794 424

72 Henley Beach Road MILE END SA 5031

8352 3288

Ph: 8231 0922 Fax: 8231 0929 GPO Box 1250 Adelaide 5001 atcom@senet.com.au

Consulting Engineers Australian Technology Pty Ltd for expert opinion on: • Vehicle failure and accidents • Vehicle design • Industrial accidents • Slips and falls • Occupational health and safety Douglass Potts BA BTech (Mech Eng) Dip Ed MSAE-A MIEAust MAOQ MRAI CPEng

Tel: 8212 7740 Fax: 8212 2775

wdrpotts@bigpond.net.au

LINDQUIST PARTNERS

PROCESS SERVING INVESTIGATIONS MISSING PERSONS

Contact Ken Cureton, Paralegal Phone: 8223 7966 Facsimile: 8227 0730 Write to: DX 376 or GPO Box 1870, Adelaide, SA 5001 Email: law@lindquistpartners.com.au

Cost Consultants

Warrants Real Property Enquiry work Repossession Distraints Locates

GPO Box 949, Adelaide SA 5001

Adelaide, Port Adelaide, Elizabeth, Christies Beach and Holden Hill.

T.N. Cogan & Co

ATKINSON COMMERCIAL SERVICES Australia wide document service (any jurisdiction)

245 Sturt St, Adelaide SA 5000

Advise that they attend and accept instructions for all Investigation and Examination Summons hearings in the Metropolitan area:

Expert opinion relating to all aspects of vehicle accidents including the following:

42

FITZGERALD PARALEGAL

Ms Lisa Chantler 0403 339 438

HALL TECHNICAL SERVICES

Contact Chris Hall, B.E. (Hons) HALL TECHNICAL SERVICES Suite 3, 1 Irwin Lane, Unley SA 5061

CONSULTING

Tel: 8212 1703 Fax: 8212 5413

ACCIDENT ANALYSIS

Collision geometry Vehicle speeds Accident avoidance Occupant seating Seat belt wearing Motor cycle accidents Tyre failure Brake failure

CONSULTING

ACCIDENT RECONSTRUCTION Expert opinion in motor vehicle accident reconstruction covering paths of travel, approach and impact speeds.

Other areas of expertise include: • Seating position reconstruction • Computer simulation • Brake system examination • Lamp filament examination • Tyre failure analysis • Seat belt worn examination Contact Harry Aust, B.Tech (Mech), M.I.E. (Aust.) on 8338 2382.

Vehicle Systems Eng.Pty. Ltd. PO Box 6000, Linden Park SA 5065 haust@ozemail.com.au

8271 4573

Competitive rates and reliable Mercantile Commercial Investigators incorporating Adelaide Detective Agency EST IN 1981

55 Gawler Place, Adelaide 5000 GPO Box 2020, Adelaide 5001 DX 446, Adelaide Phone (08) 8231 0777 Email mci@adamci.com.au

FIRE & EXPLOSION INVESTIGATION Over 20 years forensic experience on behalf of the Insurance Industry and Legal Profession throughout Australia, New Zealand and the Asian Region.

Mr Simon Cox (B. App. Sc. Grad. Dip.) Forensic Consulting Services PO Box 41, Penola, SA 5277 Phone: 0418 174 069 Facsimile: 8737 2760 Email: simoncox@penola.lscst.net

LEAP Precedents for South Australia!

LEAP Legal (SA) is pleased to announce the release of the first comprehensive and highly automated set of court forms and precedents written specifically for the South Australian legal profession. These new precedents are written and maintained in Adelaide with the assistance of South Australian practitioners.

More than 500 precedents are available for the following jurisdictions:Supreme Court; Magistrates Court – Civil; Magistrates Court – Criminal; District Court; Personal Injury; Industrial Relations.

You capture and maintain client and matter, other solicitor, barrister and other information once only and then re-use it across matters and documents, saving time and eliminating duplicated effort.

The LEAP Precedents work with LEAP Documents, Australia’s leading legal document management system, which is used by more than 1000 law firms.

The data in LEAP Documents merges into the LEAP Precedent and the final document is generated with the adjustments necessary for plurality, gender and verb tense.

Reduce the cost of precedent usage through more efficient access; Consistently use the correct precedent throughout the firm; Eliminate the need to maintain your own precedents; Update online to ensure that precedents are always up to date; Provide online feedback for continual improvement; Control precedent versions; Access usage audit trails; Add your own precedents to the system.

For more information, contact LEAP Legal (SA) today on 8271 7125 for an obligation-free demonstration.

LEAP Legal Software Pty Ltd e sales@leap.com.au w www.leap.com.au Sydney: Level 8, 189 Kent Street, Sydney NSW 2000 P (02) 8273 7544 F (02) 9247 7544 Melbourne: Level 8, 488 Bourke Street, Melbourne VIC 3000 P (03) 9606 0413 F (03) 9606 0517 Brisbane: Level 10, 379 Queen Street, Brisbane QLD 4000 P (07) 3221 5673 F (07) 3221 5674 Adelaide: Unit 8, 198 Greenhill Road, Eastwood SA 5063 P (08) 8271 7125 F (08) 8272 7344