Is your not-for-profit (NFP) contemplating a merger? This is part one of a five-part article series that will offer some practical guidance to your board or merger advisory committee. Subscribe to receive the remaining articles in the series.
There are fundamental differences between a NFP merger and a for-profit merger. It is critical to understand these differences, as they will inform the drivers for the merger, influence the scope and focus of the due diligence process and impact the available merger types.
The drivers for a merger are different. For-profit mergers typically focus on growth and shareholder value – whether through increasing market share, reducing competition or increasing sales. By contrast, NFP mergers are usually purpose driven. NFPs considering merger want to ensure that the merged organisation will better fulfil their vision and mission and better serve their beneficiaries. This means that alignment of purpose is a primary consideration. For many merger types, alignment of purpose is also an essential requirement to permit the transfer of assets from one entity to another or preserve tax concessions and endorsements.
Since a for-profit merger is often structured as a purchase, valuation is a key consideration in the due diligence process – is the “acquiring” organisation paying a fair price? An NFP merger usually involves the transfer of assets for no cost. This means that an “acquiring” NFP’s focus in the financial due diligence process is not on price, but rather on overall financial risk – would the merger introduce unsustainable levels of financial risk or liability that could adversely impact the merged NFP?
NFPs are subject to different or additional regulation. NFPs that are registered charities are regulated by the Australian Charities and Not-for-profits Commission (ACNC). NFPs and charities are often income tax exempt and may have tax deductibility, which impacts what they can do with their assets, including in a merger process. It is imperative that directors are aware of and actively monitor the NFP’s compliance with legislation, regulations and standards such as the ACNC Governance Standards.
Finally, NFPs have specialised legal structures (including companies limited by guarantee (CLG), incorporated associations (IA), unincorporated associations, co-operatives and charitable trusts). These structures (and their limitations and opportunities) are not always well understood outside the NFP sector and will impact the available merger types. For example, most jurisdictions require an IA to have more than one member, which means that those IAs cannot merge to become a subsidiary of another NFP. A CLG on the other hand can have a single member or multiple members and can implement most merger types (more on this in part two of the series). Amalgamation is a process available only to incorporated associations which allows two or more incorporated associations in the same State or Territory to become a single incorporated association. The legal structure of merging NFPs and the chosen merger type will determine whether member approval is required to enable a merger to proceed.
It is essential that your advisors (lawyers, accountants and consultants) supporting the NFP merger take these important differences into account throughout the merger process.
Considering a merger? Moores specialises in working with NFPs and understand the unique considerations that apply to NFP mergers. Reach out to our Charity and Not-for-profit Law team if you would like more information on how we can provide support at any stage of the merger process.
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.
Enterprise agreements can result in many benefits for employers and employees by tailoring terms and conditions of employment to a particular employer, resulting in increased productivity and flexibility.
One of the objectives of the Fair Work Act 2009 (Cth) is to achieve productivity and fairness through an emphasis on enterprise-level collective bargaining. However, the process for negotiating, approving and implementing an enterprise agreement can seem daunting and confusing. Statistics show a decline in enterprise agreement coverage: the proportion of employees covered by an enterprise agreement decreased from 43% in 2010 to 35% in 2021.
The Fair Work Commission has published a Bargaining Discovery Research report summarising the findings of research it commissioned to better understand the perceptions, knowledge and information needs of parties in relation to enterprise bargaining and making enterprise agreements.
The research, which focused on the experiences, observations and suggestions of employers and employees with either no or limited experience in bargaining, found:
The Fair Work Commission has implemented changes to reflect its increased role in facilitating enterprise bargaining, including establishing a specialised bargaining support team, advisory groups and targeted resources for users.
For employers contemplating bargaining, the complexity of Australia’s Federal enterprise bargaining framework has increased as a result of recent legislative changes. Those include:
Our Workplace Relations team can assist employers with all aspects of enterprise bargaining, from the beginning to the end of the process. Our team is well placed to advise and guide employers on this increasingly complex and technical area of industrial relations so they can confidently approach the bargaining process and negotiate enterprise agreements that bring maximum benefits to their organisation.
The recent inquiry report by the Productivity Commission “Future Foundation For Giving” (the Report) sheds light on the evolving landscape of philanthropy in Australia and offers comprehensive recommendations to foster a more robust philanthropic sector. This article provides an overview of the Report’s history, key findings and recommendations aimed at enhancing philanthropic activity across the nation.
The Report was commissioned to evaluate the effectiveness of current policies and practices and propose strategies to improve the impact of charitable giving. With a focus on identifying barriers to philanthropic growth and exploring ways to encourage more Australians to contribute to charitable causes, the Report aims to promote a more giving society.
The Report highlights several findings about the state of philanthropy in Australia:
The Report recommendations aim to address the identified barriers and leverage opportunities for growth. These recommendations are not binding and will only be implemented if and when they are adopted by the Federal Government.
Some of the key recommendations include:
The Report provides a comprehensive roadmap for enhancing charitable giving in Australia. By simplifying regulations, enhancing tax incentives, promoting a culture of philanthropy, supporting innovation, strengthening collaborations, measuring impact, improving data collection and increasing accountability, these recommendations aim to create a more vibrant and effective philanthropic sector.
While the Federal Government has already made some initial comments with respect to the Report (including notably that they do not intend to remove the school building fund DGR category), we await any formal response and indication as to whether or not any of the Report’s recommendations will be adopted.
Our Charity and Not-for-profit Law team continue to stay up to date on the latest updates to the sector. We can can provide you with practical advice and guidance on how to navigate any changes to ensure your charity or not-for-profit organisation is meeting its obligations.
The Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (Cth) (the Act) introduced a suite of significant workplace reforms when it was passed earlier this year. Several of these reforms are scheduled to take effect on 26 August 2024, with some changes for small business employers starting on 26 August 2025. This update briefly summarises these reforms and serves as a reminder for employers to prepare for the upcoming changes. You can read our earlier article for more information.
The Act introduces a right for employees to refuse to read, respond or monitor communication from employers or third parties outside their paid working hours unless that refusal is unreasonable. The change starts on 26 August 2024 for non-small business employers and 26 August 2025 for small business employers. Additionally, the new right will be a ‘workplace right’ for the purpose of the Act’s general protections regime, meaning an employer must not take ‘adverse action’ against an employee for exercising their right to disconnect.
Employers may take several steps to prepare for this new workplace entitlement, including, but not limited to, the following:
The Act introduces two key changes regarding casual employment.
From 26 August 2024, an employee will be a ‘casual employee’ where:
This reform signals a move away from an employee’s casual status being assessed based on the contract only, to being assessed having regard to what happens in ‘practical reality.’
The Act also removes the existing casual conversion provisions in favour of an “employee choice” framework. Under this new approach, casual employees can initiate the conversion process themselves by providing their employer with a written notification, so long as they meet the eligibility requirements under the Act.1 Employers must respond in writing within 21 days of receiving the request and set out whether they accept or deny the conversion.
Transitional arrangements mean the application of the new laws will be phased as follows:
The Act contains a new definition of ‘employee’ and ‘employer’ which will require a multiple factor assessment to determine if a person is an independent contractor or employee. The emphasis is now on the ‘totality of the relationship’ which is determined by examining the ‘real substance, practical reality, and true nature of the relationship.’
This legislative change will only be relevant for determining entitlements under the Act. Whether a person is an ‘employee’ for the purposes of taxation, superannuation and workers compensation will continue to be determined by other tests. The provisions containing this new definition commence on 26 August 2024.
There are other changes set to commence on 26 August 2024 which may impact some employers. These include laws about unfair contract terms, workplace delegates rights, road transport regulation and regulating employee-like workers.
The Act has also introduced a new federal criminal offence in relation to certain types of intentional underpayments. The offence will commence on 1 January 2025, or an earlier date as declared by the Minister.
An employer will commit an offence if they intentionally engage in conduct that results in a failure to pay the required amount to an employee on or before the day when the required amount is due to be paid. This offence applies only to entitlements under the Fair Work Act 2009 (Cth) or relevant fair work instruments, such as modern awards or enterprise agreements, and does not extend to contractual entitlements. There are also specific types of payments to which the new criminal offences do not apply.2
The Act includes ‘safe harbour’ provisions allowing the Fair Work Ombudsman (FWO) to enter into a written ‘cooperation agreement’ with an employer who has self-reported. However, The FWO ultimately retains discretion over whether to approve such an agreement.
Under a cooperation agreement, the FWO will not refer the disclosed conduct to the Director of Public Prosecutions (DPP) or the Australian Federal Police (AFP) for prosecution. However, this does not prevent an FWO inspector from initiating or continuing civil proceedings related to the conduct.
The wage theft offence will carry a maximum penalty of:
Our Workplace Relations team can provide you with practical advice and guidance on how to navigate these upcoming changes to ensure you are meeting your obligations under the new laws. We can provide assistance drafting changes to policies and employment contracts to reflect your organisations expectations of afterhours contact, as well as reviewing casual, fixed-term and independent contractor working arrangements to ensure they are engaged lawfully.
1 Fair Work Act 2009 (Cth) s 66AAB.
2 These include superannuation fund contributions, long service leave payments, paid leave for being a victim of crime and paid leave for jury service or emergency service leave.
Engaging the same worker for multiple roles across an organisation has undeniable benefits for the employer, including benefiting from the worker’s pre-existing knowledge and experience in the organisation, and familiarity with their work ethic and skills. However, employers should be mindful of the risks where these arrangements are not executed carefully.
The number and prevalence of people working multiple jobs has increased steadily since the onset of the COVID-19 pandemic. Between 1995 and 2019, the multiple job-holding rate was between 5.0% and 6.0%, and following the large decline during COVID, rose to 6.7% at March 2024.1 Workers in the community and personal service industry as well as the administrative and support service industry are the most likely to be multiple job-holders.2 It also appears common for multiple job-holders’ second job to be in the same industry as their main job. For example, most female multiple job-holders whose main job is in health care and social assistance also have their second job in Health care and social assistance.3
Where a worker’s second job is with the same employer, this can have more onerous and complex implications for the employer. The question arises as to whether the employer needs to consider both jobs together when making decisions around rostering, maximum hours of work, overtime payments and other employee entitlements, or whether each job can be considered in isolation. This question was considered in the Federal Court decision of Lacson v Australian Postal Corporation (AusPost),4 discussed below, with the principles reaffirmed in Kroeger v Mornington Peninsula Shire Council.5
In Lacson v AusPost, the Court considered the question of whether the work performed by Lacson for AusPost at two different locations, at two different times, and in the performance of two different sets of duties should, for the purposes of the relevant enterprise agreement, be seen as a single employment for the purposes of section 52(2) of the Fair Work Act (Act).6 Section 52(2) states that “a reference… to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.”
Lacson worked three hours per day until 9:00am in his Postal Delivery Officer role. He would then commence his Postal Services Officer role from 3.00pm until 7.30pm. In or around 2010, Lacson obtained further hours in his Postal Services Officer role such that he continued working from 7.30pm until 11.21pm. He would then start his Postal Delivery Officer role the next morning at 6.00am.
Lacson’s claims included that:
There was no dispute between the parties that both roles fell within the relevant AusPost enterprise agreement (albeit under separate classifications and pay rates). Another relevant factor included that pay for both roles was initially recorded on a single payslip, however in August 2010, AusPost changed its payroll system and Lacson subsequently received separate payslips for his Postal Delivery Officer and Postal Services Officer roles.
The main issue for decision by the Court was the application of the words “particular employment” within section 52(2) of the Act. If both of Lacson’s roles together formed one “particular employment”, then he would be entitled to the overtime and penalty rates sought. However, if each role referred to a separate instance of employment, then he would not be entitled to these payments as each role would be siloed for the purposes of the enterprise agreement.
Notably, the Court was satisfied that the word “employment” referred to the act of contracting to employ a person, whereas “particular employment” referred to the job the person performs because of that contract.
The Court found in favour of AusPost, holding that each role held by Lacson was a separate and distinct employment, and therefore the entitlements under the enterprise agreement applied separately to each role. As a result, AusPost were not required to make the additional payments for overtime and penalty rates requested by Lacson. The Court’s rationale included that:
It is open to employers to engage employees in different roles in the employer’s enterprise; this is not new. However, employers may also be able to treat each engagement separately for the purposes of entitlements under an applicable enterprise agreement (or modern award).7 Where each role is clearly separate and distinct, employers will not need to consider both roles together when calculating entitlements such as overtime, rest break penalties and meal allowances (unless an applicable enterprise agreement or modern award provides otherwise).
However, employers should remain mindful of their OH&S obligations to employees, employees’ physical and mental wellbeing, as well as how rostering may impact productivity and efficiency.
Steps that employers can follow to maintain separation and distinction between roles include:
By taking the steps above, employers can successfully manage multiple-job holders, while mitigating against issues relating to underpayments, termination of engagements and other employment considerations.
Below are some examples of employees with multiple roles and how an employer should manage their employment.
Sherrin Secondary School employs Sarah as an English and Health Teacher. The School knows that Sarah was an amateur football player, and asks her if she would like to take on an additional role as the School’s Football Coach. Sarah is provided with a separate contract of employment outlining her duties as Coach which include organising training sessions, selecting and managing the team, and ensuring the safety of students during training and games. She is rostered to perform her Coach role after school hours and on weekends, and she is provided with a separate payslip for her hours worked. Sarah’s roles would likely be viewed as distinct and separate, for the purposes of entitlements under the applicable enterprise agreement that covers both roles.
Greenway Care Services employs John as a disability support worker. However, he is sometimes asked to also act as a driver, driving patients to appointments. He has only received one employment agreement for the disability support worker role, however his enterprise agreement also covers drivers.
Whether he is required to drive patient transport depends on the availability of other drivers on the day. Because of this, Greenway does not roster him separately for each role. John is not provided with separate payslips, however his hours and payments for each role are set out in the payslip. It is unlikely that John’s roles as a disability support worker and driver would be viewed as sufficiently distinct and separate, and so Greenway should be treating both roles as one for the purposes of his entitlements.
Our Workplace Relations team can provide you with practical advice and guidance on lawfully engaging employees under multiple jobs within your organisation, to ensure you are meeting your obligations under the Fair Work Act and relevant industrial instruments, and mitigating against the risk of underpayment claims. We can assist with reviewing and drafting employment contracts and position descriptions, as well as providing advice on your obligations under industrial instruments, including any specific requirements where an employee performs multiple jobs within the organisation.
1Australian Bureau of Statistics, Multiple job-holders, ABS website (accessed 22 July 2024) https://www.abs.gov.au/statistics/labour/jobs/multiple-job-holders/mar-2024
2Ibid.
3Ibid.
4[2019] FCA 51.
5[2019] FCCA 2313.
6Fair Work Act 2009 (Cth) s 52(2).
7Section 48 of the Fair Work Act contains a similar provision to section 52(2) regarding the terms of a modern award applying to each “particular employment”.
There are a number of amendments to the Family Law Act 1975 (Cth) (the Act) that will change the approach to parenting matters. This article explores four key changes to the Act that directly impact families and children.
The amendments to the Act aim to make the family law system safer and simpler to understand for separating families to navigate, and provide the Federal Circuit and Family Court of Australia (the Court) with more discretion to determining parenting arrangements.
The changes to the Act do not apply retrospectively. This means the new law is only applicable to matters that are decided by the Court after 6 May 2024, not before.
The most important consideration in determining arrangements for a child will remain the same as it was previously – that arrangements must be made in their “best interests” and not in the interests of the parents.
Prior to the new amendments, when asked to determine what was in a child’s best interests, the Court focused on two primary considerations and 14 additional considerations. Due to the new amendments, that list is now shorter with only six “general considerations” and two “further considerations” (applicable only if a child is Aboriginal or Torres Strait Islander). The list of considerations is non-hierarchal and the Court is not required to place more weight to any one factor over the others. The six general considerations when determining the best interests of the child are:
In considering the above matters, the Court must take into account:
As has always been the case, the Court must give greater weight to the need to protect a child from physical or psychological harm or from being subjected to, exposed to abuse, neglect or family violence over the benefit of a child having a meaningful relationship with both parents.
For an Aboriginal or Torres Strait Islander child, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture is given particular importance.
Before the amendments to the Act, the law required the Court to presume that “equal shared parental responsibility” was in the best interests of a child. This often meant the parents had joint responsibility for making long term decisions for a child, such as those relating to schooling, health or religion. The presumption however did not apply if there were reasonable grounds to suspect harm, neglect, abuse or family violence.
The presumption was removed due to a misconception amongst the community that “equal shared” parental responsibility accorded to a child spending equal time with parents. The Court will now tailor decisions about parental responsibility, renamed as “joint decision making” about long term issues, to the circumstances of the particular child and their parents.
As has always been the case unless other ordered by the Court, if it is safe to do so, parents of a child are to consult with each other about major long term issues in relation to the child, and when doing so, have regard to the best interests of the child as the paramount consideration.
Now, with the removal of the presumption, it is more likely that parenting orders will allow a parent to have ‘sole parental responsibility’ for all or some long term decisions for a child. As a consequence of the removal of the presumption of “equal shared parental responsibility” the Court is no longer required to consider the pathway of equal time or substantial and significant time arrangements for a child where equal shared parental responsibility applied.
The amendments aim to reduce pressure to agree to parenting arrangements in circumstances of family violence, and give the Court more discretion to decide parental responsibility and care arrangements.
There has always been an ability to apply to the Court to amend final parenting orders pursuant to the case of Rice v Asplund if:
The intention of Parliament was to codify the rule in Rice v Asplund within the Act. A recent case heard by Judge O’Shannessy suggests the Act may not have actually “codified” Rice v Asplund. Under the relevant section a, “significant change in circumstances” is not a pre-requisite or threshold to re-open the proceedings, but rather a factor to be taken into consideration.
The changes to the Act also provide that the Court may regard the following factors when considering whether to entertain a new application after final parenting orders are made:
What is still the same is the principle that continued litigation over a child is generally not in their best interests.
An Independent Children’s Lawyer (ICL) is sometimes appointed to represent a child’s best interests in a family law matter. The Court may appoint an ICL when it needs to hear an independent assessment about the child’s best interests.
Prior to 6 May 2024, an ICL was not required to meet with or speak with a child they represented. Under the new amendments an ICL is obligated to meet with and speak with the child, unless:
This requirement allows the ICL to get first-hand information and views from the child, which can be expressed to the Court on their behalf. Some commentators are concerned this requirement may lead to a greater need for the child to engage with experts and advocates in family law proceedings (which is already acknowledged not to be in a child’s best interests) and create further pressure or influence on a child to express a particular view to the ICL.
Ultimately, how the Courts will adopt these changes and, in turn, what practical effect these changes will have on families is yet to be seen. Until formal decisions are made by the Court, there will continue to be an element of uncertainty.
Our Family and Relationship Law team understands that appropriate arrangements for the care of children following separation is a priority for parents. Often parents have different views about what is in their child or children’s best interests. The recent changes to the law may cause further uncertainty. Our empathetic approach and expertise can help guide you through the process and determine the best arrangements for your child.
This article was originally published 31 July 2024. Updated 16 August 2024.
The number of states and territories that have embedded child safe standards in legislation is growing. In 2024, Tasmania and the Australian Capital Territory introduced child safe standards, and a bill has been proposed in Queensland for the same.
These developments highlight a growing expectation that organisations engaging with children will take proactive steps to provide a safe environment for children. Following the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse, all jurisdictions have been guided by the nationally consistent approach set out in the 10 National Principles for Child Safe Organisations. However, in light of the broader application of child safe standards in legislation, more Australian jurisdictions are communicating a clear commitment to child safety, meaning that organisations should carefully consider strategies to ensure that child safety is a central consideration in all operations.
The 10 Child Safe Standards are derived from the National Principles for Child Safe Organisations as follows:
Victoria and New South Wales were early adopters of child safe standards, which were introduced in 2016 and 2020 respectively. In Victoria, there is an additional standard to address the cultural safety of Aboriginal children and young people.
In Tasmania, the 10 child safe standards were introduced under the Child and Youth Safe Organisations Act 2023, which requires prescribed organisations such as accommodation providers, religious entities, childcare services, child protection and out-of-home care services, disability service providers, and educational and health service providers to comply with the Child and Youth Safe Standards from 1 January 2024.
From 1 July 2024, a broader range of organisations are required to comply with the Child and Youth Safe Standards, including:
The Australian Capital Territory has also legislated the 10 child safe standards under the Human Rights Commission (Child Safe Standards) Amendment Act 2024. From 1 August 2024, all providers of services for children and young people will need to implement the Child Safe Standards in the Australian Capital Territory.
Queensland is also in the process of legislating the Child Safe Standards through the Child Safe Organisations Bill 2024, which was introduced into Parliament on 12 June 2024.
Organisations that engage with children in South Australia, Western Australia and the Northern Territory are encouraged to comply with the National Principles for Child Safe Organisations, but these jurisdictions are yet to legislate child safe standards.
Meeting the Child Safe Standards is not a tick the box compliance exercise and requires leadership, careful planning, changes in policies and practices, training, empowerment of children and young people, among other things. Organisations operating in multiple jurisdictions should consider adopting a consistent approach to protecting children from abuse and risk of harm, irrespective of whether compliance with child safe standards is required.
Our Safeguarding Team can:
If your organisation needs assistance in determining how these changes impact you, please contact our Safeguarding Team.
The breakdown of a marriage or de facto relationship can be an unsettling and stressful time.
As a starting point, we have prepared a booklet to answer some common questions you may have before and after a separation.
These steps do not have to be taken alone. We recommend you seek expert legal advice to guide you through the process and address all concerns specific to you and your circumstances.
If there has been family violence in the relationship, seek advice and support from a family violence professional or service.
Our separation booklet is a guide to taking the first steps in a separation. It covers frequently asked questions and provides an overview of a property settlement and parenting arrangements. Download your copy here.
You may feel daunted at the concept of meeting a family lawyer, however, having an initial consultation as soon as possible is empowering. It will allow you to obtain the knowledge you need to make informed decisions about your life after separation.
We recognise that every situation is unique. It is our goal to work collaboratively with you to achieve the best outcome. This involves understanding your situation, giving comprehensive advice and providing options as to how best to move forward.
We provide advice in relation to all aspects of family law including financial settlements and parenting issues. Importantly, we appreciate other support avenues are sometimes required for couples such as family therapy and counselling, and we have the insight and capability to make these referrals where necessary.
Please contact us for more information or to make an initial appointment.
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.
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.