With the Federal Election only a few days away (Saturday 21 May), Australian political parties have been busy campaigning and addressing their key policy platforms and plans. From Liberal’s commitment to the remaining measures in its Omnibus Bill to Labor’s pledge to lift wage rates in light of the latest annual inflation rate, there has been no shortage of industrial relations and workplace related issues both old and new on their agenda. This article unpacks those issues and foreshadows what we can expect to see from the major political parties following election day.

Wage rates and the gender pay gap

The latest inflation figures released in late April revealed that headline inflation had increased to 5.1% annually in the March quarter. In light of these figures, the federal government was criticised for being complacent about the cost of living in Australia and allowing wage rises to fall significantly behind inflation.

The Labor party responded by announcing that it would support a wage rise in this year’s national minimum wage order that keeps pace with inflation. It is ultimately the Fair Work Commission’s (FWC) responsibility for conducting annual wage reviews and determining national minimum wage rises each year and Labor was criticised for the policy position, viewed by some as an interference with the FWC’s independence. Recent comments from the Prime Minister reflect a more conservative approach to wage growth with some indication that wage growth should be expected in 18 months, mindful of the inflationary impact of significant wage growth in the short term.

The Labor party has also committed to closing the gender pay gap by strengthening the ability and capacity of the FWC to order pay increases for workers in low paid, female dominated industries and legislating so that there is greater transparency around the current gender pay gap.

Similarly, the Greens have also committed to:

• increasing wages by proposing to establish a new minimum wage at 60% of the median wage; and
• increasing wages and closing the gender pay gap by guaranteeing annual award wage increases that are 0.5% above inflation in female-dominated industries, including education, nursing, cleaning and childcare.

Without making similar commitments, the Liberal party has promised to narrow the gender pay gap by strengthening the economy and increasing women’s workforce participation, arguing that the current gender pay gap of 13.8% is significantly lower than the 17.4% inherited from the Labor party.

The Liberal party, the Labor party and the Greens have also unveiled respective plans for supporting women in the workplace.

The Liberal party’s plan involves investing in women’s economic security by providing more flexible and accessible paid parental leave (discussed below) and encouraging women into trade apprenticeships, the manufacturing industry and digitally skilled roles.

The Labor party has vowed to go further to support fair pay and conditions for working women. In particular, if elected, it has promised to legislate an equal remuneration principle to guide the FWC in equal remuneration and work value cases and establish a Pay Equity Panel and Care and Community Sector Panel to assist the FWC in determining those cases.

Finally, the Greens have a plan that entails improving paid parental leave (discussed below), increasing women’s workforce participation by providing free childcare and flexible work arrangements and implementing all of the recommendations in the Australian Human Rights Commission’s Respect@Work report, challenging the federal government on the basis that it has failed to act on a range of recommendations in the report.

The Omnibus Bill

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 (commonly referred to as the Omnibus Bill) was passed on 22 March 2021, albeit in a much-reduced form than when it was first introduced. Among other changes, the Omnibus Bill introduced a statutory definition of casual employee and a statutory obligation for employers to offer regular casual employees with 12 months of service conversion to full or part-time employment. (See our related article for more.)

The Liberal party has indicated that it is committed to passing the remaining measures in the Omnibus Bill that were not passed last year.

In summary, those measures include:

• greater flexibility for employers and employees concerning duties and location of work under modern awards;
• substantive changes to how enterprise agreements are made, including by:
  • requiring employers to take reasonable steps to ensure that employees are given a fair and reasonable opportunity to decide whether or not to approve an agreement; and
  • broadening the discretion of the FWC to approve agreements that do not pass the better off overall test on the basis that they are not contrary to public interest by way of reference to a range of factors, including the views and circumstances of employees and employers and the impact of COVID-19; and
• deterring sham contracting and wage theft by:
  • introducing a new criminal offence for dishonest and systematic wage underpayments; and
  • increasing the value and scope of civil penalties and orders that can be imposed for non-compliance.

The Labor party has not indicated whether it will support the passage of any of the remaining measures in the Omnibus Bill. However, the party has committed to criminalising wage theft at a federal level.

Leave entitlements

Family and domestic violence leave

The FWC recently reached a provisional view in the family and domestic violence leave review that there should be an award entitlement to 10 days’ paid family and domestic violence leave. This represents a significant increase from the current entitlement to 5 days’ unpaid leave under modern awards.

The FWC has sought the federal government’s view on whether it would incorporate the proposed entitlement in the National Employment Standards (NES). In response, the federal government has declined to endorse incorporating the proposed entitlement in the NES, preferring instead to leave employers and employees to agree on these entitlements through enterprise agreements and workplace policies.

The Labor party, on the other hand, has committed to ensuring that the proposed entitlement is available to all Australian workers covered by the NES.

Paid parental leave

The Liberal party has committed to enhancing paid parental leave by allowing the current 20-week entitlement to be fully transferable between carers and raising the eligibility requirement to access the proposed entitlement to household income of $350,000 or less. The Labor party’s plan is to increase total leave from 20 to 26 weeks but has not specified how leave would be shared or transferred between carers. The Greens have also committed to a 26-week entitlement, composed of six weeks for each carer (on a ‘use it or lose it’ basis) and 14 weeks to be shared between carers.

Religious freedoms

The federal government’s long-awaited Religious Discrimination Bill (Bill) was shelved in February 2022 following a marathon sitting of the House of Representatives and a range of changes that amended the bill from what the federal government had initially proposed. (See our related article for further commentary on the Bill.)

Religious freedom laws were a key policy platform for the Liberal party during the 2019 election, and the party has committed to revisiting the Bill if re-elected.

Though the Labor party has committed to protecting Australians against discrimination on the basis of religious belief and activity, the party has not provided further detail in relation to the Bill and to what extent it would seek to pass the Bill if elected. The party has, however, highlighted that the Bill fails to protect students from discrimination on the basis of their gender and sexuality.

How we can help

Moores assists many clients to confront and respond to the issues discussed in this article, many of which are ongoing and systemic and will take time and substantive legislative change to address irrespective of the results of the upcoming federal election.

Contact us

Please get in touch with our workplace relations team for further information on what Moores can do for you.

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Further reading

Greens Policies
Labor Policies
Liberal Policies

Welcome to the first article in our series on Family Provision Claims.

Whilst a person may leave their assets to whomever they want upon their death (known as the ‘freedom of testation’), this freedom is subject to an obligation to provide for certain ‘eligible persons’.

If such eligible persons believe that a loved one’s estate doesn’t provide for them adequately, they may be able to formally challenge the Will and obtain greater provision from the estate.

This is called a “family provision claim” or historically, a “testator’s family maintenance claim”. In Victoria, you may also hear the term “Part IV claim” used, which is a reference to the part of the relevant legislation (the Administration and Probate Act 1958 (Vic)) which deals with these type of claims.

A claim can be made in either the County Court or the Supreme Court of Victoria.

Under Victorian law, a family provision claim can only be made against the assets in the deceased person’s “estate”; that is, assets in their personal name at the date of their death (or assets that subsequently form part of the estate). Accordingly, assets that were owned by the deceased person jointly with another person, or held in a company or family trust, are generally not available to satisfy a claim. Similarly, a superannuation death benefit will only be available to satisfy a claim if it is paid to the estate by the trustee of the relevant super fund.

Eligibility

Where the deceased person died on or after 1 January 2015, the availability to bring a family provision claim is restricted to “eligible persons”. Most commonly, this type of claim is brought by a close family member of the deceased, such as a spouse, partner or child.

Other people who can potentially bring a claim (depending on the specific circumstances) include:

1. Grandchildren;
2. A person who is a member of the deceased’s household at the time of their death, or who had been and was likely to have again been a member of the household in the near future;
3. A registered caring partner;
4. A former spouse or partner, as long as that person was eligible to bring family law proceedings at the date of the deceased’s death;
5. The spouse or domestic partner of a child of the deceased, as long as that child dies within a year of the deceased; and
6. Someone who believed, for a substantial period during the deceased’s life, that the deceased was their parent and was treated by the deceased as their natural child.

However, if the deceased died before 1 January 2015, a family provision claim can be made by anyone to whom the deceased owed a moral responsibility.

Time Limits

A claim should be made within 6 months from the date of the grant of probate (if the deceased left a will) or letters of administration (if the deceased did not leave a will). In certain circumstances, the Court may also allow a claim to be made after this 6 month period has elapsed, as long as the estate has not yet been distributed.

Key Considerations

In order to make a claim, an eligible person will need to establish:

1. Firstly, that the deceased person had a moral obligation to provide for them; and
2. Secondly, that the provision they receive under the Will (or intestacy provisions, if applicable) is not adequate for their proper maintenance and support.

In weighing up the merits of a claim and deciding whether to award any provision to the claimant, the Court must consider the terms of the Will, the reasons as to why the deceased made the Will as they did, and any other evidence about the deceased’s intentions in relation to providing for the claimant.

The Court may also consider a number of other factors, including:

• The size and nature of the estate;
• The claimant’s financial situation and relationship with the deceased;
• The age, health and any disability of the claimant or any beneficiary; and
• The competing needs of the named beneficiaries (that is, if the Court were to decide in favour of the claimant, what effect would this have on the deceased’s intended beneficiaries?).

Importantly, the Court is not empowered to simply disregard the Will and provide for what is considered to be a ‘fair’ outcome in the circumstances; the ‘freedom of testation’ remains the starting point when assessing a claim. Further, the amount of any provision made by the Court must not provide for an amount greater than is necessary for the eligible person’s proper maintenance and support.

For these reasons, in order to be successful in a claim, the eligible person must be able to demonstrate a degree of relative financial need.

Defending a Claim

Typically, the executor of the estate will be the named defendant to a family provision claim. However, in circumstances where the claimant is also the executor, the defendant will be the major beneficiary of the estate.

The defendant needs to defend the claim and seek to uphold the terms of the deceased’s will. However, in doing so, they need to consider compromising the claim where such a settlement would be in the interests of the estate, when regard is had to the merits of the claim and the costs and delay of continuing to defend it.

Whilst the defendant must act in the best interests of the estate, it is often advisable for the beneficiaries of the estate to obtain independent legal advice as to how the claim may impact on their entitlement to the estate, and the steps they can take to assist the defence of the claim.

How we can help

If you or your client are considering making or defending a family provision claim, or have an entitlement to an estate subject to a claim, it’s important to seek legal advice as soon as possible in order to understand the merits of the claim, how it will impact the beneficiaries and the options available.

Moores is here to help. Over the coming months, we will be releasing a series of articles focussed on family provision claims including the different categories of claimants and addressing some common misconceptions about these claims.

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Please contact us for more detailed and tailored help.

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The new Ministerial Order 1359 (MO 1359), which implements the new Child Safe Standards for registered schools in Victoria is to replace Ministerial Order 870.

MO 1359 was published on 10 February 2022, and will come into operation on 1 July 2022, as do the new Child Safe Standards.

Originally published as a suite of articles, our Guide to MO 1359 is designed to assist you in navigating the new regulatory landscape.

Download the guide here.

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This article discusses considerations for workplaces when responding to complaints of allegations of abuse and misconduct relating to the safety of children and vulnerable persons. Organisations must be able to identify when an investigation is required and how the investigation should be conducted.

Organisations working with vulnerable people are legally required to have an effective system for the management and resolution of complaints, including complaints of abuse and misconduct by employees. The NDIS Practice Standards, the Aged Care Quality Standards and the Victorian Child Safe Standards all require organisations working with vulnerable people, to have a robust complaints management system where organisations receive and appropriately respond to allegations of abuse and harm.

Why are investigations important?

Safeguarding investigations should form part of your organisation’s broader complaints handling framework and should be designed to focus on the vulnerable persons they are intended to protect. A poorly designed and executed investigation places your organisation’s most vulnerable people at risk, and your organisation potentially liable for breaching its duty of care, not to mention reputational damage.

The Royal Commission into Institutional Responses to Child Sexual Abuse identified that many organisations had poor investigation standards and failed to properly investigate complaints, which meant that many children were not adequately protected. The Royal Commission into Aged Care Quality and Safety also identified that complaints made to the Department of Health were often taken on face value, without investigation, which contributed to a lack of transparent and reliable information about older people’s experiences of care.

A clear investigation process contributes to organisational transparency and the identification of systemic failures which may result in improvements in the organisation to protect vulnerable people from harm.

Regulatory obligations to investigate

There are different obligations to investigate complaints in different sectors. Organisations may be required to investigate allegations of abuse and misconduct in relation to children under the Reportable Conduct Scheme, incidents in relation to aged care residents under the Serious Incident Response Scheme, and matters relating to the care of persons with a disability under the Incident Management and Reportable Incidents Scheme. Regardless of where the regulatory obligation arises, the basis of an effective investigation is the same.

Should the investigation be conducted internally or externally?

Once it has been determined that an investigation is necessary, it is important to consider who should be appointed to investigate. The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that investigations should be carried out by an impartial, objective and appropriately trained investigator.

In determining whether an organisation should appoint an internal or external investigator, an organisation should consider:

• the gravity and seriousness of the allegations;
• the potential for any conflict arising from an internal investigation;
• the complexity of the investigation and likelihood of facts being contested;
• the skill and experience of an investigator to investigate and forensically examine the evidence in order to make findings; and
• whether the organisation intends to rely on the investigation report being subject to legal professional privilege.

At a minimum, the investigator should be fully independent and not have a conflict of interest in respect of the matter being investigated or the potential participants in the investigation. This is particularly relevant for investigations undertaken internally.

The investigator should also be equipped to work with vulnerable participants using a trauma-informed approach, including identifying and overcoming any barriers to ensure that victim survivors, children and vulnerable people are empowered to fully participate in the investigation.

What makes a good investigation?

Once an investigator has been appointed, there are a number of factors which must be considered in order to conduct an efficient investigation which withstands regulatory scrutiny and potential future litigation. Some of our tips include:

• Take the time to plan the investigation to ensure that it efficiently and effectively responds to the complaint and is proportionate to the seriousness of the complaint. At this stage, consider what resources and documents the investigator will need, the process for identifying and contacting witnesses, and identify any regulatory or practical timeframes that the investigator will need to be aware of.
• A good investigation should prioritise procedural fairness to all parties, including the complainant, victim/survivor, witnesses and respondent. Procedural fairness or ‘natural justice’ requires a fair and transparent process which permits all parties to be heard and treated equally. It also minimises the opportunity for decisions arising from the results of the investigation to be challenged.
• Similarly, documenting decision making processes and maintaining appropriate record management assists with transparency and positions the investigator to respond to any future scrutiny of the findings.
• Investigations should also remain focused on determining all relevant facts related to the scope of the investigation, whether that is to identify a breach of a regulatory requirement, code of conduct, policy or procedure, and whether the person poses a risk to safety. It should not be treated as a ‘fishing expedition’.
• Participants in the investigation should be appropriately informed of the nature of the investigation before consenting to participate and should be offered relevant supports before, during and after the investigation.

External investigators

To help with managing these often competing considerations, many organisations engage experienced external investigators. This is particularly relevant when conducting safeguarding investigations, as investigators need appropriate skills to interview vulnerable people. A skilled investigator will understand the impact that age, a medical and psychological diagnosis, or trauma may have on a person’s ability to participate in an investigation, and ensuring the person is empowered to participate in the investigation.

Experienced investigators will also understand the regulatory context to safeguarding investigations and ensure that the investigation complies with relevant legislation including obligations under workplace laws. There is also a significant benefit in involving lawyers in an investigation process. In the Fair Work Commission case of Tainsh and Willner v Co-Operative Bulk Handling Ltd (2021) 73 AILR ¶103-362; [2021] FWC 3381, an organisation was able to rely on legal professional privilege to limit the respondent’s access to an investigation report on the basis that it was prepared for the dominant purpose of obtaining legal advice. By engaging a lawyer and having a discussion about legal professional privilege from the outset, organisations can be properly informed about the conduct of an investigation and use of documentation arising out of the investigation.

Organisations should also ensure that investigators who do not have a current Legal Practicing Certificate, are licenced under the Private Security Act 2004 (Vic) to ensure the investigation can be relied upon in any future proceedings.

How we can help

Moores works with many clients to oversee and coordinate safeguarding and workplace investigations to ensure that the investigation is conducted efficiently and withstands regulatory scrutiny and future disciplinary action. Our Special Counsel, Patrice Fitzgerald, is available to conduct independent safeguarding investigations for those organisations seeking to appoint an external investigator.

If your organisation receives a complaint which requires investigation, please get in touch with our Safeguarding and Workplace Relations teams so we can help you to design an investigation that meets your regulatory and operational requirements.

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The Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) investigated issues arising from institutions’ management of complaints in relation to child sexual abuse. The Royal Commission found there were a number of issues which led to children being placed at ongoing risk, including:

• failing to appropriately assess and mitigate the level of risk an employee poses to children once an allegation has been made;
• permitting the employee to continue to work with children;
• reassigning an employee to similar duties without sufficiently considering the nature of the risk they pose to children; and
• failing to suspend an employee when the risk was unable to be managed by other safeguards.

The Royal Commission found that employers needed to do more to make child safety the paramount consideration in managing employees who are the subject of an investigation. The Royal Commission contains valuable findings and recommendations, which should be used and considered across all industries working with children and vulnerable people.

What steps can an employer take to safeguard children and vulnerable people once an allegation has been made?

Once an allegation has been made, employers should conduct a preliminary risk assessment to determine what steps can be taken to appropriately safeguard against further harm, including whether an employee should be suspended while the investigation is underway. The Royal Commission recommended if an allegation of child sexual abuse is made, and the allegation is ‘plausible’ then the employee should be immediately stood down pending the outcome of an investigation. In determining whether an employee should be stood down, an employer should give consideration to the gravity and seriousness of the alleged misconduct. When there are competing priorities for the employer, the safety of children and vulnerable people must be the paramount consideration.

These arrangements should be continuously monitored and reassessed to maintain the safety of children and vulnerable people as the key priority. If the investigation takes some time to be completed, it may be appropriate to request that the investigator provide an interim report summarising the findings to date to inform a reassessment of the safeguarding arrangements in place.

What about my obligations to my employee?

An employer should clearly communicate the arrangements to the employee under investigation and the reasons for imposing those arrangements. If it is determined that suspension is appropriate in the circumstances, the employee should be informed of the likely duration of the suspension, what the employee can and cannot do while on suspension, and the employee’s entitlement to receive wages and other benefits.

Other safeguards should also be put in place to manage the impact the arrangements may have on the employee, including:

• engaging an independent investigator to minimise actual or apparent bias and provide procedural fairness to complainants, witnesses, victim/survivors and respondents (see our recent article considering what makes a good investigation);
• ensuring that the employee is afforded procedural fairness, by providing the employee with particulars of the allegations and an opportunity to respond;
• providing the employee with a point of contact during the investigation, including frequent updates regarding the progress of the investigation;
• making psychological support services available to the employee to manage risks to their health; and
• maintaining confidentiality regarding the investigation, including when communicating the employee’s period of absence to other members of staff.

What if police are also investigating?

A workplace investigation must not interfere with any police investigation. Employers should communicate with police to assess when they can commence an internal investigation. This can create a difficult situation for employers who have suspended an employee with pay and a police investigation is taking a significantly long time before charges are laid or a final hearing takes place. Dismissing an employee in these circumstances may risk an unfair dismissal claim, general protections claim or workers’ compensation claim being made against an employer, and requires careful steps to be taken to manage legal and reputational risks to employers and employees alike.

How Moores can help

Moores can help you to identify the necessary steps to strike the right balance between your safeguarding obligations and employment obligations. We can also assist you in communicating with your employee and conducting an efficient and independent investigation in your workplace. Please get in touch with Patrice Fitzgerald and Melissa Elleray in our safeguarding and workplace relations teams for further information on what Moores can do for you.

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If you work in the Victorian education sector, you may have heard there will be a new Ministerial Order from 1 July 2022 (MO 1359), that imposes on schools new child safety requirements that align with the 2022 Child Safe Standards.

Moores has already written extensively on the new MO 1359 to help schools prepare:

• MO 1359 Part 1: The definition of “school environment”
• MO 1359 Part 2: Empowerment of Students
• MO 1359 Part 3: Broader diversity, equity and culturally sensitive requirements
• MO 1359 Part 4: What are risk controls and risk treatments under MO 1359?
• MO 1359 Part 5: Family Engagement and Summary of MO 1359 Series

Recordkeeping policy requirement

MO 1359 imposes a new requirement on schools in Victoria to:

“develop a policy or statement that details the processes the school has in place to meet Public Records Office Victoria Recordkeeping Standards.”

Public Records Office Victoria (PROV) is the archive of the state and local government in Victoria, and sets mandatory recordkeeping standards and provide support and advice on recordkeeping to state and local government. MO 1359 now imposes these recordkeeping standards on independent and Catholic schools.

Schools will need to review their internal recordkeeping, information handling and data security measures to ensure they meet PROV Standards. For example, in response to the Royal Commission into Institutional Responses to Child Sexual Abuse, PROV introduced a new standard, PROS 19/08. This standard requires organisations, in relation to records about organisational responses to child sexual abuse, to:

• indefinitely retain records about the development of policy, strategy and procedure;
• retain reporting and investigation records for 99 years; and
• retain training and development records for 45 years.

It is likely schools will need to adopt a Retention and Destruction Policy, as well as emphasise data security measures, to meet PROV standards. When considering recordkeeping practices, it is important to consider the impact on individuals’ privacy.

MO 1359 also requires:

• school staff and volunteers to understand their obligations on information sharing and recordkeeping; and
• the school governing authority ensures training for staff and volunteers includes guidance on those information sharing and recordkeeping obligations.

Online safety

Another new and distinct policy requirement of MO 1359 is that schools:

“develop and endorse a policy or statement on online conduct and online safety that is consistent with the child safety and wellbeing policy and practices and child safety code of conduct of the school.”

This echoes the growing focus on child safety in the online environment. Moores recently published some tips for improving online safety for schools and other organisations working with children. In February, Safer Internet Day drew attention to recent work by the eSafety Commissioner to tackle child sexual abuse, cyberbullying and image-based abuse.

Schools may be able to adapt current cyberbullying or ICT policies to also be the “policy or statement required”. It means these policies need to be imbued with child safety considerations, to align your schools’ approach to child safety in the online environment with other practices, policies and behavioural expectations.

How we can help

As education, child safety and privacy experts, Moores can help your school develop these new policy requirements ahead of 1 July 2022. We can also help you to review internal procedures and practices to ensure there is a holistic, and top-down, bottom up approach to child safety – which now, more than ever, includes recordkeeping and online safety considerations.

If you would like more information about online safety and privacy, you can watch the recording of our free webinar presented on 3 May 2022 for Privacy Awareness Week.

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Privacy Law is the body of legislation and case law which regulates the handling of ‘personal information’. This includes the collection, use, disclosure, storage, destruction, and de-identification of ‘personal information’.

Organisations, including Not-for-profits, must comply with Privacy law if either:
a) they have a turnover of $3M or more; or
b) they provide a health service.

To help organisations comply with Privacy Law, Moores has released its 2022 Privacy Toolkit which includes an updated Privacy Guide plus an additional resource Your guide to a compliant Privacy Policy. This toolkit is available for download from our website and will assist your organisation in taking the first steps towards privacy compliance.

Click here to download the Toolkit.

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Today, the Department of Education and Training Victoria (DET) and Commission for Children and Young People (CCYP) published new resources to support education providers to implement the new standards in time for the 1 July 2022 compliance deadline.

These resources include:

• DET guides for each standard;
• new non-government school Child Safety Action List; 
• CCYP resources; and
• updated guidelines to the Minimum Standards.

Links to these resources and further information is available here.

Of note for independent and Catholic schools, the non-government Child Safety Action List provides links not only to the relevant Child Safe Standard but also to VRQA resources and CECV resources which apply in various Dioceses.

The updated guidelines to the Minimum Standards (taking effect in July 2022) will replace the January 2022 version and replace references to Ministerial Order 870 with references to Ministerial Order 1359. It is important to note that schools which are completing their 5 year review prior to July must still meet the requirements of Ministerial Order 870, even as they prepare for Ministerial Order 1359.

Want more information? See our online safety webinar recording as we take a deep dive into online safety – a core requirement of the new standards – as part of the recent Privacy Awareness week. 

Moores is also conducting a webinar on 10 May 2022 on the new Child Safe Standards. To sign up and for more information, click here.

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On 25 February 2022, the Australian Information Commissioner and Privacy Commissioner, Angelene Falk made a decision that an organisation had interfered with an individual’s privacy by breaching Australian Privacy Principle (APP) 12.

The decision confirms that organisations cannot simply “fob off” information requests on the basis that providing the information would unreasonably impact the privacy of another person.

The facts

The organisation concerned was a hospital where the individual had surgery. The individual requested access to their personal information held by the hospital, but the hospital refused to provide access because:

1. the material also contained personal information about other individuals and therefore, the provision of material would have an unreasonable impact on the privacy of the other individuals (APP 12.3); and
2. it was not possible to provide access in a way that could meet both parties’ needs (APP 12.5).

The Privacy Commissioner disagreed with these reasons and declared there had been an interference with privacy and required the hospital to certify in writing that it had provided all information requested. No financial penalty was ordered.

What is APP 12?

APP 12 gives all individuals the right to request access to personal information about them held by organisations subject to the APPs. When individuals make an Access Request, organisations must provide access to the requested information within a reasonable period of time, unless an exception applies. This means organisations may be required to provide information that might be damaging, embarrassing or simply burdensome to collate; as these are not exceptions to APP 12.

The Office of the Australian Information Commissioner (OAIC) provides more detail regarding APP 12 here.

Lessons for your organisation

• If your organisation provides a health service or holds any health information (exempt employee records), the small business exception for organisations with an annual turnover of less than $3 million does not apply and your organisation is subject to the requirements of APP 12 – regardless of your annual turnover.
• Individuals can make Access Requests by phone – they do not need to be in writing. Individuals can also expand the scope of the Access Request. When handling Access Requests, it is best practice to acknowledge receipt of the request and confirm what information the Access Request is requesting.
• Organisations are expected to consult the individual to try to satisfy the Access Request, including the format in which the information is requested.

Redacting names and other information

• If you choose to refuse access to all information entirely (i.e., not redact) on the basis that it would be unreasonable to disclose the names or identity of staff involved, you need to be able to explain why redaction of the identifying details would not be sufficient to remove the unreasonable impact on those other individuals.
• Under the APP 12.3(b) exception, you need to be able to explain the impact of disclosing those names, and why that impact would be unreasonable.
• Where the personal information is someone’s observations of what they heard and saw in relation to the person requesting access (such as an Incident Report), it is not unreasonable for the person requesting access to have this information because this information is about them.

Example

If you are a school that is keeping incident reports that contain personal information about a student, it may be unreasonable to refuse to provide access to this information to the student (or their parents) for the reason of protecting the identity of the teacher involved. However, mandatory reporting does have protections for the identity of mandatory reporters. You will need to balance up the privacy rights of the student, with any other legal obligations of confidentiality.

How we can help

If you receive an Access Request, Moores can help by:

• explaining your legal obligations as they specifically relate to your organisation and the Access Request;
• explain what exceptions or confidentiality requirements may apply to the information subject to the specific Access Request;
• compile the Access Request and redact documents for you; and
• provide you with a step by step guide, explaining how to respond to the Access Requests, and a procedure to follow in future.

More information about our Privacy Expertise is here, or reach out to one of our Privacy Team.

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Moores is delighted to announce the recent appointment of James Dimond as Special Counsel, where he has joined as a leader of the highly regarded Estate Litigation team.

James brings to Moores over 10 years’ experience working exclusively with private clients in succession law. He has extensive experience across all aspects of Wills and Estates, with a particular focus on resolving complex disputes regarding estates, trusts, superannuation and Guardianship and Administration; a focus which he will continue at Moores.

As an LIV Accredited Specialist in Wills and Estates, James is the fifth member of the Private Clients team at Moores to have achieved this qualification. James is also a Full Member of the Society of Trust and Estate Practitioners (STEP).

Speaking of his recent appointment, Lachlan McKenzie, Practice Leader in the Private Clients team, said “James is the perfect addition to the depth of expertise already present in the Estate Litigation team – his knowledge of the area, staunch advocacy for his clients and his ability to achieve effective outcomes is already well established and highly regarded by his peers across the field. We’re wrapped to have him on board.”

When asked ‘why Moores?’, James said “In my line of work, you work up-close with and against many lawyers and firms in various challenging scenarios. I had a very high regard for Moores’ Private Clients team from afar for some time and how they went about their work – so I decided to become a part of it.”

We’re thrilled to welcome James to our Moores Community.

To find out more, or to get in touch with James, please do not hesitate to contact us.