Update: December 2023 – The changes to the vacant residential land tax (VRLT) laws have now passed into law, with the new bill receiving Royal Assent on 12 November 2023. Read more in our article here.

The Victorian government has this week announced significant changes to the vacant residential land tax (VRLT), which could have major impact on owners of holiday homes.

To avoid incurring an unexpected land tax liability, anyone owning a holiday home in Victoria will need to give careful consideration to the new rules and plan accordingly.  

What is VRLT?

VRLT is an annual tax collected by the State Revenue Office. It is separate and additional to standard land tax.

VRLT is calculated as 1% of the capital improved value of the property – this means a property with a capital improved value of $1.5m would incur a VRLT bill of $15,000 annually.

It is important to note that this is different to standard land tax, which is calculated on ‘site value’ (unimproved value).

Current operation of VRLT

Currently, only properties in the inner and middle suburbs of Melbourne are caught by the VRLT net. 

Properties in those areas are liable for VRLT in any calendar year where the property ticks all of these boxes:

• residential in nature (ie. currently able to be used solely or primarily for residential purposes, or land on which a residence is being renovated, or where a former residence has been demolished and a new residence is being constructed);
• vacant for more than six months in the preceding calendar year (the period of six months does not need to be continuous); and
• does not satisfy one of the legislated grounds of exemption.

The exemptions from VRLT include the following scenarios:

• Holiday homes – The property was used as a holiday home and occupied by the owner for at least four weeks of the preceding calendar year. To be entitled to this exemption, the owner must have principal place of residence (PPR) elsewhere in Australia. The holiday home exemption can only be applied to one property.
• Business use – The property was used by the owner to attend the owner’s place of business or employment for at least 140 days of the preceding calendar year.
• Change of ownership – The property changed ownership in the preceding calendar year.
• Renovations – Properties in the process of undergoing construction of a home or significant renovations will not be considered vacant for up to two years from a building permit being issued.

Importantly, residential properties owned by companies, organisations and trusts are generally not eligible for the first two exemptions.

Proposed changes to the VRLT

The Government is proposing to extend the current VRLT rules to the whole of Victoria with effect from 1 January 2025.

Further amendments will also be made to expand the type of land which will be subject to VRLT.

• The definition of ‘residential land’ is proposed to widen to include vacant land which has been unimproved for more than five years.
• It will also include land in metropolitan Melbourne which is not solely or primarily used for non-residential use.

Some additional VRLT exemptions have been proposed, including:

• Land that is contiguous to the owner’s PPR such as a swimming pool or tennis court; and
• Land that cannot be used or developed for residential purposes.

These further amendments and additional exemptions are scheduled to come into force on 1 January 2026.

What should you do?

If the proposed changes are passed by the Parliament, there are a lot of people who could potentially receive a hefty and unexpected VRLT bill in 2025.

To reduce the chances of being one of those people, follow these tips:

• Anyone who owns more than one residential property in Victoria should consider taking steps ensure that their properties are not considered ‘vacant’ for more than six months in a year. Options available include:
  • Leasing the property out formally to a tenant (whether short-term or long-term).
  • Permit someone else to reside at the property as their PPR (a common scenario is allowing a relative to reside at a property – importantly, though, this cannot be on a casual basis, and the permitted person must be treating the property as their PPR).
  • Ensuring that the registered owner stays at the property as a holiday home for at least 4 weeks each year.
• If you (or your client) own land in a company, trust or other organisation’s name and use it as a holiday home or for business use, it is essential to seek advice as to whether any exemption will be available. This will also be relevant to properties intended to be held in a testamentary trust following a person’s death. If not, then one option could be to restructure the ownership of the property – for example, by distributing the property out of the trust to a beneficiary who uses the property as a holiday home. Such transfers can have potentially significant duty and CGT implications however, and so tax issues will need to be carefully considered before proceeding, along with the impact on any existing estate planning arrangements.

How we can help

The team at Moores is across the complex issues raised by the VRLT changes, and would be glad to help you or your clients to navigate the new rules.

We can assist with:

• Advising on the impact of the changes on a specific person’s landholdings
• Exploring options to ensure that a property is not vacant and caught by the VRLT regime
• Exploring potential restructuring options, including tax and estate planning and administration implications

Contact us

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.

In the ever-evolving landscape of legal practice, establishing meaningful connections with clients, particularly elderly ones, is paramount. Online communication with elderly clients demands patience, empathy and active engagement. For good reason, lawyers are often hesitant to obtain instructions from elderly clients online. 1 in 6 elderly Australians are subject to some form of abuse – financial abuse being the most common.

Teams-work makes the dream work: Zoom ahead with these strategies when engaging with vulnerable clients over video conference

Below are five strategies for lawyers to foster strong relationships with elderly and other vulnerable clients in the digital age, whilst effectively managing the inherent risk of taking instructions and signing documents online.

1. Understand the legal framework: Capacity is a fluid, decision-specific, legal construct that requires a practitioner to broadly assess a client’s ability to: understand information that is being explained to them, retain that information to the extent necessary to make a decision, use or weigh that information as part of making a decision and communicate the decision in some fashion. Be aware that the specific test for capacity is often enshrined in the law that governs either the document that is being signed or decision that is being made. It is also critical to understand whether the document that is being prepared can actually be signed electronically, or whether a wet-ink signature is still required.
2. Treat any online meeting as if it was in person: We often fall into the trap of treating an online meeting as purely transactional and failing to try and build rapport with the client. Assessing a client’s capacity, or whether they are being subjected to coercion or pressure from another person, is often best done in the ‘small talk’ that surrounds the subject matter of the meeting. During video calls, focus on maintaining eye contact with the client. A key tip is to deactivate the feed that is displayed of yourself in Zoom or Teams which will force you to look directly at the client and therefore better assess them and their environment.
3. Take your time: When communicating with elderly or vulnerable clients online, it’s vital to acknowledge the significance of time. Allow clients the space they need to express themselves fully. Be patient and avoid rushing through conversations. Give your undivided attention to the client, demonstrating your genuine interest in their concerns. Ask open-ended questions, avoid interrupting and instead, allow them to finish their thoughts. Acknowledge their emotions and concerns, validating their experiences. Avoid distractions by turning off email notifications and turning over your phone, and concentrate on their words, ensuring they know you are fully present.
4. Always be on your ‘A-game’: It can be tempting to act more casually when engaging with clients in an online environment, particularly if you yourself are also working out of the office. Given you are not in the room with the client, you are at a higher risk of unauthorised recording or eavesdropping, which may be later used as evidence against you in a professional negligence claim. In addition to ensuring that clients are vigilant about confidentiality and security risks, you should always be aware that you do not have full control over the meeting environment when done so online.
5. Don’t run away from technology: Clients with mobility or other health issues will often prefer an online meeting to an in-person meeting. Furthermore, capacity is best assessed when a client is in a familiar environment, and over the course of multiple meetings, which means an online meeting may be a more efficient mode of communication for all involved. In a post-Covid world, we not only find that we have better access to our clients, but they also have better access to us, which means that rather than delaying or avoiding matters altogether they are instead able to engage with us and obtain the advice they need.

In the digital age, the essence of human connection should never be lost. By integrating these strategies into online interactions and your practice generally, lawyers can establish genuine, respectful, and trusting relationships with elderly and other vulnerable clients. Through active engagement, legal professionals can ensure that engaging with elderly clients in an online environment, whilst not risk-free, is an avenue that should be embraced.

The content above was part of a seminar hosted by Leo Cussen where Max Ezerins and James Dimond of Moores presented on the topic: “Tips on how to detect capacity issues in an online environment vs in person”.

How we can help

For expert advice or guidance regarding Elder Financial Abuse, please do not hesitate to contact us.

Contact us

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.

Following on from our recognition as a First Tier Law firm in Victoria for both ‘Wills & Estates Litigation‘ and ‘Wills, Estates & Succession Planning‘, we are proud to share that Practice Leader, Lachlan McKenzie, has been featured as a ‘Leading Wills & Estates Litigation Lawyer’ in the Doyle’s Guide national rankings.

The 2023 listing details solicitors practising within the areas of Wills & Estates Litigation, Disputes and Contested matters across all Australian legal markets.

This recognition also marks the seventh consecutive year that Moores has featured in the national rankings.

For more information or to speak with one of our experienced lawyers, please do not hesitate to contact us.

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Lachlan McKenzie, Practice Leader

• Leading Wills & Estates Litigation Lawyer – Australia, 2023

A cornerstone of our law is the presumption that adults have legal capacity to make their own decisions unless proven otherwise. But because decision-making capacity is issue and decision specific, this can mean that someone may have decision-making capacity for some easier decisions, such as getting married, but not for other more complex ones, such as making a will, leading to some unusual outcomes.

For example: Noah is a widowed elderly gentleman living in a nursing home. His estate plans were set up years ago and his will leaves his estate to his two sons. These days Noah has dementia and is losing decision-making capacity, however, he finds companionship in the nursing home and marries Allie. A lovely way to live out his days with his new wife. However, the act of Marriage has now voided Noah’s will.

Noah has the capacity to get married but does not have capacity to make a new will. This means Noah’s long standing wishes in his will are disregarded. When Noah dies, based on the laws of intestacy (the laws that apply when someone dies without a will) much or all of his estate passes to his new wife, Allie. 

Decision-making capacity assessment

Because of the significant ramifications that can flow from someone having or not having capacity to make certain decisions, it is critical that the correct evidence is applied to the correct legal tests wherever a decision is proposed or made where a person’s capacity is in some doubt. Making sure the right evidence is applied to the right test can help ensure an elderly or disabled person’s autonomy is preserved and respected and can avoid costly future legal disputes if a particular decision or transaction is disputed after the fact.

Generally, a person’s decision-making capacity in relation to any particular decision is assessed based on:

1. Whether they are able to understand information relevant to the specific situation/decision to be made;
2. Whether they are able to retain information to the extent necessary to make the decision;
3. Whether they can use or weigh that information as part of the process of making the decision;
4. Whether they can assess the consequences of making the decision; and
5. Whether they can communicate the decision and their views on that decision/why it has been made.

Capacity is a legal concept rather than a medical one, and different legal tests are applicable in different situations. However, assessing capacity is complex and in making capacity assessments, legal practitioners will often interact with medical practitioners and specialists such as a neuropsychologists to reach a conclusion.

Capacity is also fluid and can fluctuate. A person may have capacity on one day but not on another, or a person might have capacity in the morning but not later on in the day (this is particularly prevalent in the elderly). 

Obtaining high-quality evidence at the time of a potentially contentious transaction can avoid future disputes that can drag on for years where costs may stretch into the triple figures. Too often, we see brief “one liners” from a person’s General Practitioner which might claim the person does or does not have decision making capacity but is of little evidentiary value because its not clear how they arrived at that conclusion, what decision their assessment relates to and what test they applied to get there.

Indications someone may not have capacity

Some signs that may indicate a person in your life’s decision making capacity could be in doubt include:

1. Memory loss and other cognitive impairment;
2. Vulnerability to undue influence;
3. Difficulties with communication;
4. Sudden changes in views and beliefs;
5. Difficulties with problem solving;
6. Being disoriented;
7. Others speaking for them;
8. Suffering from delusions;

If you have concerns about a person’s capacity to make certain legal decisions, it is important that that the proper assessments and correct tests are completed and you get professional advice about the thresholds and tests which need to be reached for a person to be able to make those decisions.

How we can help

If you suspect a vulnerable person’s capacity to make a certain legal decision (such as getting married, entering into a legal transaction, making a Will or appointing an Enduring Power of Attorney) is impaired, we can assist in applying the appropriate tests to assess their decision-making capacity and ascertain whether they are able to do so.

Contact us

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.

In our previous article, we highlighted the issues that can arise where a family trust deed has been lost and the importance of retaining a complete copy of the trust deed.

Background: Recent cases in which a trust deed has been lost

The Court’s view of the process that needs to be followed when a trust deed has been lost has been further considered in two recent New South Wales cases – Application of DEK Technologies Pty Ltd as trustee for DEK Technologies Unit Trust & Ors [2023] NSWSC 544 (“DEK Technologies case”) and BAGI Pty Ltd trading as atf Nick Ristevski Family Trust v Marka Ristevski [2023] NSWSC 567 (“BAGI case”).  

These cases offer greater hope to trustees of the Court taking a more pragmatic approach where a deed has been lost.

DEK Technologies Case

The case was brought before the New South Wales Supreme Court by the trustees¹ of four trusts who sought judicial advice that they were justified in administering the trusts on particular terms, in circumstances where the trust deeds could not be found. 

Although the trust deeds had been lost, at the time the trusts were established the accountant (Mr Scopelliti) prepared a detailed letter of advice outlining the establishment of the unit trust with the family trusts as unitholders and setting out various other details of the trusts, such as the discretionary beneficiaries. A corporate diagram was also prepared. 

The plaintiffs could not recall receiving a copy of the unit trust deed or signing it and could not recall signing the establishment documents for the respective family trusts.

Mr Scopelliti gave evidence that in establishing trusts for his clients, he always had the trust deeds prepared by ASIS Services Pty Ltd, and that he made no changes to the deeds provided by the company. Further evidence was given by a former employee of ASIS Services Pty Ltd that they had a number of template trust deeds that included all relevant terms and that their order forms contained specific details concerning the trust name, establishment date, settlement sum, applicable law and details of the settlor, trustee and beneficiaries, which was stored on their database.

In making its decision, the Court referred to the case of Vanta Pty Ltd v Mantovani [2023] VSCA 53² and adopted the view that the relevant question to the Court is whether it is satisfied, on the balance of probabilities, that the trust deeds were executed and contained the terms proposed, which may be established by secondary evidence.

In a pleasing result for the plaintiffs, the Court held that the trustees were justified in managing and administering the trusts according to the terms outlined in the letter of Mr Scopelliti, the template deeds and information on the order forms.

The BAGI Case

In this case, brought before the New South Wales Supreme Court by the trustee of a family trust, an order was sought that the trustee was justified in treating a replacement trust deed as the operative deed for the trust, and to remedy an error in the rectified deed.  

The original trust deed for the trust was executed on 1 July 1989 (“the 1989 Deed”) of which the only two parties were the settlor and the trustee. The trustee believed that the original deed was held at a bank branch when it was provided to them as part of loan documentation requirements. However, in 2010 the trustee sought the original from the bank but they could not locate the original or a copy. The trustee made enquiries between 2012 to 2015 as to the whereabouts of the original 1989 Deed, but it could not be located.

In 2015, the trustee sought advice to have the 1989 Deed replaced with a new trust deed, without any knowledge of the terms of the original trust deed. The replacement deed was signed on 12 February 2015 (“the 2015 Deed”) which was described as a “confirmation deed”.

In 2020, an incomplete copy of the 1989 Deed was found at the family home of the trustee. The incomplete copy showed the beneficiaries of the trust created in the 1989 Deed, which were different to the 2015 Deed. The trustee therefore wished to rectify the 2015 Deed to include the beneficiaries included under the 1989 Deed.

The Court held that the 2015 Deed could be rectified, provided it could be established that the parties to the deed had a common intention which continued up to the time of execution. The Court held that there is evidence that the common intention of the 2015 Deed was to reproduce the 1989 Deed and accordingly, the beneficiaries of the 2015 Deed can be amended to reflect the 1989 Deed.

In relation to whether the trustee could rely on the 2015 Deed as the operative deed, the Court held that the original 1989 Deed contained a broad power of alteration, modification or revocation of the trust and accordingly that power was sufficient to authorise the amendments which occurred to the trust via the 2015 deed. Therefore, the Court confirmed that the trustee was justified in acting in accordance with the 2015 Deed.

Implications of the two recent cases

Although on its face both matters are a win for the trustees, it is worthwhile noting that potential unintended consequences were not specifically addressed by the Court.

In particular, the BAGI case raises the question of a potential duty complication where a confirmation deed is adopted – being the 2015 Deed in the matter. Depending on where the trust assets are held, and in this matter they fell within the New South Wales jurisdiction, the relevant state revenue office may view the confirmation deed as a resettlement, trust acquisition or a declaration of trust (applicable in New South Wales) which would result in duty being applicable on the market value of the dutiable property of the trust.

How we can help

It is therefore important that, in particular where trusts hold dutiable property, that the trustee, their advisors and accountants know the whereabouts of the original deed, have sighted it and retain accessible copies. Should there be a need for the preparation of a deed of rectification or confirmation for any trust, then it is integral that the terms of the trust are as consistent as possible with the original trust deed.  

Please contact us for more information and tailored assistance.

Contact us

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.

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¹ DEK Technologies as trustee for the DEK Technologies Unit Trust, Drini Mulla as trustee for the Mulla Trust, Kerim Tanovic as trustee for the Tanovic Trust, and Wisdomw Consultancy (Vic) Pty Ltd as trustee for the Yim Tang Family Trust.

² See https://www.moores.com.au/news/lost-trust-deed-implications-for-family-trusts/.

When a member of a superannuation fund dies, their superannuation benefits (known as ‘death benefits’) must be paid out of the fund – this is what is referred to in the superannuation industry as a ‘compulsory cashing event’.

If the member’s superannuation is not paid to a ‘tax dependant’ (being someone eligible to receive the member’s superannuation entitlements tax-free), then there will be some tax to pay. The tax can be up to 15% of the member balance, and up to 30% of any life insurance that the member owns within the fund.

Because of this tax, where a person does not have any tax dependants, a common strategy is to consider withdrawing the superannuation into their personal name prior to their death, provided they meet certain conditions to access their super during their lifetime. This is often referred to as a ‘death bed withdrawal’, as many superannuation members do not want to withdraw their entitlements too early, given the concessional tax treatment usually afforded by holding wealth in the superannuation environment.

But there is some grey area here – what happens when someone has requested a withdrawal of their entitlements, but they pass away before the payment hits their personal bank account?

Australian Taxation Office (ATO) considerations

In February 2023, the Australian Taxation Office (ATO) published a list of factors that it will consider to determine with a payment in this scenario is a ‘death benefit’, meaning it will be subject to tax (if applicable) or a ‘member benefit’, meaning that the payment can come out to the member as non-assessable, non-exempt income i.e. essentially it is tax free (noting that other taxes such as capital gains tax and stamp duty may still apply). 

Importantly, one of the key factors that the ATO considers is whether the trustee of the fund had knowledge of the member’s death prior to making payment of the superannuation out of the fund, which does not appear to have been considered as a relevant factor in the ATO’s previously published private binding rulings. 

How does this apply to self managed superannuation funds?

In the case of a self managed superannuation fund (SMSF), unless one of very few exemptions apply, the member must be a trustee, or director of trustee company, of the fund, and on their death, their legal personal representative (being the executor of their Will or the administrator of their estate) will take their place in the controlling role. As such, there are very few circumstances where the trustee of the fund will not be aware of the member’s death, prior to making the payment pursuant to a request made by a member during their lifetime – perhaps only circumstances where an independent legal personal representative, such as a professional advisor or professional trustee company is appointed.

Following the ATO’s publication of the new factors for consideration, a private binding ruling has been published which sought to clarify whether payment from an SMSF initiated by a request during the member’s lifetime, but paid after their death, was a ‘member benefit’ or ‘death benefit’. The ruling concluded that the payment was a death benefit.

The ATO’s decision in this ruling largely turned on the SMSF trustee’s knowledge of the member’s death prior to making payment and stated that “it cannot be said that the trustee made the payments with the exemption that the member would be alive to receive it”.

Given this updated stance taken by the ATO in considering payments in these circumstances, it is difficult to see many opportunities that SMSF members will have to withdraw their super as non-assessable, non-exempt income, when doing so in the days immediately prior to their death, particularly in circumstances where assets will need to be sold or liquidated. Instead, longer-term planning may be required if a member has a serious health condition and consideration is given to the income tax benefits of retaining superannuation within the fund, versus the death benefits tax that would be payable if the funds are not withdrawn.

It is crucial that all advisors involved in assisting SMSF members are clear on the new ATO factors and how they are being adopted by the ATO through publications of its private binding rulings. Beyond this, all advisors in this area need to be fully across the governing rules of the relevant SMSF to efficiently take client instructions and implement withdrawals, particularly when the request is time critical.

How we can help

For expert advice or guidance regarding Estate Planning and self managed superannuation funds, please do not hesitate to contact us.

Contact us

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.

Moores has ranked as a ‘First Tier’ Law Firm for Victoria in both the ‘Wills & Estates Litigation‘ and ‘Wills, Estates & Succession Planning‘ categories for the seventh year running.

In addition, Jennifer Dixon, Lachlan McKenzie, Krista Fitzgerald and James Dimond have all featured as Leading Lawyers and Max Ezerins as Rising Star in the latest Doyle’s Guide. Recognised by their peers and referrers for their expertise in Wills & Estates Litigation and/or Wills, Estates and Succession Planning.

Our expert team is experienced in assisting families with complex Estate Planning arrangements as well as challenging and defending all manner of Disputes relating to Wills, Estates, Trusts, SMSF and Bequests.

For more information or to speak with one of our experienced lawyers, please do not hesitate to contact us.

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Jennifer Dixon, Practice Leader

• Preeminent Wills, Estates & Succession Planning Lawyer – Victoria, 2023
• Recommended Wills & Estates Litigation Lawyer – Victoria, 2023

Lachlan McKenzie, Practice Leader

• Preeminent Wills & Estates Litigation Lawyer – Victoria, 2023
• Recommended Wills, Estates & Succession Planning Lawyer – Victoria, 2023

Krista Fitzgerald, Practice Leader

• Leading Wills, Estates & Succession Planning Lawyer – Victoria, 2023

James Dimond, Practice Leader

• Leading Wills & Estates Litigation Lawyer – Victoria, 2023

Max Ezerins, Senior Lawyer

• Rising Star Wills, Estates & Succession Planning Lawyer – Victoria, 2023

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Leading Law Firm

• First Tier Wills, Estates & Succession Planning Law Firm – Victoria, 2023
• First Tier Wills & Estates Litigation Law Firm – Victoria, 2023

We know term three means schools start thinking about next year’s enrolments and many schools have already set their budget and approved the 2024 fees. For the 2024 school year, there will be changes to the Australian Consumer Law which may cause you to update the documents which constitute your Enrolment Agreement with families. We take a look into these changes, scheduled to come into effect on 10 November 2023, for the perspective of independent schools. Here’s what to know:

What is an unfair contract term?

A term in your enrolment agreement may be unfair if it:

1. would cause a significant imbalance in the parties’ rights and obligations arising under the contract;
2. is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
3. would cause detriment (financial or otherwise) to a party if it were to be applied or relied on.¹

Whether a contract term is ‘unfair’ depends on the particular circumstances of that contract and ultimately can only be determined by a Court. There is a recent decision from the ACT Civil and Administrative Tribunal about an Enrolment Agreement: Brindabella. We wrote about this here.

Brindabella found:

• the enrolment Agreement was a standard form contract, meaning the Australian Consumer Law applies; and
• the term’s fees in lieu of notice was an unfair contract term because:
  • there was a significant imbalance resulting from the school’s ability to vary fees without the parents being able to withdraw their children without penalty.
  • I.e., the school could vary fees in Term 4, but require one term’s notice for withdrawal and therefore charge the term’s fees in lieu of notice.

What is changing in the Australian Consumer Law?

The use and application of, or reliance on, unfair contract terms is prohibited. Previously, unfair contract terms could be deemed void and unenforceable by the Court. Now that unfair contract terms will be prohibited, the Court can impose financial penalties for breaches of this prohibition. This change is a stronger protection for consumers.

For the Australian Consumer Law to apply, and the possibility of an unfair contract term to be relevant, a contract must be considered a “standard form contract”. The changes are expanding the definition of “standard form contract”, and therefore the application of the Australian Consumer Law.

More information from the Australian Competition and Consumer Commission is here.

What are the risks to schools?

In the current economic climate, and with many schools increasing fees in response to the payroll tax, there is a commonly felt “pinch” in the industry and among parents. This increases the risk that parents may (among other things):

• unfortunately have to withdraw their children; and
• challenge terms in Enrolment Agreements that require them to pay a term’s fees in lieu of notice under the Australian Consumer Law.

In July 2022, we recorded a webinar which you can watch for free to get you started on any updates that may be needed, both in response to Brindabella, and these amendments to the law.

Another risk is that the Australian Competition and Consumer Commission (ACCC) may prioritise enforcement of these new laws, and proactively take legal action against organisations who are in breach of the Australian Consumer Law.

How we can help

Enrolment Agreements can be complicated. You are providing a service to the students you are educating, but you are contracting with parents. You are entering into an agreement for Prep and seeking to enforce that agreement years later. We can help update or redraft these contractual documents in a manner that reduces the risk of any breaches of the Australian Consumer law, but also to give you strong contractual rights to collect fees critical to ongoing operations. We also work in disputes when there are termination or withdrawal or enrolments, or other disputes with parents.

Contact us

Please contact us for more detailed and tailored help.

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

Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.

¹Competition and Consumer Act 2010, Sch 1 “Australian Consumer Law”, s 24(1).

The Minimum Practice Standards: Specialist and Community Support Services Responding to Child Sexual Abuse (Standards) were launched on Wednesday 6 September 2023 under the National Strategy to Prevent and Respond to Child Sexual Abuse 2021-2030.

The Standards embed the three core values of being victim and survivor centered, trauma-informed, and culturally safe, across the six standards.

Do the Standards apply to my organisation?

The Standards apply to specialist and community support services responding to child sexual abuse, including:

• survivor and peer-led services;
• non-statutory services provided by government and non-government agencies, including Aboriginal Community Controlled Organisations;
• services that offer secondary or tertiary responses;
• those providing services to individuals of any age who have experienced or been impacted by child sexual abuse (including parents, partners, siblings, supporters, and advocates); and
• services that respond to children and young people who have displayed or who are at risk of displaying harmful sexual behaviours (noting that this terminology has not yet been settled at a national level and is subject to change).

The Standards are not intended to apply to:

• the education and health sectors, including primary intervention services such as safety or consent education services within schools;
• community support services such as housing or social wellbeing;
• specific statutory responses such as investigations by police or wellbeing assessments provided by child protection services; or
• private full free based services such as psychologists.

However, all organisations and services will benefit from drawing from the Standards to improve their responses to child sexual abuse.

The Six Standards

1. Standard 1: Promotion of safety and self-determination.
   Under this standard, organisations are required to provide victim / survivors with information, choice, flexibility, and a genuine connection to promote healing, recovery and resilience.
2. Standard 2: Accessible and inclusive services.
   Organisations are required to maximise their accessibility to all people, irrespective of their ability or disability, cultural background, linguistic skills, religious beliefs, sexuality or gender identity.
3. Standard 3: Holistic and integrated responses.
   This standard recognises that child sexual abuse has a far reaching effect to cause harm to individuals, their families and the wider community. It requires organisations to take an integrated approach to engage with care teams, families, advocates and supporters to avoid a ‘siloed’ support service.
4. Standard 4: Experience, research and practice informed way of working.
   Organisations are encouraged to review their practices to keep up with current research, best practice, lived experience and cultural knowledge. Staff should have a clear understanding of the services they deliver and how their service will benefit those who engage with them.
5. Standard 5: Skilled and supported workforce.
   Under this standard, organisations are required to ensure that staff have the necessary knowledge and skills to respond to child sexual abuse, including ongoing professional development. In recognition of the impact of burnout, vicarious trauma and compassion fatigue on workers, organisations are also required to support staff to manage their wellbeing by providing self-care strategies and therapeutic supervision.
6. Standard 6: Effective organisational governance.
   It is not enough for Boards to implement mechanisms to support the implementation of the Standards. Leaders in the organisation are required to embed the Standards in organisational culture and decision making. This requires an understanding of not only the trauma caused by child sexual abuse but also how it occurs and is maintained.

Helpfully, under each standard are ‘standard indicators’ which organisations can draw from to implement each standard within their own practices and services.

How we can help

Our Safeguarding team can assist your organisation to draw on the Standards to strengthen your organisation’s practices when responding to and preventing child sexual abuse. Our team of experts can support your entire organisation to comply with the Standards, from providing guidance to your Board, through to policy development and delivering staff training. Contact Skye Rose or Cecelia Irvine-So for more information about how we can support your organisation to take this incredibly important step to providing a safe environment for all children.

Contact us

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.

We know that discrimination negatively impacts on the ability of students with a disability to participate and maximise their potential in the school environment.

In our experience, schools work hard to provide a broad range of reasonable adjustments to support students with disabilities. Schools are generally familiar with the requirements under state and federal anti-discrimination laws that students with a disability have access to education on the same basis as their peers.  

Vulnerability of students with a disability to child abuse or risk of harm

What schools may be less familiar with is the vulnerability of students with a disability to child abuse or risk of harm. This vulnerability is well documented. The Royal Commission into Institutional Responses to Child Sexual Abuse heard evidence that children with a disability can face additional barriers to disclosure of child abuse or harm. Students with a disability are also more likely to be subjected to restraint or seclusion and are more likely to be bullied. The importance of protecting the safety, welfare and best interests of children with a disability is reflected in the National Principles for Child Safe Organisations, which includes a key principle that equity is upheld, and diverse needs respected in policy and practice. Ministerial Order 1359, which implements the Child Safe Standards for Schools in Victoria, reinforces this principle by legally requiring schools to pay particular attention to the needs of students with disabilities.

Actions for schools to take to ensure child safety for students with a disability

So what does this all mean and what actions can schools take to ensure child safety for students with a disability?  

Below are just a few tips for schools to ensure child safety for students with a disability and comply with their legal obligations:

• Develop a clear and comprehensive Child Safety Policy and Procedure that (amongst other matters) provides guidance for workers on their responsibilities to identify, prevent and respond to child abuse or risk of harm. It is important to monitor compliance with this Policy and Procedure and ensure workers are aware of it and understand it.
• Apply a risk management treatment to special support arrangements which may result in more vulnerable situations for students with disabilities, for example, assistance with toileting.
• Have appropriate and effective systems in place to effectively identify, prevent and respond to child safety issues. This system should set out how students with disabilities may respond to abuse differently, and consideration needs to be given to ensuring that supports and reporting avenues are friendly to students with disabilities. Schools should apply the usual lens of “reasonable adjustments” to these supports and reporting avenues as well as other scholastic offerings.
• Model and champion a child safe culture and find opportunities to make strong statements to workers about this.
• Equip workers with appropriate training and information. This should include training on recognising the indicators of child abuse or risk of harm and understanding when and how to report concerns, suspicions or allegations. Critically, though, do not wait for students to disclose abuse or wait for staff to “spot” red flags or signs of abuse. Prevention is key, with one key aspect being the introduction in your staff code of conduct of “unacceptable” and “acceptable” behaviours. This is important in empowering all staff and students to recognise and call out the “unacceptable” behaviours, which we know can often constitute grooming and escalate from apparently “minor”, but unchallenged, incidents.
• Appoint Child Safety Officers and ensure they are provided with appropriate and regular training and information to perform their role effectively. Ensure their training contains information about how to support students with disabilities.
• If a child safety issue arises, ensure there is an appropriate response and investigation in line with legal obligations and the school’s commitment to child safety, and that any interviews with students take account of the student’s disability and are trauma-informed.

How we can help

Our Child Safety team can help you to develop a best practice Child Safety Policy and Procedure and Child Safety Code of Conduct. We can also run some of the leading child safety training in Australia for both staff and for older students. If a child safety issue arises, we can support you in your response and investigation. Contact to us to hear more about these services.

Contact us

Please contact us for more detailed and tailored help.

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

Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.