When it comes to protecting a family’s wealth in the event of separation, financial agreements under the Family Law Act 1975 (Cth) are an increasingly common and effective tool. A financial agreement is an agreement entered into between spouses (married or de facto) which address how the property and financial resources of the relationship are dealt with at separation. If drafted correctly and carefully it enables parties to mutually contract out of the right to bring a claim against each other in the Federal Circuit and Family Court of Australia (the Court). Financial agreements can be made before or during a relationship or after separation.
A party to a relationship can have a claim for property settlement once married or in the case of a de facto relationship once the parties have been living together for two or more years. There are sometimes exceptions to this rule such as the birth of a child or significant intermingling of finances.
A property settlement order from the Court can take into account inheritances received by one party, and can divide the assets inherited.
If there is no financial agreement in existence, inheritances and gifts received by a spouse directly in a relationship are considered to be property of the relationship to be divided as determined by the Court upon separation. Whilst it is certainly not the case that any inheritance is always divided on an equal basis, a Judge has a wide discretion to apportion inheritances having regard to the particular facts and circumstances of the relationship. In the absence of a financial agreement, there is no guarantee that an inheritance will be protected.
A typical financial agreement is designed to regulate and determine the impact of separation on the entirety of the parties’ financial relationship (i.e. it deals with all assets and liabilities). A common approach is to divide the assets and interests into each parties excluded assets (kept separate in the event of relationship breakdown), and “joint assets” being those assets which are agreed to be divided in the event of relationship breakdown. There can also be agreed on additional payments from one party to the other, depending on the circumstances.
Alternatively, there is nothing that prevents parties having an agreement that is more limited in scope, such as just excluding claims in relation to inherited assets only. This is known as an Inheritance Protection Agreement (IPA).
The significance and value of an IPA is that it specifically deals with possible or expected inheritances, gifts or particular assets and excludes them for the sole benefit of one of the parties. There is no requirement in the legalisation that the IPA contemplates a just and equitable division of all assets. As long as the IPA is compliant and has been carefully drafted in accordance with the requirements set out under Part VIIIA of the Family Law Act 1975 (Cth) it will be enforceable.
The Federal Circuit Court of Australia (FCCA) case of Wood v Grover [2015] illustrates the enforceability of a financial agreement which quarantines future inheritances. The Husband sought to set aside a financial agreement entered into prior to marriage. The financial agreement specifically sought to protect any inheritances that were likely to be received by either of the parties. At the time of signing the agreement, the Husband had approximately $13,500 worth of assets. The Wife had approximately $656,000 and was likely to receive significant inheritances.
The Husband argued that the financial agreement should be set aside as he had not received the requisite advice regarding the terms of the agreement. The Husband also relied upon the grounds of unconscionable conduct, duress and undue influence. Ultimately, Judge Neville found that the financial agreement was valid and took no issue with the exclusion of significant future inheritances.
A financial agreement is a contract, and the Family Law Act 1975 (Cth) requires disclosure as well as prescribing other formalities for the Agreement to be enforceable.
As the parents passing on the inheritance, a preliminary question is the level of disclosure that you are comfortable providing in order to make the agreement binding.
At Moores, we prepare financial agreements as well as IPA’s for all types of relationships. As illustrated in Wood v Grover [2015] FCCA, it is imperative the financial agreement is drafted in accordance with the requirements set out in the legislation. Each agreement needs to be carefully tailored to the circumstances of the relationship and immediate families’ requirements.
We are well versed in the approach and negotiation of financial agreements and would welcome a discussion with you or your clients at any time about the benefits of entering into a BFA.
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.
The recent Federal Court case of Roxanne Tickle v Giggle for Girls provides a unique opportunity to obtain greater clarity on the scope of anti-discrimination protections for transgender people in Australia.
Roxanne Tickle lodged a discrimination claim in the Federal Court against Giggle for Girls on the basis of her gender identity, and is seeking damages of $200,000. Giggle for Girls is a social networking app developed exclusively for women to share experiences and speak freely in a “safe space”. Roxanne Tickle was assigned male at birth, but now identifies as female and has a birth certificate designating her sex as female. Ms Tickle downloaded the app and was required to upload a selfie as part of the registration process. Artificial intelligence assessed her photo as being of a woman and she was able to access the app. However, Ms Tickle was later removed from the app by Giggle for Girls’ CEO, on the basis that she was male and her onboarding selfie appeared to be of a man.
Ms Tickle claims that Giggle for Girls has discriminated against her under the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) on the basis of her gender identity by treating her less favourably in the course of providing goods and services. Ms Tickle argued that she was treated less favourably than cisgender women (being women whose gender identity corresponds with their sex assigned at birth), because of her gender identity of being a transgender woman.
Giggle for Girls are defending the case on the basis their refusal to allow Tickle to use the app constituted lawful sex discrimination as a special measure. A special measure is an action taken to advance equality of a particular group that would otherwise experience disadvantage, in this case females. Because Giggle for Girls perceives Ms Tickle as male, they consider it is lawful to discriminate against her on the basis that it is part of a special measure.
Australia’s Sex Discrimination Commissioner also made submissions in this case, noting that ‘for a person to be of the female “sex”, it is sufficient if that sex is recorded on the person’s birth certificate and/or they have undergone gender affirming surgery to affirm their status as female’.
Notwithstanding this, the evidence provided to date suggests Ms Tickle, as a trans woman, was treated differently to how the respondents treated people with a different gender identity, namely cisgender women.
Judgment has been reserved and we are awaiting the decision in this case.
This case has provided the Court with the ability to determine the extent to which the Sex Discrimination Act protects transgender people from discrimination on the basis of their gender identity. The Sex Discrimination Act was reformed more than a decade ago to add protections for transgender and gender diverse people, however, this is the first time these laws are being tested in court.
This case also highlights the distinction between sex discrimination and gender identity discrimination, and the challenging overlap when special measures to rectify one form of disadvantage, in this case on the basis of sex, intersect with other areas of discrimination.
Sex is not defined in the Sex Discrimination Act, however, generally refers to the sex assigned at birth as male, female or intersex, which is based on physical features such as chromosomes, hormones and organs. Gender identity is defined as the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth. As such, this case serves as a prime opportunity to clarify this distinction as it relates to instances of discrimination.
In addition, the need for greater protections for transgender people are now at the forefront of public discourse.
The Trans Justice Project and Victorian Pride Lobby’s collaborative report into anti-trans hate in Australia published in August 2023 was the largest ever investigation into anti-trans hate in Australia. Their study found that 49.2% of transgender participants directly experienced online anti-trans abuse, harassment or vilification in the 12 months prior to the report, and 1 in 6 transgender participants experienced anti-trans violence in the previous 12 months.
This issue is also pertinent to schools, with Equality Australia’s report ‘Dismissed, Denied and Demeaned: A national report on LGBTQ+ discrimination in faith-based schools and organisations’ finding that many independent schools had enrolment policies that required enrolment based on a student’s assigned sex at birth, and provided teachings that openly condemned homosexuality and transgender people and encouraged their school communities to hold similar beliefs.
The Australian Law Reform Commission’s recent report, Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws1, has recommended changes to narrow the circumstances in which religious educational institutions can discriminate against students and workers. While the ALRC report recognises that institutions should be allowed to preference staff in line with their beliefs so long as it is proportionate and ‘reasonably necessary’ to maintaining a community of faith and does not breach existing discrimination laws, it recommends amendments to the Sex Discrimination Act and Fair Work Act 2009 (Cth) to ensure students and staff do not face discrimination on the basis of their gender identity among other attributes.
Many organisations grapple with the delicate balance of upholding the rights and dignity of transgender people in their communities, whilst respecting and addressing the responses they receive from others in their community when supporting transgender people. In religious organisations, the balance can be even harder to achieve.
Steps taken to support and accommodate transgender people may range from navigating access to bathrooms, participation in sport, use of pronouns and the extent to which organisations provide education and/or public support on issues involving the transgender community. However, it is important to recognise that these issues feed into a range of legal obligations held by organisations, whether it be the duty of care that schools owe to all students, the obligation to address bullying and harassment on the basis of gender identity, privacy obligations relating to unauthorised disclosure of medical information pertaining to transgender and gender diverse individuals, or discrimination in the course of various areas of public life.
This case provides a timely reminder of the need to ensure your organisation proactively considers the implications of actions aimed at improving gender representation and inclusion, to ensure they are not unintentionally exclusionary of transgender people.
Further, while the initial use of artificial intelligence in this case reached a finding that aligned with Ms Tickle’s gender identity, it is also crucial for organisations to be conscious of how they use artificial intelligence and the potential risks of discrimination with these models. For schools, you can read more about the tips and traps for managing the risks associated with artificial intelligence in our recent article.
Rather than wait for an issue to arise, we recommend that organisations:
Our Safeguarding team can assist with drafting or amending policies and guidelines tailored to your organisation’s needs, and delivering training to ensure you understand your obligations and opportunities to implement best practice.
1ALRC, Summary Report – Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws, Report 142, December 2023.
Being an executor of a deceased estate can be a time consuming and sometimes thankless task.
In recognition of this, whilst an executor is normally expected to act gratuitously, the law provides for certain circumstances in which an executor may be remunerated for their time and effort in administering the estate. This is referred to as executor’s commission.
While the process of administering an estate can be complex, merely acting as an executor does not automatically entitle you to any payment from the estate. This is the case even if you are not a beneficiary of the estate.
An executor can receive commission in any of the following situations:
Unless the estate is particularly complex, it would be unusual for an executor who is also a beneficiary to receive payment, as the benefit they stand to receive under the Will is usually considered to be sufficient reward.
A Will-maker may specify an amount of remuneration to be paid to an executor in their Will. This may be either in the form of commission, a percentage, calculated with reference to the value of the estate, or a pecuniary gift in lieu of commission.
An independent professional, such as a lawyer or accountant, may commonly agree with a Will-maker that they would accept appointment as executor on the understanding that they would be paid their usual professional fees for all work completed by them. The remuneration clause in the Will would then normally reflect this.
A remuneration clause in a Will made on or after 1 November 2017 will only be valid if the Will-maker has provided their written informed consent to the inclusion of the clause before making the Will. If such consent cannot be established, the executor may not rely on the remuneration clause.
If the Will is silent as to executor’s remuneration, or a remuneration clause is ineffective as the Will-maker did not provide their prior consent (or it does not set out the amount and type of remuneration to be paid), an executor (other than a professional trustee company) may still receive payment for acting if they have the informed consent of all interested beneficiaries.
An interested beneficiary is a beneficiary whose entitlement would be directly affected if commission were to be allowed to the executor. To be able to consent to commission being paid to an executor, the beneficiary must be at least 18 years of age, and not under a disability that impairs their ability to provide consent.
Section 65D of the Administration and Probate Act 1958 (the Act) outlines the information that an executor seeking to be paid must provide to beneficiaries for their consideration. This includes the basis on which the executor seeks payment, the method of calculation of payment (such as a percentage or fixed amount), the estimated value of the payment, and the beneficiaries’ right to have the payment reviewed by the Court.
An executor who fails to provide this information to the relevant beneficiaries is not entitled to receive payment. A beneficiary is also entitled to obtain independent legal advice before deciding to enter into any agreement with an executor in respect of commission.
In order for the beneficiaries to properly assess the request, and understand exactly what the executor has had to do during the administration of the estate, the request should not be made until the estate administration has been completed or nearly completed.
If any affected beneficiary cannot or does not provide informed consent, an executor cannot rely on the consent of the other beneficiaries to claim commission, even if all other beneficiaries of the estate are amenable.
An application to the Court should only be made where there is no effective remuneration clause in the Will, and where the interested beneficiaries have either not provided their informed consent to a request from the executor, or are unable to do so.
Pursuant to s 65 of the Act, the Court may award such commission or percentage of the estate that the Court thinks is reasonable for the executor’s “pains” and “troubles. “Pains” generally refers to responsibility, anxiety and worry. “Troubles” generally refers to the work carried out by the executor to administer the estate.
While the Court may theoretically award up to 5% of the value of the estate, in practice, the range is generally between 1% and 3.5%. It is unusual for the Court to award more than 3.5%.
In support of an application, an executor must be able to provide detailed records outlining all work done by the executor personally and the time taken by them dealing with the estate. For this reason, an application should again only be made towards the end of the estate administration process. Relevant factors the Court will generally take into account include:
Separate to commission, an executor is entitled to be reimbursed for all debts and expenses incurred by them in the administration of the estate.
An executor may also engage tradespeople and other professionals to assist throughout the administration process where appropriate, and pay their reasonable fees out of the estate. However, an executor cannot then claim commission on work which has been delegated to other persons.
Executor commission is not an automatic right, and an executor should consider obtaining legal advice before making a claim for commission.
The Deceased Estates team at Moores would be pleased to assist you with any queries you may have about seeking or responding to a request for executor’s commission.
From 1 July 2024, a broader range of workers will be covered under the Reportable Conduct Scheme (Scheme) in Victoria, including workers indirectly engaged by an organisation, such as labour hire workers, secondees, directors of companies, individual business owners and students undertaking placements. Previously, the head of entity of an organisation covered by the Scheme was only required to report and investigate allegations of child abuse (known as ‘reportable allegations’ under the Child Wellbeing and Safety Act 2005 (Vic)) by workers with a more formal or direct relationship with the organisation, including employees, contractors and volunteers (including volunteer board members).
In light of these new changes, organisations should carefully consider whether they need to report and investigate reportable allegations against a broader range of workers, and whether their child safety policy, procedure and code of conduct should be updated and communicated to workers.
Currently, organisations are required to make reports to the Commission for Children and Young People (CCYP) and investigate reportable allegations in relation to workers, including employees, contractors and volunteers. The new changes expand the workers covered under the Scheme and will now include:
A labour hire worker and secondee will be covered under the Scheme when:
A number of factors will be considered including:
This requires assessment of each worker based on the individual circumstances of their engagement. For example, the following workers will now likely be covered by the Scheme:
In these cases, the head of the organisation in which the worker is placed will now have an obligation to report and investigate reportable allegations against the worker.
Where an organisation engages a company to perform work and the director of the company performs the work, the director will be considered a worker of the organisation for the purposes of the Scheme. It is irrelevant whether the company engaged is covered by the Scheme.
For example, where an IT company is engaged by a school to upgrade their computer system and the director of the IT company is the person who completes the upgrades, the head of entity at the school will likely be required to make a report if they receive a reportable allegation about the director.
An individual business owner (also known as a sole trader) will now be covered under the Scheme where:
This amendment clarifies that individual business owners will be subject to the Scheme in the same way as the workers they engage.
For example, where a business owner of an overnight camp for children engages staff to run the camp, the business owner will now be covered under the Scheme.
Students undertaking placements, such as a student teacher undertaking a placement at a school, may be covered by the expanded definition depending on the arrangements of their placement. The key considerations are:
The expanded definition also has implications for the obligations of an organisation to report historical allegations. If an entity receives a historical allegation about a worker covered under the expanded definition after 1 July 2024, the entity may be required to make a report to the CCYP. Whether a report needs to be made will depend on:
For example, if a principal of a school becomes aware of a reportable allegation against a casual relief teacher who is engaged via a labour hire agreement on 3 July 2024 (i.e. after 1 July 2024) which is alleged to have occurred while the casual relief teacher was working at the school in 2012, the principal may be required to report the allegation to CCYP and investigate the allegation.
For further information about reporting historical allegations, please see the CCYP Information sheet which provides diagrams showing how the considerations will impact the requirement to report.
We recommend that organisations review their policies, procedures, code of conduct, contracts and agreements to ensure that they accurately reflect the expanded coverage of the Scheme, and communicate those changes to relevant workers.
Moores can assist to:
If your organisation needs assistance in determining how these changes impact you, please contact our Safeguarding Team.
AI is already a central part of everyday life. When your call is answered by a chat-bot (“press ONE for reception”), that’s AI. When your streaming service recommends a new TV series for you, that’s AI. When your car suggests you avoid the freeway to shave ten minutes off your travel time? Yes, this is AI too. These kinds of AI operate largely in the background – and most of the time we probably don’t even notice that the AI is there, helping us. With the arrival of generative AI, the use of AI more generally has come rightly under scrutiny and required schools and other organisations to balance risk and opportunities inherent in the emerging technology and its ever-changing capabilities.
There is no doubt that AI has arrived, and it’s not going anywhere. Your staff and students are already using AI in every day school life, sometimes without knowing, and at other times knowingly but without adequate safeguards and guidelines.
As with any tool, AI can be used for good, or as a weapon to cause harm. Just last week, a Victorian school student was reportedly expelled for using AI to generate ‘deepfake’ nude images of female students in grades 9-12. A deepfake is a kind of image that takes a persons’ face (for example) and places it on a completely unrelated body. The result is an extremely convincing fake image a person in a situation that never occurred; often engaging in explicit or otherwise harmful activities. The technology can also create very convincing fake videos – recent news reports suggest that AI was used in the United States by an aggrieved school employee to frame a school principal with making racist remarks. The kind of AI that ‘creates’ content like this is called Generative AI. Generative AI can create images, write recipes, poetry, and even compose music. One of the scary things about generative AI is that practically anyone can use it: it is readily available and requires no special skills or training. Young people are increasingly accessing and being harmed by others using generative AI in the school environment.
AI can, on the other hand be used to help you streamline your school’s business operations, support student learning and help you draft documents by giving useful feedback on documents and suggest improvements. However, even when used with good intentions, AI can pose risks to you and your organisation. Schools have a duty of care to protect students from reasonably foreseeable harm. If the proper safeguards are not in place, the use of AI in your school could place your staff and students’ personal information and safety at risk, as well as expose your school to regulatory sanctions, or even legal action.
AI needs to be fed information in order to generate output. For example, AI can’t make a deepfake image without being given somebody’s photos to use and manipulate. It can’t write an article without being told what it is about and the kind of language to use (we assure you this article however is 100% human-authored!) This information in, information out process is where a lot (but not all) of the risk arises. AI is hungry for information, and you can never be sure what will happen to information once you feed it into the system. Some of the key risks that can arise from AI-use are outlined below.
Let’s say you want AI to help you generate a new and more efficient way to prioritise student enrolment offers. To do this, you feed the AI existing student applications and the current rules your school uses to prioritise offers. The AI might then sort through the information you fed it and suggest a new way to organise or use that information to your benefit – wonderful! However, unbeknownst to you, you have just ‘disclosed’ (per APP6) students’ personal information to the internet at large. AI systems could potentially be used to track students’ online activities, infer sensitive information, or make predictions about their future behaviours or outcomes. These scenarios could infringe on students’ privacy rights and autonomy. The second you enter information into AI, you lose control of that information. It is now ‘on the internet’ forever.
This inadvertent disclosure of information could constitute a Notifiable Data Breach and attract regulatory sanctions from the Office of the Australian Information Commissioner (OAIC); particularly as enrolment applications generally include information about the health, and religious, cultural or racial identities of prospective students. It could also lead to serious harm to the people whose information has been disclosed – not to mention the reputational damage to your school.
Imagine that you would like to use AI to improve your school’s suite of policies and procedures. AI could potentially give useful feedback on how to streamline and otherwise improve your operational documents. However, as with the above example, you can only get out of AI what you put into it. In order to have AI assess and critique your policies, it needs to read them. Once you have given that commercial information to the AI, it will use it again to help it ‘learn’ and respond to other users’ questions. Perhaps your school’s valuable intellectual property will be used by the AI the next time anyone asks it to write a policy. If you don’t want to share your commercial-in-confidence material or intellectual property with the entire internet, beware of feeding it into the AI.
The risk also presents in the other direction. Imagine the AI suggests you re-write your procedures a certain way and you implement that suggestion. Then, to your horror, your school is sued for using another organisation’s intellectual property without their consent. It turns out the AI had given you a copy of someone else’s documents to use, and you had no idea. Without knowing it, your school has now infringed on somebody else’s copyright.
AI can be used in schools to personalise learning, provide real-time feedback and create immersive educational experiences. It can be used to develop teaching and assessment tasks and streamline assessment and grading. Be wary, however, of relying too much on AI to help you grade and assess student work (or to perform any other tasks involving students). Although AI could help you to save time and create engaging materials, keep in mind:
There are countless benefits and risks associated with using AI. Below are some tips to help you prepare for, respond to and use AI, while minimising the risk to your school and community:
Our Education team is in demand for up-to-date, informative and entertaining staff PD on privacy matters including AI. We can prepare all policies and procedures and assist organisations to maintain best practice in privacy and data protection. If you have existing policies, our team can assist with reviewing and updating these policies to ensure your organisation continues to mitigate risks posed by new technologies – you might be surprised by the gaps which exist! We can also provide tailored, interactive training to your organisation on your obligations under the Australian Privacy Principles, and other regulatory schemes in your jurisdiction.
The Age has reported that Preshil in Kew is selling a section of its campus to help meet its payroll tax bill and other liabilities. Numerous independent schools we advise in Victoria are grappling with how to cover their payroll tax bill from 1 July 2024, on top of already increased operation costs in this high inflation environment. Preshil will not be the only school looking at a land sale to free up some cash. But while a sale of school land is a quick way to get some money, once the land is sold a school loses the ability to grow its student numbers at that campus as much as it otherwise could have. This article considers some of the other things schools could do with their (currently) surplus land to generate money while preserving their future ability to develop and grow.
If a school has unused land or space, selling is not the only way to put it to use. A lease can generate income while preserving the long-term options for the land. Long-term ground leases can work particularly well for vacant land with no foreseeable use for the school. A long-term ground lease can often justify a tenant undertaking building works, the cost of which can be amortised over a long period (typically 20+ years). A council, other education provider or retirement village operator may be happy to take a long-term lease and build a facility approved by the school. Following the expiry of the lease, the land and its improvements revert to the school for it to use as it sees fit.
Some schools may consider improving their surplus property before leasing. This approach requires the school to spend in order to obtain a higher rent from a commercial tenant than it would under a ground lease referred to above where the tenant undertakes the works. These developments could be ones where the tenant gets exclusive possession or ones for joint use between the school and the tenant. Examples of joint use developments include facilities that can be used for weekend tuition or sport facilities hired to clubs or leagues. For schools that are cash poor, which many are in 2024, the significant upfront investment required may make this option unviable.
This scenario is worth considering where a property has potential for multi-level development. The basic concept is for the school to retain facilities (either existing facilities or new facilities) at ground level but sell the right to develop above those facilities. While this option does involve the loss of long-term development potential, a new school building at the bottom of a multi-level development may sufficiently future proof the school such that the air rights above that building will never be needed. There are a range of considerations around this option, starting with what use is a suitable ‘neighbour’ for the school and whether the school should take the role of being the developer and sourcing the finance. Some schools may prefer just to be the landowner with oversight and rights required to protect its interests.
This article outlines just three alternatives to selling school land. There are other alternatives, including combinations of the ones outlined above. This article has done its job if it encourages a school thinking of a land sale to consider options which better preserve the school’s ability to grow. While it can be difficult for schools to fully understand and explore their options when it comes to dealing with their land, a school should not sell the family silver before it has done so.
Moores has a strong history of supporting the education sector, from independent and catholic schools, to early childhood providers, higher education and education governance and industry bodies.
We are more than happy to guide your school through the process of determining how to best utilise any surplus land.
Suppose a parent calls your office and requests their child’s counselling records? Or a court order lands on your desk seeking access to counselling notes? Or perhaps, your school counsellor raises concerns about a student’s wellbeing and wants to discuss information shared in a counselling session? When can you disclose a student’s counselling records and when should you not? This is a question that is becoming increasingly problematic for schools. The answer lies in balancing the duty of care with confidentiality and privacy requirements. This article will set out your legal obligations and answer some common questions in this space.
Schools owe a duty of care to their students and all children under common law and state-based legislation. The duty is generally to take reasonable care to protect students from harm which is reasonably foreseeable. Several states including New South Wales, Victoria, South Australia and Queensland have reversed this onus in relation to child abuse caused by an individual associated with the organisation.
To help facilitate student wellbeing, most schools have a counsellor, psychologist or pastoral care available to students. In these sessions, personal information will be collected by the school including medical information, relationship status, familial issues, disclosure of bullying or mental health concerns and other sensitive information.
Schools are required to handle this information in accordance Privacy Act 1988 (Cth) (Privacy Act), the Australian Privacy Principles (APPs) and state-based legislation. For example, the information collected can only be used for the primary purpose (in this case being the provision of counselling services) unless a permissible secondary purpose exists. Permissible secondary purposes include those related to the primary purpose, where consent is provided, the disclosure is authorised under Australian law or a court order or a permitted health situation exists. The Australian Psychological Society takes the position that a psychologist is obliged to release information when “required by law”, which includes the law which imposes a duty of care on schools.
Do I need the student’s consent to disclose their counselling records to their parents?
It will depend on the age of the student. The Office of the Australian Information Commissioner (OAIC) recognises that a child’s capacity to consent to the handling of personal information needs to be determined on a case by case basis depending on the maturity and ability to sufficiently understand what is being proposed. As a general rule, schools can presume that students aged 15 and over have capacity to consent. While the Privacy Act doesn’t currently specify a specific age, predicted amendments may define a child as 15 or 18. For Victorian schools, the Victorian Privacy and Data Protection Act 2014 (Vic) defines a child as someone under 18 years of age, but does not specify the age when individuals can make their own privacy decisions.
Many secondary schools state in their policies or counselling intake or permission forms that all students from year 7 will be required to give consent for the release of their counselling records (unless an exception applies). We recommend that schools decide what their policy will be and embed this into their documents to ensure there is clarity amongst students and parents.
What if one parent is requesting the information but the other parent or student does not agree?
Schools can be caught in a tricky situation where parents disagree on the disclosure of counselling records, especially if the parents are separated or in the process of separating. First and foremost, if the student is able to consent, the school should seek the student’s consent. This rings true with other child safety obligations for the empowerment of children. If the student does not, or is unable to, consent, schools should seek consent from both parents before disclosing any records. This is particularly where the records contain sensitive information. If the parents cannot agree on the disclosure, the school should request a court order before disclosing any records.
What about requests from third parties?
Schools should be careful about releasing counselling records or information to third parties without the proper consent from the student or their parents. Schools should always require any such request to be in writing. If the student or their parents do not consent, it may be that the school requires further advice on whether or not they are required to provide the records. Most states (Victoria, NSW, Queensland, South Australia) have introduced information sharing schemes, as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse, which permit the sharing of confidential information to organisations in limited circumstances for the purpose of safeguarding children. We explain the Victorian Child Information Sharing Scheme here. In the absence of an applicable information sharing scheme or court order permitting a disclosure to a third party, refer to APP 6.
What about requests from former students about their own records?
We have received queries from schools concerned about providing former students with their own counselling records, especially where the former student may be considering a historical child abuse claim or other claim against the school. APP 12 requires organisations give individuals access to their own information on request. While there are some exceptions to this, they are limited. One such exception is if the record includes personal information belonging to other individuals and the sharing of that information would have an unreasonable impact of those other individuals. If an exception applies, the school may have grounds to refuse or redact information. More information about handling information access requests is here.
The counsellor, psychologist, wellbeing officer or chaplain is concerned about a student – what should we do with this information?
Where a staff member is concerned about a student’s wellbeing, that staff member can share that information within the school with other limited and appropriate staff for the purpose of the student’s safety or the discharge of the duty of care. Always share information in accordance with your policies and procedures. While the privacy obligations under the Privacy Act apply to the school not the individual, internal sharing of the information should be on a need to know basis. At the same time, the school needs to ensure that it is fulfilling its duty of care. Where concern for a student’s wellbeing rises to the level of needing to make a report to an external organisation such as Child Protection, this should be done and is an exception to obligations under the Privacy Act (see below).
When do I have to provide counselling records?
There will be situations when the school is required to disclose the information held in counselling records. This includes:
The above situations (amongst others) are exceptions under the Privacy Act and the disclosure of information without consent is permitted.
Managing requests and disclosures of counselling records is a difficult topic and often requires decisions to be made in short timeframes. Where records are incorrectly disclosed, schools could find themselves at risk of various claims including breach of privacy (with increased significant maximum penalties) or negligence. To mitigate these risks, we recommend that schools:
At Moores we have a specialised team that supports the education sector on a variety of areas including privacy and data security. This makes us well placed to assist schools in the careful balance of duty of care with confidentiality and privacy requirements.
We are more than happy to guide you through the process of determining your obligations in disclosing a student’s counselling or pastoral care records.
This article was originally published November 2019. Updated June 2024.
Acting as an attorney can be complex, risky and a thankless job. Attorneys take on significant responsibility, and often don’t seek advice about their responsibilities when they sign-on to accept the role. Making impactful decisions on behalf of another person can be daunting and can give rise to personal liability if things go wrong or if there is a dispute among interested parties.
The person who appoints an attorney to act on their behalf via an Enduring Power of Attorney (‘EPA’) is known as ‘the principal’.
Before acting as a principal’s attorney, the EPA document should be carefully reviewed. It will identify who is appointed as attorney, set out the circumstances when they may act, and may impose conditions or limitations on the actions that can be taken.
Attorneys are regularly required to account for their conduct and the transactions they have entered on behalf of the principal. Accordingly, it is strongly recommended that attorneys obtain their own advice and ensure they keep detailed records and accounts of what they do in that capacity.
If the principal has decision-making capacity, an attorney cannot act on their behalf unless the EPA document expressly states that the appointment commences immediately.
Often appointments that commence immediately are done for reasons of convenience rather than necessity. But, even if a principal with decision-making capacity gives an attorney an express direction to perform a task or transaction on their behalf, an attorney is still bound to act in accordance with their legal responsibilities and duties enshrined in law.
It is important to remember that, whilst a principal may have capacity at the time, disputes often arise after the principal has lost capacity or passed away and they cannot then ‘vouch’ for the decisions made. There can also be disputes about when decision-making capacity was lost for relevant decisions and when the attorney assumed responsibilities under the document.
An Enduring Power of Attorney will authorise the attorney/s to act when the principal no longer has decision-making capacity – that is the enduring nature of the power.
Decision-making capacity is a legal definition; it is decision specific and is a fluid construct. Detailed evidence of the loss of decision-making capacity should be obtained from appropriate medical practitioners and attorneys should seek legal advice when this occurs. It is important to clarify what decisions the principal has lost decision-making capacity to make and what decisions they can continue to make, either autonomously, or with support.
If the principal has appointed a single attorney, that attorney will usually be the proper person to act. Commonly, a principal will appoint multiple attorneys, who may be authorised to act jointly only, jointly and severally, and/or as alternative attorney/s where the primary attorney is unable or unwilling to act.
Joint attorneys must act together; meaning they must agree on each decision and all sign any relevant documents. If there are joint and several attorneys, any one of them may make a decision or sign a document. Where a person is appointed as an alternative attorney, they will only be authorised to act if the superiorly appointed attorneys are unable, unwilling, or no longer authorised to act.
Selling a family home may attract scrutiny and, even if done at the direction of the principal, should not be done without advice.
If there are no conditions or limitations in the EPA that affect the sale of the principal’s property, an attorney must then consider whether the sale accords with their responsibilities and duties as an attorney under the document and under the Powers of Attorney Act (Vic) 2014.
An attorney must:
Any attorney in this position should ask themselves (and other knowledgeable persons and advisors):
When considering whether to take any significant action, obtaining legal advice will always be prudent. Where there is doubt about what the right decision is, an attorney can also seek advice from the VCAT about what to do, which can protect them from liability if the decision is disputed.
Our team at Moores have specialist knowledge in the areas of Powers of Attorney, guardianship and administration, and applications in the VCAT and the Supreme Court of Victoria, including in relation to issues of elder financial abuse. We would be pleased to discuss any proposed or concerning actions taken by any person in their capacity as an attorney.
Moores Practice Leader, Rebecca Lambert-Smith and Associate Yoni Ungar, sit down in a Moores Q&A to discuss the new reforms to the Australian government’s Deductible Gift Recipient (DGR) registers.
These new reforms will ease the administrative burdens for cultural, environmental, harm prevention and overseas aid charities, however most organisations will not benefit from these reforms until they make key changes to their governing documents. If your organisation may be able to take advantage of the flexibility these new reforms provide, we have detailed some of the key information you need to know.
Vacant Residential Land Tax (VRLT) has been a hot topic over the last 12 months, with a number of changes introduced to impose further land tax on vacant properties in Victoria. Our recent articles set out the history of these recent changes:
On 14 May 2024, the State Taxation Amendment Bill 2024 was introduced in Victoria which proposed to address one of the current limitations of the VRLT legalisation – the land tax treatment of holiday homes owned in discretionary trusts or companies. The changes proposed have not yet been enacted.
The proposed changes purport to extend the exemption from VRLT for holiday homes held in a family trust (and some companies and unit trusts), but with some strict eligibility requirements.
At present, the holiday home exemption will usually only apply to personally-owned properties – that is, where the registered proprietor is an individual. The exemption currently operates such that if the property is used by the ‘owner’ or their ‘relatives’ for a total of four weeks of the 2024 year, VRLT will not apply. As it stands, properties owned by trustees of discretionary trusts or companies (as the ‘owner’) cannot qualify for this exemption.
The proposed amendment will address this restriction for existing trust- or company-owned holiday homes, extending the exemption so that it is available in the following circumstances:
Importantly, these changes do not include holiday homes acquired via discretionary trust structures or companies after 28 November 2023, and would also seem to exclude holiday homes being inherited via a testamentary trust structure under a deceased owner’s Will, where the owner died after 28 November 2023.
The amendments also do not extend the alternative “work test” exemption to VRLT to trustees or companies. That means if the property is used by a person to stay there for work purposes, the property still needs to be held in the personal name of that individual in order to qualify for exemption.
In cases where holiday homes are owned via companies or unit trust structures, at least 50% of the shares or units in such structures will need to be held by natural persons who hold a principal place of residence elsewhere in Victoria or the other Australian states. This requirement is going to be restrictive, as it is typical for shares in companies and units in unit trusts to be held via alternative structures, such as discretionary trusts.
While the proposed changes to this law go some way to provide comfort to those who already own their homes via family trust or company structures, these anticipated provisions seek to ‘grandfather’ the changes only to existing ownership structures, and do not extend to acquisitions since 28 November 2023 or beyond (including for inherited holiday homes via testamentary trusts).
The technical and strict eligibility requirements for the holiday home VRLT exemption require careful consideration of the use of the relevant property and the terms of the relevant trust deed to verify whether the proposed exemption can apply.
Our Wills, Estate Planning and Structuring Team and our Residential Property Team are across the complex issues raised by the ever-changing VRLT, land tax and structuring areas and would be glad to help you or your clients to navigate the new and proposed rules.
Please contact us for more detailed and tailored help