A woman in Shanghai, China recently made headlines when she cut her children out of her Will and instead elected for the major beneficiaries of her fortune to be her cats and dogs. Her reasoning? Her children no longer visited her while her pets were always there for her.
This is not a novel situation.
Had she lived in Victoria, she would have been advised that she couldn’t leave her wealth to her pets, but there may be other steps she could take to ensure they were appropriately cared for following her death.
On a practical level, a gift left in a will to a pet directly would fail.
Unfortunately for many pet lovers out there, the position of the law is that a pet is a ‘chattel’ or ‘personal property.’ This means that practically, a pet cannot own property or be a beneficiary of a Will – even though they are very much part of the family!
If the Will does not provide for other beneficiaries in the event a gift cannot take effect, the most likely outcome is that the default statutory intestacy laws would apply instead. These laws operate to distribute your estate to your next of kin, and apply where you do not leave a Will, or your will is unable to effectively deal with your estate.
This may be very different to how you envisaged your estate being distributed. In addition to your wealth potentially passing to the very people you meant to exclude, it may also mean that your pet doesn’t end up being looked after by the right person or in the way you expected after your death.
To avoid this, some alternative options to ensure your pet/s are taken care of after your death include:
Succession law in Victoria is largely guided by the principle of ‘freedom of testation’. This means that subject to certain limitations like not being able to leave assets directly to pets, a person largely has the freedom to make a Will that leaves their property as they please.
This freedom is however qualified by the risk of challenge to a Will or estate by disappointed family members.
Under Victorian law, certain “eligible persons” (as defined by the Administration and Probate Act 1958) can make a claim seeking provision or additional provision from your estate, if they can establish that you had a moral obligation to provide for him and did not discharge that obligation by your will. This is known as a family provision claim.
Importantly, a moral obligation is usually assumed in the case of spouses, partners and children. There is no equivalent moral obligation to provide for one’s pets (although many people naturally wish to do so).
A willmaker who prioritises their pets over immediate family members in their Will therefore runs the risk that their estate may up end up defending a claim from one or more disappointed family members.
However, this does not mean that your Will should not consider the future care and well-being of feathered, furry or scaly family members after your death, if this is important to you. In this situation, it is important to consider your objectives carefully and obtain specific legal advice when making your Will.
This will enable you to plan appropriately, to ensure that:
The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and we can help you prepare your Will to ensure that everyone in your family is cared for, including your beloved pets.
Please contact us for more detailed and tailored help.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
In recent decades, family trusts have become a popular vehicle for Australians to protect and grow their wealth, owing to the flexibility, asset protection and tax efficiency advantages they provide. However, the succession and control of trusts on the death of the original family members who established them is often poorly understood and inadequately planned for, despite the sometimes significant assets at stake.
Trusts hold assets externally from an individual. Those assets do not pass in accordance with the will of the person who established or controls the trust.
The governing document of a trust is a trust deed. The trustee of a trust is bound to act in accordance with the trust deed. Key considerations when considering succession of family trusts as part of an overall succession plan include:
As circumstances change, a trust deed needs to be flexible enough to permit it being changed to meet those circumstances, but often they are not.
Often a trust deed will provide a mechanism for a trustee to vary its terms but the extent to which these variation powers are permissive or restrictive varies from trust to trust and sometime does not exist at all. But can a trust deed be varied if the trust deed is silent on a power of variation? In some circumstances the beneficiaries may be able to consent to changes. In others, the Court’s assistance may be required.
The Court has the power to vary the terms of trusts1, and this was highlighted in two judgments: W E Pickering Nominees Pty Ltd & Ors v Pickering & Ors [2016] and Re The Pickering Family Trusts [2024] stemming from the same subject matter.
Two brothers, Ted and George, operated a large and successful business through a unit trust. The units of that trust were held respectively by two discretionary family trusts; ‘Ted’s Trust’ and ‘George’s Trust.’
Ted’s Trust named Ted, Ted’s wife, their children, and their grandchildren as beneficiaries. George’s trust followed suit for his own family. Ted died in 2012. George died in 2020.
For business and tax planning reasons, the trustee and existing beneficiaries of each trust sought to expand the beneficiary class beyond those named in the trust deeds.
The trustees and adult beneficiaries were able to agree on amendments to the trust deeds; however, neither trust deed gave the trustee the power to vary the deed or expand the classes of beneficiaries. The trustee and beneficiaries required the assistance of the Court to give effect to their proposed amendments to the trust.
In the 2016 case, the trustee and adult beneficiaries requested three variations to the trust deed:
The Applicants argued that the Court had power under sections 63 and/or 63A of the Trustees Act 1958 (Vic) to give effect to the variations sought. The Court declined to do so, saying that ‘conferring on the trustee a power to vary the terms of the trust is neither expedient nor in the management or administration of trust property’2. Additionally, the Court was not persuaded that it was authorised to use section 63A to ‘grant a general power to amend or a power to appoint an appointor.’3
The matter returned to Court and the expansion of the class of beneficiaries was re-addressed.
A new arrangement was proposed which would name the beneficiaries and potential beneficiaries of one family trust as beneficiaries and potential beneficiaries of the other. It was reasoned that a reduction in potential entitlement in one trust should be expected to be accounted for by an increase of potential entitlement in the other trust.4
By applying to Court together, each trustee gave undertakings as to how the trusts would be administered, and those representations gave rise to further possible financial benefits for beneficiaries for whom the Court’s consent was required.5
The Court accepted that the new arrangement was beneficial to the beneficiaries for whom its consent was to be extended and that it was a proper and fair one.
Too often trusts and other entities are established to own substantial family wealth without proper consideration of whether the trust deed and other key documents are fit for purpose, flexible enough to change as circumstances change, and work within the broader succession plan.
Once established, it is critical that ongoing specialist advice is sought to ensure that the trust’s “settings” can do the job that is desired of it.
Moores has one of the largest specialist estate and trust law teams in Australia. Our team is a market leader in designing and implementing complex succession and wealth planning solutions and resolving disputes concerning trusts and estates.
1 Trustee Act 1958 (Vic), s63A.
2 W E Pickering Nominees Pty Ltd & Ors v Pickering & Ors [2016] VSC 71, paragraph 77-78.
3 Ibid, paragraph 60.
4 Re The Pickering Family Trusts [2024] VSC 5, paragraph 84.
5 Ibid, paragraph 92.
Organisations, including not-for-profit organisations and schools, are on notice that the Office of the Australian Information Commissioner (OAIC) is going to take a “stronger regulatory approach” to enforcement of the Notifiable Data Breach (NDB) Scheme from 2024. The national privacy regulator announced the stronger regulatory approach is due to information security being a regulatory priority in its bi-annual report publishing statistics of reporting trends under the Scheme.
We recommend organisations prepare for this new, stronger regulatory approach from the OAIC by:
In 2023, 892 notifications were made to the OAIC under the NDB Scheme.
Health service providers made the most notifications under the NDB Scheme, making 18% of all notifications. In addition, 37% of notification involved health information being subject to the breach. This is significant, because the regulatory response and imposition of civil penalties against organisations takes into account the emotional harm caused by privacy breaches, and the breach of health data can generally have a heightened negative impact on individuals; not to mention the possibly discriminatory consequences.
Cyber security incidents represented 42% of notifications:
Human error represented 28% of notifications:
In July to December 2023, compromised or stolen credentials were a leading cause of all data breaches. The OAIC identifies that the large-scale data breaches in recent years have put organisations at heightened risk of cyber incidents from compromised passwords because those passwords have previously been compromised. In addition to implementing multi-factor authentication and strong password requirements (including regular changing of passwords), organisations can:
The privacy and data security team at Moores can help you prepare for data breaches through privacy training, privacy audits and designing custom privacy and data protection procedures and internal tools for staff. We can help you respond to a data breach by assessing the breach under the Notifiable Data Breach Scheme, and helping you implement a Data Breach Response Plan.
A Mutual Wills Agreement (MWA) is an agreement between two people to make their Wills in particular terms and to not alter those terms in the future.
A MWA does not arise merely by a couple executing Wills together but requires an actual agreement to limit the future alteration of the Wills. This agreement is generally set out in a separate contract or referenced in the Wills themselves. However, in the recent decision of Re Miglic the Supreme Court of Victoria found a verbal agreement made nearly 30 years prior to death constituted a binding and enforceable MWA.
There was no written record of any MWA.
In support of the MWA:
Against the MWA:
The Supreme Court of Victoria found that Kurt and Marilyn had entered into a binding verbal MWA at the time of executing their 1993 Wills. The findings further noted:
The outcome of the finding is that Marilyn’s 2018 Will remains valid, but her estate is subject to a trust that reflects the terms of the 1993 Will. Lisa and Andrea will therefore receive the vast majority of her estate.
This case highlights the complexities in planning for blended families.
It also highlights the importance for a couple to be clear around whether they intend that their Wills could be changed in the future as circumstances or objectives change, or if they intend to be bound to the agreed plan. If the latter is the case, then this needs to be recorded in a written MWA. While a verbal agreement was upheld in this case, it is likely that this is the exception rather than the rule.
For expert advice or guidance regarding Estate Planning and whether a Mutual Wills Agreement may be appropriate, contact our team.
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.
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.