No one likes a zombie and changes to the Fair Work Act 2009 (Cth) aim to rid them once and for all.
If your organisation or company has an older enterprise agreement that it has not replaced or formally terminated (through the Fair Work Commission), then you may need to think about your ‘zombie’ which may cease to exist come 7 December 2023.
The term ‘zombie agreement’ was more colloquially used prior to the first set of significant workplace reforms introduced by the Federal Government to describe older enterprise agreements. Specifically, those made before the Fair Work Act 2009 (Cth) began operating in 2009.
Enterprise agreements are usually renegotiated and replaced every 3 to 5 years given that the maximum ‘life’ of the agreement under the legislation is 4 years. However, if an agreement, even a very old one made 15 or 20 years ago, is not replaced by another Fair Work Commission approved enterprise agreement, or terminated by the Fair Work Commission, it still operates. That can create some complexity and in some cases, a disadvantage for employees where legislative and other standards have changed but the workforce are not entitled to the benefit of the changes because of the preservation of these older agreements.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) addresses this curious feature of older agreements. From 7 December 2023, ‘zombie’ agreements, that is, agreements made prior to 1 July 2009, will cease to operate through the legislative mechanism, even if another agreement is not in place or employees have not agreed to terminate the agreement.
The Fair Work Commission has the power to extend the life of the ‘zombie’ on application from a party to the agreement. That process involves making submissions and providing evidence to the Commission about why the agreement should be extended.
Importantly, after this date, assuming no extension has been granted, the relevant modern award which would otherwise cover the workforce will automatically replace the zombie agreement. Compliance with an award is a statutory obligation and a breach of that obligation can expose an employer to a Court prosecution, regulator investigation and/or penalties of up to $93,900 for a single breach.
If your organisation has a ‘zombie’ lurking, then the steps to consider in preparation of the change in December 2023 include:
The legislative changes do enable a party to seek to extend the life of the zombie agreement. The extension can be for no more than four years.
The legislation provides that the FWC must extend the default period if it is satisfied that:
In Suncoast Scaffold Pty Ltd 2009 [2023] FWCFC 105 (Suncoast), the Full Bench considered whether to extend the default period of the collective agreement-based transitional instrument (zombie agreement) to 31 March 2027. This required assessment of the particular criteria which states an extension must be granted if:
The Full Bench provided detailed guidance on how the requirement in that section differs from the well-known ‘BOOT’ test. The Full Bench stated (emphasis added):
“… The requirement for the better off overall criterion in subitem 9(b) to be assessed by reference to the award covered employees ‘viewed as a group’ appears to allow for the possibility that the criterion may be satisfied, notwithstanding that some individual employees are not better off overall than under the relevant award, as long as there is a discernible advantage for the employees considered as a collective. Further, there only needs to be satisfaction as to the ‘likelihood’ of such a discernible collective advantage; that is, it only needs to be probable rather than certain. Taking these matters together, it is apparent that the better off overall criterion is less stringent that the BOOT in s 193 of the FW Act.”
The Full Bench concluded it would not be reasonable in the circumstances to extend the default period for the agreement given that:
Our Workplace Relations team can assist you to review your existing industrial instrument(s) and develop a pathway forward before the December deadline, including considering whether to make an extension application.
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.
The COVID-19 pandemic forced many employers to think about traditional and new ways of working, including how hours of work are performed and the flexibility that more and more employees are coming to expect from their employer. The post-pandemic working world has seen an increase in many employers being willing to facilitate flexible working arrangements.
However, flexible work arrangements aren’t new. The right to request a ‘flexible work arrangement’ has been part of the National Employment Standards in the Fair Work Act 2009 (Cth) (FW Act). Under that standard, some employees (such as parents, workers with a disability and pregnant workers) are eligible to request flexible work arrangements. Those arrangements can include changes to start and finish times, part time work, job sharing and working from home. Section 65 of the FW Act sets out the requirements that must be complied with when making and responding to flexible work arrangements (see our article: Constraints for employers when balancing flexible work). Recent changes have seen further enhancement of this important standard as part of the FW Act.
While flexible work arrangements offer considerable benefits to both employers and employees, the arrangements can sometimes blur the boundaries between employees’ personal and working lives, leading to ‘hidden overtime’.[1]
There is often a tricky balance for employers and employees to strike where the job demands of a position require some reasonable additional hours to be worked but where a flexible work arrangement is in place which defines work hours more clearly. When is a reasonable expectation not so reasonable or even more significantly, unlawful?
Under the National Employment Standards, employees are entitled to refuse to work additional hours if they are unreasonable.[2] Whether additional hours are reasonable requires a consideration of the following factors:
Many employment contracts include a term stating that the employee may need to work additional hours as required to fulfil the requirements of the role. For ‘salaried’ workers (those paid on an annualised basis), the clause may even state that the employee ‘agrees’ that their salary adequately compensates them for any additional reasonable hours worked.
However, depending on the circumstances, relying on a contractual term may not be sufficient. The expectation of reasonable additional hours is not always lawful. For example, in 2022, the Federal Court of Australia held that it was unreasonable for a knife hand at a meat wholesaler to work an additional 12 hours per week.[4] While a contractual term is one positive step that employers can take to indicate an employee agrees to working overtime, employers are also required to assess what is ‘reasonable’ by engaging with each of the elements in section 62(3).
Additionally, employees who are covered by an award or enterprise agreement may be entitled to receive overtime pay for additional hours worked. Employers are advised to therefore monitor overtime worked by award covered employees, even where they are paid on an annualised basis, to ensure they are remunerated at or above their minimum award entitlements for the hours worked.
Working additional hours can also increase occupational health and safety risks. In most Australian jurisdictions, ‘persons conducting a business or undertaking’ (PCBU) have an obligation to ensure, as far as is reasonably practicable, that employees (and other persons) are not exposed to risks to psychological health and safety arising from work being performed for the PCBU.
In the context of flexible working arrangements, employers may need to be vigilant of the practical effect of flexible work arrangements and to continually monitor hours of work to ensure that ‘flexibility’ isn’t leading to safety risks because of the way the hours of work are performed or how many hours are worked. A failure to adequately address safety risks may expose an employer to investigation or prosecution by the safety regulator, increased absence due to ill health caused by unreasonable work hours and demands and/or claims for compensation due to a workplace ‘injury’.
Employers can take positive steps to manage requests for flexible work arrangements, including:
Our Workplace Relations team can provide you with practical advice regarding flexible work arrangements and reasonable additional hours and strategies to strike the right balance in your workplace. We can also assist you with designing your flexible working policy to ensure that you meet your legal obligations and maximise the benefits that flow from flexible work arrangements.
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.
[1]https://www.oecd.org/coronavirus/policy-responses/productivity-gains-from-teleworking-in-the-post-covid-19-era-a5d52e99/ (accessed 14 July 2023).
[2] Fair Work Act 2009 (Cth), s 62(2).
[3] Fair Work Act 2009 (Cth), s 62(3).
[4] Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512.
The Office of the Victorian Information Commissioner (OVIC) recently found the Victorian Department of Health (Department) failed to take reasonable steps to secure personal information in its call centres during the pandemic – and a lack of personnel screening processes as a key factor.
In the case, a contractor was able to access personal information and then harassed and engaged in an offence against the individual whose personal information had been accessed.
OVIC found that the Department allowed contractors to commence work before checks were complete, and this was a factor in the breach. This happened at the height of COVID, when there was immense pressure to staff the call centre without delay.
Many not-for-profit organisations which receive Victorian government funding or provide health, care or education services are contracted service providers (CSPs), and are therefore bound by the Privacy and Data Protection Act 2014 (Vic) (PDP Act) by virtue of funding agreements.
The takeaway: Check your funding agreement to see if your organisation must comply with the Privacy and Data Protection Act 2014 (Vic) PDP Act. If you are, your first step should be to refer to OVIC’s website.
OVIC found that the Department did not ensure there was sufficient pre-employment screening of external staff (i.e., contractors) to determine their suitability to handle personal information that had been entrusted to the Department by the public.[1] The breach was a breach of IPP 4.1, which states:
IPP 4.1: An organisation must take reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure.[2]
APP 11.1: An APP entity must take reasonable steps to protect personal information it holds from misuse, interference and loss, as well as unauthorised access, modification or disclosure.[3]
For organisations bound instead by the Privacy Act 1988 (Cth), APP 11.1 is extremely similar and findings of OVIC regarding IPP 4.1 support interpretation of obligations under the Australian Privacy Principles (APPs).
The takeaway: Information security is not just about software protections, phishing training and securing your cloud storage systems. Think bigger. Personnel screening is also relevant to information security.
We recommend you consider:
This investigation highlights the risks associated with allowing third-party contractors to access information and systems, because contractors engaged by the Department of Health who failed to take reasonable steps to perform security checks, and a subcontractor misused personal information.
We can help you identify the right questions to ask about your information handling operations and processes. We can also help you answer them and manage the change process to align your organisation’s operations with your risk appetite. It is commonly said in the cyber security industry that “It’s not a matter of if you are faced with a breach, but when.” Moores can help you prepare.
[1] Office of the Victorian Information Commissioner, Misuse of Department of Health information by third party employees during pandemic response (July 2023) page 5 https://ovic.vic.gov.au/wp-content/uploads/2023/07/DOH-INV-20230628-Report-v1-1.pdf.[2] Privacy and Data Protection Act 2014 (Vic) Sch 1, IPP 4.2.[3] Privacy Act 1988 (Cth) Sch 1, APP 11.1.
We’ve heard a lot about payroll tax and school fees from the media recently. For schools affected, there will have been much deliberation as to how to meet this new financial burden.
As you head into budget meetings, consider whether your enrolment documents need any tweaks to be approved at that meeting too.
Here is what we’ve seen trending in this space:
Lastly, if you are rolling out new terms and conditions, to avoid the tyranny of multiple versions or version uncertainty, ensure your process is legally enforceable. A mere letter update may not be enough if your terms do not allow you to update in this way. Beware – relying on parents opting “out” of new terms and conditions is often legally invalid.
How can schools make sense of this? Most importantly, how can schools ensure their enrolment agreements are strong contracts that establish a good relationship between parents and the school, in turn better supporting education of our young people and avoiding disputes?
Consider updating your enrolment agreement, and specifically:
The current economic conditions are seeing increasing preparedness to challenge documents, and to involve lawyers in these matters on behalf of parents.
Get in contact with our Education Team to discuss how we can help you refresh your enrolment documents or enrolment process to address these emerging challenges.
Privacy has been a hot topic for a while now. In response to the flurry of activity in the privacy space, regulators are now making moves and responding – and it is not just the national privacy regulator who is talking about privacy.
Below we summarise the different global regulators and courts who are considering privacy. With Moores’ passion for helping our for-purpose, charitable and education clients, we have also explained what these news items mean for these industries.
The Australian Prudential and Regulation Authority (APRA) will require Medibank to increase its capital adequacy requirement to $250 million, to reflect weaknesses in Medibank’s information security environment identified in the review of the cyber incident in October 2022. APRA regulates the Australian financial market, including banks and insurance companies like Medibank.
The Office of the Australian Information Commissioner (OAIC) is yet to announce its decision into response to the incident, which could include a fine of $50 million. Separately, Slater and Gordon instituted proceedings in May 2023 in a class action representing millions of Australians.
The takeaway: Privacy is on the radar of many regulators, not just the privacy regulator. Regulators know they need to be seen to be taking a tough stance on privacy to align with the public’s expectations.
The European Court of Human Rights has ruled that the use of facial recognition to locate and arrest a protester while he was travelling on the Moscow underground violated rights to freedom of expression and privacy.[1] The Court concluded that the processing of Mr Glukhin’s personal data in the context of his peaceful demonstration, which had not caused any danger to public order or safety, had been particularly intrusive. The use of facial-recognition technology in his case had been incompatible with the ideals and values of a democratic society governed by the rule of law.
In Australia, the OAIC has investigated retailers for collecting facial images from customers without valid consent, and those retailers were ordered to delete all faceprints collected. These investigations are ongoing.
The takeaway: This decision turned on the ‘reasonableness’ of the use of the technology. This is a key part of Australian privacy regulation too. How you use personal information needs to be reasonable in circumstances to avoid being intrusive or illegal.
Meta had challenged the investigation by German competition regulator (equivalent to the ACCC) into possible privacy breaches. On 4 July 2023, the Court of Justice of the European Union ruled that the German competition authorities could also consider data protection issues in its review of Meta’s business practices, as the collection of data without consent was a potential abuse of market power. The practical consequence could be to substantially limit Meta’s use of personal data for advertising purposes.
The takeaway: Competition regulators are getting involved with privacy.
The Australian Charities and Not-for-profit’s Commission (ACNC) acknowledges that gathering data about people charities provide services to “brings with it important legal and ethical responsibilities”. Information about managing people’s information published by the ACNC is available here.
The takeaway: “A charity’s Responsible People must be aware of the legal requirements of managing people’s information and data. They are responsible for their charity’s actions and must ensure their charity complies with all the relevant laws governing data collection, storage and usage.”[4]
With specialised knowledge of the for-purpose and education sectors, we can help you navigate regulatory compliance and interactions with regulators, be it the specific privacy regulator – the OAIC – or other regulators who may become interested in your activities. More information about our regulatory compliance and privacy offerings are linked for you, or contact us directly.
[1] Glukhin v. Russia (European Court of Human Rights, Chamber, Application No 11519/20, 4 July 2023).
[2] Australian Competition and Consumer Commission v Google LLC (No 2) [2021] FCA 367.
[3] Australian Competition and Consumer Commission,Digital platform services inquiry – March 2024 report – issues paper (published 10 July 2023) <https://www.accc.gov.au/inquiries-and-consultations/digital-platform-services-inquiry-2020-25/march-2024-interim-report>.
[4] Australian Charities and Not-for-profit’s Commission, Managing People’s Information and Data, <https://www.acnc.gov.au/tools/guides/managing-peoples-information-and-data>.
A clear and comprehensive Child Safe Code of Conduct is crucial for communicating the expected standards of behaviour and requirements of all people engaged by an organisation. Where organisations work with children, it’s also required by relevant Child Safe Standards and National Principle for Child Safe Organisations.[1]
Reviewing and updating child safety policy documents and codes of conduct may not feel like an important priority, but taking a set and forget approach to codes of conduct without periodic reviews can miss important opportunities to strengthen behavioural expectations of workers, particularly in relation to online conduct. Codes that don’t comprehensively address acceptable and unacceptable behaviours, professional boundaries, ethical behaviour, and provide guidance on managing inappropriate conduct can significantly undermine an organisation’s ability to effectively manage inappropriate conduct by workers towards children.
Expectations regarding communication with children (whether in person, online or by phone), contact and relationships with children outside of work, grooming behaviours, and travel are often inadequate and out of date and fall short of legal and community expectations.
Your Code of Conduct should outline in sufficient detail those behaviours acceptable and unacceptable, both in and outside of work. Accepted or expected behaviours should address ways in which workers can create a positive environment to prioritise the safety and wellbeing of children.
Unacceptable behaviours should be specific to the organisation’s activities and address situations or scenarios that workers may face during their employment which pose high risk of harm to children.
The behaviours should have regard to:
Further, care must be taken to ensure that workers understand behaviours that are unacceptable, irrespective of whether they occur in connection with their work (such as grooming and child, or engaging in physical violence towards or in the presence of a child).
Providing clear direction to workers as to acceptable and unacceptable behaviours will clarify expectations and ensure organisations have clear guidelines if workers breach the Code of Conduct.
The National Principles for Child Safe Organisations and all Child Safe Standards require organisations to address both physical and online environments to promote the safety and wellbeing of children and young people and minimise the risk of harm.
Organisations that do not engage with children on online platforms may believe that it is not necessary to consider online environments. However, online environments represent a significant risk of potential harm to children, and organisations may owe a duty of care to children beyond the actual time the child is engaged with the organisation.
Organisations can also be held vicariously liable for a worker’s abuse of a child if it is found that organisation did not take reasonable steps to prevent the abuse from occurring. In determining liability, a court will consider the adequacy and currency of an organisation’s policies, procedures, code of conduct and training for workers.
Addressing contact with children on online platforms outside of hours is critical to ensure the organisation properly exercises its duty of care.
Organisations may require a separate Code of Conduct which sets expectations for children in relation to their behaviour with each other to safeguard against risks of harm. The Royal Commission into Institutional Responses to Child Abuse found that 16% of participants reported sexual abuse by other children in institutions.
There is a risk of harm being inflicted by other children particularly in relation to sexual, physical, bullying, harassing and online behaviour. Clear statements of non-tolerance of serious harm such as sexual assault, cyberbullying and image-based abuse will allow organisations to take action where children are at risk of harm from each other. In states with affirmative consent laws, organisations should consider providing information and training on what is required for consent.
Organisations will need to ensure that the code of conduct is accessible in accordance to the age and capacity of children they engage with, and that it covers the full list of expectations regarding
The Code of Conduct should be reviewed and updated to reflect changes in the organisation or changes in the law. The process of review should be clearly stated within the Code including when it will be reviewed, who will undertake the review, and who is responsible for approving changes. The version and date of the review should be stated on the Code to make clear what updates needs to be incorporated.
Moores is one of the only law firms in Australia with a dedicated safeguarding and child safety team. Experts in our field, we support organisations with advice and training on their child safety obligations and drafting or amending codes of conduct, child safety policies and procedures to align with best practice, not just meet the minimum standard.
[1] Currently, Child Safe Standards have been adopted in New South Wales and Victoria. Whilst similar, South Australia has adopted the Child Safe Environments – Principles of Good Practice, and the ACT has adopted the Children and Young People Standards.States without state-based Child Safe Standards include Tasmania, Queensland, Western Australia and the Northern Territory, where the National Principles for Child Safe Organisations are relevant. Additionally, schools in Victoria must ensure that their Code of Conduct complies with more prescriptive requirements of the Ministerial Order 1359
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.
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.
Don’t pay anyone who has threatened to share intimate images of you or a child under your care and supervision. Instead:
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.
Report the interactions to:
Once you have collected evidence and cease all contact with them. You should also review your security settings.
Sexual extortion is never the victim’s fault.
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.
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.
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.
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:
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.
Prior to 1 July 2023, the Act applied where an employer engaged a child to perform 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:
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.
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:
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.
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.
From 1 July 2023, a child must be:
There is no minimum age for engaging a child in a family business.
The Act also expands restrictions on when and for how long children can engage in work:
Supervisors of children under 15 years of age must:
unless an exception applies.
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.
[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 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.
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.
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.
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.
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.
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.
It is important to engage appropriately and responsibly and ensure that support is given to the victim survivor.
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.
Moores can help organisations navigate these complex issues as either preventative measure or in responding to an incident.
[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:
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.
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.
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).
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.
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.
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.
Please contact us for more detailed and tailored help