Are you an attorney or administrator tasked with selling a principal’s family home to fund their aged care, but facing challenges from a co-occupant claiming rights as a ‘protected person’?
This guide is designed to help you grasp the fundamental aspects and successfully navigate the complexities of this situation with confidence.
As an enduring power of attorney or administrator, you may need to sell the family home to cover the principal’s aged care refundable accommodation deposit. However, this process can be complicated if someone is living in the home, such as a spouse, child, or carer.
A property is not considered an asset for aged care assessment if it is occupied by a ‘protected person’. It’s crucial to determine if an individual qualifies as a protected person, as this affects how the family home is assessed. If a protected person resides in the property, the home is considered an ‘exempt asset’ for aged care purposes. This is different to the rules that apply to considering pension eligibility.
While a protected person status means the home is excluded from aged care assessment, it does not grant an inalienable right to stay in the property and prevent its sale. This distinction is critical for attorneys and administrators to understand.
While in many instances family members are cohabiting so one or more can provide the others with care and support, in other cases they can be arrangements of convenience, or exploitive.
Our elder financial abuse team too often sees adult children trying to rely on their asserted status as a protected person to justify staying in the family home and continuing the rent-free lifestyle they have become accustomed to without any history of providing care, even when doing so is financially damaging to their parent/s.
An exempt asset is disregarded for aged care assessment, meaning the principal’s aged care costs would be lower as they are assessed as a ‘non-homeowner’. The home care assessment is different from tests that apply to pension eligibility.
A protected person can be:
A protected person can remain in the property indefinitely, and while they do, the home remains an exempt asset. They typically need to complete forms with Centrelink to confirm their status.
If there is no protected person in the home, it becomes an assessable asset for aged care purposes up to the home exemption cap, which is $197,735 as of January 1, 2024. This means the principal may face significantly higher aged care fees unless the property is worth less than the cap.
If a non-protected person is co-occupying the property, selling the home depends on various factors, including any asserted rights to remain (e.g., equitable rights). Selling the home may attract scrutiny, so obtaining legal advice is prudent. Attorneys or administrators can seek advice from VCAT to protect themselves from liability if the decision is disputed.
If you are an administrator or attorney and issues arise removing a family member from a property, there are a range of legal options, including commence legal proceedings to recover possession and force an eviction. It is important to get legal advice before making a demand to vacate or commencing court proceedings.
At Moores, we specialise in Powers of Attorney, guardianship, administration, and applications in VCAT and the Supreme Court of Victoria, including elder financial abuse issues. We are here to discuss any actions regarding the status of a protected person and the sale of the family home to fund a refundable accommodation deposit or other expenses.
Please contact us for more detailed and tailored help.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
Content warning: This article contains information in relation to sexual assault and child abuse. If you or someone you know require support, we encourage you to contact Lifeline on 13 11 14 or 1800 Respect.
A judgment recently handed down by the High Court of Australia has clarified the extent to which institutions will be vicariously liable for the historical sexual abuse and/or criminal conduct of its members.
In Bird v DP (a pseudonym) [2024] HCA 41, the High Court unanimously held that vicarious liability cannot be imposed without an employer/employee relationship. This means that institutions will not be vicariously liable for the historical and/or criminal conduct of its members where they are not strictly engaged as employees, including those engaged as independent contractors, volunteers or relationships ‘akin to employment’.
In this case, DP (a pseudonym) was assaulted and sexually abused on two separate occasions by Father Bryan Coffey (now deceased) (“Coffey”), a priest from DP’s local church. In 2020, DP commenced proceedings claiming damages for psychological injuries he had suffered as a result of Coffey’s abuse. DP alleged the Roman Catholic Diocese of Ballarat (“Diocese”) was vicariously liable for Coffey’s conduct.
At first instance, a single judge of the Supreme Court of Victoria found the Diocese was vicariously liable for Coffey’s conduct, even though that judge also found that Coffey was not an employee of the Diocese. The Diocese then appealed to the Supreme Court of Victoria Court of Appeal, which unanimously dismissed that appeal. The Diocese then applied to the High Court for special leave to appeal, which was granted.
At common law, generally, an employer can be vicariously liable for the wrongful acts or omissions of its employees in the course or scope of employment. This is based on the principle that employers knowingly accept the risks of hiring employees, including the possibility that employees might cause injury or damage to others while performing their job. However, employers are not always vicariously liable for the actions or inactions of its employees – there must be a sufficient connection between the wrongful act and the employment.
The central issue before the High Court was whether the principle of vicarious liability could or should be extended to the relationship between Coffey and the Diocese, which was not an employment relationship. To put it another way, the High Court had to consider whether in the absence of an employment relationship, a Diocese or Bishop could be vicariously liable for the unlawful conduct of a priest.
A majority of the High Court held that vicarious liability cannot be imposed without an employer/employee relationship. As there was no employment relationship between the Diocese and Coffey, the Diocese could not be liable for Coffey’s sexual abuse.
On the question of whether it should expand the boundaries of vicarious liability to include independent contractors or relationships ‘akin to employment’, the majority answered firmly in the negative. Although the High Court acknowledged the harshness of requiring an employment relationship for vicarious liability, it reasoned that expanding this requirement would create uncertainty and indeterminacy for the following reasons:
In light of these reasons, the High Court found that the requirement for an employment relationship in vicarious liability should remain and that any reformulation of the law in this area is a matter for parliament.
The majority also examined whether the Diocese was liable for Coffey’s acts on the basis of agency. However, as the unlawful acts committed by Coffey were not done with the Diocese’s or the then Bishop’s express, implied or apparent authorisation, the majority reasoned that Coffey could not be a ‘true agent’ of the Diocese.
Separately, DP also asked the High Court to rule on whether the Diocese owed a non-delegable duty of care to DP to protect him from the risk of sexual abuse by its priests, including Coffey. As the issue was not pleaded at first instance, or on appeal to the Victorian Supreme Court, the High Court declined to rule on this issue.
However, Jagot J (in obiter) observed that a personal or non-delegable duty of care may arise where the provision of care, supervision or control is required to be exercised by the defendant for the safety of the plaintiff in circumstances where the plaintiff would reasonably expect the exercise of due care for their safety. With the path to vicarious liability now requiring a strict employment relationship, it may be that claimants increasingly focus on negligence claims based on non-delegable duties of care, as these claims don’t always require an employment relationship to be established.
There also remains various statutory duties which impose liability for child abuse. For example, in Victoria, there is a duty on “relevant organisations” to take reasonable care to “prevent the abuse of a child by an individual associated with the relevant organisation while the child is under the care, supervision or authority of the relevant organisation.” An individual associated with a relevant organisation includes a minister of religion, a religious leader, an officer or a member of the personnel of the religious organisation.3
While common law and statutory duties of care remain, the High Court has made it clear that organisations will not be vicariously liable for the actions of their independent contractors or volunteers.Although Bird v DP will the ability of victim survivors to obtain compensation for abuse perpetuated by people who were not employees through vicarious liability, individuals may still be liable for civil and criminal offences for failing to report child abuse.It is unclear whether the decision will prompt calls for legislative change regarding the expansion of vicarious liability to include volunteers and independent contractors.4
Our Workplace Relations team can assist with managing risks associated with engaging and managing your workforce, including volunteers and other types of relationships. Our Safeguarding team can help organisations design and implement frameworks to prevent and respond to child abuse, and train your people on preventing and responding to child abuse and harm.
Please contact us if you would like further information on how we can assist.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.
A long-awaited measure to allow superannuation members drawing legacy pensions to exit these more restrictive income streams has become law.
On 7 December 2024, Treasury Laws Amendment (Legacy Retirement Product Commutations and Reserves) Regulations 2024 came into effect.
After announcing these measures in in the 2021-22 Budget, practitioners, advisors and clients alike have been waiting on Government to enact the ‘amnesty’ procedure to ‘get out’ of these historical non-commutable income streams.
These Regulations now allow superannuation fund members, who have otherwise non-commutable pensions a five-year period in which they may fully commute that pension into accumulation phase within a self managed superannuation fund (SMSF).
Such pensions include:
Prior to the introduction of the new regulations, if a member with a legacy pension sought to restructure their restrictive pension accounts, the result would often leave an unallocated reserve in the SMSF, which could not be allocated to the member without being assessed against the members contributions caps.
This five-year window will permit members to have more flexible access to their superannuation benefits, allowing them to retain funds in accumulation phase, commence an account-based pension, or withdraw as a lump sum (subject to the rules of their fund). Importantly, the flexible access applies only to living members, and not reserves created as a result of the death of a legacy pensioner.
Whether a member chooses to obtain the benefit of the regulations or retain their legacy pension is a decision that should be carefully considered with advice from a licenced financial advisor. These changes (if the five-year window is utilised) may mean that a change to the strategy of death benefits as part of an SMSF member’s estate plan needs to be considered.
For expert advice or guidance regarding Estate Planning and self managed superannuation funds, please do not hesitate to contact us.
As the threat of bushfires continues to rise in Australia, especially during the warmer months, it is crucial for schools to implement robust bushfire preparedness strategies. The Victorian Registration and Qualifications Authority (VRQA) has released comprehensive Guidelines for schools on how to become bushfire-ready in accordance with new bushfire preparedness guidelines, which come into effect on 1 January 2025. While existing schools have until 1 July 2025 to comply with the updated Guidelines, it is never too early to review and update your bushfire preparedness strategies.
This article will explore the key elements of the VRQA’s updated guidelines, emphasising the importance of proactive measures in safeguarding students and staff.
Victoria’s unique climate and geographical features make it particularly susceptible to bushfires. Schools located in or near bushfire-prone areas face heightened risks, which can endanger lives and homes; and disrupt all aspects of life, not least educational activities.
Understanding the risks associated with bushfire season is the first step in effective preparation. The VRQA encourages schools to assess their vulnerability by reviewing local bushfire risk maps and historical data.
A well-structured Emergency Management Plan (EMP) is at the heart of a school’s bushfire preparedness strategy. All schools are required to have EMPs in place in relation to bushfire risks. Even inner-city schools go on excursions in the bush occasionally and as such, must be prepared to respond appropriately to the bushfire risk.
Schools that are located in high-risk areas (and are as such listed on the Bushfire-at-Risk Register (BAAR)) are subject to additional requirements; such as increased planning and communication obligations, and undertaking consultation with local fire authorities on their bushfire preparedness. If your school is located in or near a bushfire-prone area, you should ensure school leadership is aware of and compliant with these requirements.
The VRQA outlines essential components that should be included in an EMP:
Effective communication is vital during a bushfire emergency. Schools should develop a communication plan that includes:
Maintaining the school environment can significantly reduce bushfire risk. The VRQA suggests several strategies:
Creating a bushfire-ready culture within the school community is essential. Involve students and staff in bushfire preparedness initiatives through:
Bushfire preparedness is not a one-time effort; it requires ongoing evaluation and improvement. The VRQA advises schools to:
Preparing for bushfires is a shared responsibility that involves the entire school community. By following the VRQA’s guidelines, schools can develop comprehensive EMPs that engage students and staff, and ensure continuous improvement in their preparedness efforts.
With proactive measures in place, schools can significantly reduce the risks associated with bushfires, ultimately ensuring the safety and well-being of students and staff. As bushfire seasons become more frequent and intense, it is imperative that schools take action now to be bushfire-ready.
Our specialist Education Law team is here to assist you to assess your school’s compliance with the existing and updated VRQA bushfire preparedness Guidelines. We can help you develop your EMP, and ensure that it meets all the requirements set out by the VRQA.
Our article Transgender protections in the spotlight: What it means for your organisation discussed the implications and significance of Roxanne Tickle v Giggle for Girls on clarifying the protections under Sex Discrimination Act 1984 (Cth) (Act). The Federal Court has now handed down its decision which confirms that transgender people are protected under the Act.
Roxanne Tickle is a transgender woman who was removed from the mobile app, Giggle for Girls (Giggle) which is an online communication app for women that does not allow men to join or use the app. The CEO, Sally Grover, removed Ms Tickle’s account on the basis that Ms Grover considered her to be male upon review of her photograph.
Ms Tickle lodged a discrimination claim against Giggle with the Federal Court on the basis of her gender identity.
In defending the claim, Giggle argued that:
The Federal Court found that Giggle engaged in indirect discrimination towards Ms Tickle on the basis of her gender identity. Under the Act, indirect discrimination occurs when a person imposes or a requirement, condition or practice which has or is likely to have the effect of disadvantaging persons who have the same identity as the aggrieved person (in this case, the same gender identity as Ms Tickle). It was found that Giggle imposed a condition that users were required to appear as a cisgendered female in order to be permitted access the app. This requirement had the effect of disadvantaging transgender women in comparison to cisgendered women.
The discrimination was not considered to be direct discrimination as direct discrimination required Ms Grover to have actual knowledge that Ms Tickle was a transgender woman and there was no evidence of this.
The Federal Court did not accept Giggle’s argument that there was discrimination on the basis of sex. The Court confirmed that ‘sex’ takes a broader ordinary meaning as opposed to a biological concept referring to whether a person at birth has male or female physical traits. It accepted that a person’s sex could change and refers to a person being male, female or another non-binary status. The definition of ‘sex’ takes into account a range of factors including biological and physical characteristics, legal recognition and how they present themselves and are recognised socially. The Court recognised Ms Tickle’s sex as being female and therefore it could not be that she was discriminated on the basis of her sex as argued by Giggle.
It was also not accepted that the special measure exception applied. As Giggle argued that its purpose was to achieve substantive equality between men and women, the exception would only apply if it was discriminating against a male on the basis sex. It did not apply in the present situation as Ms Tickle is a transgendered woman.
Additionally, the Federal Court rejected Giggle’s argument that relevant provisions of the Act were unconstitutional.
The Federal Court ordered that Giggle pay Ms Tickle compensation in the sum of $10,000 and pay her costs. Giggle is currently seeking to appeal the decision.
How we can help
The decision confirms that the Act protects transgender people on the basis of their gender identity and provides clarification as to the definition of ‘sex’ in the Act. The case highlights that organisations should carefully consider whether their practices and conduct in relation to single sex spaces and services are lawful and reasonable, and whether an exception, exemption or special measure could apply.
Our safeguarding and discrimination team can assist organisations to understand how state and federal anti-discrimination laws apply to their operations, and the extent to which exceptions or exemptions may apply.
Don’t let your end of year celebrations snowball into misconduct. Keep the balance of professionalism and sensibility during your end of year celebrations.
As the festive season approaches, many organisations and businesses are preparing for their end of year celebrations and festive season parties. While this is undoubtedly a time to celebrate the ‘wins’ of the year, individual and collective achievements, and also unwind and ‘let your hair down’, employers need to be mindful of the ongoing challenges and risks these parties present. Employers must be vigilant in both anticipating and mitigating against those challenges, and reminding employees of their ongoing obligations to ensure a safe and disaster-free celebration.
Employers should be particularly mindful of issues relating to conduct, harassment, and safety when it comes to end of year celebrations. Often, these celebrations involve the presence of alcohol that may not otherwise be permitted in the work environment. This informal environment presents a sense of relaxation which is much needed, but may also mean employees let their guard down and engage in conduct that they would not normally engage in at the office or in a work or professional setting. While these moments can often be embarrassing, there can also be legal consequences.
The circumstances in which “out of hours” misconduct may constitute a valid reason for dismissal were set out in Rose v Telstra. This includes:
Some of the key risks that employers should be thinking about include:
To ensure end of year parties and functions remain celebratory events, and minimise the risk of misconduct, here are a few tips to manage your events responsibly:
Our Workplace Relations team are here to specialist advice and assistance to set up best practice policy and procedure frameworks as a proactive approach to holding and managing work-related functions, and help employers deal with incidents after they occur.
Case law has consistently demonstrated the importance of procedural fairness when conducting workplace investigations. Workplace investigations which are not carried out in a robust and thorough way can result in headaches for employers, irrespective of their best intentions to address inappropriate behaviour, or cultural or systemic issues within their organisation. Where misconduct is reportable to a regulator such as the Victorian Institute of Teaching or Commission for Children and Young People, organisations may face additional scrutiny of investigation findings and whether the process was procedurally fair. In this article we highlight some key cases that demonstrate the pitfalls for employers when investigations are not carried out with using a robust, objective and thorough investigation process.
Mr Crook alleged he was unfairly dismissed by CITIC Pacific Mining Management Pty Ltd (CITIC) after one of his female colleagues made a complaint alleging that during an end of shift bus ride, Mr Crook initiated an explicit conversation with other employees in the area where she was sitting. She further alleged that:
Mr Crook was asked to provide an immediate written response in an initial meeting. Following an investigation and two further meetings, his employment was terminated.
The Fair Work Commission (FWC) found that the process followed by the employer was “deeply flawed”, “deficient” and “lacked rigour”, and therefore the employer did not have a valid reason for termination. In reaching this finding, Deputy President O’Keefe noted the following:
The FWC found Mr Crook was unfairly dismissed and ordered reinstatement, continuity of service and restoration of lost pay.
Mr Kumar worked as a machine operator for Opal Packaging (Opal) for almost 30 years. Opal alleged that Mr Kumar failed to follow the proper ‘lock out tag out’ (LOTO) procedure when operating conveyor belt machinery, and that a failure to comply with this procedure could have had significant safety implications, such as injuring or even killing Mr Kumar or other workers.
Opal conducted an internal investigation into the alleged conduct. Following a week-long investigation conducted by an internal workplace specialist, Opal concluded that Mr Kumar had not complied with the LOTO procedure and terminated his employment on the basis of serious misconduct. Mr Kumar made an unfair dismissal application to the FWC.
The FWC found that Opal did not have a valid reason for Mr Kumar’s dismissal and identified a number of deficiencies with the investigation process. Those deficiencies included that the investigator:
These deficiencies undermined the reliability of the investigator’s report and findings. As such, the FWC found Mr Kumar’s dismissal was unfair and ordered reinstatement and restoration of lost pay.
Mr Andrawos was employed by MyBudget as a Personal Budget Specialist. Over a period of time, Mr Andrawos struck up a friendship outside of work with a man named James, who in December 2017 received a large inheritance. Mr Andrawos became concerned about James’ spending. He encouraged James to sign up for a MyBudget account, and subsequently advised him to transfer the remaining $90,000 of his inheritance into a MyBudget account with him as a co-signatory, so James could not access or spend that money on his own.
MyBudget undertook an investigation following a complaint by James’ mother. Mr Andrawos’ employment was subsequently terminated for serious misconduct. Mr Andrawos made an unfair dismissal application to the FWC.
The FWC found breaches of the Code of Conduct and Mr Andrawos’ employment duties were valid reasons for termination. However, the Commission found there was evidence that MyBudget had already decided to terminate Mr Andrawos’ employment before the investigation had taken place, and Mr Andrawos was given an opportunity to respond in form and not in substance. That evidence included the following:
Having found substantial mitigating factors and that the failure to provide procedural fairness had a ‘material impact’ on the decision-making process, the FWC ultimately concluded that the dismissal was harsh, even if it was not unjust or unreasonable.
These cases show why it is critical that employers undertake a robust and thorough investigation into alleged misconduct. This is particularly relevant where the investigation findings may lead to disciplinary action up to dismissal.
When considering potential misconduct, employers should take care to:
Our Workplace Relations and Safeguarding teams can assist with managing workplace and safeguarding investigations into allegations of potential misconduct in a procedurally fair manner with minimal risk.
Is your not-for-profit (NFP) contemplating a merger? This is part three of a five-part article series that will offer some practical guidance to your board or merger advisory committee. Subscribe to receive the remaining articles in the series.
While each not-for-profit (NFP) merger is unique, most NFP mergers will tend to follow some, or all of the steps set out below. This article provides an overview of those steps, which help NFPs navigate the complexities of a merger whilst ensuring purpose alignment, legal compliance and operational continuity throughout the process.
Ensuring purpose and cultural alignment is a crucial step for parties considering a merger.
If there is insufficient purpose alignment, merger types that maintain separate incorporation of the merging parties may be appropriate (such as one entity becoming a subsidiary of the other entity). Purpose alignment will be more important if the merger is likely to involve a significant transfer of assets from one entity to another (such as where one entity transfers its assets, operations and employees to the other before closing).
Additionally, NFPs that are endorsed as a Deductible Gift Recipient (DGRs) must ensure they are acting in a manner that is consistent with the conditions of their endorsement. For example, if a DGR is wound up in the course of a merger, it is prohibited from transferring its assets to another entity that is not endorsed as a DGR.
The next step is to consider and agree on an appropriate merger type. The appropriate merger type will depend on factors including: the current legal structure of each party; the nature and extent of each party’s assets, operations and employees; the role each party will have post merger; and the appropriate governance framework for the merged entity. More information on common merger types can be found in part two of our article series.
Depending on the preferred merger type, parties may need to make preparatory changes including: changes to governing documents, changes to director appointments and changes to membership.
Before time, resources and energy are invested, it is important for the parties to articulate their expectations for the merger. This helps to guide critical decisions during the merger process, as well as informing the final assessment of whether the merger will be beneficial and should proceed. This process involves:
These expectations should be documented in a letter of intent or memorandum of understanding.
Thorough due diligence is essential to mitigate risks and ensure informed decision-making by the board of each NFP. While the primary role of due diligence is to assist the boards to determine whether or not the merger should proceed, it also has a secondary role in identifying issues that may need to be prioritised and addressed as soon as practicable following the merger. The due diligence process should include:
More information on the due diligence process will be in part four of our article series.
Formalise the merger agreement once due diligence is complete and all conditions are met:
A comprehensive completion checklist that includes provision for conditions precedent, completion obligations and post completion obligations is invaluable. The checklist can provide a structure for regular meetings with the other NFP (and any steering group) until completion to ensure that everything remains on track for a successful merger.
The Charity and Not-for-profit Law team at Moores regularly assists NFP and charitable clients through all stages of the merger process, from preliminary assessment, to due diligence through to effecting the merger.
As you may have picked up in recent media, the Victorian Government has passed new legislation which will, over time, replace transfer (stamp) duty with a new tax scheme for commercial and industrial properties – the Commercial and Industrial Property Tax (‘CIPT’) scheme.
The Commercial and Industrial Property Tax Reform Act 2024 (Vic) (‘CIPT Act’) came into effect from 1 July 2024 and affects all contracts of sale for commercial and industrial property which are signed and settled after 1 July 2024.
Read on to find out the key facts which organisations need to know about the new scheme.
CIPT will be an annual payment in addition to existing rates and taxes on the land. The rate of CIPT will be equal to 1% of the unimproved value of the land. CIPT will apply:
CIPT will commence to be payable by the owner of the land at the time when the 10-year transition period expires.
‘Qualifying Use’ is defined in the CIPT Act as a property which:
These codes will be displayed on the property’s council rates statement, or a land tax clearance certificate provided by the State Revenue Office.
Properties with a mixed use will be within the CIPT net where the property is used primarily for a Qualifying Use.
Properties with a Qualifying Use will enter the CIPT scheme where one of the following four property dealings occurs after 30 June 2024:
Importantly for organisations with non-profit status, the sale of land with a Qualifying Use is not an entry transaction where the sale is exempt from duty pursuant to the Duties Act 2000. For example, where a charitable entity purchases land with a qualifying use and is entitled to an exemption from transfer duty, that purchase is not an entry transaction and therefore will not trigger entry into the CIPT scheme.
The following process will apply to any sale of land with a Qualifying Use where the contract of sale was signed after 1 July 2024 and no exemption is available:
Importantly, vendors cannot adjust CIPT under the contract of sale or otherwise make the purchaser liable to reimburse the vendor for any CIPT liability, except where the sale price exceeds the ‘high value threshold’ (currently set at $10 million).
Landlords also must not require any residential or retail tenants (as defined by the Residential Tenancies Act 1997 and Retail Leases Act 2003 respectively) from paying or reimbursing the CIPT. However, there is no restriction from recovering CIPT from non-retail commercial tenants.
The Victorian Government is offering transitional loan schemes to finance the payment of transfer duty on the Entry Transaction. This is an optional program to allow purchasers to spread out the cost of transfer duty over a 10 year period at a fixed interest rate.
The loan will be secured with a statutory charge over the property and must be repaid over the 10 years following settlement (i.e. the transition period).
If, during the transition period, the property ceases to be used for a qualifying use (e.g. it is redeveloped into residential premises), no CIPT will be payable. However, the next sale of the property will be subject to the usual transfer duty.
If the transition loan scheme applies to the property, the loan must be repaid immediately upon the change of use or sale of the property.
CIPT is chargeable on land which, at 31 December in the preceding year:
Therefore, properties which qualify for an exemption from land tax (such as properties used and occupied exclusively for charitable purposes) will also receive an exemption from paying CIPT.
The Commercial Real Estate team at Moores has extensive experience in all types of property dealings and can provide tailored advice on how CIPT may impact on your organisation’s properties.
We’ve heard a lot about consent in the news lately, especially in the context of bodily autonomy, and safe and respectful relationships. There is however, another type of consent that is arguably just as important; and which has historically, often been overlooked by school authorities. We speak of course about consent to collect and use personal information.
In the current digital landscape, where AI bots are running wild with our information and intellectual property, Australians are growing increasingly concerned about the control of their personal information, and that of their children. It can be disconcerting at best, to see a photograph of yourself (or worse, your child), published without your express knowledge and/or consent. Under the Privacy Act 1988 (Privacy Act) photographic images and videos (from which you can be reasonably identified) are considered your personal information.
Photos and videos of individuals are therefore subject to protection under Australian privacy laws. Independent schools in Australia are required to manage personal information (including photographs) in accordance with the Australian Privacy Principles (APPs). For government schools, state and territory-based privacy schemes, such as the Victorian Information Privacy Principles (IPPs) set out ostensibly the same requirements.
The APPs (and corresponding state/territory-based schemes) set out numerous requirements regarding how personal information may be collected, stored, used and disclosed. This article is focussed on one aspect of these requirements, being consent. Specifically, we discuss the consent that schools must obtain from individuals in order to lawfully publish (i.e. disclose) their image.
Traditionally, school enrolment agreements have taken the form of ‘take it or leave it’ standard-form contracts. There are of course, good reasons for this (consistency between contracts, fairness, reducing administrative burden etc.). However, the inherent power-dynamics of these kinds of agreements can tend to disempower the consumer (in our case, the parent) from asserting their rights or interests in a transaction. This can, in turn, affect schools’ compliance with the APPs. We discuss how below.
There are a couple of key features of standard-form contracts that can cause problems when it comes to privacy protection and compliance:
In the ‘old-world’ organisations could more or less get away with a kind of set and forget approach to privacy. In relation to student photos, that might look like (1) the school’s enrolment agreement contains a photographic consent pre-condition (2) the parents agree to this at the point of enrolment – and (3) the school proceeds on the basis of rolling consent for the use of the student’s photographs for the duration of enrolment.
The uncomfortable truth about this approach is that reliance on this alone may not be lawful. As a school, if you do not have valid consent for disclosure, and you publish an individual’s image – you will very likely find yourself in breach of APP 6. In summary, APP 6 sets out that an APP entity (i.e. a school in this case) may only use or disclose personal information for the primary purpose for which it was collected, or if the individual has consented to that use or disclosure. Schools operate to provide education and care, and necessarily collect student information to provide that education and care. It would be a long bow for a school to argue that publishing student photographs on the school’s social media is a primary purpose for the use of student information. Therefore, valid consent it required for that publication to be lawful.
Schools should also consider their duty of care to students when dealing with their personal information. In short, the duty requires schools and teachers to take reasonable steps to reduce the risk of reasonably foreseeable harm occurring. There may be occasions where sharing a student’s image online or in a newsletter could present a risk to their safety – for instance in scenarios where there may be family violence or other complex family dynamics. This is one reason why currency of consent (which we discuss below) is so important. Not only may a school find itself in breach of the APPs due to a social media post – it may be held liable in negligence for failing to protect its students from harm.
This doesn’t mean schools can’t share photos of their students. It is wonderful to share student success and give communities the chance to congratulate and rejoice in our young people’s success; you just need valid consent.
Consent requires more than saying ‘yes’ (or not saying ‘no’). The Privacy Act sets out the four elements of consent, without which – consent is not considered valid:
There are a couple of key reasons why, in consideration of these elements of consent, the traditional approach of consent as a pre-condition may no longer be appropriate, or lawful:
First of all, don’t panic. Many organisations are still catching up to the ‘new world’ of privacy requirements. Taking pro-active steps now can still put you ahead of the curve! Many schools are soon due to update student and parent consents on parent portals. This is a great opportunity to check if your school’s portal consent functions stack up against the requirements of the APPs.
Now is also a great time to review your School’s overall privacy compliance. When was your privacy policy last updated? Do you have in place tailored, compliant collection notices with appropriate consent mechanisms? There are 13 APPs that must be complied with; and we have only discussed one in this article.
If you haven’t already, now is a fantastic time to review your enrolment documentation and privacy practices. Given the recent decision of Brindabella, and changes to the Consumer law, many schools have sought our advice to ensure their enrolment contracts are enforceable, and free from unfair terms that could attract the ire of consumer regulators.
We can review, amend, and re-draft your enrolment policies, terms and conditions, and privacy documents to ensure they are not only compliant, but represent best industry-practice and protect your commercial interests. Contact one of our education and privacy specialists today to discuss how we can optimise and future-proof your school’s enrolment practices.