Accepting a role as a legal personal representative of an estate (ie an executor or administrator, ‘LPR’) can be a daunting task, particularly given the risk of personal liability that goes with it.
A key starting point to navigating the role as LPR is being aware of the timeframes which apply when administering a deceased estate.
Many of the key timeframes are outlined here, and include the following:
Before an LPR can make application for a grant of representation, they must advertise their notice of intention to do so, on the Supreme Court website1.
Where there is a valid will, this notice must include the LPR’s name and address, the date of the will to be probated and the names of the persons identified as executors in the Will.
This allows third parties a period in which to object to a grant of representation, which (in the context of a grant of probate) is typically done when somebody believes that the Will is not valid or there is a more recent Will.
Once the 14-day period has lapsed, the LPR can file their application for a grant of representation.
In urgent matters (for instance, where a grant of representation is required to settle real estate), an LPR can be appointed without having to advertise a notice of intention, but this requires an application to the Supreme Court.
The ‘executor’s year’ refers to the period of time that an LPR is afforded to administer an estate, without being compelled to make any distributions to beneficiaries. The principle is grounded in case law and legislation2.
However, an LPR should be aware that the principle does not mean:
Ultimately, the LPR must always ensure that they are acting promptly in the ‘due administration’ of the estate, regardless of the time period since death.
In Victoria, an eligible person may claim further provision from an estate in circumstances where they believe that they have not been left adequate provision for their proper maintenance and support.
This claim must be made within 6 months of the grant of representation.
For this reason, LPR’s are advised not to distribute an estate within this period of time. If they do, and a successful claim is made, the LPR may be held liable if insufficient assets in the estate remain to meet the claim.
A family provision claim can also be made outside the 6 month limitation period in certain circumstances but only where assets in the estate remain at that time. It is therefore prudent for an LPR, where feasible, to distribute an estate as soon as possible after the 6 month limitation period lapses, particularly where a potential claim exists.
A gift of money in a will (called a pecuniary legacy) starts to attract interest3 if it has not been paid within one year after the testator dies.
Accordingly, an LPR should, where possible, seek to make payment of pecuniary legacies within this period of time, to prevent interest accruing.
Planning is key when administering a deceased estate and knowing what timeframes apply is crucial to limiting the risk of liability. Our team of deceased estates legal experts can help you if you have any queries navigating these timeframes.
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.
1Rule 2.03 of the Supreme Court (Administration and Probate) Rules 2014).
2Section 49 of the Administration and Probate Act.
3At the ‘legacy interest rate’ which is the rate that lies 2 per cent above the cash rate last published by the Reserve Bank of Australia: s39B(3) of the Administration and Probate Act 1958 (Vic)
It is now increasingly common for retirement village developers to present captivating promotional material to prospective residents for a village while construction is still underway. If a resident agrees to purchase or lease a unit before it is built, this is known as ‘buying off the plan’.
However, much like purchasing property off the plan, there are a number of things that buyers should keep in mind before they make their decision.
One obvious consequence of entering contracts for an off the plan retirement village is that you will not have an opportunity to inspect the property before signing the contract.
Often prospective residents are left to rely on architectural drawings, designer impressions and advertising material to get a sense of what they are getting into.
But what happens when things don’t go according to plan? Whether the issue relates to changes in design, defective work, or late completion, it is important to ensure that you have the proper protections under your contract.
Every contract is different. Some examples of features that we have observed in retirement village contracts include:
Another matter to consider is whether the retirement village will be completed in stages. Sometimes, a retirement village may offer units for purchase or lease before construction of the village as a whole is complete. In those circumstances, it will be important to keep in mind that:
When a new village is getting started, it may take time for the owner to find residents for each unit. Whilst the owner is selling down homes, it is often the case that the village will incur a shortfall with respect to its operating account as the operating costs are greater than the service fees paid by residents. We like to see off the plan contracts include a clause that the owner will cover the shortfall until the village is fully or nearly fully occupied.
Retirement village law is a complex and niche area. If you would like the assistance of specialist lawyers to review your documentation and help mitigate the risks outlined above, please do not hesitate to contact us.
Moores Senior Lawyers, Rowdy Johnson and Kate Drummond, sit down in a Moores Q&A to break down the changes to the Vacant Residential Land Tax in Victoria and what it means for owners of holiday homes.
The Albanese federal government has started the year by introducing a suite of significant workplace reforms, passing the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2023 (Cth) (Act) following robust debate. It follows the passing of the Fair Work Legislation Amendment (Closing Loopholes Act No.1) Act on 7 December 2023. Key changes made in the initial tranche included the criminalisation of intentional wage theft, broadened discrimination protections, increased workplace delegate rights (with the exception of regulated workers) and “same job, same pay” rights for labour hire workers.
The second tranche of workplace relations reforms aim to improve Australia’s workplace relations framework by addressing gaps in the current laws and includes:
In 2022, the majority of the High Court of Australia in CFMEU v Personnel Contracting Pty Ltd and ZG Operations v Jamsek established that when determining if a person is an employee or individual contractor, the written contract between the parties takes primacy.
The Act amends the Fair Work Act 2009 (Cth) to override this principle. New section 15AA of the Act will require the ordinary meanings of ‘employee’ and ‘employer’ be determined by reference to the ‘real substance, practical reality and true nature’ of the relationship. The ‘totality of the relationship’, including how the contract is performed in practice, must be considered when ascertaining the real substance, practical reality and true nature of a relationship.
This change will be particularly relevant to independent contractor relationships and claims that a relationship should be characterised as employment. These issues will now be subject to a broader set of considerations than the written contract between the parties and it will be more difficult for employers to rely solely, or in the main, on the terms of a written contract to the exclusion of how the relationship works in a practical sense. Employers should also keep in mind that a person may be engaged as an independent contractor at first, but then due to the conduct of the parties afterwards, be found to be an employee.
This legislative change will only be relevant for determining entitlements under the Act. Whether a person is an ‘employee’ for the purposes of taxation, superannuation and workers compensation will continue to be determined by other tests.
An interesting element of this legislative change is that contractors who earn over a ‘contractor high income threshold’ (currently $167,500), and who are already engaged at the time the Act commences, may ‘opt out’ of the amended definition of employment. However, they will have the ability to revoke that ‘opt out’ decision at any time by giving written notice.
The Act introduces two key changes in relation to casual employment.
New definition of casual employee
The reforms introduce a new definition of ‘casual employee’ as follows:
The factors that are relevant to assessing whether there is a firm advance commitment include consideration of the real substance, practical reality and true nature of the employment relationship, whether this is verbal, written or could be inferred by conduct.
Factors which indicate the presence of a firm advance commitment include:
This change signals a move away from an employee’s casual status being assessed based on contract only, to being assessed having regard to what happens in practice.
The Act removes the ban on employees being both casuals and engaged under a fixed-term contract, excluding for academic university staff.
New pathway to casual conversion
The Act removes existing casual conversion provisions and introduces an “employee choice” framework.
Under the new casual conversion framework, a casual employee will be able to give their employer a written notice if they believe their employment is no longer casual, having regard to the new definition set out above. An employee can only give this notice after 6 months of employment if they are employed by a non-small business employer, and 12 months of employment if they work for a small business employer.
This new pathway removes many of the obligations employers had under the previous casual conversion provisions. Rather than making their own assessments and offering conversion where an employee meets certain requirements, employees need to initiate the shift to permanent employment and employers will need to respond to written notifications within 21 days after they are made. Employers must respond in writing, confirming the employee’s new status and hours of work if the notification is accepted. If employers do not accept the notification, they must set out why.
The Act provides that an employer may decline the employee notification, if:
The Act introduces anti-avoidance provisions to ensure casual employees are engaged properly. This includes requirements that employers must not:
Employers who have incorrectly classified an employee as an independent contractor may be penalised for sham contracting, unless they can prove that the amended sham contracting defence applies.
Prior to the reforms, an employer needed to prove that they did not know and were not reckless as to whether the contract was an employment contract rather than one for services.
The narrowed defence provides that an employer has not contravened the sham contracting provisions if, at the time of the representation, the employer reasonably believed the contract of employment was a contract for services.
In determining whether the employer’s belief was reasonable, courts will be required to consider the size and nature of the employer’s enterprise, and will have discretion to consider any other relevant matters.
The Act also introduces a right for employees to refuse contact from employers or third parties outside their paid working hours, unless that refusal is unreasonable.
There is a set list of matters which must be considered when deciding whether a refusal to contact is unreasonable or reasonable. This will operate in a similar way to existing provisions in the Act which relate to reasonable additional hours. In determining whether a refusal to respond is unreasonable, regard must be had to:
The right to refuse contact will be a ‘workplace right’ for the purposes of the Act’s general protections regime. This means that if the employer and employee cannot resolve their dispute over the right to disconnect, either party can apply to the Fair Work Commission to make an order to stop refusing contact, to stop taking certain actions, or to otherwise address the dispute.
The Fair Work Commission will be required to issue written guidelines about what is reasonable or unreasonable contact from an employer or third party, which we expect will greatly assist employers and employees to have conversations about the right to disconnect. The right to disconnect provisions will have a delayed commencement for small businesses.
The maximum civil pecuniary penalties available under the Act for breaches by body corporates of the National Employment Standards, modern awards, enterprise agreements and minimum wages will increase at least fivefold:
The maximum civil penalty for a contravention of the civil remedy provisions “associated with an underpayment amount” is the higher of:
These increases only apply to breaches by body corporates and do not apply where the organisation is a small business employer at the time an application for a penalty is made.
Further, there are new criminal offences for specific intentional underpayments. The criminal offence carries a maximum fine for body corporates and a term of imprisonment of up to 10 years or a fine for individuals. Where the Courts can determine the underpayment amount, the maximum fine that a Court can order against a body corporate is the greater of 3 times the underpayment amount and 5,000 penalty units (currently $1,565,000) for an individual or 25,000 penalty units (currently, $7,825,000) for a body corporate. If the Court cannot determine the underpayment amount, the maximum fine for an individual is 5,000 penalty units ($1,565,000) and for a body corporate is 25,000 penalty units ($7,825,000).
Timing
We summarise below when each change will come into operation:
The reforms summarised in this article highlight the importance of employers reviewing their engagement of workers, including whether:
Our Workplace Relations team can assist employers to minimise the risk of breaching the sham contracting obligations which commenced on 27 February 2024, and prepare for the commencement of other significant workplace relations reforms in August 2024.
The reforms follow previous changes to Australia’s workplace laws made by the federal government in 2022, including the Secure Jobs, Better Pay Bill and the new limits on fixed term contracts, and changes made in 2023.
Having a space to express breastmilk in the workplace can be a critical part of a breastfeeding parents’ transition back to work after parental leave.
Fortunately, there are laws in place to protect breastfeeding parents who need to express breastmilk in the workplace. The failure of an employer to provide a private, clean and appropriate space for expressing breastmilk can amount to unlawful discrimination. It may also be unlawful discrimination to have a rule that workers cannot take short breaks during the day, as this may disadvantage breastfeeding women who need to take breaks to express breastmilk. An employer may not dismiss an employee who breastfeeds or expresses breastmilk because of assumed health and safety risks in the workplace.
Breastfeeding discrimination can arise where:
In one of the first reported anti-discrimination cases involving breastfeeding parents, the ACT Civil and Administrative Tribunal (Tribunal) recently found that a KFC franchisee indirectly discriminated against a worker by failing to provide an adequate solution for one of its workers to express breastmilk.
The Respondent in this case was a large private KFC franchise owner in Australia. The Applicant was a woman who started working for the Respondent when she was 14 years old in 2015 and worked her way up to the position of store manager. She gave birth to her daughter in June 2021 and was excited to return to work in November 2021.
The Applicant had a lengthy and, at times difficult, negotiation process with the Respondent’s management about a suitable return to work arrangement to accommodate her need to express breastmilk at work.
In November 2021, the Respondent allowed the Applicant to use a fridge to store her breastmilk and use the wash sink, but otherwise:
The Applicant then lodged a complaint with the ACT Human Rights Commission.
Eventually, a flexible work arrangement was approved, which included a pop-up tent and foldout chair in the storeroom. However, after the Applicant returned to work, the Applicant found this solution to be unsuitable. Due to the thin walls, the sounds of expressing milk were audible to staff and as there was no door, any staff member could walk in at any time.
The Applicant instead proposed to take unpaid meal breaks during her shift to express breastmilk, but this request was denied. From time-to-time, the Applicant left the store to express milk at the parent room in the nearby mall, but as there was frequently no other manager on site, she had to express at a much later time which caused her physical pain and discomfort.
The Applicant claimed that she suffered significant mental harm and a reduced capacity to work because of the Respondent’s failure to accommodate an arrangement which allowed her to express breastmilk at work.
The Tribunal found the Respondent indirectly discriminated against the Applicant by imposing a condition requiring managers to remain on site unless another manager was available on site who is certified in OH&S. This condition disadvantaged workers who breastfeed and express breastmilk (a protected attribute) and was not reasonable in the circumstances.
The Tribunal found that the Applicant had no choice but to accept a demotion or express before or after her shifts, disadvantaging her. The tent inside a doorless storeroom that was eventually provided was not even a ‘pass’ level solution, causing embarrassment and discomfort, which was also a form of disadvantage.
To address the Applicant’s request, the Respondent had multiple options to consider, such as adding a storeroom door, transferring the Applicant to a nearby store with a private, appropriate space to express breastmilk or providing junior workers with OH&S training so they could act in her place during the brief periods she left the store to express.
Employers and other duty holders are required to make suitable arrangements to support workers transitioning back to work after parental leave or to accommodate breastfeeding, and a failure to do so may amount to unlawful discrimination.
Requests from breastfeeding workers to cater for their need to express breastmilk are a normal part of the modern workplace, and so employers may wish to proactively consider how to accommodate such requests in a positive and appropriate manner. Other duty holders such as councils, sporting organisations, educational institutional and service providers should also take steps to reasonably accommodate people to breastfeed.
The Tribunal in this case was also critical of the process the Applicant had to go through to request her return to work arrangement. At only 20 years old, she was interviewed on her own by two senior men who questioned her in detail about the breastfeeding process and made her feel uncomfortable. The suggestion by a senior female manager that the Applicant express in the toilet was also criticised as not being a modern solution for breastfeeding parents at work. Employers may consider developing a clear policy and process for how to address such requests, to avoid an unnecessarily complicated or intimidating process.
Moores assists clients by:
If a discrimination issue arises, we can support you in your response and investigation.
In the case of Kaplan v State of Victoria (No 8) [2023] FCA 1092, five Jewish former students at Melbourne’s Brighton Secondary College (College) received compensation of $435,000 after the Federal Court found they had been subjected to anti-Semitic bullying and harassment, and that the State of Victoria and the Principal of the College breached the Racial Discrimination Act 1975 (Cth) (Act) by failing to properly address anti-Semitism at the College. This case highlights the significant discrimination and child safety implications of a school’s failure to proactively address discriminatory bullying and harassment against its students on an individual and systemic level.
The applicants, five former students from the College, filed a claim against the State of Victoria, the Principal of the College, and two teachers from the College. The claim alleged:
In summary, the applicants alleged that:
Finally, the applicants alleged that the Principal contravened the anti-vilification provisions of the Act in respect of at least one speech he gave to a full school assembly, where the applicants allege he made remarks that offended, insulted, humiliated or intimidated Jewish students and were offensive more generally to Jewish people.
Each of the five applicants left the school as a result of the above.
The Court upheld the applicants allegations in part, and found that State of Victoria was vicariously liable for the Principal’s failure to adequately respond to anti-Semitic bullying and harassment by students.
The applicants succeeded on some of their claims under section 9(1) of the Act and negligence claims. Specifically, the Court found that:
The Court accepted the applicants’ claim that the Principal failed to address anti-Semitic bullying and harassment in a systemic and proactive way using recognised and established approaches in Australian secondary schools and approaches that were used at the College for other vulnerable students.
The Court found that the Principal contravened s 9 of the Act by failing to take reasonable and appropriate steps to discourage swastika graffiti and the anti-Semitic bullying and harassment of students. Appropriate and reasonable steps could have included taking disciplinary action against students who engaged in bullying and harassment, and taking systemic approaches to address the issue through school-wide campaigns. The Court found that at a leadership and systemic level the Principal took a different, and less favourable, approach to anti-Semitic bullying and harassment of Jewish students than he took, or would have taken, to the bullying and harassment of other vulnerable minority student groups. As a result, this different and less favourable approach to anti-Semitism was also adopted by College staff.
The Court observed an inexplicable and unusual tolerance for anti-Semitic graffiti and a preparedness to ignore, downplay and take less seriously the complaints made by Jewish students and their families. There was also a disinclination to adopt any systemic, school-wide steps to address anti-Semitic student behaviour, despite this having been done, appropriately, to protect LGBTQIA+ students and to encourage tolerance and acceptance of students who identified in that way or who were exploring their identity.
In relation to the claims made in negligence, the Court upheld the negligence claims made by four of the five applicants.
Damages and compensation orders were made against the State totalling approximately $435,000.
In its orders, the Court also provided a declaration to be made outlining the above findings of discrimination. The Court also prescribed some steps to be taken between the parties to negotiate a form of apology from the State of Victoria that is compatible with the Court’s reasons.
Our safeguarding team has expertise in both child safety and discrimination matters. We are well placed to assist with incidents raising either or both of these issues and can provide peace of mind in navigating any allegations or investigations that may arise.
As you would likely be aware from the popular media, there are some significant changes to the Victorian land tax landscape in 2024. Unfortunately, the complexity of the legislation and the messaging coming from the Government and Opposition can mean it’s difficult to work out what those changes mean in a practical sense.
We cut through the confusion and explain (in simple terms) the things you need to have on your radar going into the new year.
The vacant residential land tax (VRLT) regime is being expanded to apply throughout Victoria.
Introduced at the start of 2018, the VRLT regime originally only applied to properties in inner and middle Melbourne (ie. properties in certain specified local government areas within a ring around the CBD). The tax is payable for a calendar year when the property was vacant for more than 6 months in the previous calendar year. Owners have a positive obligation to notify the State Revenue Office if that is the case.
From 1 January 2025, the catchment area for VRLT has been expanded to the whole of Victoria. This means that the way the property is used throughout 2024 will determine whether VRLT is payable for the 2025 year.
The exemptions from VRLT can be highly technical, and care should be taken in relying upon general advice or media summaries. The main exemptions are:
Action to take: If you own a residential property which is currently vacant or used for less than six months cumulatively each year, consider whether it could qualify for any of the exemptions. If not, you may wish to look at the options to ensure that it is occupied for more than six months this year – for example, by leasing it to a residential tenant.
From 1 January 2025, a new, progressive, rate of VRLT will apply based on the number of consecutive tax years the land has been liable for VRLT.
Previously, VRLT was fixed at 1% of the property’s capital improved value (CIV). Under the new rules, VRLT will be calculated on a progressive rate:
By way of illustration, Tom inherited a home in Daylesford from his mother, who died 4 years ago. The CIV shown on the council rates notice is $850,000. Tom occasionally visits the property for a weekend to tend to the garden and do some maintenance on the home, but it is otherwise empty while he decides whether he wants to live there in his retirement.
If Tom continues this pattern of use, then in 2025 he will be liable for VRLT of $8,500 on the home. This will increase to $17,000 in 2026, and $25,500 from 2027 onwards.
Action to take: If you own any unoccupied residential property (whether in your own name, or through a company or trust), consider the possible financial implications of the changes. Check the CIV on your current council rates assessment – use this figure to calculate your potential VRLT liability and help inform your decision-making about how you will deal with the property this year and future years.
Previously, VRLT only applied to land with a residence constructed on it. From 1 January 2026, however, the tax will extend to some unimproved residential land, ie. residential land without any residence on it.
VRLT will apply to vacant land which:
The rationale given for this change is to encourage development (and discourage land banking), with a view to increasing housing supply in metropolitan Melbourne.
Action to take: If you own vacant land which is unlikely to be developed in the next two years, consider whether a sale is appropriate and if not, factor in the potential VRLT liability from 2026.
Vendors are prohibited from apportioning land tax to a purchaser under contracts of sale entered into from 1 January 2024. This is a significant change to the standard practice of apportioning land tax along with other periodic statutory outgoings such as council rates and water rates – previously, the vendor would bear outgoings only up to the day of settlement. Now the vendor must pay the land tax for the whole year.
There is no contracting out of this provision – it is now an offence for a vendor to enter into a contract of sale that purports to require the purchaser to pay an amount for, or towards, the vendor’s land tax. However, it is open to vendors to seek to recover the difference through a higher asking price.
The prohibition does not apply to contracts where the consideration is $10 million or more (noting that this amount is subject to indexation).
Action to take: If you’re entering into a contract for the sale or purchase of a property, ensure that it doesn’t include a provision apportioning land tax between vendor and purchaser.
From 1 January 2024, land which is subject to “conservation covenant” is entitled to an exemption from land tax. To qualify for exemption, the landowner must have entered into a covenant with Trust for Nature (Victoria) for the conservation of the land under the Victorian Conservation Trust Act 1972 (known as a “Trust for Nature” covenant). The exemption is available only upon application and can apply to part of a land parcel if only part is subject to the covenant.
Action to take: If you own land which is subject to a Trust for Nature covenant or are considering purchasing such land, submit a land tax exemption application.
The property team at Moores has extensive experience in land tax matters and can provide strategic advice tailored to your specific property ownership situation, giving you a road map through the confusion.
If you would like to explore your options in this regard, please get in touch with us and we’ll help you work out a solid plan.
Vendors are prohibited from apportioning land tax to a purchaser under contracts of sale entered into from 1 January 2024. There is no contracting out of this provision – it is now an offence for a vendor to enter into a contract of sale that purports to require the purchaser to pay an amount for, or towards, the vendor’s land tax if the consideration for the property is under $10 million (noting that this amount is subject to indexation).
This is a significant change to the standard practice of apportioning land tax along with other periodic statutory outgoings such as council rates and water rates, and is welcome news for charitable organisations purchasing property – they will no longer have to contribute to the vendor’s land tax.
Action to take: If your organisation is purchasing property, ensure the contract doesn’t include a provision apportioning land tax between vendor and purchaser. In addition, consider seeking advice about any exemptions which could apply once your organisation owns the property.
Action to take: If your organisation owns a residential property which is currently vacant or used for less than 6 months cumulatively each year, consider renting it out or seek legal advice about whether the property could qualify for any of the exemptions.
By way of illustration, Do Good Ltd purchased a residential property in Daylesford last year with a view to potentially setting up a retreat for ill children and their families. The CIV shown on the council rates notice is $850,000. The Board is undecided about plans for future use at this stage and for now, the property is sitting vacant with staff visiting occasionally for maintenance purposes or for weekend breaks.
If Do Good Ltd continues this pattern of use, then in 2025 it will be liable for VRLT of $8,500 on the property. This will increase to $17,000 in 2026, and $25,500 from 2027 onwards.
Action to take: Consider unoccupied residential property you might own and the budget implications. Check the CIV on your current council rates assessment– use this figure to calculate the potential VRLT liability and help inform your Board’s decision-making about how you will deal with the property this year and future years.
Action to take: If your organisation holds vacant land, consider the likely time frame for development and factor in the potential VRLT liability if development is unlikely to take place within the next 2 years.
Action to take: If your organisation owns land which is subject to a Trust for Nature covenant or is considering purchasing such land, ensure that a land tax exemption application is submitted for the property.
In NSW, the Not-For-Profit Guidelines for Non-Government Schools (2019) (the ‘NFP Guidelines’) were launched to assist schools to understand their not-for-profit obligation with reference to common transactions schools experience.
The NFP Guidelines recently underwent Ministerial review and public consultation of the exposure drafts and was completed in late 2023, together with a proposed draft Regulatory Framework for the Oversight of Assistance provided to NSW Non-Government Schools.
The NFP Guidelines provide a useful reference point on the types of common transactions schools face and the records they are expected to maintain and make available to the Minister to make determinations of compliance with section 83C.
They are extremely useful to schools in Victoria as a further reference in relation to considering potentially prohibited arrangements.
Non-government schools must operate for a not-for-profit purpose. In NSW, this is required to be eligible for financial assistance from the NSW government. In Victoria, the not-for-profit requirement is a condition of school registration. Regulations in both states establish the not-for-profit obligation and a requirement to only enter into not-for-profit transactions “for the conduct of the school” (Vic) or for the “operation of the school” (NSW) or otherwise risk being deemed to be for-profit and non-compliant with financial assistance or registration conditions.
In Victoria, the ‘not-for-profit’ criteria for schools are set out in regulation 7 of the Education and Training Reform Regulations 2017 (“ETR Regulations”).
In brief,
Section 83C of the NSW Education Act 1990 operates in a similar way, drafted from the position of when a school would be deemed to operate for-profit in relation to its use of “income” or “assets”, and “payment” for property, goods and services.
The NSW requirements are broadly mirrored in Victoria by the ETR Regulations with explanatory guidance provided in the Guidelines to the Minimums Standards for School Registration (2022) (‘Minimums Standards Guidelines’).
Whilst not binding in Victoria, The NFP Guidelines offer a useful external reference for Victorian registered schools particularly in relation to measures that can be taken to avoid PAAs or demonstrate that transactions are not made for-profit.
We have provided a summary analysis of the proposed changes to the NFP Guidelines that support schools to comply with s83C, and the equivalent Victorian PAA requirements. View our summary table.
The exposure draft NFP Guidelines incorporate both examples of common transactions and provide further explanatory guidance to distinguish when a school “will likely be operating for profit” or “may be operating for profit”. Although they do not set a precedent, they are useful to understanding where we have seen or are likely to a similar interpretation to “reasonable market value”, and what is “reasonably required” adopted for Victorian schools.
Characteristics of transactions that can be considered as not for the operation (or conduct) of the school or otherwise considered as operating for a profit can arise where:
New examples include:
The NSW Department of Education is currently considering feedback on the exposure drafts and has not provided a release date. Schools should consider the proposed updated Guidelines as part of their 2024 business planning, reflect on the records requirements as a tool to assess the maturity of their operating practices and recordkeeping to identify any areas for improvement or rectification.
Our Education team can work with you to assist with:• Advice on the application of the regulations for specific transactions.• Review of existing arrangements that pre-date the regulations in both NSW and Victoria.• Policy and procedure review or development to enable compliant transactions.• Board and key personnel training on NSW S83C and Victorian PAA requirements
To coincide with the return to school of students across the country, the Australian Institute of Sport (AIS) published updated Concussion Guidelines for Youth and Community Sport (Concussion Guidelines) (accessible in full here). These Concussion Guidelines emphasise the need to take a conservative approach to managing suspected concussions in children and young people, acknowledging that children and young people take longer to recover from concussion than adults.
The Concussion Guidelines extend the mandatory minimum stand-down period to 21 days from the time of concussion until returning to competitive contact sport. Previously, this was 10 days.
No competitive contact or collision sport for 21 days after a concussion
The introduction of this minimum exclusion period of 21 days has been made in recognition of the fact that young people take longer to recover from concussion than adults. This also aligns Australia with the approach in the United Kingdom and New Zealand.
Another rule to remember is that for those without a dedicated health care practitioner to guide recovery, students must be symptom free for 14 days before returning to contact training. This is not 14 days after the concussion; it is 14 days symptom free.
Additionally, the AIS is recommending schools introduce a ‘concussion officer’ to oversee the management of concussion. A ‘concussion officer’ is a single point of contact who manages the coordination of matters related to concussion. A ‘concussion officer’ is not a concussion expert and is not expected to diagnose concussion. Analogous to the role of a ‘fire warden’, the ‘concussion officer’ ensures anyone diagnosed with concussion follows the school’s agreed concussion protocol.
While a concussion can happen in the playground, higher risks for concussions are generally within competitive and collision sports. We know many independent and Catholic schools compete in interschool sport competitions, run by organisations such as APS, AGSV, EISM and Girls’ Sport Victoria. It is too early to see how these sporting bodies will respond to the updated Concussion Guidelines. Schools will need to carefully navigate their duty of care, when student exclusion is likely to pose challenges in scheduled fixtures.
We highly recommend anyone who works in sport, risk or child safety at a school reviews the new Concussion Guidelines. At Moores, we help schools by providing advice about the duty of care and how this relates to concussion prevention and response procedures. We can also help develop and/or refresh your risk management framework or risk treatment plans. Concussion management could be a useful example to explore risk tolerance and mitigation considerations to manage risk to an acceptable level. There is also the added complication of likely conditions in your school’s insurance policy. Please get in touch with our Education Team for more information.