The eSafety Commissioner received 1700 reports of sexual extortion (or ‘sextortion’) in the first quarter of 2023, which is almost triple for the same period last year. Young people aged between 18 and 24 years are most likely to be targeted, with 90% of reports affecting males.

The Australian Centre to Counter Child Exploitation (ACCCE) has also reported that 90% of its reports affect boys aged predominantly between 15 and 17 years, with some victims as young as 10 years.

What is sexual extortion?

Sexual extortion is a crime, and is a form of image-based abuse. It occurs when a person manipulates or coerces a victim into sending sexual images or videos of themselves and then threatens to share them with the victim’s friends, family and colleagues, unless their demands for payment are met.

Scammers often solicit intimate images from victims through ‘catfishing’, where scammers create fake social media profiles to initiate online relationships, encourage victims to trust them (including by sharing fake intimate images of themselves), and then encourage victims to share their own intimate images.

The eSafety Commissioner has reported that young men were most at risk in this context and that Snapchat or Instagram were the most common platforms used by scammers.

Other common scenarios include the scammer claiming that they have hacked a victim’s device to steal images, creating digitally altered images (or ‘deepfakes’), claiming that they have found intimate images of a victim, or within a grooming relationship or former relationship.

Scammers are incredibly manipulative and will continue to demand further payments from victims after the first payment has been made. It is common for scammers to be based internationally and request transfer of money into offshore accounts which makes it difficult to recuperate.

In addition to the financial impact on victims, sexual extortion can have a significant impact on a victim’s mental wellbeing. Victims have reported deep distress and shame in being scammed and fear in having their intimate images circulated to family and friends, and in some cases have self-harmed.

Responding to sexual extortion

Don’t pay anyone who has threatened to share intimate images of you or a child under your care and supervision. Instead:

1. Collect evidence

Collect evidence of your interactions with the scammer, including taking screenshots of your message threads (including their threats for payment), their username/s, user profile URL, and bank details.

If you have made a payment, get in touch with your financial institution or payment service (e.g. PayPal) immediately to see if they can cancel the payment.

2. Report the interactions

Report the interactions to:

3. Block the scammer

Once you have collected evidence and cease all contact with them. You should also review your security settings.

4. Reach out for support.

Sexual extortion is never the victim’s fault.

Spreading awareness

The best defence we have against sexual extortion is to raise awareness and empower young people to keep safe online. Spreading awareness, particularly amongst young men, is critical.

How can we help

Our Safeguarding team provides training and tailored resources to prepare your staff to support children and young people in your organisation who may be responding to threats of sexual extortion.

We also provide training for children and young people to equip them with the tools and techniques to keep themselves safe online.

Get in touch with Skye Rose or Melissa Elleray for a discussion about what resources will best support your organisation’s efforts in keeping children and young people safe.

Contact us

Please contact us for more detailed and tailored help.

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

Organisations that engage children in Victoria should prepare for changes in child employment laws which were introduced on 1 July 2023.

The Child Employment Act 2003 (Vic) (Act) applies to employers that engage children in paid or unpaid work. The amendments introduce a requirement for certain employers to obtain a licence, extend coverage of the Act to a broader range of work performed by children (including unpaid work in non-profit organisations), and create additional obligations for children engaged in the entertainment industry.

The extensive changes have the potential to impact the paid and unpaid engagement of children in non-profit, religious, sport and recreation and the entertainment sectors, among many others, with new or increased penalties for breaches of the Act.

This article provides a high-level summary of the reforms with a focus on changes to the permit system, the Act’s extension to unpaid work, and new obligations in the non-profit and entertainment sectors.

A new licence system

From 1 July 2023, the existing permit system will be replaced with a licence system. A licence will be required by organisations, including non-profit organisations, where the child is aged under 15 years, is subject to directions about how their work is to be performed, and:

• the organisation engages a child for the benefit of the organisation or a person involved in the organisation;
• the work is paid or unpaid, or the child receives some other reward for performing the work; and
• the work is not excluded under the Act, including but not limited to:
  • work performed for the child’s parent or guardian in a family business;
  • participation in a church, religious service, or religious program;
  • work in relation to a low-risk sporting activity such as coaching, refereeing or umpiring;
  • tutoring or domestic duties such as babysitting; and
  • a school work experience arrangement regulated by the Education and Training Reform Act 2006 (Vic).[1]

Employers will only be required to hold one licence (which is free) and will no longer require separate permits for each child. Employing a child without a licence is a criminal offence which can attract penalties of up to 1200 penalty units for a body corporate (currently $230,772) and 240 penalty units for an individual (currently $46,154.40).

However, if employers already hold a permit for a child, those permits will remain valid after 1 July 2023, and a licence will not be required for that child.

Licence holders are required to comply with the Child Safe Standards (see our article here summarising the Child Safe Standards). Since 1 January 2023, Wage Inspectorate Victoria is the sector regulator for enforcing the Child Safe Standards.

Broader application to work with non-profit organisations and volunteering

Prior to 1 July 2023, the Act applied where an employer engaged a child to perform work:

• under a contract of service or contract for services (whether written or unwritten), or
• in a business, trade or occupation carried on for profit, whether or not the child received payment or reward for that work.

The definition of ‘employment’ under the Act has been expanded to cover work performed by a child other than under a contract of service or contract for services (whether written or unwritten) in a non-profit organisation:

• for the benefit of the non-profit organisation or a person involved in the non-profit organisation;
• whether or not the child receives payment or other reward for performing that work;
• where the child is subject to directions about how the child’s work is performed; and
• where no exclusions apply.[2]

The changes may have the effect of capturing a broader range of work performed by children, including volunteer work for non-profit organisations in certain circumstances. Organisations that engage children in paid or unpaid work (particularly in the sport, recreation, education religious and entertainment sectors) should pay careful attention to the reforms.

New obligation to protect children in entertainment

The Act now requires a person who employs a child in entertainment to take reasonable steps to ensure that they are not subjected to any behaviour:

• that unnecessarily isolates the child; or
• that is likely to intimidate, threaten, frighten or humiliate the child (including but not limited to exposing a child to adult themes, including nudity, sex, cruelty, violence or drug use).[3]

Individuals and organisations in entertainment should ensure that they take reasonable steps to identify and minimise risk of harm to children, in addition to meeting their obligations under the Child Safe Standards. Limited guidance has been provided on what ‘reasonable steps’ are required.

New penalties and obligations in relation to age restrictions, engaging children and supervision

The Act introduces changes to age restrictions for child workers, limitations on when and for how long children can be engaged, and supervision requirements,[4] and penalties for breaches of those obligations.[5]

Wage Inspectorate Victoria also has new compliance powers to compel employers to comply with the Act, including the power to issue compliance notices for contraventions, require the production of information or documents, and issue infringement notices.

Age restrictions

From 1 July 2023, a child must be:

• 11 years of age to deliver newspapers and advertising material;
• 13 years of age to perform other work, including hospitality, retail, door to door fundraising, and delivering pharmaceutical products; or
• employed in accordance with industry specific requirements if they are working in the entertainment industry, but there is no minimum age (see those requirements here).

There is no minimum age for engaging a child in a family business.

Limitations on when children can be engaged

The Act also expands restrictions on when and for how long children can engage in work:

• Children are generally only permitted to work between 6:00am and 9:00pm and cannot work during school hours.
• During school term, children are restricted to working a maximum of 3 hours per day and up to 12 hours per week.
• During school holidays, children may work for longer – 6 hours per day and up to 30 hours per week.
• Children must be provided with a 30 minute break after every 3 hours of work.
• Children must not work for at least 12 hours between shifts.

Supervision of children

Supervisors of children under 15 years of age must:

• be at least 18 years of age;
• hold a Working With Children Check (unless the supervisor holds a valid exemption); and
• be recorded by the employer as having supervised that child’s employment (which must now be retained for five years),

unless an exception applies.

How we can help

Organisations should carefully consider the impact of the changes on their operations and whether any exceptions apply. Our Workplace Relations and Safeguarding Teams can provide advice on whether the changes impact on your paid and volunteer arrangements, whether you are required to hold a licence, and what you need to do to safely and lawfully engage children as workers and volunteers.

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 your organisation.

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[1] This list is not exhaustive. [2] Child Employment Act 2003 (Vic) s 4(2) and 4A. [3] Child Employment Act 2003 (Vic) s 14A. [4] Breaches can attract penalties of can attract penalties of up to 1200 penalty units for a body corporate (currently $230,772) and 240 penalty units for an individual (currently $46,154.40). [5] Breaches of the Act can attract penalties of up to 1200 penalty units for a body corporate (currently $230,772) and 240 penalty units for an individual (currently $46,154.40).

Increasing reports of harmful sexual behaviour between children – particularly within Victorian schools, universities and residential colleges – have highlighted the need to raise awareness of strategies that should be adopted by organisations to effectively prevent and respond to harmful sexual behaviours.

Moores Practice Leader, Skye Rose, recently presented on navigating practical issues and recent legal developments in relation to harmful sexual behaviours between children. We have summarised the key takeaways below. You can also view the webinar recording here.

Harmful and problematic sexual behaviours

Harmful sexual behaviour refers to a full spectrum of sexual behavioural problems in children and young people. The term ‘problematic sexual behaviours’ refers to behaviours that fall outside the normal or age-appropriate range for younger children, and which may only harm the child exhibiting the behaviours.

These behaviours include excessive self-stimulation, sexual approaches to adults and obsessive interests in pornography.

The Royal Commission found that aspects of institutional cultures may contribute to children exhibiting harmful sexual behaviours, including physical and emotional abuse and neglect, and hierarchical structures where children held power over other children.

Recent updates to law

There have been a number of legislative updates relevant to harmful and problematic sexual conduct between children.

In Victoria, New South Wales and the Australian Capital Territory, it is a criminal offence to intentionally produce, distribute or threaten to distribute an intimate image or video of another person. The penalty is up to three years imprisonment. Similar offences arise in Queensland, Northern Territory, South Australia, Tasmania and Western Australia.

The Online Safety Act 2021 also enables the eSafety Commission to issue a civil penalty order of 500 penalty units (currently $137,500) where a person posts or threatens to post, an intimate image.[1]

Affirmative consent models have now been introduced in all states and territories across Australia, shifting the onus of proving consent onto perpetrators of sexual violence, rather than victim-survivors  This means that there must be free or free and voluntary agreement to a sexual activity, and the person needs to reasonably believe that another person is consenting to an act.

The commencement of these reforms varies from state to state, with some having delayed commencement which will not take effect until later this year. 

Every Australian jurisdiction has a statutory definition of ‘consent’. These definitions are relatively similar either referring to “free agreement” (Victoria and Tasmania), “free and voluntary agreement” (NSW, SA, NT the ACT) or “consent freely and voluntarily given” (Queensland and WA).

In the “affirmative consent” jurisdictions of Tasmania, the ACT, Victoria and NSW a person cannot be said to have reasonable grounds to believe that there was consent if that person fails to say or do anything to ascertain whether or not the other person consents.

The age of the child may also affect whether they can lawfully consent to the sexual activity.

Organisations that work with children and young people should consider whether and how they should inform them of these changes, consistent with their obligations under relevant Child Safe Standards and the National Principles for Child Safe Organisations. Schools in Victoria should also consider their obligations to provide students with information about their rights and responsibilities under the Ministerial Order 1359.

An article outlining Victoria’s affirmative consent laws is available here.

Organisation’s duties

1. Duty of Care

Organisations may owe a duty of care to children beyond the boundaries of the physical premises and out of hours activities such as camps, excursions and other events.

The extent of the duty of care will depend on factors including the knowledge of foreseeable risks and the control of the organisation over the environment. In the context of problematic and harmful sexual behaviours between children, overnight camps and homestays carry higher risks.

Where applicable, organisations must take reasonable steps to minimise the risk of reasonably foreseeable harm to children including by undertaking risk assessments, carefully monitoring those risks, and effectively addressing any incidents.

2. Reporting obligations

Organisations should be aware of the different reporting obligations imposed on either the organisation itself or on individuals within the organisation, and notify workers of their obligations.

The failure to comply with these legal obligations can result in harm to children, penalties, regulatory scrutiny and legal claims.

In the most severe cases, it can attract criminal liability for individuals who fail to protect a child from a sexual offence and fail to disclose that a sexual offence has been committed.

3. Privacy

Organisations owe privacy obligations to children involved in incidents of sexual harm, however there may be circumstances in which organisations will need to consider and balance obligations in relation to reporting, privacy and confidentiality.

Organisations need to ensure that they comply with all relevant obligations, and that workers are aware that confidentiality cannot be guaranteed when a child makes a disclosure of harmful or problematic sexual behaviours, including a sexual assault.

Organisations should also be cognisant of the extent to which information is shared internally. Information barriers are important in protecting the privacy of individuals and preventing unnecessary disclosure of private information within the organisation.

Responding to disclosures, complaints or concerns of abuse or harm

When a child or young person discloses sexual harm, it is important to take a trauma-informed approach to the disclosure. This helps to empower the survivor and build confidence in the organisations commitment to addressing the harm. The recommended approach is to use the HEARTS response.

• Hear – listen openly.
• Empathise – acknowledge their bravery in making the disclosure, and that you can appreciate the impact it has had on them.
• Affirm – let them know it’s not their fault and that you believe them.
• Record – record the disclosure and the steps taken to address it.
• Tell someone – consider internal and external reporting obligations.
• Self-care – access internal or external support if needed, subject to confidentiality.

It is important to engage appropriately and responsibly and ensure that support is given to the victim survivor.

Dealing with police

In situations where police become involved, it is important for organisations to cooperate with police requests for information and interviews.

Organisations will need to consider privacy obligations and duty of care obligations to staff in relation to police interviews, and consider whether to ask for a warrant before disclosing information.

Employers should also be proactive in minimising risks of harm to staff or other children who are required to be involved in the investigation.

How we can help

Moores can help organisations navigate these complex issues as either preventative measure or in responding to an incident.

Contact us

Please contact us for more detailed and tailored help.

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

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[1] Online Safety Act 2021 (Cth), s 75.

Enduring powers of attorney are crucially important documents when it comes to estate planning. While a Will governs what happens to a person’s assets when they pass away, an enduring power of attorney for financial matters authorises a person (or people) to manage that person’s assets while they are still alive but have lost the capacity to do so for themselves.

Without an enduring power of attorney, where a person loses capacity to make decisions for themselves, it would be necessary for someone to apply to the Victorian Civil and Administrative Tribunal (VCAT), leaving the decision about who acts on behalf of the incapacitated person up to a tribunal, rather than the person themselves.

In Victoria, it is possible to appoint someone to act for you for financial, personal and medical treatment decisions, however the focus of this article is appointing an attorney for financial decisions.

We set out some key tips below for helping to select your financial attorney, including some implications you may not have considered:

1. It should be someone you trust

It might go without saying, but the person you appoint to act as your financial attorney should be a trusted person.
The attorney’s obligation is to act in your best interests in respect of any decision they may make on your behalf.

2. You need to consider any potential for conflict of interest

As set out above, an attorney’s obligation is to act in your best interests. For financial matters, this essentially means that their obligation is to use your money for your benefit only, unless you authorise them to do otherwise in your document.

The concept of an attorney acting in conflict of interest typically arises where a person appoints their spouse in this role. Many people assume that their spouse will also be permitted to benefit from their assets when acting as attorney, as they may do while both parties have capacity.. Importantly, this is not the case, unless the document is specifically prepared to permit the attorney to act in conflict transactions.

Permitting an attorney to act, despite a potential conflict of interest, needs to be carefully considered alongside the person’s broader estate planning objectives, particularly if there is an intention to place any restrictions on the control or depletion of assets passing under the Will of that person, for example, by including a life interest trust.

In addition, it is not unusual for people to consider appointing their trusted advisors as financial attorneys. It will be important for the advisor to consider any potential conflict of interest they may have in continuing to provide advice, while acting in this role.

3. Your attorney will be authorised to take over controlling positions in your SMSF

A person appointed as an attorney under an enduring financial power of attorney will be authorised under the superannuation legislation to take over the directorship of a corporate trustee, or the trusteeship of a self managed superannuation fund (SMSF).

Here, it is imperative to consider whether the person appointed is appropriate to take over various discretions available to them under the deed for the SMSF, as well as any further documentation that should be put in place to ensure that estate planning objectives in respect of payment of your superannuation after the member dies will be met (for example, a binding death benefit nomination with provision in the enduring power of attorney that this nomination cannot be revoked).

4. Attorneys are not specifically authorised to step into a company director’s role

Enduring powers of attorney for financial matters do not provide an automatic right for the attorney to act in relation to any company positions you may hold, for example, as a company director

When considering who may step into these company positions, companies will typically have a procedure for appointing alternate directors under its constitution, which would need to be followed in the event of a requirement for someone to act in the place of a current director.

5. Consider any impact on gifts made in a Will

If you are intending to make any specific gifts of assets in your Will (see related article here), you may wish to make your attorney aware of these intentions.

Unless otherwise limited in their powers, an attorney will typically have a broad discretion over the access of your assets for your benefit. If, for example, you have made arrangements in your Will to gift a certain asset to a specific person, and during your lifetime that asset is sold by your attorney, this will interfere with your objectives.

The above situation can be addressed with careful planning and drafting in both the Will and enduring power of attorney documents.

How we can help

Considering who you should appoint as your attorney is not a decision that should be made in isolation. Given the broader impacts that it can potentially have on your estate planning as a whole, it is important that the decision is made carefully. We can assist with the specialised preparation of documentation to ensure that your intentions can be achieve.

Contact us

Please contact us for more detailed and tailored help

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

We have amended this article to clarify the impact of the changes on non-profit organisations, and provide further information on changes to the permit system, the application to unpaid work, and new obligations in the entertainment sector. While non-profit organisations that engaged children to perform paid or unpaid work may have already been captured by the Child Employment Act 2003 (Vic) prior to the amendments, the Act will now apply to not-for-profit organisations in a broader range of circumstances. You can read our updated article here.

Schools are increasingly requiring all employees, subcontractors and suppliers of builders on their school building projects to obtain a Working with Children (WWC) Check as part of their commitment to the safety and wellbeing of their students.

This article considers the extent to which this is necessary and appropriate for workers engaged on school building projects having regard to the relevant Child Safe Standards, legislative requirements for WWC Checks, and the Ministerial Order 1359, which applies to registered schools and school boarding premises in Victoria.

What are WWC Checks?

WWC Checks are a state-based assessment of an individual’s suitability to work with children. While commonly referred to as a WWC Check, in Queensland it is called a Blue Card, and in the Northern Territory it is called an Ochre Card.

The requirements on individuals and organisations to ensure that prescribed workers obtain and maintain a WWC Check or equivalent vary from state to state. As such, this article focuses on requirements in Victoria under the Worker Screening Act 2020 (Vic) (the Act) and Ministerial Order 1359, which applies to registered schools and school boarding premises.

In Victoria, a WWC Check screens an individual’s national criminal record for serious criminal charges, offences, findings of guilt and professional conduct determinations and findings related to the safety of children. If an individual obtains a WWC Check clearance, their criminal record is continually monitored for the five years that the WWC Check is valid for, and the organisation they work with is notified of any changes where the organisation is listed when the WWC Check is completed, renewed or updated. A WWC Check differs to a National Police Check, which checks national criminal records for a broader range of offences but has no mechanism for monitoring and notifying organisations of further offences by workers (meaning it is only valid at the time it is obtained).

WWC Check requirements under the Act

Under the Act, an individual must obtain a WWC Check if they engage in, or intend to engage in, child-related work, whether as employee, contractor or volunteer. Child-related work is described as work undertaken:

1. at or for a service, body or place (which includes schools), or that involves an activity defined in the Act (such as education or counselling services); and
2. that usually involves direct contact with a child that is not occasional direct contact with children that is incidental to the work.

Employees, subcontractors and suppliers of builders who carry out works on school grounds will satisfy the first requirement above. However, while such persons may have contact with children, it is likely to be considered occasional and incidental to their work. Therefore, it is unlikely that contractors, subcontractors and suppliers in building projects carried out on school grounds as part of a school building project need WWC Checks under the Act.

Additional obligations under the Ministerial Order 1359

The Victorian Ministerial Order 1359 imposes more stringent requirements on registered schools and boarding houses to ensure that prescribed workers obtain a WWC Check than what is required by Act.

Clause 10.2 of the Ministerial Order requires that when engaging school staff or school boarding premises staff to perform child-connected work, the school governing authority or school boarding premises governing authority must:

• sight, verify and record the person’s WWC Check clearance, if the person is required to have a clearance in accordance with the Act, or any equivalent background check; and
• where the person will be engaged in child-related work,[1] collect and record:
  • proof of the person’s identity;
  • information about any essential or relevant professional or other qualifications;
  • the person’s history of work involving children; and
  • references that address the person’s suitability for the job and for working with children.

Critically, the Ministerial Order’s definition of child-connected work is broader than the definition of ‘direct contact’ under the Act, and has the effect of expanding the categories of workers required to obtain a WWC Check in connection with schools and boarding premises. The Ministerial Order defines child-connected work as:

1. work authorised by the school and performed by an adult in a school environment while children are present or reasonably expected to be present; or
2. for the purposes of a school boarding premises, work authorised by the provider of school boarding services in a school boarding premises environment while children are present or reasonably expected to be present.

In practice, this means that a contractor, subcontractor or worker on a building project at a school may not be required to hold a WWC Check under the Act on the basis that they are not likely to have direct contact with students. However, a school or boarding premises may be required to obtain one under the Ministerial Order where the worker is likely to be in school and boarding school environments where students are reasonably likely to be present (i.e. to order to access the work site and other school facilities while working on the school grounds).

Consequently, schools and school boarding premises should carefully consider whether they hold appropriate WWC Check clearances for all workers under the Ministerial Order, not simply under the Act.

Requirements for a WWC Check under Child Safety Policy

Regardless of which state or territory a school is located in, schools are increasingly insisting on WWC Checks for contractors and sub-contractors as part of their Child Safety Policy (CSP).

It is a requirement under the Victorian Child Safe Standards (Standards) and Ministerial Order 1359 that schools have their own CSP. The Standards were created as a compulsory minimum set of obligations on organisations that provide services to children, including schools.

If a school’s CSP requires WWC Checks for employees, contractors and subcontractors of builders, the school must ensure these checks are obtained, because breaches of a school’s CSP may result in an investigation by the relevant regulator, and potential liability.

This raises two issues. First, a school should be precise in specifying who is required to have a WWC Check to avoid the school assuming unintentionally broad obligations (i.e. that all contractors, subcontractors, and their employees will require a WWC Check, even if the project is undertaken outside of school hours or school term). Second, should a school’s CSP require all contractors, subcontractors and their employees of builders to have a WWC Check? For schools outside Victoria, this may be setting the bar impractically high.

There can be hundreds of individual contractors, subcontractors, suppliers and their employees on school grounds during the course of a school building project, some of whom may only be there for only an hour or two. It may not be practical or necessary to get a WWC Check from all such persons, and schools should be aware of the time and cost of getting them, which will likely be passed-through to the school by the builder or contractor.

Schools should be wary of insisting on an overly broad requirement for WWC Checks in their CSP (and similarly in their building contracts) that they are not willing or able to enforce. As noted above, a school must comply with their CSP, so care needs to be taken to ensure that WWC Check requirements on employees, subcontractors and suppliers of a builder align with their legal and contractual obligations.

How we can help

In order to maintain a child safe environment, schools must ensure that they assess and manage the risks associated with school building projects consistent with their legal obligations, including in relation to screening and monitoring workers on building projects. Moores can help schools to implement lawful, reasonable and pragmatic processes to support a child safe environment in relation to building projects, including by:

1. Advising schools on the extent to which WWC Checks must be obtained from employees, contractors, sub-contractors and suppliers on building projects in each state and territory.
2. Drafting Child Safety Policies and Procedures to ensure that a school has a clear position on who is required to have a WWC Check, consistent with relevant legal obligations.
3. Advising schools on their obligations under reportable conduct schemes in each state and territory, and when reports must be made in relation to contractors, subcontractors and employees on building projects.
4. Drafting and negotiating building contracts for school building projects, including aligning them with a school’s CSP and other child safety obligations which may apply.

Contact us

Please contact us for more detailed and tailored help.

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[1] Child-related work has the same meaning as in the Worker Screening Act 2020.

During the recent The Education Network Charities and Not-For-Profits Conference, assistant commissioner of the Australian Taxation Office (ATO), Jennifer Moltisanti, provided significant updates to the sector with respect to the new reporting requirements for not-for-profits (NFP) that self-assess for income tax exemption.

Key dates

• 1 October 2023 – Publication of questionnaire on the ATO website.
• 1 July 2024 – Lodgment opens for financial year 2023/24.
• 31 October 2024 – Due date for first lodgment.

Key Highlights

All non-charitable NFPs with an active ABN that are seeking to self-assess as income tax exempt must lodge an annual self-review form for the 2023/2024 financial year. The first day of lodgment will be 1 July 2024. NFPs will not be required to lodge self-review forms in order to obtain an income tax exemption for the 2022/23 financial year.

The Income Tax Assessment Act 1997 (Cth) provides that, in order to be income tax exempt, an NFP must:
• operate for public benefit;
• have a physical presence in Australia;
• meet the eligibility requirements for one of the eight categories that can self-assess as income tax exempt; and
• ensure that its income and assets are used solely for the purposes for which it is established.

How will an NFP self-review?

The ATO is currently developing a self-review return form specifically tailored for non-charitable NFPs. The form will resemble the self-assessment worksheet currently used by NFPs for tax assessment and will feature 10-15 questions. The questions will be published on the ATO website from 1 October 2023. Following their initial submission, NFPs will have the ability to review and update the information provided on the self-review return.

Self-assessment is not available for entities that have a charitable purpose

The Income Tax Assessment Act 1997 (Cth) provides that an NFP that has a charitable purpose is not entitled to self-assess as income tax exempt. Instead, in order to be eligible for income tax exemption that NFP must register as a charity with the Australian Charities and Not-for-profits Commission.

How we can help

Moores can advise on what these proposed changes mean for your NFP and work with you to confirm whether your NFP is entitled to be income-tax exempt or to apply for registration as a charity if required.

Contact us

Please contact us for more detailed and tailored help.

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If you have been appointed as an administrator or guardian for another person by VCAT you may be aware that the person’s “will and preference” should guide all decisions the administrator or guardian makes for them. But what does that mean? And how do you determine what a person’s will and preference is?

Why is an administrator or guardian appointed?

VCAT’s Guardianship List appoints an administrator and/or guardian for people whose disability means they don’t have decision-making capacity to manage their own affairs (sometimes described as a ‘represented person’). An administrator makes financial decision, while a guardian makes personal decisions, such as where a person lives and what services they receive.

The appointment is usually required because the represented person doesn’t have a valid power of attorney, or because their attorney can no longer act in the role or has been removed from it following a dispute within their family that makes the VCAT appointment desirable.

‘Best interests’ Vs ‘will and preference’

Previously, administrators and guardians were required to make decisions in the represented person’s “best interests”, but with the introduction of the Guardianship and Administration Act 2019 (Vic), when making decisions for a represented person, administrators and guardians must now “give all practicable and appropriate effect to the represented person’s will and preferences, if known.”

This change occurred following Australia becoming a signatory to the United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’) in 2008. The best interest’s approach to an administrators or guardians decision making would often result in decisions being made based off professional judgment without considering the represented person’s views and wishes and deprived them of the opportunity to participate in decisions that effected their life.

What does ‘will and preference’ mean?

There is no definition of will and preferences in the Guardianship and Administration Act 2019 (Vic), or in the UNCRPD. It appears that the view within the Guardianship List at VCAT is that a person’s “will and preference” is what is important to a represented person.

During proceedings in VCAT, the Guardianship List will ask a represented person to complete a will and preference checklist, which asks them about what is important to them in respect of their relationships, daily living, their finances and medical treatment. This indicates that VCAT views the represented person’s “will” to extend beyond what they say their preferences are currently, and delves into what they truly value in their lives, their beliefs and the underlying direction they want to pursue in life.

The Supreme Court of Victoria has considered the meaning of the term(1) and said that:

1. an administrator or guardian must assist a represented person to express their will and preferences, that so as far as practicable, it is a represented person’s wishes that direct decisions made for them;
2. if it is not possible to determine a represented person’s will and preferences, the administrator or guardian must give effect to, as far as practicable, what they believe a represented person’s will and preferences would be, which may include consulting with the represented person’s friends, family and carers;
3. If it is not possible to determine the represented person’s will and preference at all, the administrator or guardian should act in a way that promotes the represented person’s “personal and social wellbeing”.

Good in theory, difficult in practice

The change from the “best interest” outcome-based approach to a subjective approach, which focuses on a represented person’s autonomy sounds good in theory but can be difficult in practice. Making decisions based on a represented person’s will and preferences is less straightforward for several reasons:

1. A represented person’s “will” may not align with their current preferences;
2. There may be an inability for a administrators or guardian to understand a represented person’s will and preferences where they have lost decision making capacity, or it may be difficult for the represented person to express it;
3. A represented person may have different will and preferences now to what they did before they lost decision-making capacity (as this New York Times story aptly demonstrates); or their stated wishes may change from day to day.
4. In cases of family conflict, different people are likely to have different views (sometimes diametrically opposed) about what the represented person’s wishes are and decision making might be highly contested;
5. It can be difficult to strike the right balance between a represented person’s will and preferences directing decision making as far as possible, and protecting a person from the risk of serious harm. At what point does a detrimental wish become one that risks serious harm?
6. A represented person’s stated will and preference may not be an informed wish because they cannot retain information sufficiently to be able to evaluate it and make a reasoned choice.

In practice, this is a matter of assessment and judgement, placing the administrator or guardian in the position of needing to be able to defend the process by which they arrived at a decision and the decision itself, sometimes to family members who are in dispute, or to the VCAT.

Seeking advice from VCAT

Fortunately, administrators and guardians are able to seek advice from VCAT about any matter within the scope of their appointment, including where they are unsure of what decision to make. The application to VCAT is often heard confidentially between the administrator or guardian and Tribunal and can result in VCAT approving/disapproving a decision and giving advice as it considers appropriate.

There are also resources available that can help administrators and guardians navigate the will and preference minefield such as:
• This LaTrobe University’s online learning resource helps guide people through the process of supporting people with cognitive disability make decisions after evaluating their options and wishes; and
• The Office of the Public Advocate and State Trustees offer guides for Administrators and Guardians that outlines the steps they should follow to support a represented person make a decision or make one for them when this is not possible.

How we can help

Moores’ Elder Financial Abuse team specialises in advising administrator’s and attorneys on their responsibilities and appear regularly before VCAT’s Guardianship list.

If you have been appointed as an administrator or guardian we can help you navigate the underlying principles to making decisions on behalf of your represented person and other issues that arise in your role.

Contact us

Please contact us for more detailed and tailored help.

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(1) Andrews & Anor v Andrews & Anor [2020] VSC 31 (11 February 2020)

The Federal Court recently allowed an appeal to increase damages awarded to a then 68-year-old accountant on the basis that he was subjected to age discrimination after 25 years of service. Justice Burley’s decision in Gutierrez v MUR Shipping Australia Pty Ltd [2023] FCA 399 (4 May 2023) highlights the willingness of the courts to compensate workers subjected to age discrimination, and is a timely reminder for employers not to make assumptions about retirement of their employees.

The Facts

Mr Alex Gutierrez commenced as a Chief Accountant with MUR Shipping Australia Pty Ltd (MUR) in 2004. In February 2018, Mr Getty of MUR informed Mr Gutierrez that the company had a retirement age of 65 and asked when he would retire. Mr Gutierrez told Mr Getty that forcing him to retire based on his age was unlawful and that he would give MUR 3 months’ notice of his retirement.

In March 2018, MUR arranged a meeting with Mr Gutierrez, Ms Fernandes from MUR’s Dubai office, Mr Getty, and Mr Smith. At that meeting, he was requested to explain to Ms Fernandes what duties he performed in his role. Later that month, Mr Gutierrez was informed that Ms Fernandes would take over his role, notwithstanding that he had not given any firm date of his retirement. When Mr Gutierrez queried why MUR was arranging his replacement, Mr Getty said ‘I know you have a retirement unit in Manila’. Mr Gutierrez felt compelled to give a retirement date, which he gave as July 2019. In April 2018, he was informed that Ms Fernandes would start that month.

On 19 July 2018, Mr Gutierrez was informed that the Board intended to end his employment at the end of 2018, commence him on a fixed term contract from 1 January 2019, and required him to train Ms Fernandes to be his replacement. Mr Gutierrez’s health rapidly deteriorated due to stress and he was diagnosed with adjustment disorder. On 1 August 2018, he resigned from his position.

The original decision – Gutierrez v MUR Shipping Australia Pty Ltd [2021] FedCFamC2G 56 (1 December 2021)

Mr Gutierrez claimed under the Disability Discrimination Act 1992 (Cth) that he had been discriminated against on the basis of his age, had been constructively dismissed, and had suffered a psychiatric injury on the basis of that discrimination. The Federal Circuit and Family Court of Australia found in Mr Gutierrez’s favour in 2021. In its decision, it noted amongst other things that:
– “MUR Shipping did unlawfully discriminate against Mr Gutierrez on account of his age, inasmuch as it treated Mr Gutierrez disrespectfully and less favourably than his intended replacement (Ms Fernandes)”;
– “Mr Gutierrez [had] not suffered any economic loss caused by that discrimination because he chose to resign his employment when there was no need to do so”;
– Mr Gutierrez suffered from a “mild adjustment disorder” as a result of his treatment;
– “an appropriate award of damages for non-economic loss [was] $20,000… [plus] interest”; and
– “Mr Gutierrez should also receive an apology, which is “likely to be at least as valuable to Mr Gutierrez as the payment of damages”.

The appeal

Mr Gutierrez appealed the decision in relation to the assessment of damages to the Federal Court of Australia. He was successful on two grounds.

1- Incorrect assessment of harm

Justice Burley held that Judge Driver incorrectly characterised Mr Gutierrez’s condition as ‘mild adjustment disorder’, which was inconsistent with his doctor’s diagnosis of ‘adjustment disorder’ and his wife’s evidence of the personal impact the discrimination had on him, including that he was previously a “vibrant, social and happy man” but no longer socialised, played golf or enjoyed watching basketball. Judge Driver also failed to consider the doctor’s evidence that Mr Gutierrez would be unable to work until the disorder was resolved, and that his condition arose entirely from MUR’s discriminatory conduct.

2- Damages were available for economic loss

Contrary to the original decision, the Federal Court found that Mr Gutierrez was entitled to an award of damages for economic loss. Justice Burley held that Judge Driver (primary judge) incorrectly concluded that, because the court found that Mr Gutierrez resigned and was not constructively dismissed, it was unable to award damages for economic loss. Instead, Justice Burley clarified that the correct basis of an award of damages for economic loss was the assessment of the causal link between the conduct and the consequence. The court found that there was a causal link between the unlawful discriminatory conduct and Mr Gutierrez being unable to work (due to suffering from adjustment disorder).

Increased damages awarded

Justice Burley increased the general damages awarded to Mr Gutierrez from $20,000 to $90,000. He also awarded damages for economic loss, which Mr Gutierrez claimed was approximately $142,000. The final award of damages for economic loss is yet to be determined following further submissions from the parties.

Key takeaways

The decision aligns with an upward trend in the award of damages in age discrimination cases over recent years. The decision highlights that:
– Employers should avoid making assumptions about the intention of older employees to retire.
– Employers can only bring an employee’s employment to an end by following lawful processes regarding conduct, capacity, performance or organisational restructuring.
– Conversations regarding retirement should be approached respectfully and carefully.
– Courts are increasingly willing to recognise the significant harm caused by discrimination, including through health impacts, with significant awards of compensation for hurt, humiliation, pain and suffering.

How we can help

Our Workplace Relations team are experts in discrimination matters and are passionate about guiding employers to act consistently with their anti-discrimination obligations. Please contact Skye Rose or Amanda Junkeer for further advice or information.

Contact us

Please contact us for more detailed and tailored help.

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We’ve had a raft of changes in the workplace relations space (see our recent article here ) and there are more changes to come it seems. The Albanese federal government released consultation papers for further reforms to workplace laws that it is considering to introduce in the second half of 2023.

There were 11 proposals for reform which the federal government sought feedback on from stakeholders. The consultation period closed on 12 May 2023.

Moores has prepared a brief overview of the proposed reforms and issues which are still to be addressed. Employers should be on notice about these potential changes..

1. Casual workers

The Fair Work Act 2009 (Cth) (FW Act) defines casual employment – a change introduced after years of uncertainty following common law decisions which applied a multi factor test. The Rossato High Court decision provided decisive authority as well in 2021.

As part of enhanced protections for casual workers, further award reforms have been introduced in recent years to provide casual employees with the right to convert to permanent arrangements.

The government is now considering introducing a legislative test to which would bolster the right of conversion including through considering how post-contractual conduct should be assessed

2. Same Job, Same Pay

In what would be a significant regulatory reform for the labour hire sector, the government is considering more protections for outsourced third party labour, or labour hire, to provide pay parity with direct employees.

Direct employees can be entitled to enhanced wage and related entitlements under a particular enterprise agreement. That instrument does not automatically apply to labour hire resulting in employees performing the same or similar work, side by side, but receiving different wage outcomes because of who their employer is.

Details of the proposed mechanism are still to be decided such as the scope and application, the criteria for ‘same job’ and the calculations for ‘same pay’. The proposals also include the introduction of dispute resolution pathways with the Fair Work Commission (Commission) and enforcement measures.

3. Criminalising wage theft

The previous federal government started the conversation around the criminalisation of wage theft at a federal level. Various political upheavals meant that reforms proposed back in 2019 were shelved indefinitely. It is now back on the agenda. The federal government is considering how to strengthen the compliance and enforcement framework surrounding wage theft.

The major question for consultation was whether to introduce an offence which is knowledge-based or recklessness-based. A knowledge-based offence seeks to cover instances in which an employer knows they are not paying their employee their entitlements. A recklessness-based offence covers instances in which an employer is ‘aware of a substantial risk’ and proceeds to take the risk where it is ‘unjustifiable’.

An increase to the maximum civil penalties for wage theft is also being considered.

4. Gig economy – ‘employee-like’ forms of work

More protections may be on the cards for ‘gig workers’ who are ‘employee-like’.

The term ‘employee-like’ describes workers who have features of employment and do not exhibit all the characteristics of traditional independent contractors. Think rideshare and food delivery service workers.

It is proposed that the Commission be empowered to set minimum standards for these workers. These minimum standards may include:
• minimum rates of pay;
• workplace conditions, such as rest breaks;
• concepts of ‘work’ time and which work activities should attract compensation; and
• timeframes between performing work and receiving payment.

5. Give workers the right to challenge unfair contractual terms

Independent contractors currently have some rights to challenge unfair contract terms but in recognition of some of the practical obstacles in the current legislative framework, there is a proposing to introduce a low-cost jurisdiction within the Commission to provide contractors a clearer pathway to seek recourse.

6. Allow the Commission to set minimum standards to ensure the Road Transport Industry is safe, sustainable and viable

This consultation paper was focused on addressing key issues raised by members of the road transport industry.

7. Provide stronger protections against discrimination, adverse action and harassment

The federal government intends to align the FW Act with federal discrimination law. Some of the proposed amendments include:
• introducing an express prohibition on indirect discrimination;
• clarifying the definition of ‘disability’;
• expressly requiring employers to consider reasonable adjustments when assessing whether employee can perform the inherent requirements of a role;
• adding family and domestic violence as a protected attribute; and
• including discrimination on the basis of a combination of attributes.

8. National labour hire regulation

There is a proposal to introduce a single national labour hire licensing scheme to replace existing state and territory schemes across all industries.

The proposed scheme would require labour hire providers to hold a licence to operate and comply with all eligibility criteria, to promote accountability and transparency, and to protect workers from exploitation.

9. Small business redundancy exemption

Currently, the FW Act provides small businesses (fewer than 15 employees) with an exemption to the obligation to pay redundancy provisions . Whilst the federal government is not proposing to remove the exemption, it is considering making some amendments to protect employees from unintended outcomes, such as employees losing an entitlement when an employer becomes insolvent.

10. Reforms to enterprise bargaining provision to close loopholes

10.1 The Commission issuing model terms for enterprise agreements
There is a proposal to reallocate responsibility for model terms for enterprise agreements from the Minister for Employment and Workplace Relations to the Commission.

10.2 Preserve arrangements for employers already using single interest agreements
Consultation focused on whether additional transition rules are required to preserve employers’ alibility to access the ‘single interest’ bargaining stream after new bargaining changes take effect on 6 June 2023. This relates to a current mechanism for multiple employers to bargaining together for a ‘single interest’. Repeal demerger from registered organisations amalgamations provisions.

There are proposed changes to limit a registered organisation’s (eg. a union) ability to apply for a ballot to withdraw from amalgamation with another organisation. The limitation proposed is the permit such applications where they are made more than 2 but less than 5 years after amalgamation. The rationale for the proposal is to restore the ‘long standing requirements in previous iterations of [the] Act’.

How we can help

Our Workplace Relations Team continues to monitor workplace relations reforms and will provide updates as they come to hand. In the meantime, our team can provide you with guidance to identify key areas of reform which may affect the way your organisation operates and support you to implement the necessary changes.

Contact us

Please contact us for more detailed and tailored help.

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