Companies that are registered as charities with the Australian Charities and Not-for-profits Commission (ACNC) have streamlined reporting obligations. This means that charities are only required to notify the ACNC when directors are appointed or removed. However, amendments to the Corporations Act 2001 (Cth) (Corporations Act) now mean that directors must also notify ASIC in order for the resignation to be legally effective.
Companies that are registered as charities with the ACNC are exempt from the requirement to notify ASIC if a person stops being a director[1]. Instead, charitable companies are only required to notify the ACNC when a director resigns by updating their details on the Charity Portal.
Section 203AA of the Corporations Act has had an unintended impact on those charitable companies that do not notify ASIC of director resignations. Introduced in the context of combating illegal phoenixing activity, section 203AA of the Corporations Act was intended to prevent the inappropriate backdating of director resignations. Under subsection 203AA(1):
Although charitable companies are exempt from the obligation to notify ASIC of director resignations, they are not exempt from subsection 203AA(1). This means that directors who have resigned and are no longer serving on a charity board but have not notified ASIC may still be legal directors of the company – with all of the associated duties and responsibilities.
The charity and not-for-profit sector is advocating for legislative change in this area. However, unless and until this change is made, we recommend that charities consider notifying both ASIC and the ACNC of resignations. For the many charities that have had a longstanding practice of notifying only the ACNC, it would be prudent to restore the historical ASIC register to ensure all director appointments and resignations are noted.
Charitable companies can notify ASIC of appointments and resignations by undertaking the following steps on the Company Portal[2]:
ASIC may issue an invoice for late fees if changes are made more than 28 days after the appointment or removal occurred. Charitable companies are not required to pay late fees of this kind and should apply for a fee waiver through the Company Portal[3].
Charitable companies should also consider how they document the appointment and resignation of directors. A register of directors can be prepared and maintained for this purpose and reconstructed in the event that it becomes outdated. Our template register of directors can be used to record the details of current and former directors, including their appointment and resignation dates.
Moores can assist charities in liaising with ASIC or seeking a fee waiver. We can also provide tailored advice to your board on director resignation and reporting obligations. Please do not hesitate to contact us if you require any assistance in this area.
Please contact us for more detailed and tailored help.
Subscribe to our email updates and receive our articles directly in your inbox.
[1] See section 205B of the Corporations Act.[2] ASIC no longer accepts paper forms for changes to company details. Companies that are not registered for online access can do so by applying here.[3] Alternatively, charitable companies can apply for a fee waiver here.
The Department of Education released an updated School Operations Guide on 18 July 2022 setting a non-mandatory expectation that staff and students over the age of 8 will wear masks indoors at school. Exceptions to the recommendation apply to teaching circumstances when clear communication or when a particular activity requires the removal of a mask.
This guidance does not impose a requirement, but requires schools to document their policy, and consider what means are at their disposal to require compliance and ensure they meet their duty of care and occupational health and safety obligations. Schools should have current risk assessments to support not only this expectation but also any firmer requirements which might exist due to vulnerabilities in their school community.
While the Department of Education has not issued separate guidance for specialist schools, it may be more reasonable for a mask requirement to be imposed in the unique context of specialist schools where a risk assessment has identified students as being more vulnerable to the transmission of COVID-19.
Following the decision in late June 2022 to wind back vaccination requirements for workplaces including schools, on 12 July 2022, the Victorian government released another update to its Pandemic Orders. Pandemic (Workplace) Order 2022 (No 10) (Order). The Order sets out requirements that educational facilities must meet in their approach to managing the transmission of COVID-19 in schools.
Those requirements include:
We note that additional requirements (including mandatory vaccination requirements) continue to apply to specialist schools and disability workers working in education.
The Order also provides some relief to schools who intend to continue to hold vaccination information collected in compliance with previous Pandemic Orders. It confirms that, if a “regulated employer” captured under the Pandemic (Workplace) Order (No. 8) was required to collect, record or hold vaccination information under a revoked Pandemic (Workplace) Order, they are authorised to hold that information.
This means schools can continue to hold vaccination information, and do not need to reassess their obligations under privacy law – for now. The relevant privacy law obligation is the requirement to delete or de-identify personal (and health) information when it is no longer needed.
Under the new Order, government schools are no longer authorised to collect new vaccination information. What information independent and Catholic schools can collect about vaccination status will depend on their Privacy Policy and Vaccination Policy, and the privacy obligation to collect health information in a manner that is fair and not unreasonably intrusive.
Although government schools are unable to continue to impose a vaccination requirement for staff, non-government schools can decide to continue to impose a mandatory vaccination policy. There are a number of considerations required ahead of introducing such a requirement including an assessment if the requirement is reasonable, whether consultation obligations apply under the relevant industrial instrument ahead of introducing the requirement and the preparedness to deal with non-compliance and take disciplinary action.
Additional protections regarding the ongoing collection and storage of newly collected vaccination information for non-government schools are provided under the Occupational Health and Safety Amendment (COVID-19 Vaccination Information) Regulations 2022 (Vic) (Regulations). The Regulations provide non-government schools with the power to continue to collect, record, hold, and use COVID-19 vaccination information from employees, contractors, or volunteers in their workplace for a period of 12 months from 12 July 2022 (noting this date may change).
Please get in touch with the Moores team if your school requires further advice or assistance in relation to mask requirements, COVID-19 response plans or vaccination issues.
The majority of the amendments contained in the EOA Amendment Act came into effect on 14 June 2022. In this alert, we summarise what your organisation needs to know in order to ensure compliance with the reforms.
The EOA Amendment Act has broadened the religious bodies’ and religious schools’ exceptions so that the exceptions can be relied upon by more organisations. Religious organisations that receive Victorian government funding to provide goods and services are now subject to the religious bodies’ exception and the religious schools’ exception has been broadened to capture all religious educational institutions.
However, the EOA Amendment Act has significantly narrowed the circumstances in which the religious exceptions can be relied upon by religious bodies, religious educational institutions and individuals. Broadly speaking, the key changes are as follows:
Click here for a more in-depth summary of the effect of the amendments.
The implications of these changes for faith-based organisations and religious educational institutions are significant and wide-ranging. In particular, it will no longer be lawful:
If your organisation would like to understand the impact of the reforms on its operations, we recommend that it:
Moores has a wealth of experience navigating the complex landscape of anti-discrimination laws, and assisting faith-based clients to grapple with the intersection of law and faith. If you’re not sure whether your employment practices, enrolment practices or service arrangements are consistent with the reforms, please contact us.
Downsizing the family home may be a consideration for many older Australians as their children grow older and leave the nest, and the home suddenly becomes too large for their needs. Alternatively, downsizing to a more manageable home or moving to alternative accommodation may also be required due to health and other lifestyle factors.
If the family home is sold, what opportunities exist for investing all or surplus proceeds of sale? One option is to contribute the proceeds of sale to superannuation. Since 1 July 2018, the Government has allowed Australians to make a contribution of up to $300,000 from the proceeds of sale of their home provided the eligibility requirements are met.
In this article, we examine the eligibility requirements and other compliance and estate planning considerations relevant to downsizer contributions.
To make a downsizer contribution:
In addition:
Unlike investing the proceeds or residual proceeds of the sale of your home in your personal name which will be dealt with via your Will on death, superannuation entitlements, which may include a downsizer contribution and the earnings on it, are not necessarily distributed as part of an estate.
Superannuation death benefits can generally be paid to:
The trustee of the fund will determine the payment of the death benefits, at their discretion unless the member has made a binding death benefit nomination or other binding direction, directing who they want their benefits paid to.
It is recommended that you review your estate planning where significant contributions, including a downsizer contribution, are made to superannuation as the following may be relevant considerations for which specialised advice should be sought:
In addition to satisfying the eligibility requirements for a downsizer contribution, it is also important that:
Financial planning advice is required to ensure that making a downsizer contribution to your superannuation fund meets your future financial and retirement goals and you should seek the advice of your financial adviser prior to making the contribution
Moores can assist by:
The recent High Court case of Fairbairn & Radecki [2022] HCA 18 highlights the difficulty in determining when a de facto relationship is considered to have broken down. Each case will ultimately turn on the unique circumstances of the relationship.
In Fairbairn & Radecki the Trustee and Guardian for the de facto wife sought special leave to appeal to the High Court against orders made by the Full Court of the Family Court.
The High Court found the breakdown of the relationship was not caused by Mrs Fairbairn’s cognitive decline and physical separation from Mr Radecki when she was placed in an aged care facility.
An essential consideration was the parties’ decision to keep their assets separate during the relationship, however upon Mrs Fairbairn’s cognitive decline, Mr Radecki began to act contrary to this arrangement and did not make ‘necessary or desirable adjustments’ in favour of Mrs Fairbairn’s interests and care. His conduct included:
Mr Radecki’s conduct did not support a mutual commitment to a shared life with Mrs Fairbairn and therefore the existence of a de facto relationship.
This case highlights that a mutual commitment to a shared life does not necessarily require the couple to be living together or financial interdependence, and the importance of how the parties conducted themselves during the relationship which can be quite complex.
Moores’ Family and Relationship Law team can assist in providing advice relating to the breakdown of de facto relationships. In the event you are not sure whether you are in a de facto relationship, please read our article linked here.
Worker screening involves the assessment of whether a person who works, or applies to work, with vulnerable people is suitable for working with vulnerable people. Screening helps to ensure that workers engaging with vulnerable people do not pose a risk to the health and safety of the people they work with.
Adequate worker screening is one of the key methods by which organisations can safeguard vulnerable people from harm. In a number of industries, worker screening is mandatory, and extends to the assessment of suitability of both paid workers and volunteers. The lack of appropriate screening has also been identified as a major risk factor in a number of public inquiries and Royal Commissions.
Worker screening requirements reflect the increased risk of abuse and harm faced by vulnerable populations – including children, people with disability, and people in aged care. The requirement to undergo a rigorous screening process reflects the right of all people to live free from abuse, violence, neglect or exploitation, and acknowledges that children, people with disability, and people in aged care are at greater risk of institutional harm. This can be a due to a broad range of reasons, including communication barriers, personal care needs, inadequate or inaccessible reporting mechanisms, and not being believed or supported to make a complaint. Appropriate worker screening is an important mechanism to mitigate these risks and ensure that suitable staff are employed to work with vulnerable people.
Workers in risk assessed roles in particular sectors are required to undergo worker screening. The specific worker screening schemes are operated by individual states and territories, and therefore there are key differences from state to state. For the purposes of this article, we consider the Victorian regulatory context.
In Victoria, worker screening is regulated by the Worker Screening Act 2020 (Vic) (WS Act) which came into operation in February of 2021 to replace the Working with Children Act 2005 (Vic). The WS Act provides a more streamlined worker screening scheme, setting out one framework for conducting checks on both NDIS workers and people who work with children.
Under the National Disability Insurance Scheme, workers considered “key personnel” within registered service providers, workers directly delivering NDIS supports or services, and workers who have ‘more than incidental contact’ with people with disability are required to undergo screening checks. For child connected work, all adult workers and volunteers engaged in child-related work are required to undergo screening checks (unless they have a valid exemption). This includes workers who are working for a prescribed service, place or body, whose work involves direct contact with children that is not occasional or incidental. Prescribed services include, but are not limited to, child care and children’s services, educational institutions, religious organisations, and clubs and associations.
Adequate screening helps organisations comply with a number of State and Federal guidelines and regulations, including the Aged Care Worker Screening Guidelines, the NDIS Practice Standards, the National Principles for Child Safe Organisations, and the Victorian Child Safe Standards. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability recently identified the inadequate screening of employees as a systemic issue.
Failure to comply with screening obligations in Victoria is a breach of the WS Act, and may attract significant penalties for individuals and organisations, as follows:
Failure to properly screen workers and volunteers may also result in broader consequences for organisations and the people they serve – including in relation to safety, wellbeing, potential litigation and insurance consequences for breaching its duty of care, and the reputation of the organisation. It is not enough for organisations to say that ‘it is too hard and therefore we don’t comply’, as the penalties are far too high, and the potential consequences can be horrific and life changing.
Importantly, compliance with screening requirements should not be the only mechanism an organisation undertakes to safeguard vulnerable people. The Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse describes it as one of a range of strategies required to make organisations safe. The report states that worker screening checks:
“Will only contribute to keeping children safe if they are used in the context of broader child-safe strategies, such as appropriate leadership, governance and culture; quality recruitment, selection and screening; training; effective child protection policies and procedures; and child-friendly practices.“
The report goes so far as to say that an over reliance on worker screening in the absence of other safeguarding strategies can provide communities with a false sense of security, and can cause organisations to become complacent.
Organisations that work with vulnerable people – including children, people with disability, and elderly people – should ensure that they implement appropriate procedures to comply with their worker screening obligations. In addition, compliance systems, like OHO, can ensure that screening is carried out automatically, regularly, and with ease.
Moores can also assist organisations to understand the broader suite of tools necessary to safeguard children and vulnerable people from harm. Moores works with organisations to train staff and management, develop safeguarding strategies, implement policies and procedures, and respond to concerns and claims. Contact our safeguarding team for further information and support.
The Consumer Policy Research Centre (CPRC) published a report on 8 June 2022 which found 89% of consumers surveyed had experienced being asked for more personal information than was needed to access the relevant product or service.
This report shows, overwhelmingly, that organisations are collecting more personal information than they need to – and this is very likely a breach of the Australian Privacy Principles (APPs).
In addition to being a compliance breach, privacy matters uphold strong relationships with your community and stakeholders. Because privacy is a human right which seeks to preserve individuality, identity, and autonomy, practices that breach privacy standards also often concern individuals and reduce trust in your organisation. The following statistics come from the CPRC Duped by Design report and Data and Technology Consumer Survey:
If your organisation is governed by the APPs, you have an obligation to only collect personal information that is reasonably necessary for one or more of your functions and activities. If the personal information is of a sensitive nature, there are additional restrictions on collection such as consent.
Collecting more than you need to is a breach of APP 3, and could lead to privacy complaints or compliance action from the Office of the Australian Information Commissioner (OAIC). Collecting more information than you need also means you need to handle, use, disclose and store more information in a manner compliant with the APPs. Last year, Moores recorded a free webinar about data breaches. You can watch it here.
Holding more information means more risk of a data breach.
In Victoria, there is an added obligation for health information, or personal information collected by a health service provider, to be collected:
A similar obligation of fair and reasonable handling is being considered as part of the Privacy Act Review. The OAIC considers an overarching obligation to handle personal information in a fair and reasonable way is particularly important due to the erosion of valid consent in the online environment.
The CPRC Duped by Design report specifically considered “dark patterns”, where the design of user interfaces intends to confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions. Many dark patterns aim to collect more personal information and some design features are built specifically for “data-grabs”.
Individuals were asked for more information than was needed by websites in the following instances:
In the online space, privacy and consumer law are the two main tools to combat these dark patterns and protect the rights of individuals. More information about dark patterns from the Australian Competition and Consumer Commission is available here.
Our Privacy Team can help your organisation understand its information handling processes through a privacy and compliance audit. By building a detailed picture of how and when you collect information, we can support you to identify areas of risk and non-compliance, and propose practical solutions to improve how you collect, use and store information.
For more information about privacy for your organisation, check out our Privacy and Online Safety webinar recording and newly released Privacy Toolkit.
Victoria and New South Wales have today committed to fully funding 30 hours – or five school days – a week of ‘pre-prep’ by 2030 for all four-year-old children.
In an unprecedented announcement, today (16 June 2022) the Victorian Premier Daniel Andrews and New South Wales Premier Dominic Perrottet jointly announced this ‘gamechanger’ in early childhood education.
The exact model is still being developed. From now until 2025, Victoria will engage in a period of consultation and trials with interested parties, before beginning the roll-out. To support the increased accessibility of early childhood education, the Victorian Government has committed to opening 50 new childcare centres in areas of greatest demand, also known as ‘child care deserts’ where demand for child care outweighs availability by 3:1.
The program will commence in 2025 in Victoria, with a year of new schooling before what is known as prep. The new centres will have an average capacity for 100 children and be located at schools or with other public services such as TAFEs or hospitals where possible. The program will consist of 30 hours a week of play-based learning for all four-year-olds and will be known as “pre-prep” in Victoria, and “pre-kindergarten” in NSW.
Children will attend 30 hours (the same as five school length days) a week and it will be free of charge. It will not be mandatory for four-year-olds to attend the pre-prep program prior to entering school.
In addition to greater funding for pre-prep and pre-kindergarten, the Victorian government has a planned expansion of three-year-old kinder on the horizon as well. Three-year-old children across Victoria can currently access five hours of a funded kindergarten program each week. These program hours will increase to 15 hours a week by 2029 – coinciding with the delivery of today’s promises for the new pre-prep program.
Consideration will need to be given to whether current early learning centres (ELC) and school facilities will allow concurrent running of three-year-old kindergarten and four-year-old pre-prep programs and how any proposed renovations will be funded. Services will no doubt want to ensure that learning for younger students is not cut to make way for 4 year olds, and many will need to consider staffing needs.
In our opinion, the place of ELCs inside schools remains an important element in the mix, giving parents choice while being positioned to be able to access the new record funding. Demand will undoubtedly remain for ELCs and schools with ELCs, which should – as far as we know to date – be able to offer the fully funded pre-prep program as well.
Once more information is provided by the State Government, we can discuss how this will impact your organisation’s funding and assist with submissions to the government.
Many advisors and members of self managed superannuation funds (SMSF) have been eagerly awaiting the decision of the High Court in Hill v Zuda Pty Ltd [2022] HCA 21. A background of the issue in this case is set out in our previous article.
Today, the High Court of Australia published its unanimous decision that regulation 6.17A of the Superannuation Industry (Supervision) Regulations 1994 does not apply to SMSFs.
Broadly, provided the rules of the SMSF allow it, a member of an SMSF is not required to adhere to the prerequisites of binding death benefit nominations (BDBNs) set out in reg 6.17A, including the requirement that the BDBN must lapse three years from the date it was signed by the member.
It is important for all members, trustees and advisors of SMSFs to remember that the trustee and members remain governed by the rules of the fund which will need to allow for non-lapsing BDBNs (or indeed any other conditions) if the member is seeking to make such a BDBN.
For expert advice or guidance regarding Estate Planning and self managed superannuation funds, please do not hesitate to contact us.
A Mutual Wills Agreement (MWA) is an agreement between two people to make their Wills in particular terms and to not alter those terms after one of them has passed.
This most commonly arises in blended families where each spouse has children from prior relationships and they wish to initially benefit each other, but then benefit their respective children upon the death of both of them. In that scenario, the MWA would be intended to prevent the last survivor of the couple from altering their Will to disinherit step-children after they had received the estate on their spouse’s passing.
A MWA does not arise merely by a couple executing Wills together but requires an actual agreement (usually documented in writing) to limit the future alteration of the Wills.
A MWA can be a worthwhile estate planning tool in the right scenario. However, they are not as certain as other planning options. The key limitations are:
This case is an interesting recent example of the issues that can be caused by these limitations.
The facts of the case were:
James’ claim was refused. The judgement of Ryan J found:
The limitations of MWAs mean that they may not be appropriate in situations where:
In these scenarios, more certain planning tools such as life interests, testamentary trusts or direct gifts may better assist in achieving the estate planning objectives.
For expert advice or guidance regarding Estate Planning please contact us.