On 12 November 2021, the Victorian Law Reform Commission (VLRC) released its report entitled “Improving the Response of the Justice System to Sexual Offences” (the Report). The VLRC has produced a comprehensive reform package to improve the way the justice system responds to sexual offences. Multiple recommendations were made in the report, many of which have been accepted by the Victorian government.

In this article, we discuss the VLRC’s recommendation that Victoria adopt a model of “affirmative consent” and explicitly criminalise stealthing, and what this means for schools, as well as other organisations working with children, young people and other vulnerable people.

This is the third in a series of articles by Moores about the VLRC’s Report. Click here for an overview of the Report’s recommendations and here for guidance to organisations on facilitating reporting of sexual abuse.

What has the VLRC recommended?

The VLRC has recommended that the Victorian Government review the definition of consent under section 36 of the Crimes Act 1958 (Vic) (the Crimes Act) and the fault element of “no reasonable belief in consent” under section 36A of the Crimes Act with the aim of moving towards a stronger model of affirmative consent.

In doing so, Victoria’s consent laws will fall into line with those in New South Wales (who passed affirmative consent legislation last year) and Tasmania. The Australian Capital Territory has also committed to introducing such legislation, whilst a review of Western Australia’s consent laws was announced earlier this year.

The VLRC has recommended that the Victorian Government should:

• formulate a requirement for a person to ‘take steps’ to find out if there is consent;
• consult widely with members of communities and stakeholders;
• deliver training and education for people working in the criminal justice system on the reforms; and
• deliver community education and programs on the reforms.

The VLRC has also recommend that section 36(2) of the Crimes Act be amended to include a new circumstance in which consent is not given by a person where, having consented to sexual activity with a device to prevent sexually transmitted infections or contraceptive device, the other person does not use, disrupts or removes the device without the person’s consent. The effect of this amendment would be to make explicit that such action, colloquially known as “stealthing”, is a crime.

The Victorian Government has committed to implementing these changes, and legislation to give effect to these reforms is expected this year.

What do consent laws in Victoria currently require?

Broadly speaking, if a sexual assault case goes to trial, the state of mind of both the complainant and the accused is relevant to the proceeding. The prosecution must prove that:

1. the complainant did not consent; and
2. the accused did not reasonably believe that the complainant was consenting.

Section 36(1) of the Crimes Act provides that consent means “free agreement”. Section 36(2) outlines a non-exhaustive list of circumstances in which a person does not consent to an act. Section 36(2)(l) (as well as section 34C(2)(k)) state that a person does not consent if “the person does not say or do anything to indicate consent to the act”.

Section 36A(1) of the Crimes Act provides that whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances. Section 36A(2) provides that the circumstances include any steps that the person has taken to find out whether the other person consents the act.

These provisions are said to codify what has been termed the “communicative model” of consent, and requires communication of consent. However, the current model falls short of imposing a positive requirement for a person to take steps to find out if there is consent.

What do the recommendations mean for schools?

All primary and secondary schools will be required to comply with the new Ministerial Order 1359 (MO 1359) which replaces Ministerial Order 870 (MO 870) and comes into effect on 1 July 2022. MO 1359 goes beyond the requirements of MO 870, effectively supercharging the requirement for schools and school boarding premises to create strategies to promote child empowerment and participation.

Specifically, clause 7 requires the school governing authority and school boarding premises governing authority (where relevant) to ensure students are offered access to sexual abuse prevention programs and to relevant related information in an age-appropriate way.

We recommend that schools review their education curriculum on consent, having particular regard to its quality, appropriateness, accessibility, and timeliness. Further, although the laws on affirmative consent are yet to be introduced, we recommend that schools start to use affirmative consent as a framework for teaching young people about consent, if they are not doing so already.

What do the recommendations mean for organisations working with vulnerable people?

Organisations working with children and vulnerable people, should ensure they provide education in relation to legislative amendments on affirmative consent when enacted, and promote the empowerment of vulnerable people within the organisation.

This is especially relevant for Disability Service Providers. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a Disability (the Disability Royal Commission) has provided alarming information in relation to the horrendous abuse of people with a disability. The Disability Royal Commission found that women with a disability were almost twice as likely to experience sexual abuse than women in the general population.

The NDIS Code of Conduct requires workers and providers who provide NDIS supports to take all reasonable steps to prevent and respond to sexual misconduct. A vital part of preventing sexual misconduct in many organisations is through education and the empowerment of those connected to the organisation. It is also critical that organisations have appropriate complaint handling processes to respond to allegations of sexual misconduct and limit barriers to reporting.

How we can help

Moores can offer a variety of services to assist organisations to safeguard children and vulnerable people. Some of the services we offer include:

• Delivering training and education to schools and organisations working with children and vulnerable people.
• Audit and gap analysis of documentation and implementation of organisational policies and procedures in relation to safeguarding.
• Preparation of policies and procedures and advice on implementation across the organisation.
• Supporting organisations to respond appropriately to allegations of sexual misconduct, including through the conduct of independent and trauma-informed investigations and compliance with legislative reporting schemes.
• Assisting organisations to comply and promote best practice in safeguarding.

Contact us

Please contact us for more detailed and tailored help.

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The Victorian government recently announced the launch of the ‘Victorian sick pay guarantee scheme’ for casual and contract workers. The first of its kind, the scheme will provide paid personal and carer’s leave to casual and contract workers who are otherwise often ineligible for paid time off when unwell or have to care for a family or household member.

Secure work Pilot scheme – paid personal leave

Following a consultation process since the announcement of the move to provide casual workers with paid sick leave in late 2020, the Victorian government announced the launch of the scheme in mid March 2022. The consultation process heard from employers and employees and the impact on the lack of availability of paid leave to cover absences due to illness/injury.

The consultation process heard that 84% of casual workers reported attending work even while sick.

That took on particular significance during the COVID-19 pandemic when workers were encouraged to stay home if unwell due to COVID-19. However, the practical reality of a loss of pay meant that some employees made choices that contradicted the public health advice. The scheme will operate for employees deemed in occupations vulnerable and vital.

Operation of the scheme

The scheme will initially operate for two years and be fully funded by the Victorian Government.

Eligible casual employees and contract workers will be entitled to:

• Five days paid personal/carer’s leave.
• Paid at the minimum wage rate.

Employees are to apply to the scheme directly for payment. Eligibility can be for personal illness/injury or that of a family or household member (as defined in the National Employment Standards). Employees have 60 days after their absence to make a claim and can claim for between 3 and 12 hours in a day (subject to a maximum of 38 hours in any one year).

Eligible employees

Eligible occupations for the scheme are*:

Job	Type of work
Hospitality workers	Providing services to patrons of hotels, bars, cafes, restaurants, casinos and similar establishments.
Food preparation assistants	Preparing food in fast food establishments, assisting food trades workers and service staff to prepare and serve food, cleaning food preparation and service areas.
Food trades workers	Baking bread and pastry goods; preparing meat for sale; planning, organising, preparing and cooking food for dining and catering establishments.
Sales support workers	Providing assistance to retailers, wholesalers and sales staff by operating cash registers, modelling, demonstrating, selecting, buying, promoting and displaying goods.
Sales assistants	Selling goods and services directly to the public on behalf of retail and wholesale establishments.
Other labourers who work in supermarket supply chains	Including workers who fill shelves and display areas in stores and supermarkets; load and unload trucks and containers; and handle goods and freight.
Aged and disability carers	Providing general household assistance, emotional support, care and companionship for aged and disabled persons in their own homes.
Cleaners and laundry workers	Cleaning vehicles, commercial, industrial and domestic premises, construction sites and industrial machines, and clothing and other items in laundries and dry-cleaning establishments.
Security officers and guards	Providing security and investigative services to organisations and individuals, excluding armoured car escorts and private investigators.

Will other states follow?

Victorian employees are largely covered by the federal industrial relations system including the Fair Work Act 2009 (Cth) (FW Act) including modern awards and enterprise agreements. The Victorian initiative supplements the entitlements provided by the national framework. They do not form part of the National Employment Standards (in the FW Act).

Other states may follow but may want to see how the pilot operates before embarking on similar schemes. There is also complexity where state entitlement initiatives operate in conjunction with federal entitlements.

So, what do I need to do?

1. Check if your staff are affected by the new classifications and transition their arrangements.
2. Update payroll system changes required for the pay rates and allowance changes.
3. Communicate any change required to employees.

How Moores can help

Transitioning staff to the new classification system might not be smooth sailing. We can set you on the right path if you experience a few bumps in the road with identifying the correct classification or your employee disputes their new classification.

It is always better to be on the front foot if you identify a potential misalignment with the Award. Get in touch with the workplace relations team at Moores if you need support and advice.

Contact us

Please contact us for more detailed and tailored help.

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Changes to the classifications, pay and allowances under the Educational Services (Teachers) Award 2020 (Award) came into effect from the first full pay period on or after 1 January 2022.

The key changes to the Award are:

1. New classification structure
2. Pay rates
3. Changes to allowances

New classification structure

A new classification structure has been introduced reducing the current 12 levels to 5 levels. The classifications are based on the Australian Professional Standards for Teachers and are tied to registration.

The new classifications are:

Classification	Criteria
Level 1	Graduate teacher and all other teachers (as defined) including those holding provisional or conditional accreditation /registration
Level 2	Teacher with proficient accreditation/registration or equivalent
Level 3	Teacher with proficient accreditation/registration or equivalent after 3 years’ satisfactory teaching service at Level 2
Level 4	Teacher with proficient accreditation/registration or equivalent after 3 years’ satisfactory teaching service at Level 3
Level 5	Teacher with Highly Accomplished / Lead Teacher accreditation / registration or equivalent

The Award sets out the arrangements to transition current employees into the new structure in Schedule H. The Schedule specifically provides the following translations (unless the classification above would result in a higher classification for the employee):

Classification prior to 1 January 2022	Classification on and from 1 January 2022
Level 5	Level 2
Level 6	Level 2
Level 7	Level 2
Level 8	Level 3
Level 9	Level 3
Level 10	Level 3
Level 11	Level 4
Level 12	Level 4

Pay rates

The minimum pay rates increased in January 2022 and are set out in Schedule B to the Award.

Changes to allowances

The leadership allowance for teachers in schools and the director’s allowance for childcare centre directors was increased. There is no transition period to the new allowances.

So, what do I need to do?

• Check if your staff are affected by the new classifications and transition them to the new arrangements.
• Update payroll system changes required for the pay rates and allowance changes.
• Communicate any change required to employees.

How Moores can help

Transitioning staff to the new classification system might not be smooth sailing. We can set you on the right path if you experience a few bumps in the road with identifying the correct classification or your employee disputes their new classification.

It is always better to be on the front foot if you identify a potential misalignment with the Award. Get in touch with the workplace relations team at Moores if you need support and advice.

Contact us

Please contact us for more detailed and tailored help.

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

In this article, we focus on the key takeaways of the 2022 Federal Budget for Moores’ clients in the sectors we serve.

The 2022-2023 Federal Budget, described as Australia’s ‘plan for a stronger future’ promises to deliver more jobs, and provide cost of living relief to millions of Australians. It also promises to invest in growth in regional areas, health and aged care, education, women’s safety, and national security.

The Budget, branded as a response to the increasing cost of living, proposes reductions in fuel costs, one-off tax free payments of $250 to pensioners, welfare recipients, veterans and concession cardholders, and an expansion of the tax offset for low and middle income earners. Eligible taxpayers will benefit from a $420 increase in their tax returns this financial year.

Despite this, critics observe that the Federal Budget fails to provide sustained measures to support Australians with the soaring costs of living, with the benefits proposed effectively expended within the next six months. The Budget Papers describe these measures as “temporary and targeted” – perhaps disproportionately so, in light of predictions that wages will remain largely stagnant while interest rates continue to rise.

Rather, the Federal Government’s plan for a stronger future appears to focus its sights on increased workforce participation.

Education

The Budget promises an additional $225.8 million to improve educational outcomes for school students, particularly for vulnerable and disadvantaged students, Aboriginal and Torres Strait Islander students, and students in regional and remote areas. Notably, Schools will receive a further $6 million to support respectful relationship education for primary and secondary students. The Australian Human Rights Commission will be funded to survey high school students about consent education.

Levels of exhaustion remain high amongst students, staff and parents, particularly those who faced extended lockdowns or natural disasters. In recognition that no learning is effective without the foundation of student wellbeing, the Budget promises $9.7m to assist schools and teachers to better respond to student mental health and wellbeing concerns.

School funding for non-government schools continues apace with the Budget providing $62.4 million for initiatives that will enable better educational outcomes via the National School Reform Fund and the Non-Government Reform Support Fund. Funding will also be increased for the ‘Emerging Priorities Program’ which will support schools to respond to emerging priorities in the sector, including COVID-19 recovery.

Funding needs in this sector remain high, as the change in the profile of independent schools continues to see the sector growing in the lower-fee (and higher funded) schools. The budget is stated to be committed to supporting parent choice. By extension, this could also be seen as recognition that this sector is incredibly diverse and, in many cases, schools are regarded as the platform which is responsive to the cultural and religious needs of local community in many communities.

Key announcements for early childhood included Community Childcare Fund (CCCF) measures, namely:

• $19.4 million over 5 years from 2021-22 to establish a new open grant round of the CCCF to support the establishment of new child care services in rural, remote and regional areas where there is limited supply of current child care services
• $22.1 million over 2 years from 2021-22 to increase the CCCF, Special Circumstances grant to assist services experiencing financial viability issues resulting from the recent floods and the COVID-19 pandemic

Other than these initiatives, early childhood perhaps felt neglected by a budget that was quite silent on the question of childcare affordability, workforce investment and the funding of additional pre-school hours. With childcare continuing, for better or worse, to be a “women’s issue”, it appears the government is relying on previously announced changes to the Childcare System and its introduction of a type of shared paid parental leave to seek to address concerns.

Moores welcomes the initiatives which prioritise the mental health and safety of students, which are vital to ensuring a culture of child safety in the education sector, and also advancing equality at large.

Industrial relations

Reforms to the operation of the Fair Work Commission were also foreshadowed, with funding allocated to establishing a dedicated small business unit to assist small business employers to navigate their workplace obligations. Businesses and employees will continue to be supported in managing workplace issues related to the COVID-19 pandemic, with further funding for the Fair Work Ombudsman until September 2022.

Changes to the National Employment Standards also form part of the 2022 Budget, with the expansion of the Paid Parental Leave Scheme broadening the Scheme’s eligibility, providing single parents with an extra two weeks of government-funded paid leave, and affording multiple-parent households greater flexibility in determining who takes up the leave. Noting this flexibility falls short of the “use it or lose it” model which has been deployed in some European jurisdictions, with the result that many more fathers took parental leave, we will watch the outcome of this initiative with interest. (Currently, primary carers are able to take 18 weeks of paid parental leave, and secondary carers only two weeks).

The Budget also foreshadows plans to amend redundancy payment calculation methods, to ensure redundancy packages reflect an employee’s average working hours during the course of their employment. Importantly, the proposed amendments will better recognise the service of employees who have shifted between full time and part time work due to caring responsibilities.

Disability

The Budget promises to provide an additional $7.3m in spending for people with disability and their families, largely allocated to a national advertising program to assist jobseekers with disability. However, peak bodies in the sector consider that the sector’s main challenges remain unaddressed. As evidenced by the recent progress report published by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, access to adequate NDIS funding remains a key concern for people with disability in Australia. The National Disability Insurance Agency has in recent times faced a 300% rise in appeals by NDIS participants, but disability support advocates were not afforded additional funding in the Budget.

Aged care

Funding for the aged care sector will see additional home care packages, extended care time for residents of aged care facilities, and 33,800 new training places for aged care workers. The Budget also commits $340 million to embed pharmaceutical services in aged care facilities, with the hopes of improving medication management. Many critics have questioned whether these initiatives are adequate for improving the health and wellbeing of older Australians, who remain some of the least visible and most vulnerable members of our national community.

Peak bodies in the aged care sector have also called upon the Federal Government to increase wages in the sector to attract and retain skilled workers, a recommendation of the Royal Commission into Aged Care. Disappointingly, the Budget does not address this. The Fair Work Commission (Commission) is set to hear an application for pay rises in the sector by the Health Services Union and Australian Nursing and Midwifery Federation, who argue that current wages fall short of the Fair Work Act’s requirement to ensure a safety net of fair minimum wages. Moores will await the Commission’s decision with interest, and hopes for better outcomes for aged care providers and workers.

Safeguarding

Moores welcomes the continued commitment to aligning regulation across the care and support sector, including for providers in aged care, veteran care, and disability services. Alignment will enhance the quality and safety of support services delivered to vulnerable Australians, while reducing regulatory burdens on providers caused by duplicate obligations. Moores looks forward to improved information sharing between industry regulators, and more efficient reporting processes for service providers.

Women

The 2022 Budget will build upon on the previous year’s focus on investing in women, bringing total funding across 2021-2023 to $5.5 billion. The Government states this funding will target three priorities: women’s safety, women’s economic security and leadership, and women’s health and wellbeing.

Safety-based initiatives include funding for frontline family, domestic and sexual violence services, including services that are culturally appropriate for Aboriginal and Torres Strait Islander communities, and people from culturally and linguistically diverse backgrounds. Our Watch will be funded to boost its efforts in violence prevention for women with disability, people in the LGBTQIA+ community, and women from migrant backgrounds.

Funding will also be devoted to combatting workplace sexual harassment. Moores welcomes recognition by the Federal Government that addressing sexual harassment in the workplace is integral to advancing women’s participation in the workforce, as well as women’s safety. The Budget promises to further implement the recommendations provided by the Respect@Work: Sexual Harassment National Inquiry Report, including by establishing a dedicated team in the Australian Human Rights Commission for assisting industry to respond to historical complaints of sexual harassment.

The Budget Papers provide for additional initiatives to support women’s workforce participation, with changes to the Paid Parental Leave Scheme promoting increased flexibility for families and equitable care arrangements between parents of all genders. Increased funding will also be provided to the Family Friendly Workplaces initiative, to ensure a further 500 workplaces across Australia are supported to increase flexibility for their workforce. The focus on women’s workforce participation also includes further investments in the Workplace Gender Equality Agency, the statutory body responsible for promoting gender equality in Australian workplaces.

The Budget further promises to invest in initiatives to support women to take up opportunities in under-represented sectors, including trade occupations and the manufacturing and tech industries. These investments will be key to ensuring the Government delivers on its aim to increase women’s workforce participation, having regard to the minimal budgetary consideration for sectors where women are most represented, compared with the promised $17.9 billion infrastructure package. Recent research conducted by the Australia Institute demonstrates that while every million dollars spent on education creates 10.6 jobs for women and 4.3 jobs for men, every million dollars spent on construction creates only one job for men and a mere 0.2 jobs for women.

Charities and not for profits

It was a relatively quiet budget night for charity and not-for-profit regulation, and for the sector’s regulator, the Australian Charities and Not-for-profit Commission (ACNC). Pleasingly, the Budget did announce that up to 28 community foundations affiliated with Community Foundations Australia would receive specific listings as Deductible Gift Recipients (DGRs) from 1 July 2022. These listings will increase the scope and impact that these foundations can have in their local communities and will greatly assist with much needed grass roots initiatives.

The Portfolio Budget Statements note that the ACNC will continue its compliance drive in the upcoming financial year, with a goal to review 2% of charities that have been registered with DGR status. Previously, the ACNC had committed to reviewing 500 registered Public Benevolent Institutions per year, so this new measure may increase the scope of charities with DGR status that could be subjected to ACNC scrutiny.

The Budget has also allocated $1.9 million in funding to the Australian Taxation Office to build a system for the implementation of the previously announced annual reporting requirements for self-assessing not-for-profits. Eligible not-for-profits should pay careful attention as these systems are developed and put into practice.

Social housing

While the States are ploughing funds into the increase of social housing stock, the Federal Government appears intent on seeking to enable home ownership for more Australian families. The Budget will fund 50,000 ‘Home Guarantee Scheme’ places in the coming financial year, in addition to a new ‘Regional Home Guarantee’ and increased placed under the ‘Family Home Guarantee’ for single parents.

The Budget will also increase the amount of cash that can be released from superannuation accounts under the ‘First Home Super Saver Scheme’ – a regime that allows people to save for a deposit within their superannuation fund (giving an effective tax cut to savings put aside for your first home).

None of these measures appear likely to decrease the demand for social housing. They will, however, introduce additional home buyers into the market which is likely to exacerbate price pressure in a housing market where affordability is already a significant challenge.

One positive measure for social housing is the increase in the NHFIC liability cap by a further $2 billion, lifting to a total liability cap of $5.5 billion. This will increase the capacity of NHFIC to provide (or re-finance) long term debt for social housing providers. Interest savings will increase the borrowing capacity of social providers and hopefully enable them to seize opportunities to use debt finance for the delivery of new housing.

How we can help

Moores is pleased to see a number of worthy sectors and causes provided for in this budget, but looks forward to further investment in the welfare and social assistance sectors in future.

The team at Moores has expertise and experience in key sectors including education, safeguarding, social housing, not-for-profit and workplace relations. We use our strong commercial sense and practical experience to make a positive impact in our client’s lives and organisations.

Contact us

Please do not hesitate to contact us for more information.

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On 1 July 2022, the new Child Safe Standards (CSS) come into force, along with new Ministerial Order 1359 (MO 1359). Both instruments have an increased focus on child safety in the online environment. This article covers our top tips for schools and organisations to ensure child safe online environments to mitigate risks to children and young people.

Increased focus on online safety in child safety regulation

The new CSS, which apply to all organisations in Victoria providing services or facilities for children, contain specific obligations for organisations to:

• consider online environments in addition to physical environments; and
• identify and mitigate risks in these environments without compromising a child or young person’s right to privacy, access to information, social connections and learning opportunities.

For schools, a major change in the new MO 1359, which replaces Ministerial Order 870 and implements the CSS, is the updated definition of “school environment” to include additional detail regarding online and virtual school environments. Online and virtual school environments made available or authorised by a school governing authority for use by a child or student are captured by MO 1359 and now specifically include software applications, collaboration tools, and online services in addition to email and intranet systems. This additional detail reflects the increased focus of the new CSS on child safety in virtual environments, and increases obligations on schools to maintain safe online environments.

Earlier this year, the Online Safety Act 2021 (Cth) came into effect. This law includes a world first scheme to take down cyber abuse and protect children and adults from online bullying. See our earlier article discussing these changes here.

What are the risks?

According to the eSafety Commissioner, some of the key risks for children and young people in online environments include:

• image-based abuse;
• cyberbullying;
• online scams and identity theft;
• fake news and misinformation;
• sending nudes and sexting;
• unwanted or unsafe contact; and
• sexual extortion.

1 in 5 Australian young people reported being socially excluded, threatened or abused online.

1 in 5 Australian young people admitted behaving in a negative way to a peer online — such as calling them names, deliberately excluding them, or spreading lies or rumours.

Top tips for ensuring online safety

We recommend that schools and organisations follow these tips to ensure their online environments are safe for children and young people:

1. Understand your risks by undertaking a thorough risk assessment of your online platforms.
2. Set clear expectations of behaviour with staff members, students, parents and/or children and young people associated with your organisation (as applicable).
3. Provide continuous, tailored child safety training to staff members.
4. Provide training or information to students and/or children and young people associated with your organisation (as applicable).
5. Run regular child safety officer (or equivalent) meetings to ensure information regarding red flags and child safety concerns is shared.
6. Ensure your school or organisation is able to monitor and record online activity on any platform that it uses.
7. Comply with reporting requirements and remind staff members of their reporting obligations.
8. Provide guidance to parents of students or children and young people associated with your organisation on creating a child safe online environment.
9. Evaluate, learn and improve your school or organisation’s online platforms, practices and procedures.
10. Attend Moores’ free e-safety webinar. The webinar will discuss these online risks and tips in greater detail, using case studies for practical application. Register for the webinar here.

How we can help

If you would like more information about what the new CSS and MO 1359 mean for your organisation or school or what steps you can take to protect children and young people from online harm, please do not hesitate to contact us.

Moores’ e-safety webinar in 2022 will reflect on:

• recent regulatory changes to understand how they address identified risks to children in online and virtual environments; and
• key lessons and tips which arose out of Safer Internet Day in February, promoted by the e-Safety Commissioner and privacy Commissioners around Australia.

You can access the recording to our 2021 Safer Internet Day webinar on Social Media and Child Safety here.

Contact us

Please contact us for more detailed and tailored help.

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The Disability Royal Commission has recently released its fifth Progress Report, summarising key themes arising from its investigation into violence, abuse, neglect and exploitation of people with disability in Australia.

In 2019, the Federal Government announced a Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission). The Royal Commission has been authorised to inquire into how to effectively prevent harm against people with disability, and achieve best practice in investigating and responding to reports of harm.

The Disability Royal Commission will ultimately result in recommendations for how to improve laws, policies, and practices to ensure a safer, and more inclusive society for people with a disability.

What is a Royal Commission?

A Royal Commission is the highest independent investigation into a matter of public concern, established by the Governor-General of Australia under the Royal Commissions Act of 1902 (Cth). Royal Commissions have broad powers, including powers to hold public hearings and compel people to participate and give evidence. When a Royal Commission has finalised its investigation and gathered its evidence, it will prepare a report and recommendations for presentation to Parliament, which often leads to significant changes in legislation and policies, and cultural change within society.

The Royal Commission’s Fifth Progress Report

The Disability Royal Commission has recently released its fifth Progress Report, covering the progress of the Royal Commission during the period from 1 July to 31 December 2021 (Reporting Period). During the Reporting Period, the Royal Commission held eight public hearings, and 400 private sessions. It also produced a number of reports. Themes emerging from the 878 submissions received during the Reporting Period include:

• Alarming rates of violence, abuse, neglect and exploitation, arising in a variety of settings including schools (10.1% of accounts), state and federal services (35%), the workplace (6.6%), health settings (21.3%), group homes (15.6%) and family and domestic settings (24.2%).
• The perpetration of violence, abuse, neglect or exploitation by support workers, family members and medical professionals. Of the accounts, 49.4% reported incidents of neglect, 49.4% reported abuse and violence, 78.2% reported systemic abuse or neglect and 10.1% exploitation. Many of the accounts discussed multiple incidents of types of abuse and harm.
• Unsatisfactory outcomes when violence, abuse, neglect or exploitation has been reported, including significant barriers to reporting. People with a disability reported feeling that their complaints would not be heard or appropriate action taken.
• Difficulties accessing the NDIS and navigating the NDIS appeals process.
• Discrimination in the education system, with schools and tertiary institutions failing to accommodate students with disability.
• The disproportionate impact of COVID-19 restrictions on people with disability.
• Experiences of racism by First Nations people with disability.
• Financial exploitation of people with disability, including misuse of NDIS funds.

Public Hearing 13 – Preventing and responding to violence, abuse and neglect and exploitation in disability services was the first public hearing that examined the conduct of a Disability Service Provider, Sunnyfield Disability Service. Recommendations and key themes from this public hearing were identified and further investigation into these themes will be considered by the Royal Commission.

The Disability Royal Commission will continue to investigate and report on experiences in all settings and contexts, including schools, workplaces, secure facilities, family and group homes, hospitals, and day programs. It will release its Final Report by late 2023.

On 3 December 2021, the Australian Government published Australia’s Disability Strategy 2021-2031, which is based on the Royal Commission’s interim report and recommendations. The Australian Government has committed to reviewing the strategy in 2023 following the release of the Royal Commission’s Final Report.

What is safeguarding?

Safeguarding is the action that an organisation takes to promote the safety and welfare of vulnerable people, including children, people with disability, and elderly people. Safeguarding measures can involve the implementation of strategies, policies and procedures, training and screening mechanisms for new staff or volunteers, identifying and mitigating risks, and investigating and responding to concerns and complaints.

The NDIS Commission is empowered to undertake enforcement action to hold organisations accountable for failing to adequately safeguard people with disability from harm and abuse.

How we can help

At Moores, we provide a broad range of safeguarding services to assist organisations to comply with regulators, mitigate risk, and respond appropriately and comprehensively to safety concerns. We have expertise in harm prevention in the disability, aged care, and child safety sectors, and work closely with regulators, stakeholders, complainants and survivors to strategically advise clients. We assist organisations to model best practice in their safeguarding strategies, and to hear and respond to concerns in a trauma-informed manner.

Our safeguarding team can assist with training; reviews and audits of current systems and operations; ensuring compliance with laws and regulations; development and implementation of policies and procedures; quality improvement; and complaints management. Our Education and Workplace Relations teams are also equipped to advise on discrimination matters, and the obligations of employers and education providers towards people with disability.

Contact us

If you or your organisation would benefit from assistance with safeguarding vulnerable people within your organisation, please contact us for more information.

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Welcome to the sixth in our series on Special Disability Trusts (SDTs), where we hope to demystify particular aspects of these trusts, and highlight the benefits, eligibility requirements and restrictions to look out for.

As discussed in our previous articles in this series, the two main benefits of establishing an SDT for a vulnerable person are:

1. Protecting the person from poor decision making and exploitation from others; and
2. Preserving the person’s receipt of the Disability Support Pension (DSP).

In this article we discuss the relief from capital gains tax (CGT) that may be available when transferring a CGT asset to an SDT.

Capital Gains Tax

Capital Gains Tax laws can be quite complex, with a variety of discounts, exemptions or other forms of relief from paying this tax available, depending on the particular circumstances.

Common examples of CGT assets are shares or real estate (other than for the period a property was the principal place of residence) that were acquired after 20 September 1985 when the CGT laws were introduced in Australia.

Ordinarily if a person disposes of a CGT asset, tax is payable on any increase (gain) between the value at the time they acquired the asset (the cost base) and the value at the time they dispose of the asset. The CGT applies on the increased value, even if the asset is gifted for no money in return.

However, under section 118-85 of the Income Tax Assessment Act 1997 (ITAA 97), any capital gain from a transfer of a CGT asset to an SDT or a trust that becomes an SDT as soon as practicable after the transfer, is disregarded.

In addition to the capital gain being disregarded, the cost base of the property in the hands of the trustee of the SDT is deemed to be equal to the market value of the property when the SDT acquires it (s 112-20 ITAA 97).

In other words, the cost base of the property isn’t just rolled over and transferred to the trustee, but is “refreshed” to the asset’s market value at the time it is transferred to the SDT.

Let’s consider the following example:

• Richard and Jane have a son, Brendan, aged 31 years who has a disability that qualifies him to be the beneficiary of an SDT (see our previous article on eligibility requirements here).
• Brendan has been living at home but wants more independence.
• Richard and Jane bought a flat nearby in 2005 for $250,000. They feel this would be a suitable home for Brendan to live in with some support from them and other carers.
• The flat is currently valued at $650,000.
• If they sold the flat (or gifted it to their son or a trust that was not an SDT) after available discounts and based on their current tax rates, they would pay around $70,000 in CGT.
• However, by gifting the flat to the SDT, there is no CGT to pay.
• The cost base of the property when the SDT acquires the flat is now $650,000 (the trustee of the SDT doesn’t “inherit” Richard and Jane’s cost base of $250,000.

How we can help

If you (or someone you know) are considering gifting an asset (such as shares or real estate) to a SDT, then this could be something to explore further. You should first seek advice from a licenced financial planner who has expertise in this area, to see if this would be suitable for your particular circumstances.

Look out for the next article in our series, when we discuss the Land Tax relief that may be available on real estate owned in a Special Disability Trust.

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Submissions are now open for the Australian Government’s request for feedback and comments in relation to the implementation design of the new deductible gift recipient (DGR) category relating to pastoral care services. This follows recent Government announcements about the new DGR category to be established for the purpose of supporting pastoral care services delivered to students in Australian primary and secondary schools. This will improve the ability of entities providing pastoral care services in schools to raise funds by offering tax deductibility to donors. It will also enable entities to receive distributions from public and private ancillary funds.

What is the Government’s proposal?

The Australian Government currently provides significant support to pastoral care services in schools through its National School Chaplaincy Program. The proposed DGR category will supplement support already provided by the Government by encouraging greater private funding of these pastoral care services.

The proposal includes the following key features:

• the ordinary definition of pastoral care would be adopted. This broadly involves the provision of wellbeing support services to students facing challenges related to stress, relationships, managing emotions, bullying, and health and lifestyle issues.
• pastoral care services could be delivered by both religious and non- religious providers but would not include ‘ordinary religious services’. Pastoral care services would also not include most health services such as clinical assessment, diagnosis, treatment or formal case management of students’ health concerns.
• the new DGR category would operate in a similar manner to a school building fund (whereby a school or other entity can establish a fund into which tax-deductible donations can be made and the donated money can then be used only for the purpose of the fund). The fund would need to be operated by a registered charity or be a registered charity in its own right.
• the fund would solely support the provision of pastoral care services in primary and secondary schools in Australia (in both government and non-government schools) as well as pre-schools and approved curriculum-based learning institutions. Pastoral care services could be delivered via group-oriented programs or individual sessions.
• use of the fund would not extend to the provision of pastoral care services in tertiary institutions, Sunday schools, after school care programs and childcare services.

What can you do?

Further details and the full consultation paper can be accessed via the Treasury’s website. Key stakeholders are encouraged to carefully review the proposed design, including the proposed wording of the various elements that would constitute the new DGR category, and to respond to the prompts and questions that are contained within the consultation paper.

Submissions are open until 29 April 2022.

How we can help

Moores can provide more information or guidance regarding any of the above, including support to submit a formal response.

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The Public Ancillary Fund Guidelines 2011 (Guidelines) setting out the rules for the establishment and operation of a public ancillary fund (PuAF) are due to lapse on 1 April 2022.

The majority of the proposed changes to the Guidelines are minor and technical in nature. The only substantive change is that public ancillary funds can seek a merits review of a decision by the Commissioner of Taxation on applications for a lower minimum annual distribution rate (proposed changes).

Ordinarily PuAFs must distribute annually:

• at least four per cent (minimum annual distribution rate) of the market value of the PuAF’s net assets if its expenses are met outside the fund; or
• at least $8,800 (or the remainder of the fund if that is worth less than $8,800) during a financial year if any expenses of the fund in relation to that financial year are paid directly or indirectly from the PuAF’s assets or income.

A PuAF can apply for the Commissioner to reduce this minimum distribution rate at any time. The proposed change will allow a PuAF to seek a merits review of any decision by the Commissioner not to reduce the annual distribution rate following application by the PuAF.

These proposed changes are likely to also be reflected in the changes to the Private Ancillary Fund Guidelines 2019.

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The definition of a de facto relationship for family law purposes is where two people (whether of the same or opposite sex) who are not married nor related by family are in a relationship as a couple on a genuine domestic basis.

For many of our clients, the legal definition of a de facto relationship can be different to how they view their relationship as a couple. Relationships are not nuclear and no two sets of circumstances are the same. The exception is where the couple has a child together. In those circumstances the couple is automatically deemed to be in a de facto relationship.

Why is this important? You might legally be in a de facto relationship without realising. If you are found to be in a de facto relationship and you separate, you and your partner may be entitled to make a claim for a property settlement following the breakdown of your relationship.

How do I know if I am in a de facto relationship? Am I not just dating?

It is recognised in legislation that there is a not a “one size fits all” approach when it comes to proving the existence of a de facto relationship. The Family Law Act 1975 (Cth) (The Act) lists a number of factors which are taken into consideration. They include:

1. The duration of the relationship. How long was the relationship for? Were there extended periods of the time where the couple took a break and saw other people?
2. Nature and extent of the common residence. Did the couple live together? To what extent? How many nights did they spend with each other per week?
3. Whether a sexual relationship existed. Where they regularly intimate? Did they have separate bedrooms? Why so?
4. The degree of financial interdependence or financial dependence. Did one person pay for all household expenses and rent or were these expenses shared? Did one person financially support the other? Did they open a joint bank account? Were finances intermingled?
5. The ownership, use and acquisition of their property. Did they purchase property together? Did they become a co-signature on a mortgage? Were they both named on a rental agreement?
6. The care and support of children. Did they financially support each other’s children? Did they take children to and from activities? Did they fulfil a step parent role?
7. The reputation and public aspects of the relationship. Did they meet each other’s family members? Did the family members view them as a couple? Did their friends know about the relationship?

In the recent case of Bahan & Pinder [2021] FedCFamC2F 347 (11 November 2021) (Bahan & Pinder) the Court applied the above factors in determining if a de facto relationship existed.

The Applicant maintained that she and the Respondent lived together in Tasmania as a de facto couple from March 2012 to June 2019. The Respondent maintained that the relationship was causal, they were girlfriend and boyfriend, save for a couple of months.

The Applicant was a 31 year old administration assistant. The Respondent was a 29 year old tradesman. His FIFO work meant he would spend 28 days interstate followed by 7 days at home with the Applicant in Tasmania. A significant part of the Respondent’s case was that the parties’ did not reside together, or share a common residence for the majority of time.

The Judge ultimately found the parties’ were in a relationship as a couple on a genuine domestic basis and they were not dating casually. The pertinent evidence included:

1. The parties shared all facets of day to day life together which were only briefly interrupted by two short periods of separation and then reconciliation;
2. The parties’ shared a common residence that the Applicant maintained when the Respondent was absent for FIFO work including completing chores and housework on his behalf;
3. The parties shared a sexual relationship whilst not being continuously exclusive;
4. The parties’ earned individual incomes and provided financially for themselves to a degree, but the Respondent provided financial support to the Applicant who was financially dependent on him; and
5. They socialised as a couple and were perceived by their mutual friends as a couple.

Bahan & Pinder provides us with an example of how two people can be determined to be in a relationship on a genuine domestic basis even where they had short periods of separation, their relationship was not monogamous at times, they were of a relatively young age and they spent more time living separately than together due to employment obligations.

If you are currently in a relationship, looking to commence a relationship or have recently separated, it is important to obtain advice from a family lawyer to ascertain the status of that relationship to discuss asset protection or your entitlement to a property settlement under the Act.

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