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THE<br />
BULLETIN<br />
<strong>February</strong> <strong>2018</strong><br />
Volume 40 - Issue 1<br />
INSIDE:<br />
PARTIES RESPOND<br />
TO OUR KEY<br />
ELECTION ISSUES<br />
POLITICS & THE LAW
St Aloysius College<br />
<strong>2018</strong><br />
OPEN<br />
DAY<br />
Monday 5 March <strong>2018</strong>, 6-8pm<br />
ELC to Year 12 City School for Girls<br />
• Hear about our outstanding academic record<br />
and exceptional pastoral care.<br />
• Visit our city school with its easy access to<br />
Adelaide’s educational resources.<br />
• Meet our teachers and hear how they provide<br />
engaging, contemporary learning experiences<br />
for young people.<br />
• Tour our facilities which include a gymnasium,<br />
two full-sized indoor basketball courts and a<br />
heated swimming pool.<br />
Tejaspreet Ghataura, Year 12<br />
Dux 2017 achieved an<br />
ATAR of 99.3<br />
Congratulations to the Class of 2017!<br />
Every student successfully<br />
completed their SACE, with 28%<br />
achieving an ATAR over 90. Special<br />
congratulations to Tejaspreet<br />
Ghataura, Dux of the College for<br />
2017. Tejas was one of five students<br />
achieving an ATAR over 99.<br />
53 Wakefield Street, Adelaide SA 5000<br />
Tel 8217 3200 | registrar@sac.sa.edu.au | www.sac.sa.edu.au<br />
A Ministry of Mercy Education Ltd
This issue of The Law Society of South Australia: Bulletin is<br />
cited as (<strong>2018</strong>) 40 (1) <strong>LSB</strong>(SA). ISSN 1038-6777<br />
CONTENTS<br />
POLITICS & THE LAW<br />
REGULAR COLUMNS<br />
6 Eligibiilty of dual citizens: the<br />
coming-of-age of Section 44<br />
By Assoc Prof Matthew Stubbs & Dr<br />
Adam <strong>Web</strong>ster<br />
10 Protest & political communication<br />
after Brown v Tasmania<br />
Prof Mary Heath & Dr Peter Burdon<br />
12 Parliamentary prayer & the<br />
establishment of religion<br />
By Prof Paul Babie<br />
16 Law Society’s key election issues<br />
24 Special feature: Poems for the<br />
‘Citizenship 7’<br />
By Stephen McDonald<br />
32 Speech: The role of the Attorney<br />
General – By Chris Sumner AM<br />
36 The SA Parliament & parliamentary<br />
privilege – By Jan Davis<br />
4 President’s Message<br />
5 From the Editor<br />
23 Bookshelf<br />
28 Risk Watch<br />
30 Get in on the Act<br />
40 Gazing in the Gazette<br />
43 Tax Files<br />
20 Politicians respond to key legal issues<br />
Executive Members<br />
President:<br />
Tim Mellor<br />
President-Elect: A Nikolovski<br />
Vice President (M): T White<br />
Vice President (F): R Sandford<br />
Treasurer:<br />
A Michaels<br />
Immediate Past President: A Rossi<br />
Council Members: Vacant<br />
Vacant<br />
Metropolitan Council Members<br />
T Dibden<br />
S Gibbons<br />
M Janus<br />
A Lazarevich<br />
L Polson<br />
T Vozzo<br />
M Frayne SC V Gilliland<br />
F Bell<br />
M Mackie<br />
M Boyle<br />
M Smith<br />
Country Members<br />
S Minney<br />
(Northern and Western Region)<br />
P Ryan<br />
(Central Region)<br />
J Kyrimis<br />
(Southern Region)<br />
Junior Members<br />
R Piccolo S Hooper<br />
Ex Officio Members<br />
The Hon J Rau, Prof W Lacey,<br />
Prof M de Zwart, Prof T Leiman<br />
KEY LAW SOCIETY CONTACTS<br />
Chief Executive<br />
Stephen Hodder<br />
stephen.hodder@lawsocietysa.asn.au<br />
Executive Officer<br />
Rosemary Pridmore<br />
rosemary.pridmore@lawsocietysa.asn.au<br />
Chief Operations Officer<br />
Dale Weetman<br />
dale.weetman@lawsocietysa.asn.au<br />
Member Services Manager<br />
Michelle King<br />
michelle.king@lawsocietysa.asn.au<br />
Director (Ethics and Practice)<br />
Rosalind Burke<br />
rosalind.burke@lawsocietysa.asn.au<br />
Director (Law Claims)<br />
Geoff Thomas<br />
gthomas@lawguard.com.au<br />
Manager (Education)<br />
Sally Browne<br />
sally.browne@lawsocietysa.asn.au<br />
Manager (LAF)<br />
Annie MacRae<br />
annie.macrae@lawsocietysa.asn.au<br />
THE BULLETIN<br />
Editor<br />
Michael Esposito<br />
bulletin@lawsocietysa.asn.au<br />
Editorial Committee<br />
D Barnfield E Olsson<br />
S Kljun S Hodder<br />
R Earles P Wilkinson<br />
S Errington E Belperio<br />
A Siow B Grant<br />
A Bradshaw R Hasda<br />
E Moran J Napier<br />
The Law Society Bulletin is published<br />
monthly (except January) by:<br />
The Law Society of South Australia,<br />
Level 10-11, 178 North Tce, Adelaide<br />
Ph: (08) 8229 0200<br />
Fax: (08) 8231 1929<br />
Email: bulletin@lawsocietysa.asn.au<br />
All contributions letters and enquiries<br />
should be directed to<br />
The Editor, The Law Society Bulletin,<br />
GPO Box 2066,<br />
Adelaide 5001.<br />
Views expressed in the Bulletin<br />
advertising material included are not<br />
necessarily endorsed by The Law Society<br />
of South Australia. No responsibility<br />
is accepted by the Society, Editor,<br />
Publisher or Printer for accuracy of<br />
information or errors or omissions.<br />
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PRESIDENT’S MESSAGE<br />
As the election approaches,<br />
we’re calling for a greater<br />
commitment to justice<br />
TIM MELLOR, PRESIDENT<br />
Dear Colleagues,<br />
A happy and healthy New Year to<br />
you all. It is a year in which, next month,<br />
we will be going to the polls to elect<br />
our state government for the next four<br />
years. Thus the theme of this Bulletin -<br />
Politics and the Law. This is necessarily an<br />
examination of issues at a higher policy<br />
level.<br />
I have had the advantage of looking over<br />
the initial President’s Messages provided by<br />
my predecessors. In 2014 Morry Bailes was<br />
considering the prospective state election,<br />
and reviewed the top policy issues which<br />
the Law Society sought to agitate and<br />
promote. A summary of our present list of<br />
priorities appears in this edition.<br />
Our continuing and overarching concern<br />
is the notion that the administration of<br />
and access to justice must be regarded as a<br />
primary objective of society. It should be<br />
considered on a par with adequate access<br />
to medical and health services, education<br />
and training, and community security and<br />
protection.<br />
A comparison of our key legal issues for<br />
2014 and <strong>2018</strong> indicates that there have<br />
been some important advances in that<br />
period. Nonetheless there remains a core<br />
of issues that have carried over.<br />
The notion of the accessible and efficient<br />
operation of our courts was, and is, a<br />
principal policy issue.<br />
We welcome the positive steps which<br />
have been taken toward the development<br />
of the electronic lodgement of documents.<br />
It is also pleasing to see the proposed<br />
works (albeit limited) on the refurbishment<br />
of the Supreme and District Courts<br />
precinct. Our concern remains that funding<br />
cuts to the operation of the courts have<br />
come at a significant cost, including further<br />
4<br />
THE BULLETIN <strong>February</strong> <strong>2018</strong><br />
limitations to court access in remote and<br />
regional areas and in some suburban<br />
courts, and some reductions in judicial<br />
officers.<br />
We are also concerned about the level<br />
to which those with disabilities have been<br />
considered in relation to the present<br />
proposed refurbishments.<br />
Our priorities list continues to raise<br />
vital concerns regarding access to justice.<br />
We look to promote fairer and more<br />
substantial compensation in areas including<br />
CTP, workers compensation and victims<br />
of crime. It is clear that reasonable and<br />
achievable improvements could and should<br />
be made to these compensation schemes.<br />
I would encourage you all to read and<br />
consider the Society’s key election issues<br />
(accessible via the home page of the<br />
Law Society website). There will not be<br />
universal acceptance of the order of<br />
priorities, and there may be considered<br />
to be omissions. I do consider, however,<br />
that they are all properly directed to the<br />
objective above. We will of course continue<br />
to advocate for a number of other<br />
important legal issues before and beyond<br />
the election.<br />
The role of our next state government,<br />
of whatever composition, will not be easy.<br />
The competing claims on the government’s<br />
resources are vast, and the means to<br />
address those claims are limited. We do<br />
have a valid case to put, and we will do so<br />
with energy and conviction.<br />
Our principal point of contact with the<br />
government of the day is the Attorney-<br />
General. The Legal Practitioners Act provides<br />
a specific statutory appointment of the<br />
Attorney as a member of the Council of<br />
the Law Society. Although the attendance<br />
of Attorneys at our meetings has been<br />
irregular, the fact is that agenda papers and<br />
minutes are provided to their office as part<br />
of that role.<br />
This relationship, naturally, is attended<br />
with some tensions – the Attorney is a<br />
member of a government whose policies<br />
the Society may be duty-bound, and must<br />
always be free, to criticise. I consider this,<br />
however, to be a vital relationship, and an<br />
essential conduit to government. It is one<br />
which should be marked by mutual respect<br />
and understanding.<br />
I imagine that the role of the Attorney-<br />
General in dealing with other ministerial<br />
colleagues won’t always be easy, but I<br />
believe that it is a reasonable expectation<br />
that any occupant of that office would be<br />
an advocate for and guardian of the rule<br />
of law in the deliberations of cabinet. The<br />
Law Society should support that role.<br />
We are keen also to support the<br />
operation of the parliamentary process<br />
through the provision of information<br />
to all parliamentarians. Many of you will<br />
be in a position, through your political<br />
involvement or contacts, to draw the<br />
attention of members of parliament and<br />
candidates for election to the items in our<br />
key election issue submisison. I would urge<br />
you to consider doing so. B<br />
We will of course continue to advocate for a<br />
number of other important legal issues before<br />
and beyond the election.
FROM THE EDITOR<br />
New Year,<br />
New Opportunities<br />
MICHAEL ESPOSITO, EDITOR<br />
Happy New Year to all. For most of<br />
you, the Christmas holidays are but a<br />
distant memory as the routine of work sets<br />
in but I hope the break has left you energised<br />
and enthusiastic about the year ahead.<br />
Following the success of last year’s event,<br />
the Law Society is inviting Members to<br />
celebrate the “Happy New Legal Year” at<br />
Adelaide Oval on 8 <strong>February</strong>. While the<br />
working year has already well and truly<br />
started for many, the event is a great opportunity<br />
to catch up with peers and reflect<br />
on the important role that practitioners<br />
play in society and to pledge a commitment<br />
to uphold the principles of fairness that<br />
underpins the practice of law.<br />
It will also be an opportunity to meet the<br />
Society’s new President, Tim Mellor, who<br />
in his inaugural President’s Message for the<br />
Bulletin outlines the Society’s key priorities<br />
in the lead-up to the State election next<br />
month.<br />
Most political parties have responded to<br />
our key election policy issues. A summary<br />
of those responses is in this Bulletin and<br />
the full responses will be available to Members<br />
via a special Advocacy Notes newsletter<br />
and via the Law Society website.<br />
contributions to the law, including as<br />
Counsel Assisting in the in the Children in<br />
State Care Commission of Inquiry headed<br />
by Justice Ted Mullighan QC, as Counsel<br />
Assisting the Board of Inquiry into the<br />
conviction of David Eastman for the<br />
murder of Colin Winchester, and as head<br />
of a review of South Australia’s rape and<br />
sexual assault laws, leading to significant<br />
changes to the state’s Evidence Act and<br />
Criminal Law Consolidation Act.<br />
Judge Chapman began her work as an<br />
Associate to Justice Duggan in in 1994.<br />
She has since worked with the Crown<br />
Solicitor’s Office, as a Crown Prosecutor,<br />
and in 2005 signed the Bar roll before<br />
taking silk in 2010.<br />
Her Honour has also been involved in the<br />
Legal Practitioners Disciplinary Tribunal<br />
the Sentencing Advisory Council, and<br />
Australian New Zealand Forensic Science<br />
Society<br />
On 7 November, His Honour Judge<br />
Steven Dolphin was appointed President of<br />
the South Australian Employment Tribunal<br />
(SAET), replacing His Honour President<br />
Senior Judge Peter McCusker who retired<br />
on 31 October 2017.<br />
Judge Dolphin was appointed as Deputy<br />
President of SAET in 2015 and became a<br />
Judge of the District Court on 1 July 2017.<br />
He has had an extensive legal career<br />
in industrial relations and workers<br />
compensation and has been heavily<br />
involved with the Law Society, including<br />
as Chair of the Industrial Relations<br />
Committee.<br />
Judge Dolphin’s previous role has been<br />
filled by Margaret Kelly, who on 19<br />
December 2017 was appointed a Judge of<br />
the District Court and Deputy President of<br />
the SAET.<br />
Judge Kelly, a former President of the<br />
Law Society, has extensive experience in<br />
worker’s compensation, personal injury,<br />
insurance and industrial law. B<br />
SOCIETY COMMENDS NEW JUDICIAL<br />
APPOINTMENTS<br />
The Law Society congratulates a number<br />
of recent appointees to South Australian<br />
Courts.<br />
On 31 October 2017, Her Honour Liesl<br />
Chapman SC was appointed as a Judge of<br />
the District Court<br />
At the Special Sitting for Judge<br />
Chapman on 22 November, Her Honour<br />
was described as one of the “standout<br />
prosecutors/criminal barristers of [her]<br />
generation”.<br />
She has made a number of significant<br />
Chief Justice Chris Kourakis with Judge Chapman at her swearing in.<br />
<strong>February</strong> <strong>2018</strong> THE BULLETIN<br />
5
POLITICS AND THE LAW<br />
Eligibility of Dual Citizens:<br />
The Coming-of-Age of Section 44<br />
ASSOCIATE PROFESSOR MATTHEW STUBBS, UNIVERSITY OF ADELAIDE AND DR ADAM WEBSTER, UNIVERSITY OF OXFORD<br />
In 2017, Australia played host to “the<br />
world’s most ridiculous constitutional<br />
crisis”. 1 Section 44 of the Australian<br />
Constitution, which had been invoked in<br />
only a handful of cases to find candidates<br />
ineligible to be chosen to sit in the<br />
Commonwealth Parliament, 2 was suddenly<br />
at the forefront of national attention. So<br />
was the High Court, sitting as the Court<br />
of Disputed Returns, which by the end<br />
of 2017 had ruled that eight of the 10<br />
individuals it had examined were ineligible<br />
to have been elected at the 2016 election. 3<br />
A further three persons have been referred<br />
to the High Court for consideration<br />
in <strong>2018</strong>, with all three conceding their<br />
ineligibility. 4 Also, without reference to<br />
the Court, John Alexander resigned on<br />
the basis of ineligibility. Accordingly,<br />
by the end of 2017, it appears that 12<br />
of the 226 members of the Parliament<br />
have been confirmed to be ineligible.<br />
Yet more politicians (and their potential<br />
replacements) may still have questions<br />
surrounding their eligibility to be resolved<br />
in <strong>2018</strong>. How did we end up in this<br />
remarkable situation?<br />
Section 44 of the Australian Constitution<br />
is an apparently simple provision which<br />
lists a series of matters that render a person<br />
“incapable of being chosen or of sitting<br />
as a senator or a member of the House of<br />
Representatives”. These include:<br />
i. Where a person ‘is under any<br />
acknowledgment of allegiance,<br />
obedience, or adherence to a foreign<br />
power, or is a subject or a citizen or<br />
entitled to the rights or privileges of a<br />
subject or a citizen of a foreign power’;<br />
ii. Where a person ‘has been convicted<br />
and is under sentence, or subject to be<br />
sentenced, for any offence punishable<br />
… by imprisonment for one year or<br />
longer’;<br />
iii. Being an undischarged bankrupt<br />
or insolvent;<br />
iv. Holding ‘any office of profit under<br />
the Crown’;<br />
v. Having ‘any direct or indirect pecuniary<br />
interest in any agreement with the<br />
Public Service of the Commonwealth’.<br />
Section 44 is intended to reinforce our<br />
elected representatives’ “duty to serve<br />
and, in serving, to act with fidelity and<br />
with a single-mindedness for the welfare<br />
of the community”. 5<br />
The decisions in early 2017 that Rodney<br />
Culleton and Bob Day were ineligible<br />
depended upon sub-ss 44(ii) and (v)<br />
respectively. 6 The ensuing crisis has<br />
predominantly concerned whether s 44(i)<br />
renders ineligible dual citizens (that is,<br />
persons who are citizens of another nation<br />
as well as of Australia).<br />
Variations on three potential approaches<br />
to s 44(i) ineligibility were suggested in<br />
respect of the seven persons referred to<br />
the Court in Re Canavan. In essence, they<br />
would apply the provision:<br />
i. in all cases where a person holds<br />
‘citizenship of a foreign power’ (subject<br />
to a limited exception discussed below); 7<br />
ii. only where foreign citizenship was<br />
voluntarily obtained/chosen, or<br />
voluntarily/knowingly retained; 8<br />
iii. only where a person had knowledge that<br />
would cause a reasonable person in their<br />
situation to inquire as to whether they<br />
held foreign citizenship. 9<br />
Other than the first alternative, each of<br />
these approaches “departs substantially<br />
from the text” of s 44(i), 10 by limiting<br />
its application to particular sets of<br />
circumstances not expressed in the subsection.<br />
In so doing, each draws on the<br />
dissenting approach of Deane J in Skyes<br />
v Cleary, where his Honour expressed the<br />
view that s 44(i) should be interpreted<br />
as “impliedly containing a ... mental<br />
element”. 11<br />
The unanimous High Court in Re<br />
Canavan adopted the first approach to the<br />
interpretation of s 44(i). Their Honours<br />
relied upon the following reasons:<br />
i. the text, which deals with ‘allegiance,<br />
obedience, or adherence’ separately<br />
from having the status of ‘a subject or<br />
a citizen’ (implying that the first covers<br />
situations of voluntary allegiance,<br />
whereas the second is broader) 12 and<br />
which ‘is cast in peremptory terms’; 13<br />
ii. its purpose, which was said to be ‘to<br />
ensure “that members of Parliament<br />
did not have a split allegiance”’, 14 not<br />
merely by reference to ‘the person’s<br />
subjective feelings of allegiance’, 15 but<br />
also objectively where the split arises<br />
from the existence of a legal ‘duty to a<br />
foreign power as an aspect of the status<br />
of citizenship’; 16<br />
iii. its drafting history, which their Honours<br />
concluded demonstrated that s 44(i)<br />
was not addressed merely to situations<br />
where there has been ‘an “act” done by<br />
a person whereby the person became a<br />
… [foreign] citizen’; 17<br />
iv. the consequence of the alternative<br />
interpretation, which by introducing a<br />
mental element would lead to ‘the need<br />
for an investigation into the state of<br />
mind of a candidate’, 18 which would in<br />
turn lead to ‘uncertainties [which] are<br />
apt to undermine stable representative<br />
government’; 19<br />
v. that, although a strict application of<br />
s 44(i) might be thought to be harsh,<br />
‘nomination for election is manifestly<br />
an occasion for serious reflection’ by a<br />
person as to their eligibility. 20<br />
One unusual aspect of the application of<br />
s 44(i) is its reliance on foreign law. As the<br />
Court explained in Re Canavan:<br />
“Whether a person has the status of …<br />
a citizen of a foreign power necessarily<br />
depends upon the law of the foreign<br />
power … because it is only the law<br />
of the foreign power that can be the<br />
source of the status of citizenship<br />
or of the rights and duties involved in<br />
that status”. 21<br />
This should not be a surprise – it is hard<br />
to see how it could be otherwise, and<br />
this is also consistent with the approach<br />
of international law that “[i]t is for each<br />
State to determine under its own law<br />
who are its nationals”. 22 This is also,<br />
practically speaking, why so many people<br />
have managed to fall foul of s 44(i) –<br />
some nations have relatively generous<br />
citizenship laws, such that citizenship can<br />
be inherited from a parent (or grandparent)<br />
by operation of law, without there being<br />
any direct personal involvement of an<br />
individual with that country.<br />
This role of foreign law is, however, the<br />
subject of the only exception allowed by<br />
the High Court. Recognising that there<br />
6<br />
THE BULLETIN <strong>February</strong> <strong>2018</strong>
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POLITICS AND THE LAW<br />
is a “constitutional imperative that an<br />
Australian citizen not be irremediably<br />
prevented by foreign law from participation<br />
in representative government”, the High<br />
Court held that s 44(i) would not disqualify<br />
a person:<br />
“Where it can be demonstrated that<br />
the person has taken all steps that are<br />
reasonably required by the foreign law to<br />
renounce his or her citizenship and<br />
within his or her power”. 23<br />
This exception did not avail any of the<br />
persons found to be ineligible in 2017.<br />
The approach to s 44(i) taken by the<br />
unanimous High Court in Re Canavan<br />
led to findings of ineligibility for five of<br />
the seven persons whose situation was<br />
considered, as the Court was satisfied they<br />
held “citizenship of a foreign power”.<br />
The two persons held to be eligible were<br />
found not to hold “citizenship of a foreign<br />
power”: the Court concluded that Matthew<br />
Canavan was not, in fact, a citizen of<br />
Italy; 24 and that Nick Xenophon was only<br />
entitled to a status under UK law known as<br />
“British Overseas Citizenship” 25 which the<br />
Court found “distinctly does not confer the<br />
rights or privileges of a citizen as that term<br />
is generally understood”. 26<br />
The Court subsequently held in Re Nash<br />
[No 2] 27 that Hollie Hughes, who would<br />
have been elected as a Senator on the<br />
special recount of papers held as a result<br />
of the ineligibility of Fiona Nash, was also<br />
ineligible, this time under s 44(iv). One<br />
year after she was not elected, Hughes<br />
was appointed a part-time member of the<br />
Administrative Appeals Tribunal. Thus,<br />
from 1 July to 27 October, 2017 (when she<br />
resigned, within one hour of the Court’s<br />
ruling that Nash was ineligible), Hughes<br />
held an “‘office of profit under the Crown’<br />
within the meaning of s 44(iv)”. 28 The issue<br />
before the Court was when the process of<br />
“being chosen” (within the meaning of<br />
s 44) concluded, which would determine<br />
whether Hughes’ position at the Tribunal<br />
resulted in her ineligibility.<br />
In Re Canavan, the Court had concluded<br />
that the process commenced at the date of<br />
nomination. 29 In Re Culleton (No 2), Kiefel,<br />
Bell, Gageler and Keane JJ wrote that the<br />
process continued “until the return of the<br />
writs for the election, as that is the time at<br />
which the electoral process is complete”. 30<br />
Re Nash [No 2] clarified that this statement<br />
must refer to a valid return of the writs,<br />
and that the process of “being chosen”<br />
will “remain constitutionally incomplete<br />
until” it results “in the determination as<br />
elected of a person who is qualified to be<br />
chosen and not disqualified from being<br />
chosen”. 31 Accordingly, as the process of<br />
“being chosen” had not been completed,<br />
Hughes’ enjoyment of an “office of profit<br />
under the Crown” (more than a year after<br />
the election) rendered her ineligible to be<br />
elected in the special count. The Court<br />
added, “[l]est it might seem harsh or unduly<br />
technical,” that Hughes’ acceptance of<br />
a position at the Administrative Appeals<br />
Tribunal:<br />
“was a voluntary step which she took<br />
in circumstances where reference by<br />
the Senate to the Court of Disputed<br />
Returns of a question concerning<br />
whether a vacancy existed in the<br />
representation of New South Wales<br />
in the Senate by reason of the<br />
disqualification or lack of qualification<br />
of a senator who had been returned<br />
as elected was always a possibility. By<br />
choosing to accept the appointment<br />
for the future, Ms Hughes forfeited<br />
the opportunity to benefit in the future<br />
from any special count of the ballot<br />
papers that might be directed as a result<br />
of such a vacancy being found.” 32<br />
The Court’s attempt to demonstrate<br />
that this result was not harsh or unduly<br />
technical is not especially convincing.<br />
Its reasons for rejecting the submissions<br />
of the Commonwealth and Hughes<br />
that the process of “being chosen”<br />
concludes on polling day drew on several<br />
unsatisfactory results that such an<br />
interpretation would have. 33 More than<br />
this, however, the fundamental reason for<br />
the Court’s decision that the process of<br />
“being chosen” was so extensive lies in its<br />
acceptance of the point made in Vardon<br />
v O’Loghlin in 1907 that: “The election is<br />
Former Nationals deputy leader Fiona Nash<br />
either valid or invalid. If invalid … the case<br />
is to be treated for all purposes, so far as<br />
regards the mode of filling the vacancy,<br />
as if the first election had never been<br />
completed”. 34 So, the Senate election in<br />
New South Wales which commenced at<br />
the close of nominations on 9 June, 2016<br />
(following dissolution of both Houses<br />
of the Parliament on 9 May, 2016), and<br />
reached its zenith on polling day on 2 July,<br />
2016, continued at least until Gageler J<br />
declared that Jim Molan had been elected<br />
as a Senator on 22 December, 2017. 35<br />
The big question that must now be<br />
confronted is whether s 44 of the<br />
Australian Constitution should be<br />
amended – with all the difficulties a<br />
constitutional referendum entails – and/<br />
or whether other steps should be taken to<br />
deal with issues of eligibility? Answering<br />
this question must be left for another<br />
day. What this note has shown is that<br />
the High Court, in its decisions on s 44<br />
in 2017, has demonstrated that it will<br />
interpret the provision strictly as it stands.<br />
If s 44 has become inappropriate in the<br />
modern globalised world, or if it reflects<br />
a legitimate concern but deals with it in a<br />
manner no longer thought ideal, the High<br />
Court has made clear that responding to<br />
any need for change is a matter for<br />
the Parliament and, ultimately, the<br />
Australian people.<br />
Matthew Stubbs is an Associate Professor at<br />
Adelaide Law School, Editor in Chief of the<br />
Adelaide Law Review and Chair of the Society’s<br />
Human Rights Committee.<br />
Adam <strong>Web</strong>ster is a Departmental Lecturer<br />
in Law and Public Policy at the University of<br />
Oxford’s Blavatnik School of Government. B<br />
8<br />
THE BULLETIN <strong>February</strong> <strong>2018</strong>
POLITICS AND THE LAW<br />
Endnotes<br />
1 David Fickling, ‘The World’s Most Ridiculous<br />
Constitutional Crisis’ (Bloomberg) .<br />
2 See, eg, Sykes v Cleary (1992) 176 CLR 77; Free v<br />
Kelly (No 2) (1996) 185 CLR 296; Sue v Hill (1999)<br />
199 CLR 462. See generally Matthew Stubbs<br />
(ed), Jack Richardson, Australia’s Constitutional<br />
Government (LexisNexis, 2016) 78-81.<br />
3 Rodney Culleton (Re Culleton [No 2] (2017) 341<br />
ALR 1); Robert Day (Re Day [No 2] [2017] HCA<br />
14); Barnaby Joyce, Scott Ludlam, Larissa Waters,<br />
Malcolm Roberts, and Fiona Nash (Re Canavan<br />
[2017] HCA 45); and Hollie Hughes (Re Nash [No<br />
2] [2017] HCA 52).<br />
4 Stephen Parry, Jackie Lambie and Skye<br />
Kakoschke-Moore (Re Parry [2017] HCATrans<br />
254 (8 December 2017)).<br />
5 R v Boston (1923) 33 CLR 386, 400 (Isaacs and<br />
Rich JJ) (emphasis in original); cited in Re Day<br />
[No 2] [2017] HCA 14, [49] (Kiefel CJ, Bell and<br />
Edelman JJ), [179] (Keane J), [269] (Nettle and<br />
Gordon JJ).<br />
6 Associate Professor Stubbs examined these<br />
decisions in an article in the July 2017 edition of<br />
the Bulletin.<br />
7 Re Canavan [2017] HCA 45, [13] (Kiefel CJ, Bell,<br />
Gageler, Keane, Nettle, Gordon and Edelman JJ).<br />
8 Ibid [14], [16].<br />
9 Ibid [17].<br />
10 Ibid [13].<br />
11 (1992) 176 CLR 77, 127.<br />
12 Re Canavan [2017] HCA 45, [20]-[23].<br />
13 Ibid [61].<br />
14 Ibid [24], quoting Sykes v Cleary (1992) 176 CLR<br />
77, 107 (Mason CJ, Toohey and McHugh JJ).<br />
15 Re Canavan [2017] HCA 45, [25].<br />
16 Ibid [26], quoting Sykes v Cleary (1992) 176 CLR<br />
77, 109-10 (Brennan J).<br />
17 Re Canavan [2017] HCA 45, [35].<br />
18 Ibid [48].<br />
19 Ibid [54].<br />
20 Ibid [60].<br />
21 Ibid [37].<br />
22 Convention on Certain Questions Relating to the Conflict<br />
of Nationality Law, 179 LNTS 89 (entered into<br />
force 1 July 1937) art 1.<br />
23 Re Canavan [2017] HCA 45, [72] (emphasis<br />
added). Examples of potentially unreasonable<br />
requirements are given at [69].<br />
24 Ibid [86].<br />
25 British Nationality Act 1981 (UK) s 26.<br />
26 Re Canavan [2017] HCA 45, [134].<br />
27 [2017] HCA 52.<br />
28 Ibid [9] (Kiefel CJ, Bell, Gageler, Keane and<br />
Edelman JJ).<br />
29 Re Canavan [2017] HCA 45, [3].<br />
30 [2017] HCA 4, [13].<br />
31 Re Nash (No 2) [2017] HCA 52, [39]<br />
32 Ibid [45].<br />
33 Ibid [21]-[43].<br />
34 Vardon v O’Loghlin (1907) 5 CLR 201, 208-09<br />
(Griffith CJ, Barton and Higgins JJ).<br />
35 Re Nash [2017] HCATrans 272.<br />
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POR066
POLITICS AND THE LAW<br />
Protest and Political Communication<br />
after Brown v Tasmania<br />
PROF MARY HEATH, DEAN (EDUCATION), COLLEGE OF BUSINESS, GOOVERNMENT & LAW, FLINDERS UNIVERSITY,<br />
& DR PETER BURDON, ASSOCIATE PROFESSOR, ADELAIDE LAW SCHOOL<br />
personal right to political<br />
A communication has never been a<br />
vibrant part of Australian law. In the<br />
absence of a Bill of Rights or other<br />
express legislative protection, those wishing<br />
to assert such a right have creatively argued<br />
for the existence of an implied right<br />
in the Constitution. In Ansett Transport<br />
Industries (Operations) Pty Ltd v Commonwealth<br />
(1977) 139 CLR 54 [13] Justice Lionel<br />
Murphy argued that our system of<br />
representative government required<br />
“freedom of movement, speech and other<br />
communication, not only between the<br />
States, but in and between every part of<br />
the Commonwealth [13]”.<br />
Murphy’s argument was debated and<br />
adapted over the next 20 years. However,<br />
in Lange v Australian Broadcasting Corporation<br />
(1997) 189 CLR 520 the High Court<br />
unanimously affirmed the implied freedom<br />
of political communication. To determine<br />
whether a piece of legislation contravened<br />
the implied freedom, the High Court<br />
developed a test (the Lange test) which<br />
was refined most recently in McCloy v New<br />
South Wales [2015] HCA 34. The test poses<br />
three questions.<br />
1. Is the freedom burdened? Is political<br />
communication deterred or limited by<br />
the Act? (“burden”)<br />
2. Is the purpose of the Act compatible<br />
with the maintenance of responsible,<br />
representative government?<br />
(“justification”)<br />
3. Is the burden the Act imposes<br />
proportionate to the purpose the<br />
legislation seeks to achieve? Is there<br />
a realistic way of achieving that<br />
purpose with less restriction of the<br />
freedom of political communication?<br />
(“proportionality”) 1<br />
This was the legal position when the state<br />
of Tasmania introduced The Workplaces<br />
(Protection from Protesters) Act in 2014. The<br />
legislation specifically targeted protest,<br />
defined in s 4 to include any activity<br />
promoting “awareness of or support for<br />
… an opinion, or belief, in respect of a<br />
political, environmental, social, cultural or<br />
economic issue” taking place on business<br />
premises. The very broad s 5 definition<br />
of “business premises” included publicly<br />
owned land, such as “business access<br />
areas” and mining and forestry sites. The<br />
new laws dramatically increased penalties<br />
for conduct which was already penalised<br />
by the general criminal law. For example,<br />
under s 8, protesters who failed to “move<br />
on” from a business premises after a lawful<br />
direction faced a $10,000 fine.<br />
The Act was immediately controversial.<br />
While the Tasmanian government<br />
announced that it would “[n]o longer …<br />
tolerate the extremists”, 2 rapporteurs from<br />
the United Nations argued that the Act<br />
“would contravene Australia’s…obligations<br />
under international human rights law”. 3<br />
The stage was set for a challenge. In<br />
January, 2016, Bob Brown and Jessica<br />
Hoyt were arrested while protesting in<br />
the Lapoinya State Forest. Brown was<br />
charged with refusing a police order<br />
to leave a “business access area” while<br />
Hoyt was charged with returning to a<br />
“business premises” after being ordered<br />
to leave. Although the charges against<br />
Brown and Hoyt were dropped, they went<br />
to the High court to argue that the Act<br />
unconstitutionally restricted freedom of<br />
political communication. The Tasmanian<br />
government was joined by the Federal<br />
Government and several states to fight the<br />
challenge.<br />
After two days of argument and five<br />
months of deliberation, the majority of<br />
the High Court (Kiefel CJ, Bell and Keane<br />
JJ, Gageler J, Nettle J) found that sections<br />
of The Workplaces (Protection from Protesters)<br />
Act were unconstitutional. Gordon J took<br />
a more restrictive approach, holding that<br />
only s 8 of the Act was invalid. Edelman<br />
J up held the validity of the Act. We will<br />
focus on the joint judgement of Kiefel CJ,<br />
Bell and Keane JJ and their application of<br />
the Lange test.<br />
First, the justices considered whether<br />
freedom of political communication was<br />
burdened by the Act. In doing so, they<br />
focused on the vagueness of terms like<br />
“business premises” and “business access<br />
area” and noted that it would be very<br />
difficult for protesters and police alike<br />
to tell with certainty when an individual<br />
was in breach of the legislation. Indeed,<br />
it was uncertainty over this very point<br />
that led Tasmanian police to drop the<br />
charges against Brown and Hoyt. The<br />
justices argued:<br />
The point to be made is not that prosecutions<br />
of charges made under the Protesters Act are<br />
unlikely to succeed, if they do proceed. It is<br />
that the difficulty associated with identifying the<br />
area to which the Protesters Act applies in a<br />
given circumstance is likely to result in errors<br />
being made….The result will be that some<br />
lawful protests will be prevented or discontinued<br />
and protesters will be deterred from further<br />
protesting [77].<br />
The plurality found that this impact<br />
“burdened” political communication within<br />
the meaning of the Lange test. They then<br />
found that the Act could be justified by a<br />
legitimate purpose – namely the “protection<br />
of businesses and their operations, here<br />
forest operations, from damage and<br />
disruption from protesters who are engaged<br />
in particular kinds of protests [101]”.<br />
Further, Tasmania was entitled to burden<br />
the freedom of political communication in<br />
its efforts to achieve a legitimate purpose.<br />
However, under Lange, any burden must<br />
be reasonably proportionate to the purpose<br />
of the legislation. The justices held that<br />
provisions prohibiting protesters from<br />
returning to a business area for four days<br />
after a direction and provisions excluding<br />
“whole groups of persons” [136] were not<br />
consistent with the Act’s stated purpose.<br />
Rather, the Court held: “[t]he inference<br />
to be drawn is that [the Act] is directed<br />
solely to the purpose of deterring<br />
protesters [135]”.<br />
10<br />
THE BULLETIN <strong>February</strong> <strong>2018</strong>
POLITICS AND THE LAW<br />
In determining whether the proportionality<br />
test was satisfied, the court applied a test<br />
of necessity, asking “whether there are<br />
alternative, reasonably practicable, means<br />
of achieving the same object but which<br />
have a less restrictive effect on the freedom<br />
[139]”. To answer this question, they<br />
compared the Act with similar legislation<br />
such as the Forest Management Act 2013.<br />
They concluded that the Act had a much<br />
wider operation and created “substantial<br />
deterrent effects” by:<br />
extending the areas of its operation, creating<br />
further consequences for non-compliance with<br />
directions including special offences and heavy<br />
penalties. More importantly they are achieved<br />
by the uncertainty which surrounds the areas<br />
within which the Act applies [144].<br />
In conclusion, the justices argued that<br />
the legislation “is likely to deter protest<br />
of all kinds and that is too high a cost to<br />
the freedom given the limited purpose of<br />
the Protesters Act [145]”. The Act placed<br />
a “significant burden on the freedom of<br />
political communication [152]” going<br />
beyond what was reasonably necessary<br />
to achieve its purpose. That burden was<br />
unjustified and disproportionate, and so<br />
the majority found that the legislation<br />
“cannot be considered as compatible, in<br />
the sense described in Lange [152]”.<br />
This decision represents the first time<br />
the High Court has tested the strength<br />
of the implied freedom of political<br />
communication in the context of nonviolent<br />
protest and freedom of assembly.<br />
In the aftermath of the decision, Bob<br />
Brown praised the High Court for<br />
“defend[ing] the time-honoured rights<br />
of all Australians” 4 while Hoyt stated<br />
that “nobody should be arrested for<br />
peacefully protesting for what they believe<br />
in”. 5 Further, as John Eldridge and Tim<br />
Matthews have argued, the High Court<br />
has recognised that the “physical space<br />
in which a protest occurs is inextricably<br />
tied up with that protest’s communicative<br />
function”. 6 For example, a protest outside<br />
of a forestry building or on a clearing site<br />
has the potential to communicate a much<br />
more powerful political message than a<br />
similar action that is forced to the side of<br />
a road. In these instances, Eldridge and<br />
Matthews argue, it is “necessary to ask<br />
whether the law strikes the right balance<br />
Bob Brown at a climate emergency rally in Melbourne. Photo: Peter Campbell.<br />
in permitting or proscribing protest in the<br />
particular places or spaces which protestors<br />
seek to utilize”. 7<br />
The decision in Brown v Tasmania may<br />
lead to challenges against anti-protest<br />
laws proposed or enacted in other states.<br />
Following the High Court decision, the<br />
Western Australian Attorney-General<br />
Michael Mischin has delayed reintroducing<br />
the Criminal Code Amendment (Prevention of<br />
Lawful Activity) Bill 2015, which has been<br />
condemned by United Nations rapporteurs<br />
as “criminalising lawful protests and<br />
silencing environmentalists and human<br />
rights defenders”. 8 Moreover, the NSW<br />
Attorney-General Mark Speakman<br />
sought advice from the Solicitor-General<br />
concerning The Inclosed Lands, Crimes and<br />
Law Enforcement Legislation Amendment<br />
(Interference) Bill 2016 which expands<br />
police powers and significantly increases<br />
penalties for protesters. A challenge to<br />
this legislation would have immediate<br />
implications for three protesters facing<br />
14 years in jail for peacefully blocking<br />
access to a road and locking onto mining<br />
equipment at the Wilpinjong Coal Mine. 9<br />
The right to protest is certainly under<br />
pressure from increasingly repressive laws<br />
specifically aimed at environmentalists.<br />
However, it is also under pressure from the<br />
privatisation of previously public spaces;<br />
restrictions on NGOs engaged in advocacy;<br />
escalating levels of online, electronic and<br />
visual surveillance and intransigence in<br />
the face of criticism from human rights<br />
monitors including the United Nations.<br />
The decision in Brown v Tasmania comes<br />
as a welcome, if limited, acknowledgment<br />
of the importance of protest to effective<br />
and constitutional government and civic<br />
life in Australia. B<br />
Endnotes<br />
1 See further Tony Blackshield, ‘Green in<br />
Judgement’ Inside Story, 26 October 2017<br />
insidestory.org.au/green-in-judgement/.<br />
2 Ben Hagemann, ‘“Radical” Protesters Face Fines<br />
and Jail Time in Tasmania’ Australian Mining, 18<br />
November 2014, http://austmining.pcmcloud.<br />
com.au/news/radical-protesters-face-fines-andjail-time-in-tasmania-2/.<br />
3 Michel Forst, ‘End of Mission Statement’ 18<br />
October 2016, http://apo.org.au/files/relatedcontent-files/2016-10-18_australia_sr-hrdstatement-final-3.pdf.<br />
4 ABC News, ‘Bob Brown wins High Court case<br />
against Tasmanian Protest Laws’ ABC News<br />
Online, 18 October 2017 <br />
5 Ibid.<br />
6 John Eldridge and Tim Matthews, ‘The Right<br />
to Protest after Brown v Tasmania’ AusPubLaw<br />
Blog, 2 November 2017 .<br />
7 Ibid.<br />
8 Human Rights Law Centre, ‘UN Rights Experts<br />
Urge Western Australia to Abandon Proposed<br />
Anti-protest Laws’ 16 <strong>February</strong> 2016 https://<br />
www.hrlc.org.au/news/un-rights-experts-urgewestern-australia-to-abandon-proposed-antiprotest-laws.<br />
9 Sean Nicholls and Michael Koziol, ‘Call to Scrap<br />
NSW Anti-protest Laws After High Court<br />
decision’ Sydney Morning Herald, 19 October 2017<br />
http://www.smh.com.au/nsw/call-to-scrap-<br />
nsw-antiprotest-laws-after-high-court-decision-<br />
20171018-gz3g7e.html.<br />
<strong>February</strong> <strong>2018</strong> THE BULLETIN 11
POLITICS AND THE LAW<br />
Parliamentary Prayer and the<br />
Establishment of Religion<br />
PAUL BABIE, PROFESSOR OF LAW, ADELAIDE LAW SCHOOL<br />
Greece, an otherwise unexceptional<br />
town of just over 90,000 people in<br />
Monroe County, New York State, gained<br />
national attention in 2014. Its longstanding<br />
practice of asking a volunteer<br />
chaplain to invoke a prayer to open the<br />
legislative sessions of its Town Council<br />
triggered a challenge on the basis that<br />
doing so violated the establishment clause<br />
of the First Amendment to the United<br />
States Constitution: “Congress shall make<br />
no law respecting an establishment of<br />
religion”. In Town of Greece v Galloway, 1 the<br />
United States Supreme Court confirmed<br />
the well-established principle that such<br />
legislative prayers constituted no violation<br />
of the establishment clause, whether at<br />
a meeting of a Town Council, a State<br />
Legislature 2 or the United States Congress<br />
itself. 3<br />
While the story of Greece, New York,<br />
may seem thoroughly uninteresting to<br />
Australians, it does answer a question<br />
that could be asked here. It is a littleknown<br />
fact that such prayers, typically<br />
referred to as parliamentary prayer, are<br />
the norm in every Parliament in Australia,<br />
Commonwealth, State, and Territory. 4<br />
The Australian Constitution, s 116, contains<br />
a provision similar in its terms to the<br />
American establishment clause: “The<br />
Commonwealth shall not make any law<br />
for establishing any religion”. It also goes<br />
further than its American counterpart,<br />
by prohibiting a Commonwealth law “for<br />
imposing any religious observance,” and<br />
providing that “no religious test shall be<br />
required as a qualification for any office or<br />
public trust under the Commonwealth.”<br />
The question arises, then, do such<br />
prayers violate the guarantees contained<br />
in s 116? This brief essay considers<br />
that question in three parts. Part II sets<br />
out the typical parliamentary prayers<br />
currently used in the Commonwealth,<br />
State, and Territory Parliaments. Part III<br />
considers s 116; drawing upon the existing<br />
Australian jurisprudence, with support<br />
from American precedent, I conclude that<br />
while such prayers may not constitute an<br />
establishment of religion, they may impose<br />
a religious observance and may establish<br />
a religious test for qualification for a<br />
Commonwealth office. Part IV concludes.<br />
PARLIAMENTARY PRAYER<br />
The English Parliament’s tradition of<br />
daily prayer is thought to have begun in<br />
about 1558, and to have become common<br />
practice by about 1567. 5 No doubt drawing<br />
upon this tradition, parliamentary prayer<br />
forms an integral part of the pre-federation<br />
and federal democratic history of<br />
Australia. 6 The agenda of the Australasian<br />
Federal Convention of 1897-98 (“the<br />
Convention”) dealt with a proposal for<br />
a standing order that “the daily session<br />
of the Upper and Lower Houses of the<br />
Federal Parliament be opened with prayer<br />
by the President and Speaker, or by a<br />
chaplain”. 7<br />
Post-federation, vigorous campaigns by<br />
the leading churches and trenchant clerical<br />
advocacy ultimately prevailed, ensuring<br />
prayer was used for the inauguration of<br />
the Commonwealth on 1 January, 1901 8<br />
and, on the authority of a Standing Order,<br />
for the opening of the first Parliament<br />
on 9 May, 1901. 9 The Commonwealth<br />
Parliamentary practice of opening prayers<br />
has continued ever since. The House of<br />
Representatives Standing Orders (Cth) O 38<br />
provides that:<br />
The Speaker shall then read the following prayers:<br />
Almighty God, we humbly beseech Thee to<br />
vouchsafe Thy blessing upon this Parliament.<br />
Direct and prosper our deliberations to the<br />
advancement of Thy glory, and the true welfare<br />
of the people of Australia.<br />
Our Father, which art in Heaven: Hallowed<br />
be Thy Name. Thy Kingdom come. Thy will<br />
be done in earth, as it is in Heaven. Give us<br />
this day our daily bread. And forgive us our<br />
trespasses, as we forgive them that trespass<br />
against us. And lead us not into temptation;<br />
but deliver us from evil: For Thine is the<br />
kingdom, and the power, and the glory, for ever<br />
and ever. Amen.<br />
The first of these prayers mirrors almost<br />
precisely that composed for the opening of<br />
the first Parliament in 1901. 10 The Standing<br />
Orders of the Australian Senate (Cth) O 50<br />
make similar provision for the Senate,<br />
and Standing Orders in every State and<br />
Territory operate to the same effect as those<br />
found in the Commonwealth Parliament. 11<br />
Do these Standing Orders providing for<br />
parliamentary prayer violate s 116, either<br />
for the Commonwealth or for a State or<br />
Territory? I turn now to that question.<br />
SECTION 116<br />
The Commonwealth<br />
Australia has never had an established<br />
church; neither has it had a strict wall of<br />
separation between church and state. The<br />
modern relationship between church and<br />
state can be traced to the Convention,<br />
during which the framers settled upon the<br />
Preamble to the Constitution:<br />
WHEREAS the people of New South<br />
Wales, Victoria, South Australia, Queensland,<br />
and Tasmania, humbly relying on<br />
the blessing of Almighty God, have<br />
agreed to unite in one indissoluble Federal<br />
Commonwealth under the Crown of the United<br />
Kingdom of Great Britain and Ireland, and<br />
under the Constitution hereby established<br />
It was thought that the emphasised words<br />
might establish a Commonwealth power to<br />
legislate with respect to the establishment<br />
of a religion or the infringement of the<br />
free exercise thereof. To prevent this,<br />
the framers inserted s 116. 12 However<br />
the experience since federation has<br />
been one of fruitful interaction and<br />
cooperation between religion and state, 13<br />
with the outcome more “semi-permeable<br />
membrane” 14 or “imaginary wall” 15 than<br />
impenetrable barrier.<br />
Given the historic relationship between<br />
church and state, it ought to come as no<br />
surprise that the Australian judiciary has<br />
seen little need to address the nature of the<br />
wall constructed by s 116. Indeed, in the<br />
entire federal history of Australia, the High<br />
Court has considered the establishment<br />
12<br />
THE BULLETIN <strong>February</strong> <strong>2018</strong>
POLITICS AND THE LAW<br />
guarantee but once, in Attorney-General (Vic);<br />
Ex rel Black v Commonwealth (DOGS Case). 16<br />
In that case, the Defence of Government<br />
Schools organisation challenged<br />
Commonwealth funding of religiouslyaffiliated<br />
private State schools. In upholding<br />
the constitutionality of such funding, the<br />
High Court concluded that s 116 operates<br />
as a limitation on Commonwealth (and<br />
possibly Territory 17 ) legislative power. 18 Chief<br />
Justice Barwick wrote that:<br />
establishing a religion involves the entrenchment<br />
of a religion as a feature of and identifi ed<br />
with the body politic, in this instance, the<br />
Commonwealth. It involves the identifi cation<br />
of the religion with the civil authority so as<br />
to involve the citizen in a duty to maintain<br />
it and the obligation of, in this case, the<br />
Commonwealth to patronize, protect and<br />
promote the established religion. In other words,<br />
establishing a religion involves its adoption as<br />
an institution of the Commonwealth, part of<br />
the Commonwealth “establishment”. 19<br />
Thus, the establishment guarantee<br />
prohibits only the adoption of any religion<br />
as an institution of the state 20 and not a<br />
law which merely “touches or relates to”<br />
religion. 21 We might stop at that point,<br />
concluding that on the basis of the DOGS<br />
Case the parliamentary prayer used in the<br />
House and Senate fail to establish a religion<br />
as an institution of the state.<br />
In the absence of direct Australian<br />
authority on the point, however, we might<br />
also search for further guidance in the<br />
similar wording to s 116 found in the<br />
American establishment clause. Some<br />
members of the High Court in the DOGS<br />
Case cautioned against reliance upon<br />
American interpretive approaches to the<br />
First Amendment in the interpretation of<br />
s 116. 22 Yet Murphy J, who the fullness<br />
of time has proven to be correct about<br />
so much, in both common law and<br />
constitutional interpretation, wrote that:<br />
The United States’ decisions on the<br />
establishment clause should be followed. The<br />
arguments for departing from them (based on<br />
the trifl es of differences in wording between<br />
the United States and the Australian<br />
establishment clauses) are hair-splitting, and<br />
not consistent with the broad approach which<br />
should be taken to constitutional guarantees of<br />
freedom. Even if the United States’ decisions<br />
were set aside, the considerations to which I<br />
have referred show that the same interpretation<br />
is reached by applying ordinary constitutional<br />
principles of interpretation. 23<br />
Thus, since the DOGS Case, scholars<br />
have increasingly turned to American<br />
approaches as aids in interpreting the<br />
Australian Constitution generally and in<br />
respect of s 116 specifically. 24 That is why<br />
the town of Greece matters for Australia:<br />
in the absence of direct domestic authority,<br />
Town of Greece provides guidance as to<br />
the use of the establishment guarantee<br />
as concerns parliamentary prayer. There<br />
Kennedy J wrote that<br />
the Establishment Clause must be interpreted<br />
“by reference to historical practices and<br />
understandings.”… That the First Congress<br />
provided for the appointment of chaplains<br />
only days after approving language for the<br />
First Amendment demonstrates that the<br />
Framers considered legislative prayer a benign
POLITICS AND THE LAW<br />
acknowledgment of religion’s role in society….<br />
Marsh stands for the proposition that it is not<br />
necessary to define the precise boundary of<br />
the Establishment Clause where history shows<br />
that the specific practice is permitted. Any<br />
test the Court adopts must acknowledge a<br />
practice that was accepted by the Framers and<br />
has withstood the critical scrutiny of time and<br />
political change…. 25<br />
Having reviewed the history and<br />
practices in the Australian colonies at<br />
the time of the Convention, Ely writes<br />
that “associating religion with the new<br />
Commonwealth did not offend the<br />
community at large.” 26 Significantly, it<br />
was noted, when the matter was brought<br />
before the first Senate, that “[s]ection<br />
116 began, ‘the Commonwealth shall not<br />
make any law…”, [Sir Frederick Sargood]<br />
commented, “A standing order is not a<br />
law.” 27 And Ely concludes that:<br />
the prayer question at last was settled. As<br />
the Sydney Morning Herald editorial of 8<br />
June remarked, such prayers would provide<br />
a ‘regular expression of the statement in the<br />
preamble…that we as a people “humbly rely<br />
on the blessing of Almighty God”.’ However,<br />
as the debates themselves had made clear, the<br />
religion of the federal parliament would be<br />
undogmatic, unsectarian and unsacerdotal. A<br />
door had been opened, slightly, to religion, but<br />
not to the churches. 28<br />
Whether because a Standing Order<br />
eludes the reach of s 116, or because it<br />
was accepted at the time of federation<br />
that such associations of religion with<br />
the Commonwealth were unproblematic,<br />
historical practices and understandings<br />
suggest that Commonwealth parliamentary<br />
prayer may not violate the establishment<br />
guarantee of s 116.<br />
However, while it may not establish a<br />
religion, it is possible that Commonwealth<br />
parliamentary prayer may violate those<br />
guarantees contained in s 116 against<br />
imposing a religious observance and<br />
against setting a religious test an office<br />
under the Commonwealth. While neither<br />
of those guarantees has been judicially<br />
interpreted, Luke Beck writes that:<br />
Prayers are a type of a religious observance,<br />
and it is compulsory for the president [of the<br />
Senate] and the speaker [of the House of<br />
Representatives] to recite the parliamentary<br />
prayers. This also affects everyone else in the<br />
chambers and public galleries. 29<br />
Similarly, in respect of a religious test for<br />
public office:<br />
The standing orders make it the job of the<br />
president and the speaker to participate in<br />
religious activities. A person has to be willing to<br />
participate in particular religious activities if they<br />
want to take on either role. This looks rather<br />
like a religious test for a federal public office. 30<br />
As such, Commonwealth parliamentary<br />
prayer, while potentially capable of passing<br />
Constitutional muster as concerns, the<br />
establishment guarantee may nonetheless<br />
violate the guarantees against the imposition<br />
of a religious observance, at least in respect<br />
of the relevant members of the Senate and<br />
House of Representatives and the public<br />
who are present for the recitation of the<br />
prayers, and against a religious test upon the<br />
office of president and speaker.<br />
The States and Territories<br />
What of the States and Territories? Its<br />
placement in Chapter V of the Australian<br />
Constitution, which deals with the States, and<br />
the Convention debates about its terms<br />
demonstrate that the prohibition of s 116<br />
was originally intended to extend to the<br />
States. 31 However the express terms of<br />
its final form, and its subsequent judicial<br />
and academic treatment are clear: s 116<br />
does not apply to the States, although it<br />
may to the Territories. A number of postfederation<br />
attempts expressly to extend<br />
the application of s 116 to the States and<br />
Territories have each failed. 32 Consequently,<br />
it seems clear that nothing in the<br />
guarantees enumerated in s 116 prevents<br />
the States (and possibly the Territories)<br />
from legislating so as to establish religion<br />
as an institution of the state, or to impose<br />
a religious observance or test for a State or<br />
Territory office.<br />
But what if s 116 did apply to the<br />
States (and expressly to the Territories)?<br />
My conclusions with respect to the<br />
Commonwealth would almost certainly<br />
be the same. In short, the current<br />
parliamentary prayer used in every State<br />
and Territory may not constitute an<br />
establishment of religion violative of s 116.<br />
Historical conditions and practices provide<br />
some support for this conclusion; Ely<br />
writes that:<br />
…practices regarding prayers in the colonial<br />
legislatures differed considerably. The New<br />
South Wales, Tasmanian and South<br />
Australian legislatures and the Victorian<br />
Legislative Assembly did not have prayers<br />
at all. The Victorian Legislative Council<br />
opened its sessions with the Lord’s Prayer.<br />
The Queensland and Western Australian<br />
legislatures used prayers based on the Book of<br />
Common Prayer. 33<br />
Since colonial times, the practice<br />
has expanded such that it has become<br />
the common practice in every State<br />
and Territory to use some form of<br />
parliamentary prayer. 34 On the basis of<br />
colonial and post-federation practice and<br />
understandings in the States, therefore,<br />
even if s 116 did apply to them, the use of<br />
the parliamentary prayer used today may<br />
not constitute an establishment of religion<br />
violative of the establishment guarantee.<br />
They may, though, constitute the imposition<br />
of a religious observance and of a religious<br />
test for holding a State or Territory office.<br />
CONCLUSION<br />
Commonwealth parliamentary prayer may<br />
not constitute an establishment of religion<br />
violative of the establishment guarantee of<br />
s 116 of the Constitution; it may, however<br />
violate the guarantees against imposition of<br />
a religious observance and against a religious<br />
test for a Commonwealth office. Because<br />
s 116, in its express terms, does not apply<br />
to the States and Territories, no probation<br />
exists against parliamentary prayers in those<br />
jurisdictions. If s 116 did apply, however,<br />
the conclusions reached in respect of the<br />
Commonwealth would be the same. B<br />
Endnotes<br />
1 Town of Greece v Galloway (‘Town of Greece’), 572<br />
US ___ (2014) (references herein are to the slip<br />
opinion).<br />
2 While the First Amendment originally applied only<br />
to the federal government of the United States, the<br />
Supreme Court has extended, or incorporated its<br />
protection against the states through the operation<br />
of the Fourteenth Amendment: see Everson v Board<br />
of Education, 330 US 1 (1947).<br />
3 Town of Greece, above n 1, 6-18 (Kennedy J), citing<br />
Marsh v Chambers (Marsh), 463 US 783 (1983); County<br />
of Allegheny v American Civil Liberties Union, Greater<br />
Pittsburgh Chapter (County of Allegheny) 492 US 573<br />
(1989). See also ‘Establishment Clause: Town of<br />
Greece v. Galloway’ (2014) 128 Harvard Law Review 191.<br />
But see Town of Greece, 1-25 (Kagan J, dissenting).<br />
And see the view expressed in Canada: Mouvement<br />
laïque québécois v Saguenay (City) [2015] 2 SCR 3; Freitag<br />
v Penetanguishene (Town) (1999) 47 OR (3d) 301.<br />
4 See Ian Hunter, ‘Parliament and Prayer’ (2010) 26<br />
Flinders Journal of History and Politics 27.<br />
5 Ibid 30.<br />
6 Richard Ely, Unto God and Caesar: Religious Issues in<br />
the Emerging Commonwealth 1891-1906 (Melbourne<br />
University Press, 1976) 117-24.<br />
14<br />
THE BULLETIN <strong>February</strong> <strong>2018</strong>
POLITICS AND THE LAW<br />
7 Ibid 111-2, 117-24.<br />
8 Ibid 111-2.<br />
9 Ibid 117-24; Hunter, above n 4, 29-30.<br />
10 See Ely, above n 6, 123.<br />
11 See New South Wales: Parliament of New South<br />
Wales Legislative Assembly Standing Orders (NSW) O<br />
39, Standing Rules and Orders of the Legislative Council<br />
(NSW) O 28; Victoria: Legislative Assembly of Victoria<br />
Standing Orders (Vic) O 55(1)(a), O 232(4)(e)(v),<br />
Legislative Council of Victoria Standing Orders (Vic) O<br />
4.02, O 1.01(10), O 1.07(5), O 4.05(1); Tasmania:<br />
House of Assembly Standing & Sessional Orders and<br />
Rules (Tas) O 22, Standing Orders Legislative Council<br />
(Tas) O 28; Queensland: Standing Rules and Orders<br />
of the Legislative Assembly (Qld) ch 11 and O 45(2)<br />
(a); South Australia: Standing Orders of the House of<br />
Assembly (SA) O 39, Standing Orders of the Legislative<br />
Council (SA) O 51; Western Australia: Standing Orders<br />
of the Legislative Assembly of the Parliament of Western<br />
Australia (WA) O 58, Western Australia Legislative<br />
Council Standing Orders (WA) O 14(1)(a); Australian<br />
Capital Territory: Legislative Assembly for the Australian<br />
Capital Territory Standing Orders and Continuing<br />
Resolutions of the Assembly (ACT) O 30; Northern<br />
Territory: Legislative Assembly of the Northern Territory<br />
Standing Orders (NT) O 7, Legislative Assembly of the<br />
Norther Territory Thirteenth Assembly Sessional Orders<br />
(NT) O 6.<br />
12 See Tom Frame, Church and State: Australia’s<br />
Imaginary Wall (UNSW Press, 2006) 48-52; Joshua<br />
Puls, ‘The Wall of Separation: Section 116, The<br />
First Amendment and Constitutional Religious<br />
Guarantees’ (1998) 26 Federal Law Review 151. The<br />
seminal history of s 116 is Ely, above n 6.<br />
13 Frame, above n 12, 7-9.<br />
14 Peter J M MacFarlane and Simon Fisher, Churches,<br />
Clergy and the Law (The Federation Press, 1996)<br />
32, who note that ‘metaphorically, the flow of<br />
Commonwealth largesse to religious institutions is<br />
permitted; what is blocked is the reverse passage of<br />
religious entanglement with Commonwealth affairs<br />
(adapting a metaphor from Lemon v Kurtzman 403<br />
US 602 (1971) 613)).’<br />
15 Frame, above n 12, generally.<br />
16 Attorney-General (Vic); Ex rel Black v<br />
Commonwealth (DOGS Case) (1981) 146 CLR 559.<br />
17 Uncertainty exists as to whether the<br />
Commonwealth’s law-making power in relation<br />
to the Territories means that they are subject to<br />
the constitutional freedoms; precedent suggests<br />
not: Kruger v Commonwealth (1996) 190 CLR 1,<br />
60–1 (Dawson J), 141–2 (McHugh J), 79, 85–6<br />
(Toohey J), 122–3 (Gaudron J). But see Clifford L<br />
Pannam, ‘Travelling Section 116 with a U.S. Road<br />
Map’ (1963) 4 Melbourne University Law Review 41;<br />
Jared Clements, ‘Section 116 of the Australian<br />
Constitution and the Jurisprudential Pillars of<br />
Neutrality and Action-Belief Dichotomy’ (2008)<br />
11 International Trade & Business Law Review 255,<br />
273-275.<br />
18 DOGS case, above n 16, 579–81.<br />
19 Ibid 582 (Barwick CJ); see also 604 (Gibbs J), 612<br />
(Mason J), 653 (Wilson J).<br />
20 Ibid 582 (Barwick CJ), 604 (Gibbs J), 612 (Mason<br />
J), 653 (Wilson J).<br />
21 Ibid 616 (Mason J).<br />
22 Ibid 599-603 (Gibbs J), 613-6 (Mason J).<br />
23 Ibid 632 (Murphy J).<br />
24 See Paul Babie, ‘National Security and the Free<br />
Exercise Guarantee of Section 116: Time for a<br />
Judicial Interpretive Update’ (2017) 45 Federal Law<br />
Review 351, 364-6.<br />
25 Town of Greece, above n 1, 7-8 (Kennedy J), citing<br />
Marsh, above n 3, and County of Allegheny, above n 3<br />
(footnotes omitted and emphasis added).<br />
26 Ely, above n 6, 117.<br />
27 Ibid 124, citing Commonwealth Parliamentary Debates,<br />
Volume 1, 1138-9.<br />
28 Ely, above n 6, 124.<br />
29 Luke Beck, ‘Official prayers in federal parliament<br />
are divisive and unconstitutional, and should<br />
be scrapped’, The Conversation (22 August<br />
2017) .<br />
30 Ibid.<br />
31 Ely, above n 6, 60-8, and see especially 63 for<br />
the text of Henry Bourne Higgins’ version<br />
of s 116. And see House of Representatives,<br />
Joint Standing Committee on Foreign Affairs,<br />
Defence and Trade, Freedom of Religion and<br />
Belief Report (2000) , 57-8.<br />
32 Constitution Alteration Bill 1944 (Cth); Australian<br />
Constitutional Convention, 1978; Constitutional<br />
Alteration (Rights and Freedoms) Act 1988 (Cth):<br />
House of Representatives, above n 31, 58.<br />
33 Ely, above n 6, 122-3.<br />
34 See above n 11.<br />
College<br />
Tours<br />
Senior School<br />
Tuesday 27 <strong>February</strong><br />
Junior School and Ignatius Early Years<br />
Wednesday 14 March<br />
Book online at Ignatius.sa.edu.au
TOP ELECTION ISSUES<br />
LAW SOCIETY’S KEY<br />
ELECTION ISSUES<br />
With the State Election approaching on 17 March, the Law Society has released its Top 10 Election<br />
Issues. The Society has asked State political parties to respond to the submission and outline their<br />
policies to strengthen the South Australia’s justice system. Below is a summary of the Top 10 Election<br />
Issues. The full document can be accessed on the Law Society home page.<br />
1. NEW COURTS BUILDING<br />
The issue: The planned upgrades to<br />
the metropolitan Courts buildings,<br />
as budgeted for last year, is a stop-gap<br />
solution with a limited life span.<br />
The State Government needs to provide<br />
funding for an adequately funded and<br />
suitably resourced courts building to<br />
support effective delivery of justice<br />
within South Australia, according to<br />
contemporary and modern expectations<br />
and standards.<br />
KEY ASK<br />
• A commitment to the construction of a<br />
new State Courts precinct by 2023, with<br />
the <strong>2018</strong>-19 State budget to provide<br />
funding for the development of a plan.<br />
2. COURTS FUNDNG<br />
FUNDING FOR THE COURTS<br />
ADMINISTRATION AUTHORITY<br />
The issue: The Courts Administration<br />
Authority (CAA) has been forced over<br />
the past few years to reduce services due<br />
to budget cuts. The Government has also<br />
imposed higher tiered civil lodgement fees<br />
and probate fees, which are collected by<br />
the CAA but go into general revenue rather<br />
than being invested back into the courts.<br />
KEY ASKS<br />
• A significant increase in the Courts<br />
Administration Authority’s budget to<br />
enable it to operate effectively.<br />
• The establishment of an independent<br />
authority to determine a formula for the<br />
appropriate Government funding to be<br />
provided to the CAA.<br />
• Court filing fees and transcript costs<br />
to be waived for ALRM lawyers acting<br />
in State courts for indigent Aboriginal<br />
clients.<br />
• Probate fees and court fees, if to<br />
continue to be imposed, to be based on<br />
the value of the work involved.<br />
DISABILITY ACCESS IN COURTS<br />
The issue: The State’s courts infrastructures,<br />
particularly the Supreme Court building,<br />
fails to provide proper access to people with<br />
physical and cognitive disabilities.<br />
KEY ASKS<br />
• That the Courts Administration<br />
Authority is provided the resources to<br />
engage a disability access consultant to<br />
provide advice and recommendations<br />
on the courts redevelopment project.<br />
• That, in addition to the planned court<br />
upgrades, funding is allocated for the<br />
urgent upgrades of courtrooms 1 and 2<br />
of the Supreme Court to provide access<br />
for those with a disability.<br />
3. ACCESS TO JUSTICE<br />
PSYCHIATRISTS & PSYCHOLOGISTS<br />
The issue: There is a severe shortage<br />
of forensic psychological and psychiatric<br />
services for both prisoners and people<br />
facing trial.<br />
KEY ASKS<br />
• The provision of at least one additional<br />
full-time psychiatrist in the Forensic<br />
Mental Health Services Unit.<br />
• Greater investment in psychological<br />
and psychiatric assessment and<br />
treatment services for prisoners,<br />
including those on remand.<br />
• Investment in specialised services for<br />
prisoners with acquired brain injuries.<br />
• Practitioners undertaking psychological<br />
assessments of prisoners (including noncourt<br />
ordered assessments) to be granted<br />
at least two hours to assess a client.<br />
COMMUNITY LEGAL CENTRES<br />
The issue: State Government funding<br />
to Community Legal Centres has<br />
been reduced and is far lower than the<br />
contribution to CLCs compared to most<br />
other States. The State Government only<br />
contributes 22% of the total funding that<br />
goes to State CLCs.<br />
KEY ASKS<br />
• The share of funding to South<br />
Australian Community Legal Centres by<br />
the State be increased to at least 40% of<br />
the total funding for CLCs.<br />
• A commitment to an ongoing budget<br />
contribution to the core operating costs<br />
of JusticeNetSA.<br />
LEGAL AID FUNDING<br />
The issue: The Legal Services<br />
Commission is facing $10 million<br />
reduction in funding and can only afford<br />
to provide representation to clients in the<br />
bottom 8% of income earners and only<br />
for serious criminal matters or family<br />
law matters involving children. The lack<br />
of remuneration available to private<br />
practitioners affects the viability of private<br />
practitioners taking on legally aided cases.<br />
KEY ASKS<br />
• The restoration of $6 million in State<br />
Government funding for the Legal<br />
Services Commission.<br />
16<br />
THE BULLETIN <strong>February</strong> <strong>2018</strong>
TOP ELECTION ISSUE<br />
• Increased funding to allow the Legal<br />
Services Commission to increase<br />
payments to the private legal profession<br />
acting in legal aid matters.<br />
• Allocation of funding to the Legal<br />
Services Commission for the provision<br />
of legal representation in civil matters.<br />
• Funding for the provision of legal<br />
representation for people subject to<br />
guardianship, medical treatment and<br />
residence orders who appear in the<br />
SACAT in first instance matters.<br />
4. FAIRER COMPENSATION<br />
CIVIL LIABILITY<br />
The issue: Since the 1990s there has been<br />
a steady erosion of the right to obtain fair<br />
compensation both at common law and<br />
under our State Workers Compensation<br />
Scheme. Recent amendments to the Civil<br />
Liability Act 1936 prevent injured people<br />
from obtaining adequate compensation,<br />
deters those who have suffered a loss as a<br />
result of the negligence of another from<br />
obtaining compensation, and is failing to<br />
act as a deterrent to those not inclined to<br />
exercise an appropriate duty of care.<br />
KEY ASK<br />
• The Parliament conduct a review of<br />
the impact of recent amendments to<br />
the Civil Liability Act 1936 in relation to<br />
the scope of liability, burden of proof,<br />
assumption of risk, negligence on the<br />
part of persons professing to have a<br />
particular skill, exclusion of liability<br />
for criminal conduct and in the area of<br />
contributory negligence.<br />
WORKERS COMPENSATION<br />
The issue: The Workers Compensation<br />
Scheme does not provide adequate<br />
recompense to most injured workers.<br />
The Society notes and generally supports<br />
the findings of the Final Report into the<br />
Referral for an Inquiry into the Return to<br />
Work Act and Scheme by the Parliamentary<br />
Committee on Occupational Safety,<br />
Rehabilitation and Compensation (14<br />
November 2017).<br />
KEY ASKS<br />
• That the recommendations of the<br />
Report be adopted, including: an end<br />
to the discrimination against those who<br />
suffer psychiatric injury arising from their<br />
employment; that those who are rendered<br />
totally and permanently incapacitated for<br />
work in the future should be entitled to<br />
long term income and medical support<br />
regardless of the percentage of whole<br />
person impairment; the provision of a<br />
proper allowance of legal representation<br />
costs for injured workers seeking<br />
Tribunal orders for employers to provide<br />
suitable employment; the percentage of<br />
whole person impairment to be able to<br />
pursue a claim for common law damages<br />
must be reduced to 10%, as is the case in<br />
other States.<br />
CTP REFORM<br />
The issue: Under the CTP scheme<br />
as introduced at 1 July 2013, unless<br />
catastrophically injured, those injured as<br />
a result of motor vehicle accidents are<br />
not entitled to an appropriate level of<br />
compensation. Not only is compensation<br />
in relation to severity of injury miserly, but<br />
an injured motorist has to be assessed at an<br />
Injury Scale Value of 11 to even be eligible<br />
for any compensation at all.<br />
KEY ASKS<br />
• The removal of Injury Scale Value<br />
thresholds as they limit the ability of<br />
the injured to qualify for compensation<br />
for both economic loss and noneconomic<br />
loss.<br />
• The CTP Scheme to allow appropriate<br />
compensation to the injured for pain<br />
and suffering.<br />
• The removal of a 20% reduction<br />
in compensation when calculating<br />
economic loss.<br />
• Reinstatement of the right of the<br />
injured to recover legal costs incurred<br />
associated with their claim for<br />
compensation, regardless of the value<br />
of their claim.<br />
VICTIMS OF CRIME<br />
The issue: Payments under the Victims of<br />
Crime Scheme are grossly inadequate and<br />
fail to reflect the trauma suffered by the<br />
victims of serious crimes.<br />
KEY ASKS<br />
• That the Victims of Crime scheme<br />
reverts back to an injury scale running<br />
from 1-50, as per the previous Victims<br />
of Crime Act, but the compensation<br />
payable doubled across the board and<br />
indexed to inflation.<br />
• Representation costs be allowed for<br />
legal representation on the same basis<br />
as the allowance of representation costs<br />
to injured workers under the Return to<br />
Work Act 2014.<br />
BBS Lawyers would like to<br />
welcome Jane Fox to their<br />
team. Jane has practised<br />
solely in Family Law since<br />
her admission in 2003 and<br />
is an Accredited Specialist<br />
in Family Law as recognised<br />
by the Law Society of<br />
SA. She is known for<br />
providing succinct and<br />
direct advice and she<br />
works hard to ensure<br />
exceptional representation<br />
for her clients and the best<br />
possible outcomes.<br />
JANE FOX<br />
SELINA NIKOLOUDAKIS<br />
Jane and Selina are available to take appointments.<br />
Call us now on 8110 2302<br />
BBS Lawyers would like<br />
to congratulate Selina<br />
Nikoloudakis on achieving<br />
her Specialist Accreditation<br />
in Family Law with the Law<br />
Institute of Victoria and the<br />
Law Society of SA.<br />
In addition, we recognise<br />
Selina for her achievement<br />
of the Sandra Paul<br />
Memorial Award as dux of<br />
the Master of Laws (Family<br />
Law) programme which she<br />
also completed in 2017.
TOP ELECTION ISSUES<br />
5. CHILD PROTECTION & YOUTH JUSTICE<br />
YOUNG OFFENDERS<br />
The issue: The Government does not<br />
have a cohesive plan for improving the<br />
welfare of vulnerable children. The strategy<br />
appears to favour incarcerating rather<br />
than rehabilitating at-risk young people.<br />
The Government recently passed a law to<br />
sentence young offenders as adults, and tried<br />
to introduce another law that would have<br />
allowed indefinite detention orders for repeat<br />
young offenders. On the other hand, the<br />
Government also introduced a prevention<br />
and early intervention Bill, but it was not<br />
passed before Parliament rose last year.<br />
KEY ASKS<br />
• That there be a significant expansion<br />
of early intervention and prevention<br />
programs, including intensive,<br />
individualised, youth-based rehabilitative<br />
programs that address the underlying<br />
factors of offending.<br />
• A commitment to increasing and<br />
accelerating access to rehabilitation and<br />
support programs for young people in<br />
custody.<br />
• That young people are not sentenced as<br />
adults but rather, directed to appropriate<br />
rehabilitation, diversion and restorative<br />
justice programs, under supervision.<br />
• That the Government engages<br />
in meaningful consultation with<br />
stakeholders on any proposed laws<br />
regarding the welfare and rights<br />
sentencing of children and youth<br />
offending.<br />
TIME LIMITS ON CHILD ABUSE<br />
COMPENSATION<br />
The issue: Under State law, anyone<br />
pursuing compensation for child abuse<br />
must lodge a claim within three years of<br />
their 18th birthday, or otherwise go through<br />
a long, difficult and potentially costly<br />
process to obtain a special exemption from<br />
the court. Applying for an exemption is<br />
often an insurmountable hurdle for victims<br />
of child abuse. This is a cruel restriction on<br />
the rights of child abuse victims who often<br />
take many years to come to grips with the<br />
abuse they have been subjected to and the<br />
ongoing trauma that follows.<br />
KEY ASKS<br />
• That the State abolishes time limits<br />
that currently apply to personal injury<br />
claims resulting from sexual abuse of a<br />
claimant where the claimant was a child.<br />
• That the removal of time limits be<br />
retrospective in effect so that victims<br />
whose claims may have been subject to<br />
a limitation are able to make a claim for<br />
damages.<br />
• That the definition of child abuse, for<br />
the purpose of making a personal injury<br />
claim, be expanded to include serious<br />
physical abuse and other abuse.<br />
6. ABORIGINAL JUSTICE<br />
JUSTICE REINVESTMENT<br />
The issue: A justice reinvestment initiative,<br />
designed to addressing the cultural, socioeconomic<br />
and psychological factors that<br />
contribute to the high rates of Aboriginal<br />
incarceration, does not have enough<br />
funding continue beyond this year.<br />
KEY ASKS<br />
• That ongoing government funding be<br />
provided to allow Justice Reinvestment<br />
SA to implement its five-year action<br />
plan in Port Adelaide and monitor the<br />
effectiveness of its justice reinvestment<br />
initiatives.<br />
• An increase in early intervention,<br />
prevention and rehabilitative services for<br />
Aboriginal communities.<br />
• A commitment to monitoring criminal<br />
behaviour and to reducing indigenous<br />
incarceration rates in SA in order to<br />
allow the development of evidencebased<br />
programs.<br />
INTERPRETERS<br />
The issue: The lack of Aboriginal<br />
interpreter services in the justice system<br />
is due to several factors, including: a lack<br />
of interpreters with a knowledge of legal<br />
processes, interpreters not being in the<br />
locations where matters are being heard,<br />
the costs incurred by interpreters (who<br />
often live in remote areas) in travelling to<br />
court matters, the restraints of Aboriginal<br />
customs, social issues, confidentiality and<br />
the contactability of interpreters.<br />
KEY ASKS<br />
Specific additional funding be provided to<br />
the Courts Administration Authority to:<br />
• create a think tank for interpreters,<br />
Aboriginal representatives, court<br />
personnel, trainers and accreditors to<br />
examine issues and challenges relating to<br />
interpreters and make recommendations<br />
to improve interpretive services<br />
• implement pay scales for interpreters to<br />
reflect the complexity and skill required<br />
in court work<br />
• provide training for interpreters, judicial<br />
officers, lawyers and court staff to foster<br />
a greater understanding of the roles of<br />
each party.<br />
7. BUILDING BUSINESS<br />
The issue: Lawyers are subject to<br />
heavy regulation, which puts them at a<br />
competitive disadvantage. The costs of<br />
operating a legal practice are increasing<br />
and are borne by clients. The impact of<br />
regulations therefore impacts on people’s<br />
ability to access legal services due to the<br />
cost of doing so. More broadly, the Society<br />
supports measures that:<br />
• ease the costs burden on all businesses,<br />
particularly legal practice<br />
• reduce and simplify the burdensome<br />
regulatory framework for legal practice<br />
• simplify and improve access to<br />
Government services that small<br />
businesses require to perform their<br />
work<br />
• open work opportunities for small<br />
businesses, particularly legal practices.<br />
18<br />
THE BULLETIN <strong>February</strong> <strong>2018</strong>
TOP ELECTION ISSUE<br />
KEY ASKS<br />
• A commitment to an audit of all South<br />
Australian legislation and regulation that<br />
impacts on businesses as to continuing<br />
relevance and to simplify and reduce<br />
the regulatory burden.<br />
• Policy makers contemplating<br />
introduction or changes to major<br />
aspects of regulation must consult in<br />
a genuine and timely way with affected<br />
businesses, community organisations<br />
and individuals.<br />
8. PROTECTION OF ESSENTIAL STATE<br />
SERVICES<br />
PRIVATISATION OF THE LAND SERVICES<br />
GROUP<br />
The issue: The privatisation of services<br />
of the Lands Titles Office (LTO)<br />
was conducted without appropriate<br />
consultation. There has been a lack of<br />
transparency by the Government as to the<br />
terms and conditions of the contract the<br />
Government is entering into with Land<br />
Services SA, particularly regarding issues<br />
of privacy and the protection of personal<br />
data. South Australians have a right to<br />
know how data relating to their property<br />
ownership and transactions will be used<br />
and how it is to be protected.<br />
KEY ASKS<br />
• That the terms of and conditions of the<br />
Contract the Government is entering<br />
into with Land Services SA be publicly<br />
disclosed.<br />
• That in any future sale of a State-owned<br />
asset or a service provided by the State:<br />
o the Government outline its proposal<br />
including the results of a cost/<br />
benefit and risk analysis, before<br />
proceeding to amend legislation<br />
or include projections in the State<br />
budget<br />
o if not otherwise required to<br />
be debated by the Parliament,<br />
Parliamentary approval be required for<br />
sales expected to exceed $50 million<br />
o the terms and conditions of the<br />
contract be transparent<br />
PRIVATISATION OF FINES UNIT<br />
The issue: The Law Society has serious<br />
concerns about the passage of a Bill<br />
that allows the Government to privatise<br />
the fines unit, which is responsible for<br />
recovering unpaid fines. Under the Bill,<br />
a Chief Recovery Officer is responsible<br />
for recovering civil debt owed to the<br />
Government, and the Government could<br />
outsource the Chief Recovery Officer<br />
role to a private debt collection agency, or<br />
privatise the function entirely. The Society<br />
strongly opposes the privatisation of the<br />
Government’s fines collection functions.<br />
KEY ASK<br />
• That the responsibility for the collection<br />
of Government fines remain a function<br />
of the Government.<br />
9. SMARTER CRIMINAL POLICIES<br />
The issue: A number of legislative<br />
changes have been introduced since the<br />
last State election which have expanded<br />
the power of the State and eroded civil<br />
liberties. Several of these laws seek to hand<br />
even more authority to the State, increasing<br />
the risk of people being unfairly oppressed<br />
and persecuted.<br />
They include:<br />
• The Criminal Law Consolidation<br />
(Criminal Organisations) Amendment<br />
Bill 2017<br />
• Statutes Amendment (Child Exploitation<br />
and Encrypted Material) Bill 2017<br />
• The Statutes Amendment (Terror<br />
Suspect Detention) Bill 2017<br />
People are being detained for long<br />
periods of time without access to lawyers<br />
or rights. There is a growing number of<br />
instances where the presumption of bail<br />
has been revoked.<br />
KEY ASKS<br />
• That the Government enact a charter<br />
of rights to ensure that State laws are<br />
compatible with a set of principles that<br />
protect and promote the basic freedoms,<br />
rights and responsibilities of all South<br />
Australians.<br />
• That there be genuine consultation<br />
with stakeholders such as the Law<br />
Society on proposed legislative changes<br />
before they are introduced into<br />
Parliament.<br />
• That an evidence-based rationale be<br />
provided of the merits of proposed<br />
laws that may infringe a person’s rights<br />
and freedoms.<br />
10. PRISONS<br />
The issue: South Australia’s prisons are<br />
chronically overcrowded, which impacts<br />
on the delivery of rehabilitation programs,<br />
the release of prisoners at the end of<br />
their parole period, the capacity to treat<br />
cognitively impaired prisoners, and the<br />
ability of lawyers to meet with their clients<br />
in prison.<br />
KEY ASKS<br />
• Sufficient allocation of funds to support<br />
the execution of the “10by20” strategy<br />
to reduce re-offending by 10% by 2020<br />
• Adoption of the Standard Minimum<br />
Rules for the Treatment of Prisoners<br />
(“the Nelson Mandela Rules”) as<br />
minimum standards for people held in<br />
prisons and other forms of custody.<br />
• The concerns of the Society in<br />
relation to the Correctional Services<br />
(Miscellaneous) Amendment Bill<br />
2017 be addressed. In particular, the<br />
removal from the Bill of the proposed<br />
deletion of section 22(3) of the<br />
Correctional Services Act 1982, which<br />
provides that person who is sentenced<br />
to a term of imprisonment exceeding<br />
15 days must not be imprisoned in a<br />
police prison. B<br />
<strong>February</strong> <strong>2018</strong> THE BULLETIN 19
TOP ELECTION ISSUES<br />
POLITICIANS RESPOND<br />
TO KEY LEGAL ISSUES<br />
The Law Society sent its Top 10 Election Issues submission to all political parties running in the<br />
upcoming State election. All parties except SA Best submitted responses to the Law Society’s<br />
submission. The following pages feature selected extracts of the responses of political parties. The full<br />
responses will be sent to Members via a special edition of Advocacy Notes in <strong>February</strong>.<br />
SA LABOR<br />
NEW COURT PRECINCT<br />
The Government is committed to<br />
the development of modern and<br />
technologically advanced State Courts.<br />
The recent announcement of $31 million<br />
towards new criminal courtrooms (where<br />
the most acute difficulty exists) reflects this<br />
commitment. It also marks the early stage<br />
of this important staged upgrade to the<br />
State’s court infrastructure.<br />
PROBATE & COURT FEES BASED ON THE<br />
VALUE OF THE WORK INVOLVED.<br />
If this change is to be responsibly<br />
adopted, the Government considers it<br />
important to consult with the Courts<br />
Administration Authority to understand the<br />
impact this may have on its budget. We are<br />
open to discussing this with the CAA.<br />
PSYCHOLOGICAL & PSYCHIATRIC SERVICES<br />
FOR PRISONERS<br />
The Government is considering<br />
expanding in-reach mental health services<br />
provided to prisoners, which will include<br />
those on remand.<br />
We currently have psychological services<br />
in place for the assessment and treatment<br />
of prisoners comprising more than<br />
70 psychologists, social workers, and<br />
assessment and rehabilitation clinicians<br />
employed across the prison system.<br />
This Government also invested in the<br />
High Dependency Unit at Yatala Labour<br />
Prison and the Complex Needs Unit at Port<br />
Augusta Prison, providing specialist services<br />
for prisoners with acute psychological needs.<br />
WORKERS COMPENSATION REFORM<br />
On 14 November 2017 the Government<br />
appointed former Justice of the Federal<br />
20 THE BULLETIN <strong>February</strong> <strong>2018</strong><br />
Court of Australia, the Hon John Mansfield<br />
AM QC, to conduct an independent<br />
review of the Return to Work Act and its<br />
administration and operation pursuant to<br />
section 203 of the Act.<br />
The review commenced on 4 December<br />
2017. The review will be completed within<br />
six months of its commencement. The<br />
Society is invited to make a submission to<br />
the review.<br />
VICTIMS OF CRIME SCHEME<br />
In light of the Government’s recent<br />
increase to the maximum payable and legal<br />
fees under the Victims of Crime scheme,<br />
we consider it prudent to allow sufficient<br />
time to monitor and review these recent<br />
changes and its impact before considering<br />
any further such changes.<br />
It should also be noted that in appropriate<br />
circumstances the Attorney General has<br />
discretion to consider awarding a higher<br />
payment.<br />
COMPENSATION FOR CHILD ABUSE VICTIMS<br />
The Government considers there is<br />
no need to abolish such time limits. The<br />
Government’s ex gratia compensation<br />
scheme works well and provides survivors<br />
an alternative means to seek compensation<br />
and avoid the trauma of the courts process.<br />
It may also be noted that the Court has<br />
discretion to extend any time limits and the<br />
Government understands there has been<br />
no case to date where the Court has refused<br />
any relevant application for an extension of<br />
time.<br />
PUBLIC DISCLOSURE OF LAND SERVICES SA<br />
CONTRACT<br />
It is important for the benefit of South<br />
Australians that there is business confidence<br />
in transacting with the Government.<br />
Accordingly, documents the subject of<br />
commercial in confidence should maintain<br />
such confidence.<br />
PRISONER REHABILITATION<br />
As part of our $40 million commitment<br />
to the implementation of the 10by20<br />
strategy, the South Australian Labor<br />
Government committed $12.513 million to<br />
deliver additional rehabilitation programs<br />
for prisoners.<br />
These programs focus on addressing<br />
the dynamic risk factors related to violent,<br />
sexual, domestic violence, generalised and<br />
drug-related offending.<br />
The delivery and effectiveness of<br />
these additional programs will be closely<br />
monitored by the DCS Chief Executive and<br />
Executive Group who have oversight of<br />
10by20’s progress.<br />
SA LIBERAL<br />
Deputy Opposition Leader Vickie<br />
Chapman MP responded on behalf of<br />
the Liberal Party<br />
NEW COURTS PRECINCT<br />
Clearly South Australia’s Supreme Court<br />
buildings are derelict and in some cases<br />
dangerous. I expect the Government’s<br />
current $31 million refit in the Supreme<br />
Court buildings will be suitable for up to<br />
10 years. Much of this will be spent on<br />
buildings leased by Government.<br />
So far, the Government have refused to<br />
provide any of the planning documents<br />
or documents prepared for tender of the<br />
options previously announced and cancelled<br />
for a new court building.<br />
My commitment is to review this material<br />
if elected in March as a first priority.<br />
SUPREME COURT UPGRADES<br />
Although our former Chief Justice<br />
suffered the indignity of not being able to<br />
access his courts when using a wheelchair,<br />
making improvements to the Supreme<br />
Court Building prior to a comprehensive<br />
rebuild may not be the best use of funds<br />
for public and professional disability access.<br />
I would prefer to ask SafeWork SA to
TOP ELECTION ISSUES<br />
prioritise areas necessary to comply with<br />
occupational health and safety standards.<br />
Any rebuild will require disability standards<br />
to be adhered to.<br />
COMMUNITY LEGAL CENTRE FUNDING<br />
It is disappointing that whilst the Federal<br />
Government reconsidered its commitment<br />
to Community Legal Centre funding, that<br />
the same has not been followed by the<br />
State Government. In 2017 the Liberal<br />
Party committed to reinstate services at<br />
the Riverland Community Legal Centre,<br />
which was a direct recommendation<br />
from the Federal Attorney-General when<br />
reconsidering their funding arrangement.<br />
VICTIMS OF CRIME SCHEME<br />
The Victims of Crime fund continues<br />
to accumulate and we have indicated our<br />
support to applying these monies to assist<br />
with domestic violence, drug addiction and<br />
victims generally.<br />
A priority will be to establish the Justice<br />
Rehabilitation Fund, which was promised<br />
two years ago by the State Government,<br />
under confiscation of assets legislation.<br />
CHILD PROTECTION & EARLY<br />
INTERVENTION<br />
The Liberals have committed to the<br />
appointment of an Assistant Aboriginal<br />
Children’s Commissioner. The Government<br />
have not.<br />
Further, we have announced a youth drug<br />
treatment law reform policy, which the<br />
Government continue to oppose.<br />
COMPENSATION FOR CHILD ABUSE VICTIMS<br />
Funds are available in the Victims of<br />
Crime Fund to support extra compensation<br />
payments for victims of institutional child<br />
sexual abuse. Shortly after the Nyland<br />
report was tabled I introduced vital<br />
legislation to remove any time limit to CSA.<br />
The Government refused to support this<br />
legislation however I commit to pursue the<br />
same if elected.<br />
CHARTER OF RIGHTS FOR SA<br />
A charter of rights may have some merit,<br />
but I note the Bill of Rights applying in<br />
Victoria has been most commonly used by<br />
bikie gang members.<br />
PRISONER REHABILTIATION<br />
It is hardly surprising that we have high<br />
recidivism by prisoners in our adult facilities<br />
and youth training centres. Parole Board<br />
Chair, Frances Nelson QC, has repeatedly<br />
complained of the lack of adequate or<br />
merely accessible rehabilitation programs.<br />
Clearly this must change, with services<br />
offered broadly over all prison facilities to<br />
the prisoners who need the services most.<br />
The Opposition have announced policies<br />
to curb drug and mobile phone use in<br />
prisons, and around prisoner voting.<br />
GREENS SA<br />
PROBATE & COURT FEES BASED ON THE<br />
VALUE OF THE WORK INVOLVED<br />
The Greens were the only Party that<br />
advocated on behalf of the Law Society for<br />
changes to Probate fees as part of the 2016<br />
State Budget.<br />
DISABILITY ACCESS IN COURTS<br />
Access to justice is a key priority for<br />
the Greens. We believe that full and<br />
unencumbered participation in the<br />
legal system for people with disability is<br />
essential, and are committed to providing<br />
resources to the Courts Administration<br />
Authority to achieve this aim. In particular,<br />
the Greens support the urgent allocation<br />
of funds for upgrades of courtrooms 1<br />
and 2 of the Supreme Court to provide<br />
full disability access and the engagement<br />
of a disability access consultant to make<br />
recommendations regarding the further<br />
redevelopment of the courts.<br />
LEGAL AID FUNDING<br />
The Greens were key advocates in<br />
Parliament for the campaign by the Law<br />
Council of Australia and the Law Society<br />
for increased funding for both CLCs and<br />
the Legal Services Commission.<br />
PSYCHOLOGICAL AND PSYCHIATRIC<br />
SERVICES FOR PRISONERS<br />
The Greens recognise that there are<br />
insufficient resources to currently deal<br />
with the psychiatric and psychological<br />
needs of participants in the legal system.<br />
The consequential delays to trials and<br />
the compromised services offered to<br />
defendants, remandees and prisoners are<br />
unacceptable. We completely support all of<br />
the Law Society Key Asks to address this<br />
urgent area of need.<br />
JUSTICE REINVESTMENT<br />
The original initiative for Justice<br />
Reinvestment in South Australia came from<br />
former Greens SA Senator, Penny Wright.<br />
We remain committed to this project.<br />
ABORIGINAL INTERPRETIVE SERVICES<br />
The Greens have a strong track record<br />
in campaigning for better outcomes for<br />
Aboriginal people participating in the justice<br />
system, and have fought hard for the recent<br />
increased funding for interpreters and to<br />
raise awareness of the important role they<br />
play in access to justice and in keeping<br />
people out of unnecessary incarceration.<br />
Specific funding for interpreters (and<br />
associated roles) as outlined in the Law<br />
Society’s Key Asks would help to overcome<br />
some of the significant challenges faced by a<br />
number of Aboriginal people in the courts.<br />
AUSTRALIAN CONSERVATIVES –<br />
SA DIVISION<br />
NEW COURTS PRECINCT<br />
Australian Conservatives believe that<br />
the South Australian Court system has<br />
been neglected under the current Labor<br />
Government, and agrees that whoever<br />
forms government must commit to the<br />
construction of a new State Courts precinct<br />
with a proper plan and schedule.<br />
FUNDING FOR COURTS ADMINISTRATION<br />
AUTHORITY<br />
Australian Conservatives have been highly<br />
critical and have opposed the closure of<br />
regional courts and other cost cutting<br />
measures which resulted from the Labor<br />
Government’s cuts to the operating budget<br />
of the CAA.<br />
We will support measures to increase the<br />
CAA budget as we believe that local court<br />
services in regional areas must be available.<br />
We also believe a well-funded court system<br />
is needed to minimise the time it takes<br />
for cases to progress. A faster system is<br />
necessary to reduce the anguish experienced<br />
by victims, witnesses and defendants.<br />
LEGAL AID FUNDING<br />
Legal Aid funding is paramount to<br />
give proper access to the courts for<br />
disadvantaged people. We know there is<br />
an inadequacy in this area as we regularly<br />
try to assist constituents who have trouble<br />
accessing the justice system. We support<br />
the restoration of the $6m funding cut<br />
to Legal Services Commission by the SA<br />
Government.<br />
<strong>February</strong> <strong>2018</strong> THE BULLETIN 21
TOP ELECTION ISSUES<br />
WORKERS COMPENSATION REFORM<br />
We argued strongly against the changes<br />
to Workers Compensation and believe it<br />
is unfair and needs review. We support<br />
the concept of a lifetime support scheme<br />
however, questions have been raised about<br />
the adequacy of compensation which we<br />
consider needs to be reviewed in the next<br />
term of government.<br />
PRISONER REHABILITATION<br />
Our prisons are chronically overcrowded<br />
and we believe the strategy to reduce<br />
recidivism by 10% should be a minimum<br />
target. More needs to be done to<br />
rehabilitate prisoners and it is never in<br />
the interest of the community to release<br />
someone on early parole if they have not<br />
completed their rehabilitation program.<br />
PROTECTION OF ESSENTIAL STATE SERVICES<br />
Australian Conservatives has fought<br />
against the sale of essential services in<br />
South Australia and had a bill before the<br />
South Australian Parliament which was<br />
defeated with both major parties voting<br />
it down 14-6 in late November. The<br />
Parliamentary Committees (Public Assets<br />
Committee) Amendment Bill 2017 called<br />
for greater scrutiny over the potential sale<br />
of any state asset through the establishment<br />
of a Public Assets Committee.<br />
We believe that government should be<br />
involved in some business and not involved<br />
in other. The Lands Titles Office is one<br />
area that should remain the business of<br />
government.<br />
We agree with the Law Society that the<br />
terms and conditions of the contract the<br />
government is entering into with Land<br />
Services SA be publicly disclosed.<br />
ADVANCE SA<br />
Lead candidate Peter Humphries<br />
responded on behalf of Advance SA<br />
NEW COURTS PRECINCT<br />
The need for a new Courts Building is<br />
very long overdue. It is, in my opinion,<br />
quite disgraceful that South Australia is still<br />
condemned to a Courts building which<br />
is not only old and totally unsuited to<br />
current needs but which has fallen into an<br />
advanced state of disrepair as successive<br />
Governments have chosen to spend money<br />
on any number of other capital works<br />
projects in preference to a new Courts<br />
Building. This should be a priority of the<br />
next Government.<br />
WORK COVER REFORM<br />
I agree with the suggestions in relation<br />
to the Workcover Scheme. As far as the<br />
CTP scheme is concerned I think it is<br />
realistic to revert to the Queensland<br />
scheme without the added thresholds and<br />
for the level of compensation for P&S<br />
to similarly be set by reference to the<br />
Queensland Scale.<br />
I strongly agree with the proposals put<br />
forward in relation to Victims of Crime.<br />
COMPENSATION FOR CHILD ABUSE VICTIMS<br />
I am in broad agreement with the<br />
proposals put forward under the Child<br />
Protection heading and very strongly<br />
committed to the removal of the Statutory<br />
limitations impacting victims of abuse. It<br />
is a matter of some embarrassment to me<br />
that SA is the only State that either has not<br />
already removed that limitation or has not<br />
committed to do so.<br />
DIGNITY PARTY<br />
NEW COURTS PRECINCT<br />
The Dignity Party support a commitment<br />
to the construction of a new State Courts<br />
precinct by 2023, with the <strong>2018</strong>-19<br />
State budget to provide funding for the<br />
development of a plan.<br />
DISABILITY ACCESS IN COURTS<br />
The Dignity Party demand that all new<br />
construction court facilities are built to<br />
meet universal design principles, and agree<br />
with the SA Law Society that:<br />
The Courts Administration Authority<br />
must be provided with the resources to<br />
engage a specialist accredited disability<br />
access consultant to provide advice<br />
and recommendations on the courts<br />
redevelopment project.<br />
CHILD PROTECTION & EARLY INTERVENTION<br />
The Dignity Party are calling for a<br />
significant expansion of early intervention<br />
and prevention programs, including<br />
intensive, individualised, youth-based<br />
rehabilitative programs that address<br />
the underlying factors of offending,<br />
such as education, health, employment,<br />
homelessness and child protection.<br />
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<strong>February</strong> <strong>2018</strong> THE BULLETIN 23
POEMS FOR THE<br />
CITIZENSHIP SEVEN<br />
Last year, Australian politics was caught in the grip of, if not a Constitutional crisis, then at least<br />
a Constitutional debacle as Parliamentarian after Parliamentarian found themselves on the wrong<br />
side of the “dual citizenship” provision of Section 44. While a new wave of politicians have been<br />
implicated in the saga, constitutional law expert Stephen McDonald of Hanson Chambers has<br />
captured the drama, farce, tragedy and triumph that surrounded the first seven to be referred to the<br />
High Court, otherwise known as the “Citizenship 7”. Please enjoy Mr McDonald’s poetic odes to this<br />
infamous gang.<br />
24 THE BULLETIN <strong>February</strong> <strong>2018</strong>
CITIZENSHIP 7 POEMS<br />
IT IS WITH A HEAVY HEAR THAT I AM<br />
FORCED TO RESIGN — A VILLANELLE<br />
Senator Larissa Waters<br />
By S A McDonald<br />
It is with a heavy heart that I am forced to resign<br />
In this, the winter of the Greens’ discontent<br />
I’ve done the honourable thing, haven’t I?<br />
Conceived in the shade of a North American pine<br />
My parents brought me home from<br />
Canada, barely nascent<br />
It is with a heavy heart that I am forced to resign<br />
I’ve fought all my adult life to protect sea and sky<br />
The first to breastfeed in the<br />
Commonwealth Parliament<br />
I’ve done the honourable thing, haven’t I?<br />
Yet there’s much left to do: the Adani mine<br />
Gender equality and defending the environment<br />
It is with a heavy heart that I am forced to resign<br />
The effect of section 44 is surely to disqualify<br />
Though the Attorney submits that was never the intent<br />
I’ve done the honourable thing … haven’t I?<br />
It is with a heavy heart that I am forced to resign<br />
I’ve done the honourable thing, haven’t I?<br />
ODE ON A GRECIAN POLITICIAN<br />
Senator Nick Xenophon<br />
By S A McDonald<br />
Thou ne’er defeated prince of politics<br />
Thou princ’pl’d pragmatist of South Australia<br />
For thy State thy very neck thou risked<br />
To hold the balance of pow’r throughout Australia<br />
You began as SA’s No Pokies MP<br />
Thy re-election time and time again<br />
And the polls which constantly reflect<br />
Thy growing popularity<br />
All the more remarkable given<br />
Poker Machine numbers remain unchecked<br />
But who are they who falsely now accuse?<br />
Who see in thee a touch of Britishness?<br />
Those rogues who now implore thee to recuse<br />
Thyself from further Parliament’ry business?<br />
Are thee with thine home State so smitten<br />
As to resign before the case be even heard?<br />
Does thy faith in counsel waver, then, or what?<br />
Thou hast no right of abode in mother Britain<br />
And to no foreign sovereign gave thy word<br />
Whatever be a BOC, a subject or citizen ’tis not!<br />
LAMENT FOR FIONA NASH<br />
(IN THE STYLE OF ROBERT BURNS)<br />
Senator Fiona Nash<br />
By S A McDonald<br />
A guid Scots lad a-walkin’ gaed<br />
An’ splored in yonder thrissle<br />
Then hooked a train to London an’<br />
A cantie spring did whissle<br />
For swith to fin’ a wife were he<br />
An’ fin’ yin, aye, he did<br />
A bit lassie from Sydney toun<br />
In Essex they were wed<br />
This bonnie lass from New Sooth Wales<br />
Two dochters did she bear<br />
Afore they visited Cronulla<br />
And decided tae live there<br />
Anither bairn was born tae thaim<br />
But she was barely aught<br />
Whan her parents, they did sinder:<br />
For they’d had a donsie faught<br />
For this wee thing Fiona<br />
Her daddie ceased tae fen<br />
Her vauntie lallan ancestry<br />
Soon passed ayont her ken<br />
She married Nash, a crofter<br />
An’ became a politician<br />
Than a chieftain o’ her pairtie<br />
Wi’ ne’er a thocht of Britain<br />
Till the deemsters o’ Austrailae<br />
In thair judgment, tae her fash<br />
Annoonce “five are disqualified<br />
Including Fiona Nash”<br />
But dinnae be ower angry,<br />
Ye mustn’t loss your chear<br />
Ye shan’t hae lang tae wai’, m’ lass<br />
An election’ll soon be here<br />
HAIKU<br />
Senator Malcolm Roberts<br />
By S A McDonald<br />
Of Welsh parentage<br />
A natural born Indian<br />
Whatever that means<br />
A British subject<br />
Tossed on the tide of history<br />
An Australian<br />
Am I still British?<br />
Dot gov dot uk Sydney<br />
I choose to believe<br />
<strong>February</strong> <strong>2018</strong> THE BULLETIN 25
CITIZENSHIP 7 POEMS<br />
THE BALLAD OF BARNABY JOYCE’<br />
Barnaby Joyce MP<br />
By S A McDonald<br />
’Twas Barnaby from Tamworth, whom voters did affirm<br />
Would represent New England for the twenty sixteen term<br />
To keep his place in Parliament our Barnaby did defeat<br />
The independent Tony Windsor, former holder of the seat<br />
The election was a close one, with Turnbull re-elected<br />
And Barnaby as Deputy was once again selected<br />
But Barnaby’s opponent, that industrious Independent<br />
Had no idea that Barnaby was a New Zealand descendant<br />
Well Barnaby, he knew of course, his father had be proud<br />
To migrate to Australia from the Land of the Long White Cloud<br />
But what he hadn’t twigged to was that by this quirk of kinship<br />
Our Deputy Prime Minister held dual citizenship<br />
The citizenship crisis, first struck in mid July:<br />
Two Members who had not renounced<br />
and thought they must resign<br />
These first two victims both were Greens;<br />
their favourite sons and daughters<br />
The two co-deputy leaders, Mr Ludlam and Ms Waters<br />
Said Barnaby prophetically, when asked about the Greens:<br />
“The Constitution’s clear I think; it’s certain what it means<br />
“Ignorance is no excuse — the law is just the law<br />
“You can’t be a dual citizen, under section 44.”<br />
Matt Canavan, a National, and fellow Minister<br />
Then seemed to be Italian, though hardly sinister<br />
Then in August without warning, came the great catastrophe:<br />
Our Barnaby got a tip-off, that he might just be a kiwi<br />
Stephen Donaghue’s advice was sought,<br />
it seemed to be a beauty<br />
Barnaby could still perform his ministerial duty<br />
Turnbull was emphatic, the S-G’s advice was bold:<br />
“Barnaby’s qualified to sit, AND THE HIGH<br />
COURT WILL SO HOLD!”<br />
But when Barnaby stood in Parliament, and tried to use his voice<br />
He heard from the opposition bench an unseemly baa-ing noise<br />
But Barnaby our hero, he wasn’t finished yet<br />
At a hearing before Kiefel, a Full Court date was set<br />
And Barnaby in due course, was joined by several others:<br />
Fiona Nash his deputy, and Xenophon, and Roberts<br />
Barnaby engaged a team of lawyers led by Walker<br />
An advocate supposed to be the High Court’s greatest talker<br />
Written subs were filed, by which a pretty good attempt<br />
Was made to tell the High Court, that Barnaby was exempt.<br />
The argument, shortly stated? If a person never knew<br />
They had two nationalities, no split allegiance could accrue<br />
But when the hearing date arrived, our hero was shocked to see<br />
Represented at the bar table, his great adversary<br />
That’s right, old Tony Windsor had<br />
convinced the Court he’d reason<br />
To appear as contradictor, represented by Justin Gleeson<br />
Well, if ever there has been a match for Bret Walker SC<br />
It’s that former Solicitor-General’s brand of brilliant adv’cacy<br />
In time the arguments for Barnaby were skilfully encircled<br />
(Followed by a history lesson, presented by Ron Merkel)<br />
Both Donaghue and Walker, with silver tongue, replied<br />
And generally it was agreed, “This isn’t cut and dried.”<br />
“We know you want an answer, we’re afraid you’ll have to wait,”<br />
The Court declared, “We’ll be back soon,<br />
to tell you of your fate.”<br />
And so it was in just two weeks, the Court did reconvene<br />
Chief Justice Kiefel, Justice Bell, and Gag-e-ler and Keane<br />
And Nettle, Gordon, Edelman; they were unanimous<br />
Poor Barnaby disqualified: and yet magnanimous<br />
Among the silver gums, and far away from lawsuits<br />
Dressed in his Akubra hat and RM Williams boots<br />
He called a presser urgently, and Barnaby surmised:<br />
“I actually saw this coming; I’m not a bit surprised.”<br />
To everybody’s puzzlement, Tony Windsor then announced<br />
He’d not contest a by-election,<br />
and since Barnaby’d now renounced<br />
His new found nationality, he was eligible to run.<br />
“In fact,” he thought, “With Windsor out,<br />
this actually could be fun!”<br />
He knew the odds of victory towards him strongly lent:<br />
The two-party preferred margin was at 16.4 per cent!<br />
Meanwhile in the Parliament, more chaos was ensuing<br />
The President of the Senate, the very bloke who had been doing<br />
The referrals to the High Court, made an astonishing admission:<br />
He had known that he was British, but a senior politician<br />
Had advised him not to mention it,<br />
in the hope the Court would say<br />
That being a dual-citizen was actually okay.<br />
Vicious rumours circled, of Ecuadorians and Greeks<br />
And three more British citizens emerged in coming weeks<br />
John Alexander, a tennis player, who’d wondered all along<br />
Why he felt at home at Wimbledon as much as Bennelong<br />
The outspoken Jacquie Lambie,<br />
who’s family history had been written<br />
Now realised that her Network extended all the way to Britain<br />
With a mother born in Singapore was Skye Kakoschke-Moore<br />
All of these fell victim to the scourge of 44<br />
And even as we gather here, to listen to this story<br />
A question mark still hovers above another category:<br />
Each MP with foreign ties which they had sought to sever<br />
Whose renunciation of citizenship, despite their best endeavour<br />
At the time of nomination, was sadly incomplete<br />
But back to our protagonist, and the race to fill his seat<br />
A motley field of candidates, in number seventeen<br />
Nominated for this by-election, the greatest ever seen<br />
Including if you can believe, this “name agnostic” smartie:<br />
Meow-Ludo Disco Gamma Meow Meow for the Science Party<br />
I’ll bet my hat the voters of New England make the choice<br />
To keep this tale going: the adventures of Barnaby Joyce<br />
The by-election will be held on the second of December<br />
And so my friends, the ballad ends, because it’s still November.<br />
26 THE BULLETIN <strong>February</strong> <strong>2018</strong>
CITIZENSHIP 7 POEMS<br />
LIMERICKS FOR LUDLAM<br />
Senator Scott Ludlam<br />
By S A McDonald<br />
A senator from West Australia<br />
Campaigned long and hard for the failure<br />
Of nuclear stations<br />
And for peace among nations<br />
And collected Greens paraphernalia<br />
That Honourable Senator, Scott<br />
A New Zealander thought he was not<br />
Despite naturalisation<br />
Cit’zenship of that nation<br />
To renounce, it appears he forgot<br />
To the Court he submitted, “I erred”<br />
Almost everyone else there concurred<br />
Including their Honours,<br />
Who said, “Yes, you’re all goners;<br />
To hold otherwise is absurd”<br />
SONNET NO [2017] HCA 45<br />
Hon Senator Matthew Canavan<br />
By S A McDonald<br />
In corridors of power there did dwell<br />
A represent’tive of the Sunshine State<br />
His ministry he felt it would be well<br />
To set aside while courts decide his fate<br />
It was (alas!) no cause for celebration<br />
Acquiring that which he had never sought<br />
A retrospective redetermination<br />
Of the Italian Constitut’nal Court<br />
But hearken ye to counsel who now acts<br />
With twademark voice and most familiar face<br />
In absence’f contradictor as to facts<br />
Up silken sleeve he keeps a hidden ace<br />
— That common lawyer to this end doth steer:<br />
That civil lawyers say this civil law’s unclear<br />
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RISK WATCH<br />
Have you settled? ‘Yes’ or ’No’<br />
might not be the answer<br />
AMANDA ADAMSON, SENIOR SOLICITOR, LAW CLAIMS<br />
When negotiating settlements<br />
always specifically advert to<br />
whether or not your negotiations<br />
result in an agreement which is<br />
immediately binding.<br />
id you settle?” ask your colleagues<br />
“Dexpectantly when you return from<br />
Court. Most of the time your answer will<br />
be “Yes” or “No”.<br />
The conversation will not usually go<br />
like this: “Did you enter an immediately<br />
binding legal contract for the client today?”<br />
“No, but we are in the third class of<br />
Masters v Cameron and I think we will get<br />
there eventually”, even though such a<br />
conversation might be the technically<br />
correct answer. Accordingly, it does not<br />
take much imagination to understand the<br />
issue facing the Court in Gailey Projects Pty<br />
Ltd v McCartney and Anor 1 about whether<br />
the parties had reached a legally binding<br />
settlement after a day of negotiation.<br />
On the first day of a two-week trial, the<br />
trial Judge stood the matter down to allow<br />
the parties to negotiate. You can picture<br />
the scene that the trial Judge described;<br />
offers passing backward and forward,<br />
counsel and solicitors variously involved,<br />
in and out of conference rooms and over<br />
the telephone. By 5pm, the words “done<br />
deal” were uttered by someone and there<br />
was discussion whether the Judge should<br />
be informed of the settlement. It was<br />
decided that the solicitors should exchange<br />
emails recording what had been agreed and<br />
report to the Judge the following morning<br />
that settlement had been reached. There<br />
was some discussion about a deed and a<br />
suggestion by at least one party that a deed<br />
was unnecessary. That evening, an email<br />
was sent purporting to set out the terms<br />
of settlement. The email was different in<br />
five respects from the agreement that had<br />
been reached during the day. This lead to<br />
an allegation by the plaintiff that there<br />
28 THE BULLETIN <strong>February</strong> <strong>2018</strong><br />
was no settlement. The defendant applied<br />
to the trial Judge for a declaration that<br />
settlement had been reached.<br />
The trial Judge’s reasons contain an<br />
orthodox analysis of contract formation. 2<br />
The trial Judge’s consideration of whether<br />
the parties intended to be immediately<br />
legally bound by their agreement arises<br />
from Masters v Cameron 3 where the High<br />
Court divided the intention to create legal<br />
relations prior to execution of a written<br />
agreement into three classes and Sinclair,<br />
Scott & Co Ltd v Naughton 4 where a fourth<br />
class was proposed. As to these classes:<br />
1. in the first class, the parties have reached<br />
finality in all terms of the bargain and<br />
intend to be immediately bound to<br />
perform all terms and at the same time<br />
intending to have those terms restated<br />
in a form that is fuller or more precise<br />
but no different in effect;<br />
2. in the second class the parties have<br />
reached finality in all terms of the<br />
bargain and intend to be immediately<br />
bound but have nevertheless made<br />
performance of one or more terms<br />
conditional upon the execution of a<br />
formal contract;<br />
3. in the third class, the parties do not<br />
intend to be legally bound unless or<br />
until they execute a formal contract;<br />
4. in the fourth class, the parties have<br />
reached finality in some terms of the<br />
bargain and intend to be immediately<br />
bound to perform those terms and at<br />
the same time intend to make a further<br />
contract in substitution of the first<br />
contract containing additional terms by<br />
consent.<br />
The parties are immediately bound to<br />
varying extents without a contract in writing<br />
in the first, second and fourth classes but<br />
not at all in the third class. As the trial Judge<br />
explicitly observed, there is no presumption<br />
that parties do not intend to be legally<br />
bound until a deed is executed. 5<br />
The principles applied by the trial Judge<br />
are well established by the South Australian<br />
decision of Lucke v Cleary & Ors. 6 In<br />
that case, the Full Court referred to the<br />
following matters:<br />
• The intention to be immediately bound<br />
is assessed objectively.<br />
• A solicitor has ostensible authority to<br />
bind a client in settlement of litigation.<br />
• Evidence of post contractual conduct is<br />
admissible on the question of whether<br />
settlement has been reached.<br />
When having regard to the following<br />
matters, the Gailey trial Judge concluded<br />
that the parties had intended to be<br />
immediately bound by 5pm on the day of<br />
the negotiation:<br />
• Negotiations were conducted on the<br />
first day of a 10-day trial such that it<br />
was readily inferred the parties were<br />
attempting to avoid trial costs.<br />
• Negotiations were conducted by Senior<br />
Counsel.<br />
• One of the agreed terms required action<br />
within 24 hours.<br />
• No person had said that there was no<br />
deal unless it was reduced to writing.<br />
• Although a deed had been mentioned,<br />
at least one party had expressed it to be<br />
unnecessary.<br />
• The words “we accept”and “we have a<br />
deal” are consistent with the intention to<br />
create legal relations.<br />
• The express purpose of the email<br />
Even the phrase subject to contract while perhaps<br />
usually signifying an in principle agreement or an<br />
agreement to agree sometime in the future needs<br />
to be measured against the relevant context.
RISK WATCH<br />
exchange between solicitors was to set<br />
out what had already been agreed.<br />
• The parties intended to inform the Judge<br />
of the settlement the following morning.<br />
• Counsel had spoken to persons outside<br />
to the litigation to the effect that it had<br />
settled.<br />
On one hand, Courts have warned against<br />
making incorrect assumptions from the use<br />
of words and conduct that parties usually<br />
associate with the formation of contracts<br />
such as “deal” or “bargain” and the shaking<br />
of hands. 7 On the other, a mere reference<br />
to the drafting of a deed does not make<br />
the agreement subject to contract. 8 Even<br />
the phrase subject to contract while perhaps<br />
usually signifying an in principle agreement<br />
or an agreement to agree sometime in the<br />
future needs to be measured against the<br />
relevant context. 9<br />
Although Courts have said that there<br />
is no particular language or conduct that<br />
will be determinative of the objective<br />
analysis of the parties’ intentions, in Lucke,<br />
the communication to the Court that the<br />
parties had settled was an important feature<br />
in favour of the finding of an immediately<br />
binding settlement.<br />
The lesson to be learned from cases like<br />
Gailey and Lucke is that there is no downside<br />
to expressly stating either that your client<br />
intends to be immediately legally bound by<br />
terms which you go on to identify or it does<br />
not. There may be utility in actually using<br />
the language of the High Court’s Master v<br />
Cameron classes. At the very least, language<br />
of this kind is likely to prompt relevant and<br />
constructive discussion about the parties’<br />
intentions, the certainty of terms and the<br />
relevance of any subsequent deed before<br />
representations are made to the Court.<br />
Endnotes<br />
1 [2017] QSC 185<br />
2 At [46], the trial Judge posed three questions; (i)<br />
Did the parties have an intention to create legal<br />
relations? (ii) Were there material terms which<br />
were yet to be agreed or were uncertain? (iii)<br />
Was any agreement to compromise intended<br />
to be conditional upon execution of a deed of<br />
settlement?<br />
3 [1954] HCA 72<br />
4 [1929] HCA 34<br />
5 [2017] QSC 185 [70]<br />
6 [2011] SASCFC 118<br />
7 Stellard Pty Ltd & Anor v North Queensland Fuel Pty<br />
Ltd [2015] QSC 119 [33]<br />
8 Lucke v Cleary & Ors [2011] SASFC 118<br />
at [72]<br />
9 Stellard Pty Ltd & Anor v North Queensland Fuel Pty<br />
Ltd [2015] QSC 119 [36] – [38]<br />
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GET IN ON THE ACT<br />
Costs disclosure in Litigation<br />
ETHICS & PRACTICE UNIT<br />
“Get in on the Act” is a new<br />
monthly column from the Law<br />
Society’s Ethics & Practice Unit<br />
which details practitioners’<br />
statutory professional obligations<br />
and responsibilities.<br />
As from 1 July 2014 all new costs<br />
agreements had to be compliant with<br />
Schedule 3 of the Legal Practitioners Act<br />
1981 (the Act) and from 1 July 2015 all<br />
pre-1 July 2014 costs agreements also had<br />
to be compliant with Schedule 3.<br />
The main thrust of Schedule 3 revolves<br />
around disclosing to clients what the cost<br />
implications of intended proceedings<br />
will be so that they can make informed<br />
decisions as to whether to proceed or not.<br />
The purpose of this article is to serve as<br />
a reminder to practitioners of the above,<br />
particularly in litigation matters with<br />
particular reference to sub-clauses 10(1)(g)<br />
and 10(4) of Schedule 3 of the Act.<br />
These sub-clauses make it clear that<br />
clients are to be informed not only<br />
of what costs they may recover if<br />
successful with the litigation but also<br />
what they may be required to pay if<br />
unsuccessful.<br />
The disclosure requirement is further<br />
expanded by sub clause 4 which requires<br />
the disclosure to also contain a statement<br />
advising the client that even if the court<br />
orders a payment in favour of the client,<br />
the client may still be out of pocket as not<br />
all fees incurred can be recovered. The<br />
disclosure must also make it clear to the<br />
client that even if they are unsuccessful<br />
with the litigation they may still be<br />
expected to pay disbursements even in the<br />
case of a conditional costs agreement.<br />
Clause 10 of Schedule 3 proceeds to<br />
set out the requirements and states the<br />
following (clauses 10(1)(g) and 10(4) have<br />
been underlined for easy reference):<br />
10—Disclosure of costs to clients<br />
(1) A law practice must disclose to a client in<br />
accordance with this Part—<br />
(a) the basis on which legal costs will be<br />
calculated, including whether a scale of<br />
costs, or a recommendation as to the<br />
calculation of barristers’ costs, applies to<br />
any of the legal costs; and<br />
b) if the law practice will not be calculating<br />
legal costs in accordance with an applicable<br />
scale of costs—that another law practice<br />
may calculate legal costs in accordance with<br />
the scale; and<br />
c) the client’s right to—<br />
(i) negotiate a costs agreement with the law<br />
practice; and<br />
ii) receive a bill from the law practice; and<br />
(iii) equest an itemised bill after receipt of a<br />
lump sum bill; and<br />
(iv) be notified under clause 17 of any<br />
substantial change to the matters<br />
disclosed under this clause; and<br />
(d) an estimate of the total legal costs if<br />
reasonably practicable or, if that is not<br />
reasonably practicable, a range of estimates<br />
of the total legal costs and an explanation<br />
of the major variables that will affect the<br />
calculation of those costs; and<br />
(e) details of the intervals (if any) at which the<br />
client will be billed; and<br />
(f) the rate of interest (if any) that the law<br />
practice charges on overdue legal costs,<br />
whether that rate is a specific rate of interest<br />
or is a benchmark rate of interest (as<br />
referred to in subclause (2)); and<br />
(g) if the matter is a litigious matter, an<br />
estimate of—<br />
(i) the range of costs that may be recovered<br />
if the client is successful in the litigation;<br />
and<br />
(ii) the range of costs the client may<br />
be ordered to pay if the client is<br />
unsuccessful; and<br />
(h) the client’s right to progress reports in<br />
accordance with clause 19; and<br />
(i) details of the person whom the client<br />
may contact to discuss the legal costs;<br />
and<br />
(j) the following avenues that are open to the<br />
client in the event of a dispute in relation to<br />
legal costs:<br />
(i) raising the matter with the practice;<br />
(ii) adjudication of costs under Part 7;<br />
(iii) the setting aside of a costs<br />
agreement under clause 30;<br />
(iv) if the client believes there has been<br />
overcharging—making a complaint<br />
to the Commissioner; and<br />
(k) any time limits that apply to the<br />
taking of any action referred to in<br />
paragraph (j); and<br />
(l) that the law of this State applies to legal<br />
costs in relation to the matter; and<br />
(m) information about the client’s right—<br />
(i) to accept under a corresponding<br />
law a written offer to enter into an<br />
agreement with the law practice that<br />
the corresponding provisions of<br />
the corresponding law apply to the<br />
matter; or<br />
(ii) to notify under a corresponding law<br />
(and within the time allowed by the<br />
corresponding law) the law practice<br />
in writing that the client requires<br />
the corresponding provisions of the<br />
corresponding law to apply to the<br />
matter.<br />
(2) For the purposes of subclause (1)(f), a<br />
benchmark rate of interest is a<br />
rate of interest for the time being equal<br />
to or calculated by reference to a rate of<br />
interest that is specified or determined<br />
from time to time by an ADI or another<br />
body or organisation, or by or under other<br />
legislation, and that is publicly available.<br />
(3) The regulations may make provision for or<br />
with respect to the use of benchmark rates<br />
30<br />
THE BULLETIN <strong>February</strong> <strong>2018</strong>
GET IN ON THE ACT<br />
of interest, and in particular for or with<br />
respect to permitting, regulating or preventing<br />
the use of particular benchmark rates or<br />
particular kinds of benchmark rates.<br />
(4) For the purposes of subclause (1)(g), the<br />
disclosure must include—<br />
(a) a statement that an order by a court<br />
for the payment of costs in favour<br />
of the client will not necessarily cover<br />
the whole of the client’s legal costs;<br />
and<br />
(b) if applicable, a statement that<br />
disbursements may be payable by<br />
the client even if the client enters a<br />
conditional costs agreement.<br />
(5) A law practice is taken to have complied<br />
with the requirement to disclose the details<br />
referred to in subclause (1)(c)(i) to (iii),<br />
(h), (j), (k) and (m) if it provides a<br />
written statement in or to the effect of a<br />
form prescribed by the regulations for the<br />
purposes of this subclause at the same time<br />
as the other details are disclosed as required<br />
by this clause.<br />
(6) A form prescribed for the purposes of<br />
subclause (5) may, instead of itself<br />
containing details of the kind referred to<br />
in that subclause, refer to publicly accessible<br />
sources of information (such as an Internet<br />
website) from which those details can be<br />
obtained.<br />
(7) The regulations may—<br />
(a) require the Society to develop a<br />
statement of the relevant details and<br />
to revise it as necessary to keep it up<br />
to date; and<br />
(b) require the Society to make the<br />
statement publicly available in the<br />
prescribed manner.<br />
THE AUSTRALIAN SOLICITORS’<br />
CONDUCT RULES<br />
Practitioners are further reminded that<br />
Conduct Rule 7 requires practitioners<br />
to provide clients with clear and timely<br />
advice to understand the relevant legal<br />
issues and to make informed choices about<br />
action to be taken and also to inform the<br />
client of alternatives to fully contested<br />
adjudication. 1<br />
GENERAL APPLICATION<br />
Gino Dal Pont, in his book ‘lawyers’<br />
professional responsibility, 6th Edition,<br />
Thomson Reuters, 2017 confirms that<br />
costs disclosure must be in language that<br />
the client will understand clearly setting<br />
out what the client’s exposure might be. 2<br />
Dal Pont further states that the fairness<br />
requirement reflects that the relationship<br />
between lawyer and client should not be<br />
taken advantage of and the lawyer should<br />
not be benefitting from an agreement into<br />
which the client has been induced as a<br />
result of relying on the lawyer. 3<br />
This would necessarily involve a full<br />
and frank explanation of costs exposure<br />
in the matter, ensuring that the client has<br />
full and complete understanding of how<br />
this course of action will affect him/her<br />
financially.<br />
CONCLUSION<br />
The clear and overriding theme is that<br />
the client must always know and not be<br />
caught by surprise. Costs estimates in<br />
litigation can sometimes be a bit of a<br />
moving feast depending on how the matter<br />
progresses. It is therefore crucial for the<br />
initial (win /lose) costs/ recovery of costs<br />
estimates to be provided, the client to be<br />
kept up to date with the progress of the<br />
matter and being advised of any changes<br />
in circumstances and how, if at all, it could<br />
affect the client’s cost exposure.<br />
Endnotes<br />
1 Australian Solicitors Conduct Rules, Rule 7.<br />
2 GE Dal Pont, Lawyers’ professional<br />
responsibility, 6th Edition, Thomson Reuters,<br />
2017, 468 [14.15].<br />
3 GE Dal Pont, Lawyers’ professional<br />
responsibility, 6th Edition, Thomson Reuters,<br />
2017, 494 [14.170].<br />
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SPEECH<br />
The role of the Attorney General<br />
& the challenges of riding the<br />
‘law & order tiger’<br />
THE HON CHRIS SUMNER AM<br />
Former Attorney General, The<br />
Hon Chris Sumner AM, spoke<br />
at the Law Society Senior<br />
Practitioners’ and Honorary<br />
Member’s Luncheon on 17<br />
October last year about the<br />
unique role of the Attorney<br />
General, and the inevitable<br />
tension between promoting<br />
Government policy and<br />
upholding the rule of law that<br />
the Attorney General of the day<br />
must negotiate.<br />
thought I would review some of<br />
I the issues and controversies I<br />
faced as Attorney-General many of which<br />
remain current.<br />
On my first appointment in 1979 I<br />
received a package of materials sent to<br />
me by Ian Dow (of the firm Knox and<br />
Hargraves).The package contained articles<br />
about the role of the Attorney General<br />
which he had collected. Why he sent them<br />
to me I do not know. What is important<br />
is that there is an important body of law,<br />
convention and practice attached to the<br />
office expounded on in more detailed<br />
texts written by Dr J Edwards on ‘the Law<br />
Officers of the Crown’. 1<br />
Whatever modifications have been made<br />
in the colonial context it remains the case<br />
that the holder of the office has special<br />
responsibilities in government. This is the<br />
case even though the Attorney General in<br />
Australia is usually a member of Cabinet<br />
and not just an MP as is the case in the<br />
UK. Despite this there are certain decisions<br />
which are not the subject of Cabinet<br />
direction, including in relation to criminal<br />
prosecutions. This was understood and<br />
respected by my cabinet colleagues. If<br />
32 THE BULLETIN <strong>February</strong> <strong>2018</strong><br />
possible, I think the Attorney General<br />
should be an admitted legal practitioner as<br />
that position carries with it certain ethical<br />
obligations and responsibilities to the<br />
law and the courts. I would also observe<br />
that having an Attorney General outside<br />
Cabinet does not avoid controversy as we<br />
saw in the UK when Lord Goldsmith, the<br />
Attorney General in the Blair Government,<br />
is said to have changed his view on the<br />
legality of the 2003 Iraq invasion.<br />
An important role is the recommending<br />
of judicial appointments to Cabinet. This<br />
achieves appropriate democratic input<br />
into the process. I don’t think there is any<br />
enthusiasm in Australia to directly involve<br />
the Parliament as occurs in the US. One<br />
of the recommendations I made was for<br />
Elliott Johnston. Merit was not in doubt<br />
but there was some trepidation because of<br />
the fierce controversy only 15 years before<br />
about his nomination for appointment as<br />
QC because of his political views. Cabinet<br />
was supportive. Now for the tricky part I<br />
thought. David Wicks was the President<br />
of the Law Society and not one known<br />
for his radical views. “Wonderful” he said.<br />
“Should have happened years ago”. How<br />
easy is this I thought. The appointment was<br />
greeted with almost universal approval by<br />
the profession and community. A sublime<br />
moment when for once doing the right<br />
thing delivered a political dividend.<br />
There has been some recent commentary<br />
from the Chief Justice and others that<br />
Attorneys-General no longer see their role<br />
as defending the Courts. I am not sure that<br />
it was ever the practice for an Attorney<br />
General to defend every court decision<br />
made no matter what the circumstances.<br />
The Attorney or other Law Officers<br />
have always represented the Crown<br />
which is a litigant. I was responsible for<br />
introducing Crown appeals in criminal<br />
matters which saw the Attorney directly<br />
challenge Court decisions. I also (with a<br />
little encouragement from Chief Justice<br />
King) introduced the independent Courts<br />
Administration Authority (which followed<br />
the earlier initiative to remove magistrates<br />
from the public service). These measures<br />
enshrined the independence of the<br />
judiciary and a consequence of this was<br />
that the Courts would need to not only run<br />
the courts administratively but also to take<br />
greater measures to explain their decisions.<br />
Chief Justices Doyle and Kourakis have<br />
recognised this. This does not absolve an<br />
Attorney General from responsibility. The<br />
Attorney General should defend the courts<br />
- not every decision, but certainly there<br />
is an important need for explanation and<br />
support for the role of independent courts<br />
and the rule of law to a proper functioning<br />
democracy.<br />
One area in which my views have been<br />
misunderstood relates to the emergence of<br />
a separate bar within the fused profession.<br />
I was never opposed to legal practitioners<br />
deciding to practice only as barristers but I<br />
did not support this turning into a legal or<br />
factual division which privileged barristers<br />
who chose this mode of practice over<br />
others who may have preferred to conduct<br />
litigation within a firm of barristers and<br />
solicitors as had traditionally been the case.<br />
And it’s not that the traditional system<br />
produced dud jurists as mention of the<br />
names of Bray, King, Zelling, Bright,<br />
Mitchell to name just a few will attest.<br />
SA has a very flexible system – a legal<br />
practitioner can practice as a barrister and<br />
a solicitor on their own or in a firm and<br />
with or without a trust account. A fused<br />
legal profession is in the public interest<br />
and in an era of increasing concern about<br />
access to and the cost of justice it would be<br />
a retrograde step to in any way formalise a<br />
division of the profession.<br />
It was in this area that I had my only<br />
serious disagreement with Chief Justice<br />
King. This was over the undertaking he
SPEECH<br />
South Australian Attorney-Generals such as Robin Milhouse (left), Chris Sumner, Trevor Griffin and current office holder John Rau, have put their unique stamp on the<br />
role of first legal officer of the State.<br />
required that QC/SCs should undertake<br />
not to practice in a firm as had traditionally<br />
been permitted. Legislation was passed to<br />
render an undertaking of this kind invalid<br />
and this he countered with an alternative<br />
undertaking to the effect that if a QC/SC<br />
continued to practice in a firm then they<br />
were seriously restricted in the way they<br />
could use the title. To me this seemed like<br />
an artificial device to avoid the effect of<br />
invalidating the original undertaking as it<br />
was unlikely that anyone would agree to take<br />
silk if they were restricted in the way the<br />
title could be used. There is I think still a<br />
Supreme Court Rule to this effect which is<br />
not really acceptable. The important point<br />
is that this undertaking has reinforced the<br />
separation of the profession and privileges<br />
members of the separate bar in terms of<br />
judicial appointment. I think the pool for<br />
judicial appointments should be as wide<br />
as possible and not so restricted. Being a<br />
barrister in an adversarial system does not<br />
necessarily translate into the attributes of a<br />
good judge. Learning in the law is important<br />
but so is personal aptitude including an<br />
understanding of society and the human<br />
condition as well as sense of fairness.<br />
The other controversy which erupted<br />
over legislation I had introduced was in<br />
the Nemer case. The Director of Public<br />
Prosecutions Act of 1992 includes a<br />
power for the Attorney General to direct<br />
the DPP. In accordance with established<br />
practice the legislation made clear that this<br />
was a decision for the Attorney and not<br />
the cabinet or government. Nemer shot<br />
the victim who was going about the lawful<br />
business of delivering morning newspapers<br />
which resulted in the loss of his eye. Plea<br />
negotiations resulted in the charge being<br />
reduced to endangering life and a good<br />
behaviour bond sentence imposed. The<br />
Attorney-General directed the DPP to<br />
appeal which was successful resulting in<br />
a head sentence of 4 years and 9 months<br />
(and a non- parole period of 1 year and<br />
9 months) which reflected the obvious<br />
seriousness of the offence. The defence<br />
challenged the validity of the direction.<br />
The Law Society took the view that<br />
the Attorney-General should not have<br />
this power or that it shouldn’t be used in<br />
individual cases. There was an exchange<br />
of learned articles in the Bulletin where<br />
I took the opposite view and defended<br />
the legislation. There was considerable<br />
confusion about the separation of powers<br />
doctrine. The maintenance of security<br />
and public order and the investigation and<br />
prosecution of offenders is quintessentially<br />
an executive government function. The<br />
citizenry including victims of crime accept<br />
that in civil society the state will perform<br />
this function in lieu of private vigilante<br />
action and taking the law into their own<br />
hands. It is an essential part of the deal (or<br />
compact) that the community be satisfied<br />
the measures taken by the Crown, the state<br />
or the government (however you wish to<br />
describe the executive) will keep them as<br />
safe as practicable. The police are part of<br />
the executive and can be directed by the<br />
government of the day. The constitutional<br />
propriety of this was established in the<br />
Vietnam Moratorium Royal Commission in<br />
1972 by Sir Charles Bright. The safeguard<br />
is that any direction should be tabled in<br />
Parliament. In a similar way the prosecution<br />
of offenders is constitutionally a function<br />
of the executive, it is certainly not part of<br />
the judicial role. Democratic accountability<br />
for this function is secured by the Attorney<br />
General having ultimate responsibility<br />
for prosecution policy and being able to<br />
direct the DPP, any direction to be made<br />
transparent by being tabled in Parliament,<br />
thus ensuring that the Attorney can provide<br />
at least some level of accountability to the<br />
Parliament for this function.<br />
For those opposed to this approach I<br />
pose the question of why the DPP alone<br />
of any public official should be immune<br />
from having their decisions reviewed. It is<br />
clear enough that a decision to prosecute is<br />
reviewed by a trial and subsequent appeal<br />
rights. However, what happens when the<br />
DPP makes a mistake by declining to<br />
prosecute or agreeing to an inappropriate<br />
charge reduction or agreement with the<br />
defence that the prosecution would not<br />
oppose a custodial sentence. Apart from<br />
the current power vested in the Attorney-<br />
General there is no vehicle for a mistake<br />
of this kind to be corrected. I have seen<br />
suggestions that such a decision could<br />
be the subject of judicial review by, for<br />
instance, an aggrieved victim. Or that an<br />
independent panel could be established<br />
to which members of the public or<br />
victims could take their case that the<br />
DPP had failed in its duty. I think such<br />
proposals would produce their own set of<br />
problems and would not support them.<br />
The Westminster system has in its rather<br />
quaint way produced a situation where the<br />
ultimate responsibility for prosecutions<br />
rests with an elected official who is part of<br />
executive government but immune from<br />
direction by the government of the day<br />
while according to the DPP substantial<br />
operational independence. I think both<br />
officers properly apprised of the relevant<br />
principles and powers relating to each of<br />
them can benefit from the dialogue and<br />
advice which they can impart to each other.<br />
The power to direct will be used sparingly<br />
but is a fail - safe mechanism to ensure that<br />
any egregious errors made by the DPP can<br />
be corrected. In the Nemer case I think<br />
there were some aspects of the political<br />
debate that were unfortunate and it would<br />
have been better if the Attorney-General<br />
had inserted himself into it to more fully<br />
explain the relevant powers and principles<br />
that were involved. But in the end the<br />
correct result was arrived at, an error was<br />
corrected and a potential miscarriage of<br />
<strong>February</strong> <strong>2018</strong> THE BULLETIN 33
SPEECH<br />
justice for the general community and the<br />
victim averted. The power to direct was<br />
upheld by the Supreme Court and the High<br />
Court which in my view as proponent of<br />
the legislation is what was intended.<br />
I don’t think the legal profession<br />
completely understands how difficult the<br />
law and order tiger is to ride for people in<br />
elected office. But even so, it is important<br />
for the Attorney-General to maintain a<br />
stance of reasonable detachment and<br />
reason within government, whether dealing<br />
with sentencing or as has been highlighted<br />
more recently in the Keogh case in dealing<br />
with petitions to the Governor to refer<br />
criminal cases back to the Supreme Court.<br />
This role is now diminished as groundbreaking<br />
legislation introduced by John Rau<br />
now provides a direct route for a convicted<br />
person to have their cases reviewed by<br />
the Supreme Court in certain defined<br />
circumstances of new evidence and where<br />
a miscarriage of justice may have occurred.<br />
It will be interesting to see what the High<br />
Court in the van Beelan case makes of<br />
this (Ed note: The High Court dismissed<br />
van Belelen’s appeal against his murder<br />
conviction). The Splatt Royal Commission<br />
that I recommended also did some good<br />
work in dealing with forensic evidence and<br />
leading to it being collected and examined<br />
independently of the police – but perhaps<br />
not enough to satisfy the current critics of<br />
our forensic services.<br />
On the law and order front what we<br />
tried to do was put together a coherent<br />
package of measures involving greater<br />
support for victims, sentencing reforms<br />
with imprisonment as a penalty of last<br />
resort, proper rehabilitation measures and<br />
importantly a community crime prevention<br />
policy which tried to acknowledge that<br />
crime rates were not amenable to reduction<br />
just by custodial sentences. This was<br />
broadly supported by the Opposition and<br />
my successor Trevor Griffin. I am pleased<br />
to see that after a lapse under the Rann<br />
government there is an attempt by the<br />
Law Society and others to revive the crime<br />
prevention approach even if it is now<br />
rebadged as justice reinvestment.<br />
I would like to say how much I enjoyed<br />
and appreciated working with the lawyers<br />
employed by the Crown. They are engaged<br />
34 THE BULLETIN <strong>February</strong> <strong>2018</strong><br />
in an important public service and I am<br />
pleased to see suggestions to privatise<br />
or outsource the work have rightly been<br />
resisted in SA. I courted some controversy<br />
when Cathy Branson was appointed<br />
Crown Solicitor in 1985 - the first woman<br />
to be appointed CEO of a government<br />
department in SA. She was able to entice<br />
John Doyle to take up the position of<br />
Solicitor General who with Brad Selway<br />
constituted a formidable constitutional<br />
team. It is insufficiently recognised that<br />
their efforts in the High Court resulted<br />
in a reinterpretation of s 92 (which<br />
hardly ever provokes controversy these<br />
days). With my support and over the<br />
objections of such notably forceful figures<br />
as Victorian Premier Jeff Kennett they<br />
also lead the way in trying to get a more<br />
limited definition of excise adopted. Had<br />
this been successful it would have allowed<br />
the States to impose a GST type tax and<br />
helped to correct the fiscal imbalance<br />
between the Commonwealth and the<br />
States. Unfortunately, by a narrow margin<br />
this failed.<br />
Finally, I like to think I enjoyed good<br />
relations with the Law Society even<br />
though, for potential conflict reasons, I<br />
did not regard it as appropriate to actively<br />
participate in the Council’s deliberations.<br />
Unlike the present Attorney I was not<br />
antagonistic to submissions produced<br />
from your word processor, matters I<br />
see addressed by (then) President Tony<br />
Rossi in the September (2017) Bulletin. I<br />
am often pleased to see reference to the<br />
success of the Litigation Assistance Fund<br />
as an aspect of enhancing access to justice.<br />
It is little known again that it fell to me<br />
to take the Law Society’s side in agreeing<br />
to make the funds available from the<br />
Guarantee Fund to establish the Fund over<br />
the Legal Services Commission which also<br />
wanted the money.<br />
Access to and the cost of justice were<br />
major issues in the 1980s and remain so<br />
today even to a greater extent. B<br />
Endnotes<br />
1 see also Hon L J King AC, QC ‘The Attorney-<br />
General, Politics and the Judiciary. Paper<br />
delivered to the Fourth Annual Colloquium<br />
of the Judicial Conference of Australia in<br />
November 1999’.<br />
CPD Events<br />
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15 and 16 <strong>February</strong> <strong>2018</strong><br />
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21 <strong>February</strong> <strong>2018</strong><br />
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POLITICS AND THE LAW<br />
The South Australian Parliament<br />
and Parliamentary Privilege<br />
JAN DAVIS, CLERK OF THE LEGISLATIVE COUNCIL<br />
Australian laws on Parliamentary<br />
Privilege have largely been derived<br />
from the laws of England regarding<br />
the privileges of the Houses of the UK<br />
Parliament and more particularly, those of<br />
the House of Commons and its Members.<br />
The sources of the English laws are to be<br />
found chiefly in ancient practice asserted<br />
by Parliament and accepted over time<br />
by the Crown and the courts of law, and<br />
custom of Parliament. English laws are<br />
developed by the statutes enacted by the<br />
English Parliament such as the Bill of Rights<br />
1689 and the common law developed<br />
by the Courts. By Imperial Statute 13<br />
& 14 Vic C59, the Australian colonies<br />
were empowered to enact legislation<br />
providing for the establishment of<br />
bicameral legislatures. The Constitutions<br />
for the Colonies of South Australia and<br />
Victoria enacted in the 1850s, provided<br />
that the Houses of their Parliaments and<br />
their Members should be co-extensive<br />
with those of the House of Commons<br />
and its Members, as of a specified date.<br />
The English laws so transported could<br />
be modified by later statutes. New South<br />
Wales is the only Australian State in<br />
which the laws of parliamentary privilege<br />
continue to be based mainly on common<br />
law (Enid Campbell, Parliamentary Privilege<br />
[2003, pp2-4]).<br />
In 1858, shortly after attaining<br />
responsible government in the province of<br />
South Australia, there was enacted specific<br />
legislation delineating the penal jurisdiction<br />
of the Houses of Parliament with the<br />
power to punish for contempt limited<br />
to defined clauses. The South Australian<br />
Parliament subsequently repealed this<br />
Act and substituted legislation, which<br />
adopted for the Houses of Parliament all<br />
the powers, privileges and immunities of<br />
the Commons House and Members and<br />
committees thereof as of 1 July, 1856. This<br />
was later qualified in 1888 when legislation<br />
provided that no member of the South<br />
36 THE BULLETIN <strong>February</strong> <strong>2018</strong><br />
Australian Parliament should be entitled<br />
to claim any of the privileges to which he<br />
might be entitled under the Act of 1858<br />
against any process issued by a court of<br />
law within the colony, except that no writ<br />
of capias ad satisfaciendum should be put into<br />
effect against a member during any session<br />
of Parliament or within 10 days before<br />
Parliament meets, and that no member<br />
should be liable to any penalty or process<br />
for non-attendance as a witness in court<br />
when his non-attendance should be due<br />
to his attendance in Parliament. This was<br />
subsequently repealed and provision made<br />
in the Constitution Act 1934 that:<br />
9. The Parliament may, by any Act,<br />
define the privileges, immunities,<br />
and powers to be held, enjoyed, and<br />
exercised by the Legislative Council<br />
and House of Assembly, and by<br />
the members thereof respectively:<br />
Provided that no such privileges,<br />
immunities, or powers shall exceed<br />
those held, enjoyed, and exercised<br />
on the twenty-fourth day of<br />
October, eighteen hundred and fiftysix,<br />
by the House of Commons, or<br />
the members thereof.<br />
38. The privileges, immunities, and<br />
powers of the Legislative Council<br />
and House of Assembly respectively,<br />
and of the committees and<br />
members thereof respectively, shall<br />
be the same as but no greater than<br />
those which on the twenty-fourth<br />
day of October, 1856, were held,<br />
enjoyed, and exercised by the House<br />
of Commons and by the committees<br />
and members thereof, whether such<br />
privileges, immunities, or powers<br />
were so held, possessed, or enjoyed<br />
by custom, statute, or otherwise.<br />
The earlier provision enacted in 1888 now<br />
appears as Section 39 in the Constitution Act<br />
1934 though, in slightly different form.<br />
Section 38 of the Constitution Act 1934<br />
restricts the South Australian Parliament<br />
to not exceeding the powers, etc. of the<br />
House of Commons as at 24 October,<br />
1856, which was the date of the enactment<br />
of the Constitution Act on the attainment<br />
of responsible Government. Therefore,<br />
should the UK Parliament change its<br />
privileges, it would seem that there would<br />
be no effect on the South Australian<br />
Parliament. As the majority of privileges<br />
of the House of Commons are enjoyed by<br />
common law, or custom, it is not easy to<br />
determine with certainty, 160 or more years<br />
later, what privileges were enjoyed at the<br />
earlier date. Halsbury’s Laws of England (1st<br />
Ed, 1912) lists privileges of both Houses,<br />
at that time, as freedom from arrest,<br />
exemption from jury service, protection<br />
of witnesses before Parliament or any<br />
parliamentary committee and of counsel,<br />
solicitors etc. engaged upon business of<br />
Parliament from arrest or any other legal<br />
action, freedom of speech, control over<br />
publication of proceedings and power to<br />
exclude strangers during parliamentary<br />
sittings.<br />
E G Blackmore, in Practice of the Legislative<br />
Council (2nd Ed, 1915, p41), stated -<br />
“It is obvious that a legislative body must, in<br />
order to the efficient discharge of its functions,<br />
be invested with power to punish offenders, to<br />
exercise discipline over its own Members, to<br />
enforce obedience to its orders, and to prevent<br />
interference with its proceedings.”<br />
Both the South Australian and<br />
Victorian Parliaments, by virtue of their<br />
Constitutions, have the same punitive<br />
powers then possessed by the House of<br />
Commons as at 24 October, 1856 (SA)<br />
and 1 July, 1855 (Vic). This power has<br />
been seen as the keystone of Parliamentary<br />
privilege. Parliament declares what is<br />
a breach of privilege and punishes by<br />
censure and commitment, with the<br />
public having no redress in a Court. A
POLITICS AND THE LAW<br />
scandalous or libellous reflection on the<br />
proceedings of the House or on a Member,<br />
disobedience to orders of the House,<br />
tampering with a witness, interfering with<br />
the Officers of the House in the execution<br />
of their duty and attempts to influence the<br />
decision of a Committee are considered<br />
breaches of privilege.<br />
It is a necessary privilege of a legislative<br />
body that it should have the right to<br />
summon and examine witnesses and<br />
compel the production of papers and, if<br />
a witness is in custody, to cause him to be<br />
produced as required. Privilege extends to<br />
protect witnesses, petitioners and others<br />
while in attendance at Parliament from<br />
arrest and from the consequences of any<br />
statement made by them.<br />
In Odgers in Australian Senate Practice<br />
(12th Ed, 2008, p65) it is explained that the<br />
“rationale of treating defamation of the Houses<br />
or of their Members as a contempt was not as<br />
was some time supposed, to protect the dignity and<br />
good name of Parliament and its Members but to<br />
prevent public attacks which, by undermining the<br />
respect due to Parliament as an institution and<br />
diminish its authority, tend to obstruct or impede<br />
the Houses in the performance of their functions”.<br />
In 1870, Serjeant-Major Patrick McBride<br />
was sent to prison for one week for<br />
sending a letter to a member of the<br />
Legislative Council accusing him of having<br />
lied to the Council. Mr John Baker, a<br />
Member of the Legislative Council, read<br />
to the Council an “abusive” letter which<br />
he had received from a Mr McBride (a<br />
Serjeant-Major, R.A.), as follows:<br />
“Sir - I regret to hear you state what is a<br />
deliberate and repeated and base lie, on your<br />
part, stating Mr H.H.B. Strangways is or<br />
was my lawyer on any matter connected with<br />
the Volunteer Force of this Colony. Such a<br />
statement is a base calumny against the Hon.<br />
Gentleman.<br />
I am, Sir, your obedient servant, McBride.”<br />
The Hon J Baker<br />
The letter was forthwith, on motion,<br />
declared a breach of the privileges of<br />
Parliament. At a subsequent sitting the<br />
President reported that he had received<br />
from Serjeant-Major McBride the following<br />
letter, apologising that he had committed a<br />
breach of privilege:<br />
Privilege extends to protect witnesses, petitioners<br />
and others while in attendance at Parliament from<br />
arrest and from the consequences of any statement<br />
made by them.<br />
“Pennington Terrace, North Adelaide, 16th<br />
September 1870.<br />
The Honourable the President of the<br />
Legislative Council.<br />
Sir - It was with great regret that I found,<br />
on reading the Register of the 14th of this<br />
month, that the Council has resolved that I<br />
had, in forwarding a letter to the Honourable<br />
Mr. Baker, ‘committed a breach of the<br />
privileges of Parliament,’ and ‘that some<br />
members of the Council considered that I had<br />
offered an insult to the Council generally’. I<br />
assure you, Sir, as President of the Council,<br />
that nothing could be further from my intention<br />
than to commit any breach of the privileges<br />
of Parliament, nor would I willingly insult a<br />
body of gentlemen for whom I entertain a high<br />
respect on account of the individual action of<br />
one member of that body; I beg to express my<br />
extreme regret that I should have done anything<br />
that should be capable of such a construction as<br />
that arrived at by the Council, and to request<br />
that you will read this letter to the Council.<br />
I am your obedient servant,<br />
P. McBride.”<br />
However, despite the apology he was at<br />
once “adjudged guilty of contempt of<br />
the Council” and committed to Her<br />
Majesty’s Gaol for seven days on the<br />
warrant of the President. On the expiry<br />
of the seven days, the Council ordered<br />
“that no fees be demanded from Serjeant-<br />
Major McBride”.<br />
Enid Campbell in Parliamentary Privilege in<br />
Australia (1966, p129) argued:<br />
“This is a good illustration of the kind of<br />
case in which legislative assemblies ought not<br />
to intervene at all. If anyone is defamed, it is<br />
not members of parliament collectively, but an<br />
individual member who is free to seek amends<br />
in the ordinary courts. Protection of the<br />
reputations of individual members is not the<br />
business of the Houses of Parliament, and if<br />
they extend their punitive jurisdiction thus far,<br />
they expose themselves to the charge not only<br />
of usurping the jurisdiction of the courts, but<br />
of dispensing justice to their members on the<br />
cheap. If jurisdiction is usurped in this way,<br />
the citizen who is made to suffer as a result is<br />
without a remedy. No writ of prohibition or<br />
injunction could issue to prevent either House<br />
of Parliament proceeding with the case, nor<br />
could the House’s judgement be upset by appeal<br />
or certiorari.”<br />
Likewise, Odgers (p65) held that “To<br />
constitute a contempt, a reflection upon an<br />
individual member had to relate to the member’s<br />
capacity as a member and tend to obstruct the<br />
performance of the member’s duties”. It should<br />
not be the business of the Houses to<br />
become involved in the punishment<br />
of defamation as a contempt, which it<br />
is argued, does not impede Parliament<br />
or its Committees going about their<br />
business.<br />
In 1898 Lord Kilmorey, who was a<br />
stranger in South Australia but was<br />
promoting the Outer Harbor Bill, was<br />
accused of having sent certain Members<br />
of the Council circulars that reflected on a<br />
Report of the Standing Orders Committee.<br />
The matter was referred to a Select<br />
Committee, which reported that the circular<br />
was a breach of privilege; but that, in view<br />
of Lord Kilmorey having withdrawn and<br />
apologised, the matter did not proceed any<br />
further. The Council adopted the Report of<br />
the Select Committee.<br />
It was not until 1968 that this issue<br />
arose again. A witness before the Select<br />
Committee on the Scientology Bill 1968<br />
brought along a prepared statement to<br />
the Committee, the opening paragraph<br />
of which referred to certain misgivings<br />
which the witness desired resolved before<br />
proceeding with his evidence. The first<br />
referred to protection afforded him in<br />
respect of evidence tendered by him and<br />
the Chairperson quoted LC Standing<br />
<strong>February</strong> <strong>2018</strong> THE BULLETIN 37
POLITICS AND THE LAW<br />
Order No. 437 which was accepted by<br />
the witness. The second referred to the<br />
Chairperson’s refusal to see him “some<br />
weeks ago because as he stated over the<br />
telephone, he had ‘made up his mind on<br />
the matter’ and that [he] would be better<br />
advised to seek somebody else who had<br />
not made this decision. [He went on<br />
to request] … the reassurance of the<br />
Committee that the hearing of evidence<br />
tendered will be examined in a completely<br />
impartial manner and not subject to bias in<br />
any way, shape or form”.<br />
The Chairperson gave the assurance<br />
that the Committee would look at this<br />
matter impartially. Further, the position<br />
was explained in relation to charges made<br />
against Members of the Committee, in<br />
that “if any information comes before a<br />
Committee that charges any Member of<br />
the Council, the Committee shall only<br />
direct that the Council be acquainted with<br />
the matter of such information, without<br />
proceeding further thereupon”.<br />
Subsequently the witness wrote to the<br />
Secretary of the Select Committee and<br />
“formally” charged the Chairperson with<br />
being unduly biased etc. The Committee<br />
agreed upon a Special Report to the<br />
Council on the matter “in order that the<br />
Council may take such steps as it shall<br />
think fit”. Other witnesses forwarded<br />
correspondence to the Committee<br />
indicating that they too were unable to<br />
give evidence in support of Scientology<br />
as they had been forced to the view that<br />
the Chairperson was biased, but offering<br />
to reconsider their positions if the<br />
Chairperson should resign.<br />
The Special Report drew attention to<br />
the letter from the witness which was<br />
addressed to the Clerk of the Legislative<br />
Council and stated:<br />
“that as such letter appears to reflect upon the<br />
conduct of the Chairperson, the Committee<br />
has agreed to report the same to the Council<br />
in accordance with Standing Order No. 399<br />
and that the letter and relevant Minutes of<br />
Evidence be Tabled with this Special Report in<br />
order that the Council may take such steps as it<br />
shall think fit”.<br />
After the Special Report was Tabled<br />
(5 November, 1968), the Council resolved<br />
to summon the Witness to appear at the<br />
Bar of the Council on the next Tuesday<br />
of sitting “to answer such questions as the<br />
38 THE BULLETIN <strong>February</strong> <strong>2018</strong><br />
Council may see fit to put to him regarding<br />
his letter concerning the Chairperson of<br />
the Select Committee on the Scientology<br />
(Prohibition) Bill 1968”. On the next<br />
sitting Tuesday (12 November, 1968), the<br />
Clerk was required to read the Resolution<br />
concerning the Special Report of the Select<br />
Committee and Black Rod was required to<br />
ascertain whether the witness was present.<br />
Having so determined, the President<br />
ordered that the witness be brought to the<br />
Bar. He was questioned as to whether he<br />
was the person mentioned in the Minutes<br />
of Evidence and whether he signed the<br />
letter attached to the Special Report. After<br />
the witness confirmed that he was the<br />
said person, he was asked to withdraw,<br />
following which a motion was moved:<br />
“That in the opinion of the House the<br />
writing and sending of the letter was highly<br />
improper conduct and the House, without<br />
proceeding to the question whether that conduct<br />
constitutes a contempt of the House, issues<br />
a warning to …(the witness) to refrain from<br />
a repetition of such conduct in the future<br />
which could be attended with most serious<br />
consequences”.<br />
Considerable debate occurred with the<br />
then four Labor Members opposing the<br />
motion. The motion was carried on strict<br />
party lines. The witness was then recalled<br />
to the Bar and the President informed him<br />
of the Resolution and added:<br />
“To deliberately attribute to the Chairman of<br />
a Select Committee a lack of impartiality is a<br />
contempt of the Legislative Council, which, on<br />
being duly established, can be severely punished.<br />
Honourable members, when individually<br />
engaged on official duties both inside and<br />
outside the Chamber, are obliged to make up<br />
their minds and speak out as they think fit, but<br />
when sitting as members of a Select Committee<br />
they are, whatever they may have said before,<br />
under a strict duty to be impartial, and they<br />
invariably discharge their duties. That concludes<br />
the proceedings, and you (the witness) may<br />
withdraw”.<br />
This was the last time that such action<br />
occurred. At the time, the summoning<br />
before the Bar did not reflect well on the<br />
Upper House and was treated so in the<br />
local press. Subsequently, Committees and<br />
Members have always been counselled<br />
against proceeding thus in the public forum.<br />
In 1987, a Member of the House of<br />
Assembly made certain allegations in<br />
Parliament. Those allegations implied that<br />
a member of the public had sought and/<br />
or received favoured treatment because of<br />
close association with the former Labor<br />
Government. Subsequently, a Newspaper<br />
published a letter written by this member<br />
of the public in which he disputed the<br />
allegations saying that they were unfounded<br />
and defamatory. The Member of<br />
Parliament then issued proceedings against<br />
this person and the Newspaper alleging<br />
that the letter was defamatory.<br />
The member of the public and the<br />
Newspaper filed their defence to that<br />
claim. The defence pleaded qualified<br />
privilege, fair comment and justification<br />
(i.e. truth). On the face of it, the defences<br />
of fair comment and justification (at least<br />
as pleaded) would require the Court to<br />
determine whether the allegations made<br />
by the Member in Parliament were true.<br />
The Court would probably also be required<br />
to inquire into the Member’s motives<br />
in making the statement. The Member<br />
of Parliament then applied to have the<br />
defences struck out as being in breach of<br />
Parliamentary privilege. He argued that<br />
the privilege was absolute and that the<br />
Court could not hear any evidence of what<br />
occurred in Parliament.<br />
The Judge accepted this argument and<br />
struck out the relevant defences. This had<br />
the effect that the member of the public<br />
a defendant faced with an action by a Member of<br />
Parliament for defamation has a right ... to crossexamine<br />
the Member of Parliament as to the facts<br />
of the statement which was made in the Parliament<br />
and to which a citizen’s response may related, the<br />
motives and even the sources of information.
POLITICS AND THE LAW<br />
and the Newspaper had no defence. This<br />
decision was appealed to the Full Court.<br />
The Attorney-General intervened and his<br />
argument can be summarised as follows:<br />
• A court cannot inquire into the truth<br />
of what is spoken in Parliament or the<br />
motive of a member when speaking in<br />
Parliament. It is doubtful whether this<br />
privilege can be waived.<br />
• A court can receive admissible evidence<br />
to prove as a fact that a particular<br />
statement was made in Parliament.<br />
Parliamentary privilege may render<br />
inadmissible some otherwise relevant<br />
evidence on this topic. However,<br />
Hansard can be received in evidence for<br />
this purpose.<br />
• Any person who is attacked by a speech<br />
in Parliament has a qualified privilege<br />
to publicly answer that attack. The<br />
qualified privilege will apply so long as<br />
the answer is a reasonable response to<br />
the attack and is not actuated by malice.<br />
The truth or otherwise of the answer<br />
need not be proved.<br />
The Attorney-General was not successful.<br />
Two Judges of the Supreme Court were<br />
of the view that in the circumstances<br />
of this case in particular, a defendant<br />
faced with an action by a Member of<br />
Parliament for defamation has a right in<br />
those circumstances to cross-examine<br />
the Member of Parliament as to the<br />
facts of the statement which was made<br />
in the Parliament and to which a citizen’s<br />
response may related, the motives and even<br />
the sources of information.<br />
Subsequent to the decision of the Full<br />
Court, the then Attorney-General sought<br />
leave to appeal to the High Court based<br />
on the same argument that he put to the<br />
Full Supreme Court. However, he later<br />
withdrew, indicating his concern that this<br />
was the worst possible case on its facts<br />
to use as a vehicle to test the extent of<br />
Parliamentary privilege. He recommended<br />
that Parliament should consider the<br />
issue of privilege unencumbered by<br />
the potentially unjust case then being<br />
considered. The Parliament could then<br />
consider whether legislation to cover<br />
privilege should be introduced.<br />
Subsequently, a Joint Committee of the<br />
Parliament was established to examine<br />
the extent of Parliamentary privilege and<br />
the means by which such privilege may be<br />
enunciated and protected in the interests<br />
of the community and the institution<br />
of Parliament. The Committee never<br />
reported. At the time, it was felt that to<br />
introduce legislation defining Parliamentary<br />
privilege may indeed limit the privileges<br />
attained by the South Australian Parliament<br />
in Section 38 of the Constitution Act 1934,<br />
which extends “the privileges, immunities and<br />
powers of the Legislative Council and House of<br />
Assembly respectively, and of the Committees and<br />
members thereof respectively, to those held by the<br />
House of Commons as at 24 October 1856”.<br />
It was not until 1999 that the then<br />
Attorney-General moved for a Sessional<br />
Standing Order according a Citizen’s<br />
Right of Reply in the Legislative Council.<br />
The Sessional Standing Order enables<br />
persons who believe that they have been<br />
adversely referred to during proceedings<br />
of the Council to request that a response<br />
be incorporated in Hansard. This has been<br />
adopted in every subsequent Session of<br />
Parliament in the Legislative Council and<br />
by the House of Assembly since 2007. B<br />
Jan Davis retired on 31 December 2017 after<br />
53 years on the Staff of the Legislative Council<br />
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<strong>February</strong> <strong>2018</strong> THE BULLETIN 39
GAZING IN THE GAZETTE<br />
4 November 2017 – 2 January <strong>2018</strong><br />
A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS<br />
AND RULES COMPILED BY MELLOR OLSSON’S ELIZABETH OLSSON.<br />
Acts Proclaimed<br />
Local Government (Boundary Adjustment)<br />
Amendment Act 2017 (No 32 of 2017)<br />
Commencement: 1 January 2019<br />
Gazetted: 7 November 2017,<br />
No. 75 of 2017<br />
Local Government (Mobile Food Vendors)<br />
Amendment Act 2017 (No 33 of 2017)<br />
Commencement: 1 March <strong>2018</strong><br />
Gazetted: 15 November 2017,<br />
No. 76 of 2017<br />
Adoption (Review) Amendment Act 2016 (No<br />
64 of 2016)<br />
Commencement ss 4 (other than the<br />
insertion of s 3(3) into Adoption Act 1988);<br />
5(6) (other than the insertion of the<br />
definitions of party to an adoption and<br />
Registrar into Adoption Act 1988); 5(7) and<br />
(10); 6; 9(1); 14(3); 15; 17; 19 to 22; 23(1);<br />
24 to 29: 18 December 2017<br />
Gazetted: 21 November 2017,<br />
No. 77 of 2017<br />
Intervention Orders (Prevention of Abuse)<br />
(Recognition of National Domestic Violence<br />
Orders) Amendment Act 2017 (No 8 of 2017)<br />
Commencement: 25 November 2017<br />
Gazetted: 21 November 2017,<br />
No. 77 of 2017<br />
Environment Protection (Waste Reform)<br />
Amendment Act 2017 (No 45 of 2017)<br />
Commencement except<br />
Schedule 2: 28 November 2017<br />
Gazetted: 28 November 2017,<br />
No. 78 of 2017<br />
Notaries Public Act 2016 (No 42 of 2016)<br />
Commencement: 1 <strong>February</strong> <strong>2018</strong><br />
Gazetted: 28 November 2017,<br />
No. 78 of 2017<br />
Children and Young People (Oversight and<br />
Advocacy Bodies) Act 2016 (No 48 of 2016)<br />
Commencement remaining provisions:<br />
18 December 2017<br />
Gazetted: 5 December 2017,<br />
No. 79 of 2017<br />
Electoral (Legislative Council Voting and<br />
Other Measures) Amendment Act 2017<br />
(No 31 of 2017)<br />
Commencement remaining<br />
provisions: 12 December 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Land and Business (Sale and Conveyancing)<br />
(Beneficial Interest) Amendment Act 2017<br />
(No 30 of 2017)<br />
Commencement: 29 January <strong>2018</strong><br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Liquor Licensing (Liquor Review) Amendment<br />
Act 2017 (No 49 of 2017)<br />
40 THE BULLETIN <strong>February</strong> <strong>2018</strong><br />
Commencement except ss 4; 5(1) and (2);<br />
5(4) - (9); 5(11); 5(13) - (15); 5(17); 5(21)<br />
and (22); 5(24) - (26); 5(28); 6; 7; 9 to 15; 17;<br />
19; 20; 22; 23; 25 - 32; 33(1) and (2); 34 - 38;<br />
39(2); 40 - 52; 53(2); 55 - 64; 67 - 69; 73 -<br />
76; 78 - 80; 82(3); 83 - 95; 96(2); Schedule 1;<br />
Schedule 2, Part 3; Schedule 2,<br />
clause 12: 18 December 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Statutes Amendment (SACAT No 2) Act 2017<br />
(No 51 of 2017)<br />
Commencement except for Part 2; Part 4;<br />
Parts 7 to 12; Parts 14 to 16; Part 19; Part<br />
21; Parts 24 to 28; Parts 30 to 35; Parts 37<br />
and 38; Part 40; section 225; Parts 44 to 47;<br />
Part 49: 14 December 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Summary Procedure (Indictable Offences)<br />
Amendment Act 2017 (No 18 of 2017)<br />
Commencement: 5 March <strong>2018</strong><br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Surveillance Devices Act 2016 (No 2 of 2016)<br />
Commencement: 18 December 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Australian Energy Market Commission<br />
Establishment (Governance) Amendment Act<br />
2017 (No 52 of 2017)<br />
Commencement: 19 December 2017<br />
Gazetted: 19 December 2017,<br />
No. 82 of 2017<br />
Biological Control (Miscellaneous) Amendment<br />
Act 2016 (No 66 of 2016)<br />
Commencement: 1 January <strong>2018</strong><br />
Gazetted: 19 December 2017,<br />
No. 82 of 2017<br />
Children and Young People (Safety) Act 2017<br />
(No 25 of 2017)<br />
Commencement ss17, 18; Chapter 4 Parts<br />
2 and 3; Chapter 5; Chapter 6 Parts 1 and 2<br />
(other than section 59); ss 67, 68; Chapter<br />
7 Part 1 (other than Division 4); Chapter 7<br />
Parts 2, 3 and 4; Chapter 7 Parts 6, 7 and<br />
9; s111; Chapter 8; Chapter 10; Chapter 11<br />
Part 2; ss 151, 152, 161; Schedule 1 Part 2<br />
clause 2(b) to (e) and clause 2A (as enacted<br />
by section 60 of Children’s Protection Law<br />
Reform (Transitional Arrangements and Related<br />
Amendments) Act 2017);<br />
Schedule 1 Part 3: 22 October <strong>2018</strong><br />
Commencement remaining<br />
provisions: 26 <strong>February</strong> <strong>2018</strong><br />
immediately after<br />
section 60 of<br />
Children’s Protection Law<br />
Reform (Transitional<br />
Provisions and Related<br />
Amendments) Act 2017<br />
comes into operation.<br />
Gazetted: 19 December 2017,<br />
No. 82 of 2017<br />
Children’s Protection Law Reform (Transitional<br />
Provisions and Related Amendments) Act 2017<br />
(No 64 of 2017)<br />
Commencement ss 22, 23, 26, 60; Part 22; s<br />
149(1), 150; Part 22: 26 <strong>February</strong> <strong>2018</strong>;<br />
Commencement ss24, 25, 27-32, 33, 35-38;<br />
Parts 5, 6, 9 (except s46); s 58; Parts 11, 12,<br />
14-17, 19, 20; ss 148, 149(2),<br />
151-153: 22 October <strong>2018</strong>;<br />
Commencement remaining provisions<br />
except Parts 2, 7, 13,<br />
18 and 21: 19 December 2017;<br />
To avoid doubt, while section 60 of<br />
the Act comes into operation on<br />
26 <strong>February</strong> <strong>2018</strong>:<br />
(a) clause 2(a) of Schedule 1 Part 2 of<br />
Children and Young People (Safety) Act<br />
2017) commences on 26 <strong>February</strong><br />
<strong>2018</strong>;<br />
(b) clause 2(b) to (e) and clause 2A of<br />
Schedule 1 Part 2 of Children and Young<br />
People (Safety) Act 2017 commences on<br />
22 October <strong>2018</strong>.<br />
Gazetted: 19 December 2017,<br />
No. 82 of 2017<br />
Industry Advocate Act 2017 (No 42 of 2017)<br />
Commencement: 1 January <strong>2018</strong><br />
Gazetted: 19 December 2017,<br />
No. 82 of 2017<br />
Justices of the Peace (Miscellaneous) Amendment<br />
Act 2016 (No 41 of 2016)<br />
Commencement: 19 December 2017<br />
Gazetted: 19 December 2017,<br />
No. 82 of 2017<br />
Road Traffic (Roadworks) Amendment Act 2017<br />
(No 12 of 2017)<br />
Commencement: 1 June <strong>2018</strong><br />
Gazetted: 19 December 2017,<br />
No. 82 of 2017<br />
Statutes Amendment (Transport Online<br />
Transactions and Other Matters) Act 2017<br />
(No. 38 of 2017)<br />
Commencement ss 23, 26, 33(1)<br />
and (2); Sch 1: 20 March <strong>2018</strong>;<br />
Commencement remaining provisions:<br />
19 December 2017<br />
Gazetted: 19 December 2017,<br />
No. 82 of 2017<br />
Acts Assented To<br />
Environment Protection (Waste Reform)<br />
Amendment Act 2017, No. 45 of 2017<br />
(amends Environment Protection Act 1993 and<br />
Motor Vehicles Act 1959)<br />
Gazetted: 15 November 2017,<br />
No. 76 of 2017
Work Health and Safety (Representative<br />
Assistance) Amendment Act 2017,<br />
No. 46 of 2017<br />
Gazetted: 15 November 2017,<br />
No. 76 of 2017<br />
Criminal Law Consolidation (Criminal<br />
Organisations) Amendment Act 2017,<br />
No. 47 of 2017<br />
Gazetted: 15 November 2017,<br />
No. 76 of 2017<br />
Police (Drug Testing) Amendment Act 2017,<br />
No. 48 of 2017<br />
Gazetted: 28 November 2017,<br />
No. 78 of 2017<br />
Liquor Licensing (Liquor Review) Amendment<br />
Act 2017, No. 49 of 2017<br />
Gazetted: 28 November 2017,<br />
No. 78 of 2017<br />
Statutes Amendment (Court Fees) Act 2017,<br />
No. 50 of 2017<br />
(amends District Court Act 1991; Magistrates<br />
Court Act 1991; Sherriff’s Act 1978; and<br />
Supreme Court Act 1935)<br />
Gazetted: 28 November 2017,<br />
No. 78 of 2017<br />
Statutes Amendment (SACAT No 2) Act<br />
2017, No. 51 of 2017<br />
Gazetted: 28 November 2017,<br />
No. 78 of 2017<br />
Australian Energy Market Commission<br />
Establishment (Governance) Amendment Act<br />
2017, No. 52 of 2017<br />
Gazetted: 28 November 2017,<br />
No. 78 of 2017<br />
Statutes Amendment (Sentencing) Act 2017,<br />
No. 53 of 2017<br />
Gazetted: 28 November 2017,<br />
No. 78 of 2017<br />
Statutes Amendment (Vehicle Inspections and<br />
South Eastern Freeway Offences) Act 2017, No.<br />
54 of 2017<br />
(amends Motor Vehicles Act 1959 and Road<br />
Traffic Act 1961)<br />
Gazetted: 28 November 2017,<br />
No. 78 of 2017<br />
Stamp Duties (Foreign Ownership Surcharge)<br />
Amendment Act 2017, No. 55 of 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Health Practitioner Regulation National Law<br />
(South Australia) (Remote Area Attendance)<br />
Amendment Act 2017, No. 56 of 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Genetically Modified Crops Management<br />
Regulations (Postponement of Expiry) Act 2017,<br />
No. 57 of 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Planning, Development and Infrastructure (State<br />
Planning Policy) (Biodiversity) Amendment Act<br />
2017, No. 58 of 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Linear Parks (Miscellaneous) Amendment Act<br />
2017, No. 59 of 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Nuclear Waste Storage Facility (Prohibition)<br />
(Public Money) Amendment Act 2017,<br />
No. 60 of 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Statutes Amendment (Extremist Material) Act<br />
2017, No. 61 of 2017<br />
(amends Criminal Law Consolidation Act 1935<br />
and Summary Offences Act 1953)<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Statutes Amendment (Explosives) Act 2017,<br />
No. 62 of 2017<br />
(amends Criminal Law Consolidation Act 1935<br />
and Summary Offences Act 1953)<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Statutes Amendment (Drink and Drug Driving)<br />
Act 2017, No. 63 of 2017<br />
(amends Harbors and Navigation Act 1993,<br />
Motor Vehicles Act 1959, Rail Safety National<br />
Law (South Australia) Act 2012 and Road<br />
Traffic Act 1961)<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Children’s Protection Law Reform (Transitional<br />
Arrangements and Related Amendments) Act<br />
2017, No. 64 of 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Constitution (One Vote One Value) Amendment<br />
Act 2017, No. 65 of 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Constitution (Electoral Redistribution) (Appeals)<br />
Amendment Act 2017, No. 66 of 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Statutes Amendment (Youths Sentenced as<br />
Adults) Act 2017, No. 67 of 2017<br />
(amends Young Offenders Act 1993; Criminal<br />
Law (Sentencing) Act 1988; Sentencing Act 2017)<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Labour Hire Licensing Act 2017,<br />
No. 68 of 2017<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Statutes Amendment (Terror Suspect Detention)<br />
Act 2017, No. 69 of 2017<br />
(amends Bail Act 1985; Correctional Services<br />
Act 1982; Criminal Law (High Risk Offenders)<br />
Act 2015; Police Act 1998; Young Offenders<br />
Act 1993)<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Statutes Amendment (Attorney-General’s Portfolio<br />
No 3) Act 2017, No. 70 of 2017<br />
(amends Advance Care Directives Act 2013;<br />
Bail Act 1985; Construction Industry Long<br />
GAZING IN THE GAZETTE<br />
Service Leave Act 1987; Guardianship and<br />
Administration Act 1993; Legal Practitioners<br />
Act 1981; Magistrates Act 1983; Magistrates<br />
Court Act 1991; Remuneration Act 1990;<br />
Second-hand Dealers and Pawnbrokers Act<br />
1996; South Australian Employment Tribunal<br />
Act 2014; Spent Convictions Act 2009; Young<br />
Offenders Act 1993)<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Fines Enforcement and Debt Recovery Act 2017,<br />
No. 71 of 2017<br />
(amend Cross-border Justice Act 2009,<br />
Expiation of Offences Act 1996, Magistrates<br />
Court Act 1991, Motor Vehicles Act 1959,<br />
Summary Procedure Act 1921 Victims of Crime<br />
Act 2001)<br />
Gazetted: 12 December 2017,<br />
No. 81 of 2017<br />
Appointments<br />
President of the South Australian<br />
Employment Tribunal<br />
from 7 November 2017<br />
Steven Peter Dolphin<br />
Gazetted: 7 November 2017,<br />
No. 75 of 2017<br />
Magistrate<br />
Ancillary Magistrate of the Youth Court<br />
of South Australia<br />
South Australian Civil and<br />
Administrative Tribunal<br />
Member<br />
commencing on 22 November 2017<br />
Protective Security Officers<br />
Disciplinary Tribunal<br />
Panel Member:<br />
Police Disciplinary Tribunal<br />
Panel Member:<br />
From 22 November 2017 until 28 April 2020<br />
Oliver Rudolf Gerhard Koehn<br />
Gazetted: 21 November 2017,<br />
No. 77 of 2017<br />
Youth Court of South Australia<br />
Magistrate of the Court<br />
Member of the Court’s principal<br />
judiciary<br />
for a term of 2 years.<br />
Luke Anthony Davis<br />
Gazetted: 21 November 2017,<br />
No. 77 of 2017<br />
South Australian Civil and<br />
Administrative Tribunal<br />
Sessional Ordinary Members<br />
for a term of three years commencing on 5<br />
December 2017 and expiring on 4 December<br />
2020 -<br />
Alicia Mary Devitt Bills<br />
Suzanne Elizabeth Carlton<br />
Sandra Mary Clark<br />
Julie Cowdroy<br />
Maria Demosthenous<br />
Mark Ewart Fuller<br />
Allan Roy Hunter<br />
Jane Louise McGrath<br />
Anne Veronica Moroney<br />
Matt Murphy<br />
<strong>February</strong> <strong>2018</strong> THE BULLETIN 41
GAZING IN THE GAZETTE<br />
Kelly Anne Ryan<br />
Carolyn Louise Wilson<br />
Gazetted: 5 December 2017,<br />
No. 79 of 2017<br />
Judge of the District Court of<br />
South Australia<br />
Deputy President of the South<br />
Australian Employment Tribunal<br />
commencing on 19 December 2017<br />
Margaret Julia Kelly<br />
Gazetted: 19 December 2017,<br />
No. 82 of 2017<br />
Rules<br />
Magistrates Court Rules 1992<br />
Amendment 64<br />
Gazetted: 15 November 2017,<br />
No. 76 of 2017<br />
District Court Civil Rules 2006<br />
Amendment 35<br />
District Court Civil Supplementary<br />
Rules 2014<br />
Amendment 7<br />
District Court Criminal Rules 2014<br />
Amendment 5<br />
District Court Criminal Supplementary<br />
Rules 2014<br />
Amendment 4<br />
District Court Special Applications<br />
Rules 2014<br />
Amendment 1<br />
District Court Special Applications<br />
Supplementary Rules 2014<br />
Amendment 2<br />
Supreme Court Criminal Rules 2014<br />
Amendment 5<br />
Supreme Court Criminal<br />
Supplementary Rules 2014<br />
Amendment 4<br />
Supreme Court Civil Rules 2006<br />
Amendment 34<br />
Supreme Court Civil Supplementary<br />
Rules 2014<br />
Amendment 8<br />
Supreme Court Special Applications<br />
Rules 2014<br />
Amendment 2<br />
Gazetted: 28 November 2017,<br />
No. 78 of 2017<br />
Supreme Court Special Applications<br />
Supplementary Rules 2014<br />
Amendment 5<br />
Gazetted: 5 December 2017,<br />
No. 79 of 2017<br />
South Australian Civil and<br />
Administrative Tribunal Rules 2014<br />
Amendment No. 3<br />
Gazetted: 19 December 2017,<br />
No. 82 of 2017<br />
REGULATIONS PROMULGATED (4 NOVEMBER 2017 – 2 JANUARY <strong>2018</strong>)<br />
REGULATION NAME REGULATION NO. DATE GAZETTED<br />
Development Act 1993 301 of 2017 7 November 2017, Gazette No. 75 of 2017<br />
Aquaculture Act 2001 302 of 2017 7 November 2017, Gazette No. 75 of 2017<br />
Freedom of Information Act 1991 303 of 2017 7 November 2017, Gazette No. 75 of 2017<br />
Controlled Substances Act 1984 304 of 2017 7 November 2017, Gazette No. 75 of 2017<br />
Trans Tasman Mutual Recognition (South Australia) Act 1999 305 of 2017 7 November 2017, Gazette No. 75 of 2017<br />
Mutual Recognition (South Australia) Act 1993 306 of 2017 7 November 2017, Gazette No. 75 of 2017<br />
Local Government Act 1999 307 of 2017 15 November 2017, Gazette No. 76 of 2017<br />
Heavy Vehicle National Law (South Australia) Act 2013 308 of 2017 21 November 2017, Gazette No. 77 of 2017<br />
Harbors and Navigation Act 1993 309 of 2017 21 November 2017, Gazette No. 77 of 2017<br />
Intervention Orders (Prevention of Abuse) Act 2009 310 of 2017 21 November 2017, Gazette No. 77 of 2017<br />
Public Corporations Act 1993 311 of 2017 21 November 2017, Gazette No. 77 of 2017<br />
Notaries Public Act 2016 312 of 2017 28 November 2017, Gazette No. 78 of 2017<br />
Legal Practitioners Act 1981 313 of 2017 28 November 2017, Gazette No. 78 of 2017<br />
Local Government Act 1999 314 of 2017 28 November 2017, Gazette No. 78 of 2017<br />
SACE Board of South Australia Act 1983 315 of 2017 28 November 2017, Gazette No. 78 of 2017<br />
Public Sector (Data Sharing) Act 2016 316 of 2017 28 November 2017, Gazette No. 78 of 2017<br />
Controlled Substances Act 1984 317 of 2017 5 December 2017, Gazette No. 79 of 2017<br />
Fair Trading Act 1987 318 of 2017 5 December 2017, Gazette No. 79 of 2017<br />
Controlled Substances Act 1984 319 of 2017 5 December 2017, Gazette No. 79 of 2017<br />
Children and Young People (Oversight and Advocacy Bodies) Act 2016 320 of 2017 5 December 2017, Gazette No. 79 of 2017<br />
Criminal Law Consolidation Act 1935 321 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Criminal Procedure Act 1921 322 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Criminal Law (Sentencing) Act 1988 323 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Criminal Law Consolidation Act 1935 324 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Land and Business (Sale and Conveyancing) Act 1994 325 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Liquor Licensing Act 1997 326 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Public Sector Act 2009 327 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Surveillance Devices Act 2016 328 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Electoral Act 1985 329 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Primary Industry Funding Schemes Act 1998 330 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Primary Industry Funding Schemes Act 1998 331 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Primary Industry Funding Schemes Act 1998 332 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Primary Industry Funding Schemes Act 1998 333 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Primary Industry Funding Schemes Act 1998 334 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Primary Industry Funding Schemes Act 1998 335 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Primary Industry Funding Schemes Act 1998 336 of 2017 12 December 2017, Gazette No. 81 of 2017<br />
Water Industry Act 2012 337 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Motor Vehicles Act 1959 338 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Motor Vehicles Act 1959 339 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Road Traffic Act 1961 340 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Livestock Act 1997 341 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Summary Procedure Act 1921 342 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Justices of the Peace Act 2005 343 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Health Practitioner Regulation National Law (South Australia) Act 2010 344 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
National Electricity (South Australia) Act 1996 345 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
National Energy Retail Law (South Australia) Act 2011 346 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
National Gas (South Australia) Act 2008 347 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Criminal Law Consolidation Act 1935 348 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Southern State Superannuation Act 2009 349 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Road Traffic Act 1961 350 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Road Traffic Act 1961 351 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Harbors and Navigation Act 1993 352 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Children and Young People (Safety) Act 2017 353 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Summary Procedure Act 1921 354 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Children and Young People (Safety) Act 2017 355 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Teachers Registration and Standards Act 2004 356 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
Births, Deaths and Marriages Registration Act 1996 357 of 2017 19 December 2017, Gazette No. 82 of 2017<br />
42 THE BULLETIN <strong>February</strong> <strong>2018</strong>
TAX FILES<br />
New surcharge duty<br />
on foreign acquisitions<br />
BERNIE WALRUT, MURRAY CHAMBERS<br />
INTRODUCTION<br />
On 1 January, <strong>2018</strong> the Stamp<br />
Duties (Foreign Ownership Surcharge)<br />
Amendment Act 2017 (SA) (FOA) came into<br />
effect and amended the Stamp Duties Act<br />
1923 (SA) (SDA). It imposes a surcharge<br />
of 7% on acquisitions of residential land<br />
by foreigners or acquisitions by foreigners<br />
of certain interests in landholding entities<br />
under Part 4 of the SDA. The imposition<br />
of that surcharge is effected by the<br />
introduction of two new substantive<br />
provisions in the SDA: section 72 imposes<br />
the duty on relevant land acquisitions and<br />
section 102AB imposes the surcharge on<br />
acquisitions of interests in landholders.<br />
There are no express transitional<br />
provisions in the FOA. 1<br />
In effect, the stamp duty imposed<br />
on acquisitions of residential land by<br />
foreigners, is likely to range from 10.8%<br />
to close to 12.5%. 2 A foreign purchaser<br />
surcharge is currently imposed in New<br />
South Wales at the rate of 8%; 3 in Victoria<br />
it is at the rate of 7%; 4 in Queensland it is<br />
currently 3% though there is a proposal to<br />
increase it to 7%; 5 and Western Australia<br />
proposes to introduce a 4% surcharge<br />
from 1 January, 2019. 6<br />
DUTIABLE INSTRUMENTS ATTRACT<br />
SURCHARGE<br />
In the case of transactions involving<br />
land, the foreign surcharge is only payable<br />
on a “dutiable instrument” (including a<br />
statement under section 71E) executed or<br />
taken to be executed on or after 1 January,<br />
<strong>2018</strong>. 7 There is no definition of a dutiable<br />
instrument in the SDA. Section 72(2)<br />
provides, that if an instrument to which<br />
section 72 applies, effects, acknowledges,<br />
evidences or records a transaction whereby<br />
an interest in residential land is acquired<br />
by a foreign person or a person takes the<br />
interest as trustee for a foreign person<br />
then the surcharge is payable. It is in<br />
effect a new head of duty. Section 72(2)<br />
appears to define what transactions, and<br />
consequently instruments, are within the<br />
scope of the surcharge provision. Further,<br />
section 72 is concerned with transactions<br />
not instruments. The provision is applying<br />
the surcharge potentially to a broader class<br />
of instruments than those currently liable<br />
to ad valorem duty.<br />
In effect, the duty imposed could be<br />
payable on an option 8 or contract for<br />
the sale of land to a foreigner, as it is<br />
likely to be regarded as an instrument<br />
that effects, acknowledges, evidences<br />
or records a transaction whereby an<br />
interest in residential land is acquired by<br />
a foreign person 9 or a person takes the<br />
interest as trustee for a foreign person.<br />
This is a significant departure from<br />
the current taxing regime of the SDA.<br />
The Commissioner does not appear to<br />
currently share the view that the provision<br />
operates so broadly. 10<br />
RESIDENTIAL LAND<br />
The definition of residential land in<br />
the provisions is similar to that recently<br />
adopted to facilitate the abolition of stamp<br />
duty on commercial real property. 11 In<br />
effect, the Commissioner will rely on the<br />
land use codes provided by the Valuer-<br />
General in most situations to determine<br />
whether a property is residential land. 12<br />
Such land use codes are provided by<br />
the Valuer-General as an administrative<br />
practice. They are not mentioned in the<br />
Valuation of Land Act 1971 (SA) (VLA) or<br />
the regulations made thereunder. There is<br />
no right to object to a code that may be<br />
assigned by the Valuer-General under the<br />
VLA, yet such codes are being increasingly<br />
used to determine liability for stamp duty.<br />
In the experience of practitioners, the<br />
Valuer-General does, on request, review<br />
such codes, but that may not always lead<br />
to them being changed. 13 The situation<br />
can be even more difficult where there is<br />
a mixed use and disagreement about the<br />
extent of a particular use.<br />
Ultimately the Commissioner has<br />
the discretion under section 72(8) to<br />
determine the use of land under the<br />
SDA and the decision is one that may<br />
be the subject of an objection under the<br />
Taxation Administration Act 1996 (SA). One<br />
assumes that, on any appeal against any<br />
such decision, the Court must consider<br />
the land use codes, as well as the actual<br />
factual situation. So, ensuring the land use<br />
codes are themselves accurate remains<br />
significant for all affected. Also, the<br />
definition of what is residential land can<br />
create significant issues in the case of<br />
property the subject of a changing use<br />
or involving a mixed development (e.g.<br />
deemed residential land currently unused<br />
but is acquired for the purpose of a<br />
development of commercial premises on<br />
the ground and lower floors and residential<br />
use on the upper floors).<br />
Under section 72(9) the relevant date<br />
for determining the use of the land is<br />
the date of the relevant instrument.<br />
Whilst this does, by definition, define a<br />
point in time for determining the use,<br />
it really does not address the issue of a<br />
changing or mixed uses. It also highlights<br />
the issue of determining what is the<br />
date of a relevant instrument, where the<br />
instrument that is liable is an instrument<br />
that effects, acknowledges, evidences or<br />
records a transaction whereby an interest<br />
in residential land is acquired by a foreign<br />
person. It may be a letter, an option,<br />
the contract for sale, a subsequent deed<br />
varying the contract and a conveyance.<br />
Each may effect, acknowledge, evidence<br />
or record a transaction by which property<br />
is acquired, it is only the conveyance that<br />
perfects the transaction. So, there may be<br />
multiple points in time that need to be<br />
considered under this provision.<br />
FOREIGN PERSONS<br />
A natural person is a foreign person 14 if<br />
the person is not an Australian citizen, 15<br />
the holder of a permanent visa 16 or a New<br />
Zealand citizen who is the holder of a<br />
special category visa. 17<br />
A corporation is a foreign person if it is<br />
incorporated in a jurisdiction that is not<br />
an Australian jurisdiction. 18 A corporation<br />
incorporated in another country and<br />
owned wholly by Australian citizens will be<br />
a foreign corporation (including even, say,<br />
a New Zealand company). So, for some<br />
purposes it is appropriate to look through<br />
the corporation as to who controls it,<br />
when suitable to the revenue, but not in<br />
other situations, where it is not suitable to<br />
the revenue.<br />
A corporation is also a foreign person, if<br />
another person who is a foreign person or<br />
<strong>February</strong> <strong>2018</strong> THE BULLETIN 43
TAX FILES<br />
a trustee of a foreign trust, or a number<br />
of such persons in combination, hold<br />
50% or more of the corporation’s shares<br />
or are entitled to cast, or control the<br />
casting of, 50% or more of the maximum<br />
number of votes at a general meeting<br />
of the corporation. 19 In this provision<br />
the emphasis is solely on voting power,<br />
rather than economic consequences (i.e.<br />
dividends or capital distributions). 20<br />
A foreign trust is one where the<br />
beneficial interests are fixed, or one where<br />
a beneficial interest of 50% or more of<br />
the capital of the trust property is held 21<br />
by one or more foreign persons. In the<br />
case of a discretionary trust, it is a foreign<br />
trust if one or more of the following is a<br />
foreign person:<br />
• a trustee;<br />
• a person who has the power to appoint<br />
under the trust; 22<br />
• an identified object 23 under the trust; or<br />
• a person who takes capital of the trust<br />
in default.<br />
The last three of these trust nexus<br />
provisions each have the potential to<br />
create real practical issues. The first is the<br />
power to appoint where it is vested in a<br />
foreign person, the second is an identified<br />
object who is a foreign person and the<br />
third is a person who may take the capital<br />
of the trust in default.<br />
Most discretionary trusts have a wide<br />
range of powers to appoint, including the<br />
power to appoint property, income, a new<br />
trustee and a person to be a beneficiary.<br />
Most such powers are held by the trustee,<br />
though occasionally by a third person (e.g.<br />
the power to appoint a new trustee). So,<br />
if any person with any such power is a<br />
foreign person then the trust is a foreign<br />
trust without anything more.<br />
It was suggested by the Government,<br />
in the passage of the legislation, that the<br />
simple way of avoiding having any issue<br />
with this aspect was to ensure that the<br />
person who has the power to appoint is<br />
not a foreign person. In some cases, it can<br />
be as simple as that. But in some cases,<br />
the persons who have such control, attain<br />
such power by death, divorce, bankruptcy<br />
or possibly by the person becoming a<br />
foreign person by migration. If any of<br />
those events occur within three years of<br />
the acquisition of the residential property<br />
by the trustee then it appears that section<br />
72(7) will apply to render the acquisition<br />
by the trustee of the trust the acquisition<br />
of the residential land by a foreign trust.<br />
So, this can be triggered by involuntary<br />
events not simply matters of choice.<br />
The second is the trust nexus provision,<br />
which simply requires, that an identified<br />
44 THE BULLETIN <strong>February</strong> <strong>2018</strong><br />
object 24 under the trust is a foreign person.<br />
Does this provision simply mean a person<br />
who is actually named as an object 25 or<br />
is a reference to the brothers, sisters and<br />
parents of the person named as, say, the<br />
primary beneficiary, sufficient to be an<br />
identified object. The response in the<br />
course of the passage of the Budget Bill<br />
was that the person must be identified<br />
in the trust deed by name. The term is<br />
apparently not intended to include all<br />
persons within a broad class or range of<br />
beneficiaries under a discretionary trust<br />
deed. The Commissioner proposes to<br />
address this issue in a circular.<br />
It is still unclear how the provision will<br />
work if, say, three brothers are named as<br />
objects of the trust and one of them is<br />
foreign person (as defined). Is it sufficient<br />
that one person is a foreign person or does<br />
it need to be a majority or all of them?<br />
The current drafting appears to assume<br />
there will only be one such person named.<br />
The third nexus provision of concern<br />
is that based on a foreign person being<br />
a taker in default of the capital of the<br />
trust. The provision applies to a “person<br />
who takes capital of the trust property<br />
in default”, presumably that means in<br />
default of appointment by the trustees.<br />
In most modern discretionary trusts, it<br />
means those persons who take the capital<br />
of the trust on the failure of the trustee<br />
to appoint or distribute the capital prior<br />
to the ultimate vesting of the trust. 26 The<br />
response to the Budget Bill provision was<br />
that the concept of a taker in default is<br />
commonly understood. It is suggested<br />
that the expression “takes capital of the<br />
trust property in default” usually means,<br />
in the context of most discretionary<br />
trusts, the persons who take in default<br />
of appointment by the trustee at the<br />
expiration of the term of the trust, that<br />
is on the vesting day. As the Victorian<br />
decision in Lygon Nominees Pty Ltd v<br />
Commissioner of State Revenue 27 highlighted,<br />
such persons often cannot be determined<br />
until the actual vesting day.<br />
Notwithstanding the width of the<br />
provision, the response to the Budget Bill<br />
on this aspect was that it is a reference to a<br />
specified person in the trust deed. That is,<br />
the person must be identified in the trust<br />
deed by name. The term is not a blanket<br />
reference to persons who may potentially<br />
take capital of the trust property in default<br />
under a discretionary trust deed. In most<br />
discretionary trust deeds, it is uncommon<br />
to simply specify such a person by name.<br />
In most cases the takers of the capital<br />
in default are a broad class. It appears<br />
this issue may also be covered by a<br />
Commissioner’s circular<br />
SECTION 72 – SUBSECTIONS (6) AND (7)<br />
–ADJUSTMENT PROVISIONS<br />
As if the provisions are not complex<br />
enough they include mechanisms for<br />
adjustments in respect of the surcharge<br />
where there is a change in status of the<br />
person in some limited situations. One<br />
provides for a refund where a foreign<br />
person or a foreign trust pays the<br />
surcharge and within twelve months the<br />
person or trust ceases to be a foreign<br />
person or foreign trust. 28 The other one<br />
provides that the surcharge is payable<br />
where a person or trustee becomes a<br />
foreign person or trust within three years<br />
of the acquisition of residential land. 29<br />
Section 72(7)(c), which provides for the<br />
adjustment of any such claw back, where<br />
the corporation or trust becomes a foreign<br />
person within three years, is in my view<br />
particularly difficult to understand and<br />
apply, it is effectively an exclusion on an<br />
exclusion coupled with an apportionment.<br />
Further, the three-year adjustment<br />
provision appears to be unduly harsh<br />
where there are changes in the control<br />
of a company or a trust for good<br />
family reasons (e.g. death, divorce etc),<br />
particularly as the legislation does not<br />
provide any power for the Commissioner<br />
to provide relief from the operation of the<br />
claw back provision in such situations.<br />
A simple example is a resident taxpayer’s<br />
wholly owned company acquiring<br />
residential land. The resident taxpayer dies<br />
shortly after that acquisition. The shares<br />
in the company are transferred to his nonresident<br />
foreign citizen son pursuant to the<br />
terms of his will. Section 72(7) will require<br />
the payment of the surcharge in this<br />
situation. Various other similar common<br />
situations can be described. 30<br />
Whilst there are adjustment provisions in<br />
connection with the status of the foreign<br />
persons, corporations or trusts, there are<br />
no adjustment mechanisms where there is<br />
a change in the status of the land acquired,<br />
whether within twelve months or three<br />
years. 31 In the passage of the Budget Bill<br />
the Government indicated developments<br />
that may benefit the State may be granted<br />
ex gratia relief from the foreign owner<br />
surcharge, where it is appropriate to do<br />
so. Accordingly, it is proposed to publish<br />
a ruling setting out factors that will be<br />
considered in determining whether<br />
ex gratia relief from the surcharge will<br />
apply to certain land. 32 Apparently, all<br />
other jurisdictions with a foreign owner<br />
surcharge exclude significant residential<br />
developments either by way of Treasurer’s<br />
discretion or ex gratia relief.
TAX FILES<br />
LANDHOLDER PROVISIONS<br />
Section 102AB includes similar<br />
provisions imposing the surcharge on the<br />
acquisition of interests in companies or<br />
unit trusts that own residential land under<br />
the landholder provisions in Part 4 of<br />
the SDA including where there is a group<br />
acquisition that involves a foreign entity. 33<br />
These provisions include similar claw back<br />
and refund provisions. The same issues<br />
as described above will apply to many of<br />
the provisions described in respect of the<br />
acquisition of interests in land.<br />
Tax Files is contributed on behalf of the South<br />
Australian based members of the Taxation<br />
Committee of the Business Law Section of the<br />
Law Council of Australia. B<br />
Endnotes<br />
1 The provisions in the FOA were taken from<br />
the Budget Measures Bill 2017 (SA) (Budget Bill)<br />
that was amended in the Legislative Council<br />
to remove the bank levy. That Bill as amended<br />
did not pass the Parliament and that lead to the<br />
introduction of the FOA with the surcharge<br />
increased from 4% to 7%. The Budget Bill<br />
proposed a surcharge of 4%.<br />
2 This is based on the acquisition of a modest<br />
dwelling of $300,000 (stamp duty of effectively<br />
3.8% is payable) to say one of $2 million (stamp<br />
duty of effectively 5.2% is payable).<br />
3 Section 104U of the Duties Act 1997 (NSW).<br />
4 Section 28A of the Duties Act 2000 (Vic).<br />
5 Section 244 of the Duties Act 2001 (Qld). The<br />
Queensland Government announced prior to the<br />
Queensland State election a proposed increase of<br />
the surcharge to 7%.<br />
6 See https://www.finance.wa.gov.au/cms/News/<br />
State_Revenue/2017-18_Budget_Measures.aspx.<br />
7 Section 72(1).<br />
8 See George Wimpey & Co v IRC [1974] 2 All ER<br />
602. Also see section 2(4) of the SDA.<br />
9 The usual view is that a contract for the purchase<br />
of land creates an interest commensurate with<br />
the ability to obtain specific performance, though<br />
it does not effect a passing of a legal title or full<br />
beneficial ownership (see by way of example<br />
the discussion in Trust Company of Australia Ltd v<br />
Commissioner of State Revenue [2007] VSC 451).<br />
10 See https://www.revenuesa.sa.gov.au/taxes-andduties/foreign-ownership-surcharge.<br />
11 Section 72(3).<br />
12 Section 72(8).<br />
13 In some situations, there may be a right to object<br />
to a designation as to the use of land under<br />
sections 8 and 9 of the Emergency Services Funding<br />
Act 1998 (SA), but its relationship to the land use<br />
codes and the right to dispute them is unclear.<br />
14 Section 14(2)<br />
15 Within the meaning of the Migration Act 1958<br />
(Cth) (Migration Act).<br />
16 As defined in section 30(1) of the Migration Act.<br />
17 As defined in section 32(1) of the Migration Act.<br />
18 Section 2(14).<br />
19 Section 2(14).<br />
20 This may be contrasted with section 93(3)<br />
of Part 4.<br />
21 “Hold” in these definitions is given an extended<br />
meaning.<br />
22 Section 14(2).<br />
23 Ibid.<br />
24 This is apparently intended to focus on the<br />
person commonly described as the primary<br />
beneficiary.<br />
25 Such as the Primary Beneficiary, as that term is<br />
commonly used in the drafting of discretionary<br />
trusts.<br />
26 See I Hardingham and R Baxt Discretionary Trusts<br />
(2 nd ed) [202]-[213] and [604]. That text at [604]<br />
says they may be ascertained in one of three<br />
ways, they may be named as such, they may be<br />
identified by operation of law or they may be<br />
identified by implication.<br />
27 [2007] VSCA 140 [63].<br />
28 Sections 72(5) and 72(6).<br />
29 Section 72(7).<br />
30 Notwithstanding the wording of the provision,<br />
it appears that the Commissioner intends to<br />
administer the provision on the basis that the<br />
exemption in section 71(5) will render the<br />
instrument non dutiable for stamp duty and<br />
also for surcharge purposes, see Budget Bill<br />
responses.<br />
31 Sections 72(5), 72(6) and 72(7). Victoria deals<br />
with one change in status of land situation in<br />
section 18A of the Duties Act 2000 (Vic).<br />
32 At the State Taxes Liaison Group meeting of<br />
6 December 2017 the Commissioner indicated<br />
that the publication of such a ruling is a matter<br />
for the Treasurer’s office and that consultation<br />
would occur prior to its publication.<br />
33 Section 102AB.<br />
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CLASSIFIEDS<br />
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Auctioneers & Valuers Association<br />
of Australia<br />
Family Law - Melbourne<br />
Marita Bajinskis<br />
formerly of<br />
Howe Martin & Associates<br />
is a Principal at<br />
Blackwood Family Lawyers<br />
in Melbourne<br />
Marita is an Accredited Family<br />
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• superannuation<br />
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For professional actuarial<br />
advice on<br />
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• all superannuation issues<br />
Contact<br />
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Phone 08 8232 1333<br />
Fax 08 8232 1324<br />
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FUND<br />
The Litigation Assistance Fund (LAF) is a<br />
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Law Society acts as trustee. Since 1992<br />
it has provided funding assistance to<br />
approximately 1,500 civil claimants.<br />
LAF receives applications for funding<br />
assistance from solicitors on behalf of<br />
civil claimants seeking compensation/<br />
damages who are unable to meet the<br />
fees and/or disbursements of prosecuting<br />
their claim. The applications are<br />
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test. Two different forms of funding exist –<br />
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Full Funding.<br />
LAF funds itself by receiving a relatively<br />
small portion of the monetary proceeds<br />
(usually damages) achieved by the<br />
claimants whom it assists. Claimants who<br />
received DOF funding repay the amount<br />
received, plus an uplift of 100% on that<br />
amount. Claimants who received Full<br />
Funding repay the amount received, plus<br />
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to claimants.<br />
LAF recommends considering whether<br />
applying to LAF is the best course in the<br />
circumstances of the claim. There may be<br />
better methods of obtaining funding/<br />
representation. For example, all Funding<br />
Agreements with LAF give LAF certain<br />
rights including that funding can be<br />
withdrawn and/or varied.<br />
For further information, please visit<br />
the Law Society’s website or contact<br />
Annie MacRae on 8229 0263.<br />
LawCare<br />
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The Law Society is pleased to<br />
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All information divulged to the<br />
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