Having a space to express breastmilk in the workplace can be a critical part of a breastfeeding parents’ transition back to work after parental leave.

Fortunately, there are laws in place to protect breastfeeding parents who need to express breastmilk in the workplace. The failure of an employer to provide a private, clean and appropriate space for expressing breastmilk can amount to unlawful discrimination. It may also be unlawful discrimination to have a rule that workers cannot take short breaks during the day, as this may disadvantage breastfeeding women who need to take breaks to express breastmilk. An employer may not dismiss an employee who breastfeeds or expresses breastmilk because of assumed health and safety risks in the workplace.

What is breastfeeding discrimination?

Breastfeeding discrimination can arise where:

• a person is treated unfairly because of their need to breastfeed or express breastmilk (direct discrimination); or
• imposes a requirement, condition or practice that has the effect of disadvantaging women who breastfeed, and it is not reasonable (indirect discrimination)

A recent case involving breastfeeding discrimination

In one of the first reported anti-discrimination cases involving breastfeeding parents, the ACT Civil and Administrative Tribunal (Tribunal) recently found that a KFC franchisee indirectly discriminated against a worker by failing to provide an adequate solution for one of its workers to express breastmilk.

The Respondent in this case was a large private KFC franchise owner in Australia. The Applicant was a woman who started working for the Respondent when she was 14 years old in 2015 and worked her way up to the position of store manager. She gave birth to her daughter in June 2021 and was excited to return to work in November 2021.

The Applicant had a lengthy and, at times difficult, negotiation process with the Respondent’s management about a suitable return to work arrangement to accommodate her need to express breastmilk at work.

In November 2021, the Respondent allowed the Applicant to use a fridge to store her breastmilk and use the wash sink, but otherwise:

• refused the Applicant’s request for a private room and comfortable chair, as they considered it impractical and too costly;
• refused the Applicant’s request to leave the store to express breastmilk at a nearby mall with a parent room, as she was sometimes the only manager on site and the Respondent couldn’t guarantee there would be another manager certified in OH&S available during her shifts; and
• suggested the Applicant transition to becoming a casual worker, which was a demotion.

The Applicant then lodged a complaint with the ACT Human Rights Commission.

Eventually, a flexible work arrangement was approved, which included a pop-up tent and foldout chair in the storeroom. However, after the Applicant returned to work, the Applicant found this solution to be unsuitable. Due to the thin walls, the sounds of expressing milk were audible to staff and as there was no door, any staff member could walk in at any time.

The Applicant instead proposed to take unpaid meal breaks during her shift to express breastmilk, but this request was denied. From time-to-time, the Applicant left the store to express milk at the parent room in the nearby mall, but as there was frequently no other manager on site, she had to express at a much later time which caused her physical pain and discomfort.

The Applicant claimed that she suffered significant mental harm and a reduced capacity to work because of the Respondent’s failure to accommodate an arrangement which allowed her to express breastmilk at work.

What did the Tribunal decide?

The Tribunal found the Respondent indirectly discriminated against the Applicant by imposing a condition requiring managers to remain on site unless another manager was available on site who is certified in OH&S. This condition disadvantaged workers who breastfeed and express breastmilk (a protected attribute) and was not reasonable in the circumstances.

The Tribunal found that the Applicant had no choice but to accept a demotion or express before or after her shifts, disadvantaging her. The tent inside a doorless storeroom that was eventually provided was not even a ‘pass’ level solution, causing embarrassment and discomfort, which was also a form of disadvantage.

To address the Applicant’s request, the Respondent had multiple options to consider, such as adding a storeroom door, transferring the Applicant to a nearby store with a private, appropriate space to express breastmilk or providing junior workers with OH&S training so they could act in her place during the brief periods she left the store to express.

Lessons for employers and other duty holders

Employers and other duty holders are required to make suitable arrangements to support workers transitioning back to work after parental leave or to accommodate breastfeeding, and a failure to do so may amount to unlawful discrimination.

Requests from breastfeeding workers to cater for their need to express breastmilk are a normal part of the modern workplace, and so employers may wish to proactively consider how to accommodate such requests in a positive and appropriate manner. Other duty holders such as councils, sporting organisations, educational institutional and service providers should also take steps to reasonably accommodate people to breastfeed.

The Tribunal in this case was also critical of the process the Applicant had to go through to request her return to work arrangement. At only 20 years old, she was interviewed on her own by two senior men who questioned her in detail about the breastfeeding process and made her feel uncomfortable. The suggestion by a senior female manager that the Applicant express in the toilet was also criticised as not being a modern solution for breastfeeding parents at work. Employers may consider developing a clear policy and process for how to address such requests, to avoid an unnecessarily complicated or intimidating process.

How we can help

Moores assists clients by:

• developing best practice policies and procedures on equal employment opportunity, flexible work arrangements, and reasonable adjustments and accommodations;
• providing advice on how organisations can support their staff to transition back to work after parental leave;
• advising on complex discrimination issues;
• assisting organisations to prevent and respond to discrimination as far as possible; and
• providing training about unlawful behaviours in the workplace.

If a discrimination issue arises, we can support you in your response and investigation.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.

In the case of Kaplan v State of Victoria (No 8) [2023] FCA 1092, five Jewish former students at Melbourne’s Brighton Secondary College (College) received compensation of $435,000 after the Federal Court found they had been subjected to anti-Semitic bullying and harassment, and that the State of Victoria and the Principal of the College breached the Racial Discrimination Act 1975 (Cth) (Act) by failing to properly address anti-Semitism at the College. This case highlights the significant discrimination and child safety implications of a school’s failure to proactively address discriminatory bullying and harassment against its students on an individual and systemic level.

Background of the case

The applicants, five former students from the College, filed a claim against the State of Victoria, the Principal of the College, and two teachers from the College. The claim alleged:

• contraventions of s 9(1) of the Act, which makes racial discrimination unlawful;
• contraventions of s 18C of the Act, which makes it unlawful for a person to do an act that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people because of the race, colour, national or ethnic origin of the person (anti vilification provisions); and
• negligence.

In summary, the applicants alleged that:

• they were subjected to anti-Semitic bullying and harassment by individuals and groups of students at the College between 2013 and 2020, including verbal taunts and physical attacks;
• they were exposed to a considerable volume of offensive graffiti, namely hundreds of swastikas drawn in classrooms, books and across the school grounds;
• the above conduct made them fearful for their safety at School;
• despite repeated complaints, staff at the school failed to take action in response to the anti-Semitic conduct;
• the College failed to prevent or take disciplinary action in relation to the anti-Semitic behaviour at the College;
• unlike treatment of other vulnerable minority student groups, inadequate steps were taken by the Principal and others at the College to address treatment of the applicants and protect Jewish students;
• the Principal and staff at the College failed to take proactive or systemic steps to discourage the graffiti, educate students about its impact on vulnerable groups of students, or facilitate behavioural changes at the College.

Finally, the applicants alleged that the Principal contravened the anti-vilification provisions of the Act in respect of at least one speech he gave to a full school assembly, where the applicants allege he made remarks that offended, insulted, humiliated or intimidated Jewish students and were offensive more generally to Jewish people.

Each of the five applicants left the school as a result of the above.

The decision by the Court

The Court upheld the applicants allegations in part, and found that State of Victoria was vicariously liable for the Principal’s failure to adequately respond to anti-Semitic bullying and harassment by students.

The applicants succeeded on some of their claims under section 9(1) of the Act and negligence claims. Specifically, the Court found that:

• the Principal engaged in unlawful discrimination contrary to the Act against four students by his failure to:
  • take systemic and co-ordinated action to address anti-Semitic bullying and swastika graffiti at the College;
  • enforce the College’s policies on racial harassment.
• another employee engaged in unlawful discrimination under section 9(1) of the Act against one applicant by greeting him in Hebrew in front of his class, despite being told that the conduct was unwelcome and singled the applicant out.

The Court accepted the applicants’ claim that the Principal failed to address anti-Semitic bullying and harassment in a systemic and proactive way using recognised and established approaches in Australian secondary schools and approaches that were used at the College for other vulnerable students.

The Court found that the Principal contravened s 9 of the Act by failing to take reasonable and appropriate steps to discourage swastika graffiti and the anti-Semitic bullying and harassment of students. Appropriate and reasonable steps could have included taking disciplinary action against students who engaged in bullying and harassment, and taking systemic approaches to address the issue through school-wide campaigns. The Court found that at a leadership and systemic level the Principal took a different, and less favourable, approach to anti-Semitic bullying and harassment of Jewish students than he took, or would have taken, to the bullying and harassment of other vulnerable minority student groups. As a result, this different and less favourable approach to anti-Semitism was also adopted by College staff.

The Court observed an inexplicable and unusual tolerance for anti-Semitic graffiti and a preparedness to ignore, downplay and take less seriously the complaints made by Jewish students and their families. There was also a disinclination to adopt any systemic, school-wide steps to address anti-Semitic student behaviour, despite this having been done, appropriately, to protect LGBTQIA+ students and to encourage tolerance and acceptance of students who identified in that way or who were exploring their identity.

In relation to the claims made in negligence, the Court upheld the negligence claims made by four of the five applicants.

Damages and compensation orders were made against the State totalling approximately $435,000.

In its orders, the Court also provided a declaration to be made outlining the above findings of discrimination. The Court also prescribed some steps to be taken between the parties to negotiate a form of apology from the State of Victoria that is compatible with the Court’s reasons.

Key takeaways for organisations to help address discriminatory bullying and harassment

• Anti-Semitism in schools must not be tolerated, and schools should take proactive steps to protect the safety and wellbeing of Jewish students when incidents of anti-Semitic bullying and harassment arise.
• Schools should ensure they have a policy, procedure and code of conduct that sets out:
  • acceptable and unacceptable behaviours by and against all students;
  • how the school will prevent and respond to bullying, harassment and discrimination, regardless of the protected attribute. Appropriate proactive steps should be taken to support students subjected to discrimination and deter the discriminatory behaviour.
• Schools should adopt a consistent approach to allegations of bullying, harassment and discrimination, regardless of the protected attribute (e.g. race, religious belief, gender, sex and disability). That said, the actions taken to deter harmful behaviour may be appropriately tailored to the relevant vulnerable cohort, in consultation with appropriate stakeholders.
• Schools in Victoria must also ensure that their policies and procedures to protect students from bullying, harassment and discrimination align with the Victorian Child Safe Standards and Ministerial Order 1359, which requires Schools to ensure that equity is upheld and the diverse needs of students be respected in policy and practice.
• There are different thresholds for reportable conduct between jurisdictions. However, discriminatory bullying and harassment may also cause significant psychological and emotional harm, and a failure to address this could in some circumstances constitute significant neglect in the form of supervisory neglect. Depending on the circumstances, this may constitute reportable conduct under a reportable conduct scheme, which may need to be reported and investigated.  

How we can help

Our safeguarding team has expertise in both child safety and discrimination matters. We are well placed to assist with incidents raising either or both of these issues and can provide peace of mind in navigating any allegations or investigations that may arise.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.

As you would likely be aware from the popular media, there are some significant changes to the Victorian land tax landscape in 2024. Unfortunately, the complexity of the legislation and the messaging coming from the Government and Opposition can mean it’s difficult to work out what those changes mean in a practical sense.

We cut through the confusion and explain (in simple terms) the things you need to have on your radar going into the new year.

1. Expansion of VRLT across Victoria

The vacant residential land tax (VRLT) regime is being expanded to apply throughout Victoria. 

Introduced at the start of 2018, the VRLT regime originally only applied to properties in inner and middle Melbourne (ie. properties in certain specified local government areas within a ring around the CBD). The tax is payable for a calendar year when the property was vacant for more than 6 months in the previous calendar year.  Owners have a positive obligation to notify the State Revenue Office if that is the case.

From 1 January 2025, the catchment area for VRLT has been expanded to the whole of Victoria. This means that the way the property is used throughout 2024 will determine whether VRLT is payable for the 2025 year. 

The exemptions from VRLT can be highly technical, and care should be taken in relying upon general advice or media summaries. The main exemptions are:

• The holiday home exemption, which is now available for properties used and occupied by any of the following as their holiday home for at least four weeks in a calendar year:
  • the owner or a relative of the owner (if the owner is an individual); or
  • a vested beneficiary or a relative of the vested beneficiary (if the owner is a trust).
    It is important to note that this exemption is not currently available for properties owned by an organisation or association (or trusts without a vested beneficiary) – so if you hold your holiday home in a company or trust, be aware that VRLT could apply from next year. The Government has flagged that there may be some change forthcoming in this area later this year, but as there is no specific detail of what is planned or when, owners would be wise to make their plans on the basis of the current laws.

• The work accommodation exemption, which is available for properties used and occupied by the owner (or if the owner is a trust, by a vested beneficiary) at least 140 days (whether continuous or aggregate) in a calendar year for the purpose of attending their workplace or conducting business. Note that this exemption is also not available for properties held in a company structure.
• The change of ownership exemption, which applies to any property which changed ownership (ie. title was transferred) during the previous calendar year.
• The new residential land exemption, which can now be available for a period of up to three years after the land first becomes residential in nature (subject to certain requirements).

Action to take: If you own a residential property which is currently vacant or used for less than six months cumulatively each year, consider whether it could qualify for any of the exemptions. If not, you may wish to look at the options to ensure that it is occupied for more than six months this year – for example, by leasing it to a residential tenant.

2. Increase in the VRLT rate

From 1 January 2025, a new, progressive, rate of VRLT will apply based on the number of consecutive tax years the land has been liable for VRLT. 

Previously, VRLT was fixed at 1% of the property’s capital improved value (CIV). Under the new rules, VRLT will be calculated on a progressive rate:

Year	VRLT Rate
First year which the land is liable for VRLT	1% of CIV
Second consecutive year which the land is liable for VRLT	2% of CIV
Third and subsequent consecutive years which the land is liable for VRLT	3% of CIV

By way of illustration, Tom inherited a home in Daylesford from his mother, who died 4 years ago. The CIV shown on the council rates notice is $850,000. Tom occasionally visits the property for a weekend to tend to the garden and do some maintenance on the home, but it is otherwise empty while he decides whether he wants to live there in his retirement.

If Tom continues this pattern of use, then in 2025 he will be liable for VRLT of $8,500 on the home. This will increase to $17,000 in 2026, and $25,500 from 2027 onwards.

Action to take: If you own any unoccupied residential property (whether in your own name, or through a company or trust), consider the possible financial implications of the changes.  Check the CIV on your current council rates assessment – use this figure to calculate your potential VRLT liability and help inform your decision-making about how you will deal with the property this year and future years.

3. Extension of VRLT to capture unimproved residential land

Previously, VRLT only applied to land with a residence constructed on it. From 1 January 2026, however, the tax will extend to some unimproved residential land, ie. residential land without any residence on it.

VRLT will apply to vacant land which:

• is located in metropolitan Melbourne;
• has remained undeveloped for at least five years; and
• is capable of residential development.

The rationale given for this change is to encourage development (and discourage land banking), with a view to increasing housing supply in metropolitan Melbourne.

Action to take: If you own vacant land which is unlikely to be developed in the next two years, consider whether a sale is appropriate and if not, factor in the potential VRLT liability from 2026.

4. No more apportionment of land tax when purchasing real estate

Vendors are prohibited from apportioning land tax to a purchaser under contracts of sale entered into from 1 January 2024. This is a significant change to the standard practice of apportioning land tax along with other periodic statutory outgoings such as council rates and water rates – previously, the vendor would bear outgoings only up to the day of settlement. Now the vendor must pay the land tax for the whole year. 

There is no contracting out of this provision – it is now an offence for a vendor to enter into a contract of sale that purports to require the purchaser to pay an amount for, or towards, the vendor’s land tax. However, it is open to vendors to seek to recover the difference through a higher asking price.

The prohibition does not apply to contracts where the consideration is $10 million or more (noting that this amount is subject to indexation).

Action to take: If you’re entering into a contract for the sale or purchase of a property, ensure that it doesn’t include a provision apportioning land tax between vendor and purchaser.

5. New exemption – Trust for Nature conservation covenants

From 1 January 2024, land which is subject to “conservation covenant” is entitled to an exemption from land tax. To qualify for exemption, the landowner must have entered into a covenant with Trust for Nature (Victoria) for the conservation of the land under the Victorian Conservation Trust Act 1972 (known as a “Trust for Nature” covenant). The exemption is available only upon application and can apply to part of a land parcel if only part is subject to the covenant.  

Action to take: If you own land which is subject to a Trust for Nature covenant or are considering purchasing such land, submit a land tax exemption application.

How we can help

The property team at Moores has extensive experience in land tax matters and can provide strategic advice tailored to your specific property ownership situation, giving you a road map through the confusion.

If you would like to explore your options in this regard, please get in touch with us and we’ll help you work out a solid plan.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.

As you would likely be aware from the popular media, there are some significant changes to the Victorian land tax landscape in 2024. Unfortunately, the complexity of the legislation and the messaging coming from the Government and Opposition can mean it’s difficult to work out what those changes mean in a practical sense.

We cut through the confusion and explain (in simple terms) the things you need to have on your radar going into the new year.

1. No more apportionment of land tax when purchasing real estate

Vendors are prohibited from apportioning land tax to a purchaser under contracts of sale entered into from 1 January 2024.  There is no contracting out of this provision – it is now an offence for a vendor to enter into a contract of sale that purports to require the purchaser to pay an amount for, or towards, the vendor’s land tax if the consideration for the property is under $10 million (noting that this amount is subject to indexation). 

This is a significant change to the standard practice of apportioning land tax along with other periodic statutory outgoings such as council rates and water rates, and is welcome news for charitable organisations purchasing property – they will no longer have to contribute to the vendor’s land tax.

Action to take: If your organisation is purchasing property, ensure the contract doesn’t include a provision apportioning land tax between vendor and purchaser. In addition, consider seeking advice about any exemptions which could apply once your organisation owns the property.

2. Expansion of VRLT across Victoria

The vacant residential land tax (VRLT) regime is being expanded to apply throughout Victoria. 

Introduced at the start of 2018, the VRLT regime originally only applied to properties in inner and middle Melbourne (ie. properties in certain specified local government areas within a ring around the CBD). The tax is payable for a calendar year when the property was vacant for more than 6 months in the previous calendar year. Owners have a positive obligation to notify the State Revenue Office if that is the case.

From 1 January 2025, the catchment area for VRLT has been expanded to the whole of Victoria. This means that the way the property is used throughout 2024 will determine whether VRLT is payable for the 2025 year.

The exemptions from VRLT can be highly technical, and care should be taken in relying upon general advice or media summaries. The main exemptions are:

• The holiday home exemption, which is now available for properties used and occupied by any of the following as their holiday home for at least four weeks in a calendar year:
  • the owner or a relative of the owner (if the owner is an individual); or
  • a vested beneficiary or a relative of the vested beneficiary (if the owner is a trust).
    Importantly, organisations (companies, associations etc) cannot make use of the holiday home exemption. The Government has flagged that there may be some change forthcoming in this area later this year, but as there is no specific detail of what is planned or when, organisations would be wise to make their plans on the basis of the current laws.

• The work accommodation exemption, which is available for properties used and occupied by the owner (or if the owner is a trust, by a vested beneficiary) at least 140 days (whether continuous or aggregate) in a calendar year for the purpose of attending their workplace or conducting business. Note that this exemption is also not available for properties owned by an organisation.
• The change of ownership exemption, which applies to any property which changed ownership (ie. title was transferred) during the previous calendar year.
• The new residential land exemption, which can now be available for a period of up to 3 years after the land first becomes residential in nature (subject to certain requirements).

Action to take: If your organisation owns a residential property which is currently vacant or used for less than 6 months cumulatively each year, consider renting it out or seek legal advice about whether the property could qualify for any of the exemptions. 

3. Increase in the VRLT rate

From 1 January 2025, a new, progressive, rate of VRLT will apply based on the number of consecutive tax years the land has been liable for VRLT. 

Previously, VRLT was fixed at 1% of the property’s capital improved value (CIV). Under the new rules, VRLT will be calculated on a progressive rate:

Year	VRLT Rate
First year which the land is liable for VRLT	1% of CIV
Second consecutive year which the land is liable for VRLT	2% of CIV
Third and subsequent consecutive years which the land is liable for VRLT	3% of CIV

By way of illustration, Do Good Ltd purchased a residential property in Daylesford last year with a view to potentially setting up a retreat for ill children and their families. The CIV shown on the council rates notice is $850,000. The Board is undecided about plans for future use at this stage and for now, the property is sitting vacant with staff visiting occasionally for maintenance purposes or for weekend breaks.

If Do Good Ltd continues this pattern of use, then in 2025 it will be liable for VRLT of $8,500 on the property. This will increase to $17,000 in 2026, and $25,500 from 2027 onwards.

Action to take: Consider unoccupied residential property you might own and the budget implications.  Check the CIV on your current council rates assessment– use this figure to calculate the potential VRLT liability and help inform your Board’s decision-making about how you will deal with the property this year and future years.

4. Extension of VRLT to capture unimproved residential land

Previously, VRLT only applied to land with a residence constructed on it. From 1 January 2026, however, the tax will extend to some unimproved residential land, ie. residential land without any residence on it.

VRLT will apply to vacant land which:

• is located in metropolitan Melbourne;
• has remained undeveloped for at least five years; and
• is capable of residential development.

The rationale given for this change is to encourage development (and discourage land banking), with a view to increasing housing supply in metropolitan Melbourne.

Action to take: If your organisation holds vacant land, consider the likely time frame for development and factor in the potential VRLT liability if development is unlikely to take place within the next 2 years.

5. New exemption – Trust for Nature conservation covenants

From 1 January 2024, land which is subject to “conservation covenant” is entitled to an exemption from land tax. To qualify for exemption, the landowner must have entered into a covenant with Trust for Nature (Victoria) for the conservation of the land under the Victorian Conservation Trust Act 1972 (known as a “Trust for Nature” covenant). The exemption is available only upon application and can apply to part of a land parcel if only part is subject to the covenant.  

Action to take: If your organisation owns land which is subject to a Trust for Nature covenant or is considering purchasing such land, ensure that a land tax exemption application is submitted for the property.

How we can help

The property team at Moores has extensive experience in land tax matters and can provide strategic advice tailored to your specific property ownership situation, giving you a road map through the confusion.

If you would like to explore your options in this regard, please get in touch with us and we’ll help you work out a solid plan.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.

In NSW, the Not-For-Profit Guidelines for Non-Government Schools (2019) (the ‘NFP Guidelines’) were launched to assist schools to understand their not-for-profit obligation with reference to common transactions schools experience.

The NFP Guidelines recently underwent Ministerial review and public consultation of the exposure drafts and was completed in late 2023, together with a proposed draft Regulatory Framework for the Oversight of Assistance provided to NSW Non-Government Schools.

The NFP Guidelines provide a useful reference point on the types of common transactions schools face and the records they are expected to maintain and make available to the Minister to make determinations of compliance with section 83C.

They are extremely useful to schools in Victoria as a further reference in relation to considering potentially prohibited arrangements.

Regulatory Context

Non-government schools must operate for a not-for-profit purpose. In NSW, this is required to be eligible for financial assistance from the NSW government. In Victoria, the not-for-profit requirement is a condition of school registration. Regulations in both states establish the not-for-profit obligation and a requirement to only enter into not-for-profit transactions “for the conduct of the school” (Vic) or for the “operation of the school” (NSW) or otherwise risk being deemed to be for-profit and non-compliant with financial assistance or registration conditions.

What does not-for-profit mean?

In Victoria, the ‘not-for-profit’ criteria for schools are set out in regulation 7 of the Education and Training Reform Regulations 2017 (“ETR Regulations”).

In brief,

• a school cannot have a for profit purpose;
• money and property received by the school or the proprietor of the school can only be applied toward the conduct of the school and cannot be used for any other purpose; and,
• the school and its proprietor cannot be party to a prohibited agreement or arrangement (PAA) under regulation 5. The PAA provisions cover the nature of transactions that would make them ‘for-profit’ and explain certain types of transactions which are not deemed to be ‘for-profit’. 

Section 83C of the NSW Education Act 1990 operates in a similar way, drafted from the position of when a school would be deemed to operate for-profit in relation to its use of “income” or “assets”, and “payment” for property, goods and services.

Guidance for schools

The NSW requirements are broadly mirrored in Victoria by the ETR Regulations with explanatory guidance provided in the Guidelines to the Minimums Standards for School Registration (2022) (‘Minimums Standards Guidelines’).

Whilst not binding in Victoria, The NFP Guidelines offer a useful external reference for Victorian registered schools particularly in relation to measures that can be taken to avoid PAAs or demonstrate that transactions are not made for-profit.

How do they compare?

We have provided a summary analysis of the proposed changes to the NFP Guidelines that support schools to comply with s83C, and the equivalent Victorian PAA requirements. View our summary table.

What’s new in the NFP Guidelines?

The exposure draft NFP Guidelines incorporate both examples of common transactions and provide further explanatory guidance to distinguish when a school “will likely be operating for profit” or “may be operating for profit”. Although they do not set a precedent, they are useful to understanding where we have seen or are likely to a similar interpretation to “reasonable market value”, and what is “reasonably required” adopted for Victorian schools.

Characteristics of transactions that can be considered as not for the operation (or conduct) of the school or otherwise considered as operating for a profit can arise where:

• the value of school assets disposed of are at less than reasonable market value. The value of the asset is also relevant where there might be a disposal for less than the reasonable market value. For example, end of life school computers will generally not be considered a “valuable asset”, whereas school real property or larger assets like vehicles are more likely to be valuable assets. A similar approach is taken in Victoria for high value assets.
• Where rent for unimproved land is determined based on the value of any improvements which are to be made by the tenant. We know this is consistently found to be a non-compliant arrangement in Victoria. Similarly, if a school has made improvements to leased land or premises as the tenant, and subsequently does not receive a proportionate return on investment at the time of sale by the owner, then this can also have the effect of not being for the operation of the school.
• Where the transfer of school assets or income to related or unrelated third parties are for the purpose of placing them beyond scrutiny by the Minister there must be documentation to show that it is for the purposes of the operation of the school e.g. to be used to purchase assets to be held on trust for the school. The existence of appropriate legal instruments between related and unrelated third parties is also a subject of greater inquiry in Victoria.
• Where a school is engaged in the business of lending money or making investments using school income with limited (or no) evidence that the loans are for the operation of the school. The risk associated with these types of transactions will also count toward determining if it is for the purpose of the operation of the school or otherwise for profit.

New examples include:

• New section 4.11. Proposed introduction of Guidelines Preschool, Early Learning and Out of School Hours Care subject to approval of the new Regulation by the Minister for Early Education and Early Learning.
  • In Victoria, in the context of ELC, there is a specific exception to the not-for-profit requirement which allow for the use of school money or property for the purpose of conducting an ELC or providing boarding premises where certain conditions are satisfied.
  • We await the release of the NSW Guidelines which may influence the operational expectations of ELCs and related activities.
• 4.22 Compensation, settlements, and other one-off payments. It is no surprise that specific guidance is provided on these types of transactions given the climate of increased exposure to claims against schools.
  • Schools can expect greater scrutiny around the appropriateness of these types of transactions. Records detailing the reasons for any settlement offers must support any formal settlements and other payments including legal documentation consistent with legal advice or orders by a relevant tribunal or court.
  • Delegation and segregation of duties in relation to decision making on these matters is also relevant and school governing documents should reflect how these are enabled.
  • It is important that Victorian schools consider any settlements and one-off payments through the lens of PAA requirements prior to preparing legal documentation.
• 4.23 National Redress Scheme for Institutional Child Sexual Abuse. Clarifies that schools are not operating for-profit in the context of contributions made to the National Redress Scheme for Institutional Child Sexual Abuse provided that the school can demonstrate that the funding contribution is not sourced from government financial assistance.

What can Schools do?

The NSW Department of Education is currently considering feedback on the exposure drafts and has not provided a release date. Schools should consider the proposed updated Guidelines as part of their 2024 business planning, reflect on the records requirements as a tool to assess the maturity of their operating practices and recordkeeping to identify any areas for improvement or rectification.

How we can help

Our Education team can work with you to assist with:
• Advice on the application of the regulations for specific transactions.
• Review of existing arrangements that pre-date the regulations in both NSW and Victoria.
• Policy and procedure review or development to enable compliant transactions.
• Board and key personnel training on NSW S83C and Victorian PAA requirements

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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.

To coincide with the return to school of students across the country, the Australian Institute of Sport (AIS) published updated Concussion Guidelines for Youth and Community Sport (Concussion Guidelines) (accessible in full here). These Concussion Guidelines emphasise the need to take a conservative approach to managing suspected concussions in children and young people, acknowledging that children and young people take longer to recover from concussion than adults.

The key takeaway of the Concussion Guidelines for schools

The Concussion Guidelines extend the mandatory minimum stand-down period to 21 days from the time of concussion until returning to competitive contact sport. Previously, this was 10 days.

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The introduction of this minimum exclusion period of 21 days has been made in recognition of the fact that young people take longer to recover from concussion than adults. This also aligns Australia with the approach in the United Kingdom and New Zealand.

Another rule to remember is that for those without a dedicated health care practitioner to guide recovery, students must be symptom free for 14 days before returning to contact training. This is not 14 days after the concussion; it is 14 days symptom free.

Additionally, the AIS is recommending schools introduce a ‘concussion officer’ to oversee the management of concussion. A ‘concussion officer’ is a single point of contact who manages the coordination of matters related to concussion. A ‘concussion officer’ is not a concussion expert and is not expected to diagnose concussion. Analogous to the role of a ‘fire warden’, the ‘concussion officer’ ensures anyone diagnosed with concussion follows the school’s agreed concussion protocol.

How the new Concussion Guidelines will affect interschool sport

While a concussion can happen in the playground, higher risks for concussions are generally within competitive and collision sports. We know many independent and Catholic schools compete in interschool sport competitions, run by organisations such as APS, AGSV, EISM and Girls’ Sport Victoria. It is too early to see how these sporting bodies will respond to the updated Concussion Guidelines. Schools will need to carefully navigate their duty of care, when student exclusion is likely to pose challenges in scheduled fixtures.

What should schools do in response to these new guidelines?

We highly recommend anyone who works in sport, risk or child safety at a school reviews the new Concussion Guidelines. At Moores, we help schools by providing advice about the duty of care and how this relates to concussion prevention and response procedures. We can also help develop and/or refresh your risk management framework or risk treatment plans. Concussion management could be a useful example to explore risk tolerance and mitigation considerations to manage risk to an acceptable level. There is also the added complication of likely conditions in your school’s insurance policy. Please get in touch with our Education Team for more information.

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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.

Following our article published in 2023 on the proposed superannuation tax increase, the government has now released detail on the (as yet) unlegislated taxation of earnings on an individual’s total super balance over $3m.

The additional tax – how it will apply

The calculation of ‘earnings’ is complex and requires accounting advice but for simplicity, earnings are effectively the movement in value of the individual’s balance – adjusted for withdrawals and contributions – and (controversially) includes unrealised gains.

Once legislated, the additional 15% tax will come into force from 1 July 2025 and affect the 2025/26 and subsequent financial years. The $3m limit is static – it will not be indexed. Within the superannuation fund, balances on earnings less than $3m will continue to be taxed at the concessional rate of 15%.

The proposed new tax will be levied on the individual/member. It will not be able to be reduced by deductions, offsets or losses. A member can apply to release funds from super to pay the tax.

This is likely to create particular issues for self-managed super funds (SMSF) that have lumpy assets like business real property, or assets that are not readily able to be realised.

How the additional tax will impact reversionary pensions

Reversionary pensions are usually put in place when the pension income stream commences.

The effect of a valid reversionary nomination is when the member passes away, their reversionary beneficiary (usually a spouse) will continue (automatically) to receive their tax-free income stream, which doesn’t count toward the beneficiary’s transfer balance account for 12 months after the member’s death. In other words, two potentially tax free income streams can apply (where the pensioner or recipient is over 60 years) until the beneficiary withdraws or commutes their own pension back to accumulation.

The hitch with the new legislation is that although the additional tax will not apply to the deceased member in the year of death, it immediately counts towards the receiving beneficiary/spouse’s total super balance account. This could tip the recipient’s total superannuation balance over $3m at the next 30 June, in which case the proposed new law would apply. The reason for the difference is that the 12 month delay applies to the transfer balance cap (the maximum allowable pension) whereas the new tax applies to the individuals total super balance (which is a different definition and is calculated at 30 June each year).

For example:

Homer and Marge Simpson have a self-managed super fund with $3.5m in total assets.

Homer’s total super balance on 28 June 2025 when he passed away was $1.9m (including $1.7m in pension and $200,000 in accumulation). Homer had nominated Marge as reversionary beneficiary when he established his pension account.

Because Homer’s total super balance is under $3m, the additional tax is not applicable – and even if his total was over $3m at 30 June in the year of his death, he would be exempt because of his death.

Prior to Homer’s death, Marge’s total super balance is $1.6m (all in pension phase). But as reversionary beneficiary of Homer’s pension, Marge’s new total super balance at 30 June 2025 is now $3.3m, representing both her and Homer’s pensions, tipping her above the $3m threshold.

Planning options to prepare for the new tax

The new tax requires a re-think of:

• The pros and cons of keeping benefits in superannuation long term. That is a complex question that needs to consider tax, asset protection and estate planning considerations.
• Whether reversionary pensions are appropriate in all circumstances.

Although the legislation takes effect from 1 July 2025, advice should be sought early to leave enough time to implement any changes prior to that date.

How we can help

Stay informed about the legislative updates and contact the Estate Planning team for expert advice and guidance in navigating the evolving landscape of superannuation.

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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.

Moores Practice Leader, Jennifer Dixon, and Senior Lawyer, Rowdy Johnson, sit down in a Moores Q&A to discuss the recently proposed superannuation tax and break down some common questions and concerns.

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) has released its extensive final report which describes aspirations for an inclusive society. The final report seeks to inspire significant reform to remove multiple barriers to access and enable meaningful inclusion. As with the final report of the 2017 Royal Commission into Institutional Responses to Child Sexual Abuse, we predict the Disability Royal Commission’s recommendations foreshadow significant legislative and regulatory reform. For this reason, we set out here the recommendations of the royal commission likely to have the biggest impact on how schools provide education for disabled students; being:

1. Moving away from segregated education;
2. Strengthening the right to enrolment;
3. Rethinking exclusionary discipline;
4. Student and parent participation; and
5. Stronger oversight for schools.

Beyond responding to compliance obligations, Moores is proud to work with value-aligned clients who aim to provide the best educational opportunities for students, often above and beyond the law. The Disability Royal Commission provides a blueprint for how schools can improve their work with students with disability, ahead of legal reform. Our education clients tell us there is an increasing number and proportion of students with disability in our schools and increasing demand for adjustments. This is confirmed by the Disability Royal Commission. We want to work with our clients to support disabled students now, instead of waiting for legal reform.  

1. Moving away from segregated education

As noted in our early article on the findings of the Disability Royal Commission, a key theme arising from the Disability Royal Commission was a shift away from segregated education. The commissioners were split on what form this should take. Three commissioners, including the two commissioners with lived experience of disability, recommended that the Australian Government and state and territory governments should recognise that inclusive education as required by article 24 of the Convention on the Rights of Persons with Disabilities is not compatible with sustaining special/segregated education as a long-term feature of education systems in Australia. In practical terms, they recommended the phasing out of all specialist schools by 2051, with no new enrolments of students with disability in specialist or segregated schools by 2032.¹ As an alternative approach, the other three commissioners recommended a more conservative approach of co-locating non-mainstream schools alongside mainstream schools to facilitate partnerships and greater interchange between disabled and non-disabled students, and facilitate the transition of disabled students into mainstream school environments.² Irrespective of any reform adopted in legislation or regulations, these recommendations indicate that mainstream schools must be cognisant of the need to facilitate inclusive education, including their existing obligations regarding reasonable adjustments, and may suggest a shift away from enabling schools the option of proposing enrolment exclusively at a specialist school on the basis that mainstream schools do not have the means to support disabled students.  

2. Strengthening the right to enrolment

The Disability Royal Commission recommends that state and territory governments amend education Acts to provide that the right to enrolment is subject only to ‘unjustifiable hardship’ in the sense used in the Disability Discrimination Act 1992 (Cth).³ This would require amendments to the Equal Opportunity Act 2010 (Vic) which currently permits a school to discriminate against a person on the basis of their disability in the enrolment process if the adjustment is not reasonable or the student could not participate in or derive any substantial benefit from the educational program even if adjustments were made.⁴

The Disability Royal Commission’s proposed amendment would reduce the need for schools to apply both state and federal laws to determining enrolment obligations and rights – thereby simplifying the law – but also perhaps reduce the ability for schools to turn away prospective students based on their inability to “derive any substantial benefit from the educational program”.

3. Rethinking exclusionary discipline

The Disability Royal Commission wants regulators to adopt the principle that schools should avoid the use of exclusionary discipline on students with disability unless exclusion is necessary as a last resort to avert the risk of serious harm to the student, other students or staff.⁵ Schools don’t need to wait for regulators to enact change. Instead, you may choose to reconsider disciplinary processes for students with disability and educate staff on how to avoid the use of exclusionary discipline. For example:

• Can a behaviour management plan or other reasonable adjustments be implemented to avoid the need for exclusionary discipline?
• Can staff be instructed on how to identify earlier signs of possible escalation, and implement redirection, so exclusionary discipline isn’t needed?
• Does your school have a system for monitoring the use of exclusionary discipline? Could a wellbeing staff member take on this responsibility, with the aim of rethinking how exclusionary discipline is used?

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What is exclusionary discipline?

The Disability Royal Commission defines exclusionary discipline as actions by an educational authority or institution that results in the withdrawal of education or training from students with disability, including suspensions and expulsion.

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4. Student and parent participation

The national and state-based Child Safe Standards already recognise student empowerment and parental and community participation as critical to a child safe organisation. The Royal Commission draws on this to recommend schools develop or update policies to include requirements for student and parental communication to be clear and accessible, be “co-designed with people with disability and their families” and indicate the type of decisions where the school will seek formal parental agreement, such as approaches to behaviour management.⁶

There is also a focus in the Disability Royal Commission’s recommendations for intersectional engagement, particularly with First Nations students and parents.

5. Stronger oversight for schools

Another recommendation is that school registration requirements should include oversight by regulators of:

• procedures to collect, analyse and report on complaints and the use of restrictive practices and exclusionary discipline; and
• reporting on the use of funding for students with disability.⁷

In Victoria, this would assumedly form part of the Victorian Registration and Qualifications Authority’s regular reviews of independent and Catholic schools. Similarly, the NSW Education Standards Authority, Non-state Schools Accreditation Board or other relevant regulators would take on this responsibility.  

How we can help

We often help clients navigate reasonable adjustments for students, but often this is at the end of a long process of behaviour management plans and various adjustments that haven’t supported the student as intended. We consider the Disability Royal Commission provides schools with a timely reminder (as the quiet, summer period may allow respite for policy review), that there is much they can do proactively to support both disabled students and their staff in providing an inclusive and accessible school environment.

Both our Education and Safeguarding teams can help by working with you through consultation, policy review, implementation of new practices through tools and training to implement systems that work in your specific school community, reflect the values and beliefs of the Disability Royal Commission and ultimately seek to improve the experience of education of disabled children. If you want to get started, we recently published a few tips for schools to ensure child safety for disabled students and comply with their legal obligations.

For a broader perspective on the Disability Royal Commission from our Safeguarding team, we have also published:

• Complaints handling processes: Learnings from the Disability Royal Commission
• The Disability Royal Commission: Public Hearing 13 – Preventing and responding to violence, abuse, neglect and exploitation in disability services (a Case Study)
• Update on the Disability Royal Commission: Safeguarding vulnerable Australians

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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.

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¹Disability Royal Commission, Recommendation 7.14.

²Disability Royal Commission, Recommendation 7.15.

³Disability Royal Commission, Recommendation 7.1.

⁴Equal Opportunity Act 2010 (Vic) s 41.

⁵Disability Royal Commission, Recommendation 7.2.

⁶Disability Royal Commission, Recommendation 7.6.

⁷Disability Royal Commission, Recommendation 7.11.

On 14 November 2023, the Australian Signals Directorate (ASD) published its 2022-2023 Annual Cyber Threat Report (Report). This Report reveals key trends to understand in cybercrime facing Australian governments, business and individuals.

This Report can help those in the education and for-purpose sectors to understand how the current state of cybercrime in Australia may affect their organisation.

The ASD runs the Australian Cyber Security Centre (ACSC), which is the Australian Government’s technical authority on cyber security and has a 24-hour hotline for advice about and reporting of cyber threats and incidents (1300 CYBER1, or 1300 292 371).

The top reporting sectors reporting cybercrime to the Australian Cyber Security Centre

The graph above shows the top 10 sectors of reporting to the ACSC and the percentage the reporting represents of the entire financial year. Most relevant to the Moores community of value-align clients is that both education and training, and healthcare and social assistance were sectors in the top 5.

• 6.7% of reports to the ACSC were from the Education and Training sector.
• 5.9% of reports to the ACSC were from the Healthcare and Social Assistance sector.

While this shows a high risk of being a target of a cybercrime, it can also reveal strong awareness in these industries with high levels of reporting.

Recommendations from the ASD for all Australian organisations

The ASD recommends all Australian organisations:

• only use reputable cloud service providers and managed service providers that implement appropriate cyber security measures;
• review the cyber security posture of remote workers, including their use of communication, collaboration and business productivity software;
• implement relevant guidance from ASD’s Essential Eight Maturity Model, Strategies to Mitigate Cyber Security Incidents and Information Security Manual;
• regularly test cyber security detection, incident response, business continuity and disaster recovery plans;
• train staff on cyber security matters, in particular how to recognise scams and phishing attempts; and
• report cybercrime and cyber security incidents to ReportCyber.

Ransomware is the most destructive cybercrime threat

The 2022-2023 Annual Cyber Threat Report reveals the significant threat of ransomware.

How we can help

Understanding the education and for-purpose sectors in which our clients operate, we can provide tailored cyber security and privacy advice and support. We can help you take practical steps to uplift your cyber security, looking to the human elements as well as the technical. We like to think about information management as an opportunity to grow your organisation.

Contact us

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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.