You’ve sold your property. Can you access the deposit before settlement?
It’s a common question with important implications.

Section 27 of the Sale of Land Act governs the early release of deposits in Victorian real estate transactions. The provision allows vendors to provide specified information to purchasers, who then have 28 days to indicate whether they are satisfied with the particulars provided. If the purchaser is satisfied or if a valid objection is not raised within the 28 day period, the deposit may be released before settlement.

The expectation of many vendors is that they will have access to the deposit sooner rather than later after signing a contract to sell their property. However, the early release of the deposit is not guaranteed. In particular, the law does not explicitly address whether the purchaser’s objection must be objectively reasonable or merely subjective. Recent case law suggests that the purchaser’s objection need not be objectively reasonable and that it is sufficient if the purchaser objects. If that happens, a vendor may have limited options to overcome the objection.

If you are a vendor and you need the deposit to be released perhaps to fund the deposit on a purchase, do not assume that you will be successful in having the deposit released quickly or at all. You may have to wait until settlement occurs to have access to the deposit so it would be prudent to have a Plan B.

How we can help

Our Residential Property team are accredited specialists in property and leasing law, with the expertise and experience to handle even the most complex issues comprehensively and pragmatically.

Contact us

Please contact us for more detailed and tailored help.

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

---

_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

The Aged Care Act 2024 (Cth) (Act) will commence on 1 November 2025, heralding a new era for aged care in Australia and adopting a rights-based focus recommended by the Royal Commission into Aged Care Quality and Safety (Royal Commission). This legislative overhaul aims to enhance transparency, accountability, and the overall quality and safety of care by empowering older people and those who advocate for them.

A key element of the new Act is strengthened whistleblower protections. These protections aim to create an environment where residents, families, staff, and others feel secure in raising concerns about potential breaches of the law. This is seen as crucial for driving accountability and improving care standards by ensuring issues are brought to light safely and addressed effectively.

This article examines the key whistleblower obligations for registered aged care providers under the Act, compares them with the existing Corporations Act 2001 (Cth) (Corporations Act) regime, and outlines essential steps for providers.

The New Whistleblower Protections

A qualifying disclosure arises when an individual (discloser) has reasonable grounds to suspect that information indicates a potential contravention of any provision of the Act by any entity. The disclosure, which can be anonymous, must be made to an eligible recipient. These include:

1. the Aged Care Quality and Safety Commissioner, the Complaints Commissioner, or their staff;
2. the System Governor (Secretary of the Department) or an official of the Department;
3. a registered provider, one of their responsible persons, or an aged care worker;
4. a police officer; or
5. an independent aged care advocate.

Disclosers receive significant protections, including immunity from civil, criminal, or administrative liability for making the disclosure, as well as protection against contractual remedies (like termination) being enforced because of the disclosure. This immunity does not cover the discloser’s own misconduct.

Strict confidentiality rules apply: Recipients must take reasonable steps to preserve anonymity if requested. Revealing the discloser’s identity or information likely to lead to it is a contravention unless specifically authorised (authorised disclosure may include disclosure to regulators or legal advisors, disclosure with consent, or disclosure to prevent serious threat). Disclosure of information (other than identity) is permitted if reasonably necessary for investigating the contravention, provided steps are taken to reduce identification risk.

Victimisation is prohibited: Causing detriment (e.g., dismissal, discrimination, harassment) or threatening detriment due to a disclosure attracts a significant civil penalty (500 penalty units or $165,000). Courts can issue remedies including injunctions, compensation, reinstatement and exemplary damages.

Registered provider obligations: Providers must ensure (as far as reasonably practicable) compliance with confidentiality and anti-victimisation rules for staff making disclosures. They must also take reasonable steps regarding staff who receive disclosures. Critically, providers must implement and maintain a compliant whistleblower system and policy as a condition of registration.

How do these protections compare to the Corporations Act?

The Act creates a sector-specific regime. While sharing the fundamental aims of the Corporations Act’s whistleblower protections, there are key differences relevant to aged care providers:

Element	Aged Care Act	Corporations Act
Scope	Applies to aged care providers	Applies to companies, some incorporated associations, banks, insurers and superannuation entities (some obligations apply only to public companies, large proprietary companies and corporate trustees of APRA regulated superannuation entities).
Eligible Whistleblowers	Broadly defined as “an individual,” suggesting anyone with relevant information. Importantly, this includes the carers of residents.	Includes current/former employees, officers, contractors, suppliers (paid/unpaid), associates, and their relatives/dependents.
Disclosable Matters	Information indicating a potential contravention of any provision of the Act. Focuses specifically on breaches within the aged care regulatory framework.	Broader scope including misconduct, improper state of affairs, breaches of Corporations Act or other financial sector laws, Commonwealth offences punishable by 12+ months imprisonment, or conduct dangerous to the public/financial system.
Eligible Recipients	Responsible persons, including board members and executive of the registered provider. Registered providers and aged care workers. Aged Care Quality and Safety Commission’s Commissioner/staff, System Governor/Dept officials, police officers and independent aged care advocates	Company officers/senior managers, auditors, actuaries, legal practitioners (for advice), ASIC, APRA. Limited protection for disclosures to journalists/parliamentarians under specific conditions.
Requirement for Policy	Providers must implement and maintain a whistleblower system and policy as a condition of registration. Mandatory for all registered providers.	Mandatory for public companies, large proprietary companies, and certain superannuation trustees. Must outline protections, procedures, support, investigations. Exemption for some smaller NFPs.
Protections	Strong protections against detriment (including threats) and confidentiality provisions, similar in nature to the Corporations Act.	Strong protections against detrimental conduct and strict confidentiality requirements.
Remedies	Court orders available for victimisation include injunctions, compensation (including exemplary damages), and reinstatement.	Similar court remedies available including compensation, injunctions, apologies, reinstatement, and potentially exemplary damages.

The focus on contraventions of the Act, the tailored list of eligible recipients within the aged care ecosystem, and the explicit linking of a whistleblower policy to the conditions of registration for aged care providers are significant points of difference.

Practical Steps for Providers

Given the mandatory nature of these requirements, providers should act now to prepare for the 1 July 2025 commencement:

• Develop or thoroughly revise your whistleblower policy and associated systems to ensure full compliance with the Act. Ensure the whistleblower framework aligns with incident management and complaints/feedback systems. See below for organisations who are also covered by the Corporations Act whistleblowing regime.
• Train responsible persons and employees:
  • For responsible persons (including board members and executive team): Covering their role as eligible recipients, ensuring they understand confidentiality requirements and proper handling procedures.
  • For all aged care workers: Covering their rights to disclose, the protections offered and how to make a disclosure.
• Actively promote a ‘speak up’ culture, emphasizing the protections available and the organisation’s commitment to addressing concerns without reprisal.

Providers covered by both the Aged Care Act and Corporations Act whistleblowing provisions

Given the overlapping concepts between the Aged Care Act and Corporations Act regimes and the likelihood that many organisations will be covered by both, there is a real risk that confusion between the two regimes could result in a loss of protection for a whistleblower or cause organisations to inadvertently fail to comply with their obligations.

Accordingly, it is essential to ensure that:

• if separate whistleblower policies and processes are adopted for each regime, both policies and processes are clearly labelled, set out the disclosable matters that they cover, and clearly note the existence of the other whistleblowing regime and related policy and process.
  • Note: As maintaining a whistleblower policy is a condition of provider registration, providers may be required to submit a policy to the Aged Care Quality and Safety Commission on registration or renewal of registration. It may be preferable to maintain a separate whistleblower policy dealing only with the Aged Care Act obligations for this purpose.
• if a single whistleblower policy and process is adopted to cover both regimes, the differences between the regimes are clearly noted throughout the policy and process. Importantly, eligible whistleblowers should clearly understand the protections available to them, the disclosable matters under each regime and the eligible recipients to whom disclosures may be made under each regime.
• eligible recipients within the organisation (including board members and the executive team) are trained with explicit reference to their separate obligations under each regime.
• all internal and external documentation referred to whistleblowing is updated to clearly note the existence of both regimes (and associated policies and processes).

Looking Ahead

The whistleblower protections under the Act are more than just a compliance exercise; they are fundamental to the legislative and Royal Commission’s intent of creating a safer, more transparent, and rights-focused aged care sector. By embedding these requirements into organisational culture and practice, providers can not only meet their regulatory obligations but can ensure that issues are brought to light and addressed safely, effectively and promptly.

How we can help

Moores Charity and not-for-profit team can assist with a review of your whistleblower policies and processes, as well as internal training to ensure stakeholders understand their obligations.

Contact us

Please contact us for more detailed and tailored help.

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

---

_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

How do schools and teachers promote safe and secure use of Artificial Intelligence (AI) technology?

Privacy Awareness Week 2025 is an opportunity to reflect on emerging issues schools are facing with respect to AI use and its integration in the school environment. AI is becoming increasingly relied on in schools and its use for student learning and student assessment is expected to become commonplace.

Generative Artificial Intelligence (the AI in vogue at present) refers to computer- based learning models which include large language or multimodal learning models.

Since the inception of ChatGPT in 2022 there have been several pivots from governments to move to address and in some cases welcome the use of generative AI in different contexts. Schools deploying AI tools to drive efficiency and enhanced learning are already turning their minds to the risks that comes with adopting new technologies. This article explores some of the data privacy and security implications of using generative AI tools. To read about managing the overall risk of AI in schools please refer to our previous article here.

Privacy and Security concerns

Generative AI is intelligent and has the capacity to learn from the information that is input; it becomes part of the training model, particularly in open-source AI tools. Some of the key risks schools face when using or seeking to deploy AI-powered tools include:

• Unintentional disclosure of personal information;
• Inability to track who or what has access to the information;
• Confusion around where consent is provided to use the AI software for the intended purpose;
• Retention and destruction incompatibility; and
• Loss of trust or reputational damage.

Combatting Privacy and Security Concerns

There is no argument that the AI landscape is changing rapidly and as more developments occur, the accessibility and ease of its use will only grow.

Whist AI can assist schools streamline their administrative processes and support student learning outcomes, when considering generative AI tools, schools must deploy and use these technologies consistent with existing privacy laws.

Developing an AI framework can also assist to set ground rules for how schools approach implementation of AI-powered applications. The framework should ensure visible of what AI is being used or intended to be used, the intended purpose of use and data that will be fed into the tool, and considering the capabilities of each tool, and the terms and conditions of the service providers. Once this is mapped, schools can then make informed decisions about what safeguards are required to integrate those tools into regular practice and school operations with a level of confidence.

How do schools keep privacy front of mind?

In previous articles we have emphasised the importance of privacy-by-design  in combatting systems changes and reducing the risk of data breaches or non-conformance with privacy laws. When considering generative AI, the principles of privacy by design should be applied.

Key recommendations

• Develop an AI framework: it is recommended schools develop and adopt a strategic approach which governs the use of AI in their school environment. This will set schools up to ensure implementation aligns with objectives, risk appetite and data privacy obligations.
• Data Privacy Impact Assessments: Conducting data privacy impact assessments to evaluate the potential risks associated with data collection and feeding practices in AI-driven education, when seeking to implement new technologies is key to making privacy an automatic consideration. This will help identify potential privacy risks and inform appropriate mitigation strategies from the outset rather than trying to retro fit privacy requirements.
• Promote a Culture of Privacy Awareness: Encourage a culture of privacy awareness within the school community, emphasising the importance of safeguarding students’ personal information and fostering a sense of responsibility and accountability among educators. Bring students into the conversation and consider a child friendly privacy policy or collection statement.
• Implement Data Collection Guidelines: Establish clear guidelines for data collection, specifying the types of data that can be fed into AI models and ensuring that only relevant and necessary information is used.

Looking to the future and how we can help

Our Education team is in demand for up-to-date, informative and practical staff Professional Development on privacy matters including AI. Our team can assist with reviewing and updating these policies to ensure your organisation continues to mitigate privacy and data security risks posed by new technologies. We can also provide tailored advice and support on your commercial arrangements with technology service providers and data privacy impact assessments.

What our clients say about our Professional Development sessions:

I want to thank you for participating in our seminar. We are extremely appreciative of your significant contribution. Overall, the feedback received from the seminar has been excellent and we are pleased with the outcome.

Thanks very much for your presentation this morning. Directors commented very favourably afterwards and your advice was very useful also. Great discussion, as well. Will see you at the next breakfast session.

Thanks so much Cecelia, the presentation and discussion today was fantastic.

Contact us

Please contact us for more detailed and tailored help.

Learn more about our Professional Development sessions.

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

_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

Recently, Victorian Education Minister Ben Carroll announced new powers for Victorian State School Principals to commence in Term 3 2025.

The powers will empower Principals to suspend students for “behaviour outside of school or online that puts fellow students or staff at serious risk”. Additionally, the powers are aimed at better equipping Principals to respond to assaults and bullying online, including the use of AI and deepfake images.

The question for independent and Catholic schools is not “should we have this power?” but rather “don’t we have this power already?”.

The answer is yes, you probably do, subject to a few important caveats.

Duty of care

Schools have a duty of care to students and staff. This includes the responsibility to take reasonable measures to protect from reasonably foreseeable risks of injury. This includes physical injury (students being subjected to physical violence from other students) and psychological injury (often as a result of bullying).

The increased recognition of the duty of employers to reasonably remove psychosocial hazards also underscores that schools need to be equipped to act on bullying and harassment online. See also our article on psychosocial hazards in schools.

Actions for schools

If non-government schools want to be able to act on image-based abuse and online bullying, there are some important steps schools need to be able to take. These include:

1. Ensure your enrolment contract actually allows you to discipline students for out-of-hours behaviour;

2. Look at the student code of conduct. Is it specific enough to be able to point to the type of behaviour you want to sanction?

3. Review your acceptable use policies, specifically considering what powers you have to look at, or seize, student devices. Consider your greater legal powers over school-issued devices such as laptops versus personal devices;

4. Review the behaviour management procedure to ensure it meets the requirements in the Minimum Standards which relate to suspensions and expulsions. Critically analyse whether you are locked into a restorative process that could prevent you from taking action swiftly; and

5. Ensure you have a School Safety Order Policy and Trespass Notice Policy to be equipped to take other steps which may be reasonably required.

How we can help

Moores Education and Training Team provides expert and responsive advice to many Independent and Catholic schools, as well as education systems, peak bodies, early years managers and incorporated ministries. If you’d like to discuss your school’s needs in relation to student discipline, please contact us.

Contact us

Please contact us for more detailed and tailored help.

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

There has been a lot of press and discussion about the implications of the decision in Commissioner of Taxation v Bendel [2025] FCAFC 15 (Bendel case), which relates to the application of Division 7A to unpaid present entitlements. That case, detailed below, is currently operating in favour of the taxpayer but is subject to an application for special leave to the High Court.

While Bendel case considered issues around unpaid present entitlements and loans from companies to trusts, the outcome of the decision could have a ripple effect into other anti-avoidance provisions, including section 100A, which if applied, could result in a worse outcome for the taxpayer.

Bendel Case

The Bendel case concerned with Division 7A of the ITAA36 and the decision in Bendel case has proved to be one of the more significant developments to Division 7A in modern times, particularly in the context of private family groups and businesses.

In a nutshell, the Full Federal Court of Australia in this case rejected the Commissioner’s long held view provided in Taxation Determination TD 2022/11: Income tax: Division 7A: when will an unpaid present entitlement or amount held on sub-trust become the provision of ‘financial accommodation that an unpaid present entitlement (UPE) owing from a trust to a corporate beneficiary of the trust is a form of financial accommodation or ‘loan’ for the purposes of Division 7A.

In practical terms, this means taxpayers are no longer required to put in place Division 7A complying loans for any UPEs outstanding to a corporate beneficiary at the end of financial year to protect themselves against potentially un-frankable deemed divided assessments under Division 7A. This also means that taxpayers could re-consider the historical treatment of such UPEs, either under existing Division 7A loan arrangements or past deemed dividend assessments based on now ‘incorrect’ Commissioner’s view.

While the Bendel case was decided in favour of the taxpayer (pending the Commissioner’s special leave to appeal to the High Court and possible law change), we do not think it is all good news for the taxpayers as it could lead way for more frequent application of a relatively more challenging anti-avoidance provision that is section 100A as discussed further below.

Pending the outcome of the special leave application with the High Court filed by the Commissioner, the ATO has said in its interim decision impact statement (IDIS) that, until the appeal process is finalised, the existing position will continue to apply – i.e broadly, UPEs to corporate beneficiaries are a form of financial accommodation which trigger Division 7A deemed divided unless a complying loan is put in place under prescribed terms, even though the current law says otherwise.

Notably, in the same IDIS, ‘section 100A’ appears five times – two more than ‘Division 7A’ which appears three times, while the Bendel case did not consider section 100A at all. This should highlight the fact that the taxpayers will need to consider the likely implications of section 100A as part of their decision-making process in addressing loans and UPE’s under the position in Bendel case.

Section 100A Summary

Section 100A of Income Tax Assessment Act 1936 (ITAA36) generally applies where a beneficiary is presently entitled to a share of the income of a trust estate and the present entitlement of the beneficiary to that share “arose out of or by reason of any act, transaction or circumstance that occurred in connection with, or as a result of a reimbursement agreement”.

A “reimbursement agreement” is defined in section 100A(7) to mean an agreement that provides for the payment of money or the transfer of property to, or provision of services or other benefits for, a person or persons other than the beneficiary or the beneficiary and another person or persons. Section 100A(13) provides the definition of ‘agreement’ in broad terms to include any agreement, arrangement or understanding, whether formal or informal, but exclude ordinary family or commercial dealings.

Any income of a trust estate that is subject to section 100A is taxed in the hands of the trustee of the trust at the highest marginal rate, and if a beneficiary has been assessed on a relevant share of the net income of a trust and section 100A operates, that the beneficiary is treated as to never have been presently entitled to the relevant trust income.

Section 100A has been on the Commissioner’s radar for the past few years and was considered in the recent cases of Commissioner of Taxation v Guardian AIT Pty Ltd ATF Australian Investment Trust [2023] FCAFC 3 and B&F Investments Pty Ltd ATF Illuka Park Trust & Anor v FC of T 2023 ATC.

The main reason why section 100A may apply to UPEs owing to corporate beneficiaries in the absence of a complying Division 7A loan stems from the PCG 2022/2 – Section 100A reimbursement agreements – ATO compliance approach, where the Commission took the ‘green zone’ position (ATO will not dedicate compliance resources to consider the application of section 100A) of section 100A to UPEs to corporate beneficiaries on the basis of such UPEs being Division 7A loans as per the position taken in TD 2022/11, which is now rejected in Bendel case.

Accordingly, in the IDIS, the Commissioner noted if a trustee retains funds that a corporate beneficiary has been made entitled to without converting that entitlement to a loan at least as commercial as the terms set out in Division 7A, the arrangement would fall outside the green zone described in PCG 2022/2 and section 100A may be applied.

Implications to taxpayers post Bendel case – Lesser of the Evils?

So what does it all mean and how might this play out in practice?

As Division 7A and section 100A purport to tackle different tax avoidance arrangements, both the operation and implications of each section to the taxpayers are also different.

Firstly, the application of Division 7A is limited to the relevant assessment amendment period (generally 4 years) in the absence of any fraud or evasion while section 100A has unlimited assessment period (due to the operation of subsection 170(10) of ITAA36).

This means, for example, if a taxpayer decides to make certain changes to the Division 7A loan arrangements going back more than five years relying on the Bendel case (i.e no fraud or evasion), the deemed dividend provisions in Division 7A may not apply regardless of the position the Commissioner takes, but the Commissioner may choose to apply section 100A to the relevant distribution in that relevant year instead.

Bearing in mind that UPEs to corporate beneficiaries without Division 7A loans do not automatically trigger the application of section 100A, as a separate set of requirements set out in section 100A must be met for it to apply, if the section applies to the relevant distribution, the trustee of the trust is taxed at the highest marginal rate with no legal recourse to claim the distributions made to the beneficiaries back to the trust.

This could result in the trustee with a significant tax liability with no income to appropriately fund same, and in our opinion, this is a worse outcome from the trust perspective compared to the unrankable deemed divided to the trust from the company.

What now?

Following the decision in Bendel case and as the end of financial year draws near, it is open to the taxpayers to not have a Division 7A complying loan agreement for UPEs owing to corporate beneficiaries if their circumstances allow, as that is the current ‘law’ that should apply to UPEs in the context of Division 7A.

Having said the above, there might still be merit in being conservative and keeping the existing arrangements going as per the IDIS, so that you stay on the safe side under both of PCG 2022/2 and TD 2022/11 until we have more clarity from the outcome of the High Court appeal and/or potential law change. However, if your circumstances demand to do without a complying Division 7A loan agreement for future or past UPEs to corporate beneficiaries, you will need to consider the application of section 100A to your particular circumstances as well as Division 7A before proceeding with any such restructure as it is possible that both Division 7A and section 100A applying to the same distribution.

How we can help

Taxpayers, who are:

1. considering restructuring their existing Division 7A loans, or
2. deciding if they should put a Division 7A complying loan in place for UPEs owing to corporate beneficiaries from their trusts following the Bendel case,

should consider if section 100A could apply to their arrangements in light of their own circumstances as the application of section 100A will depend on the facts of each specific case.

The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia with expertise in trusts and taxation. We can provide strategic advice tailored to your specific circumstances and work with you and your advisors to make sure that any restructure or arrangement involving trusts and corporate beneficiaries do not inadvertently contravene the anti-avoidance provisions under Division 7A or section 100A of ITAA36.

Contact us

Please contact us for tailored advice on how you can ensure your school is staying up to date with the relevant guidelines.

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

Following its meeting with Independent Schools Victoria (ISV), the Victorian Registration and Qualifications Authority (VRQA) has recently released its 2025 ‘action plan’ to respond to client and stakeholder research findings. It is centred on the core theme of ‘helping schools comply’.

The VRQA has acknowledged the evolving complexity and compliance burdens being placed on schools and its 2025 cyclical review program will centre its focus on compliance with Child Safe Standards, including Ministerial order 1359.

The VRQA has identified the importance of schools having a risk management strategy to prevent, identify and mitigate child safety and wellbeing risks. In carrying out this strategy, the school environment, programs the school delivers, and the needs of the students are to be considered.

As part of their 2025 cyclical review program, the action plan will include the following:

• Online and in-person information sessions held in partnership with ISV
• Site visits for every school under review, providing the opportunity to better understand your school and students, and to discuss how you implement policies and procedures
• Improving response times to school queries and rectification submissions
• Meeting with every school with a rectification plan, to provide targeted guidance and support to comply

Stay informed

The VRQA has also informed schools that they are in the process of reviewing the Guidelines to the minimum standards and requirements for school registration.

The new guidelines aim to clarify what tangible compliance looks like and the evidence that is required to demonstrate this.

Make sure to keep an eye out, as the VRQA will continue to consult further on the new guidelines.

How we can help

Moores’ Education and Training team has a wealth of experience in navigating the complex landscape of independent school regulation and assisting clients to meet their compliance requirements. Please contact our expert Education and Training team for tailored advice on how you can ensure your school is staying up to date with the relevant guidelines.

Contact us

Please contact us for tailored advice on how you can ensure your school is staying up to date with the relevant guidelines.

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

Elder financial abuse is a growing and deeply concerning issue, particularly as we face an unprecedented transfer of generational wealth from baby boomers to their children and grandchildren. Baby boomers are the wealthiest generation in history and Australians are expected to inherit an estimated $3.5 trillion over the next two decades, making the elderly increasingly vulnerable to exploitation.

What is Elder Financial Abuse?

Elder financial abuse is the misuse or misappropriation of an elderly person’s money, assets or property, and often by trusted individuals – such as family members, friends, attorneys or caregivers – with close family members being the most common perpetrators.

Elder financial abuse often begins or worsens when an elderly person starts to lose decision-making capacity. Cognitive decline makes them more vulnerable to manipulation, as their ability to manage finances, detect exploitation, or seek help is reduced. Increased dependence on others, often family and carers, can create opportunities for abuse, especially when the elderly person is isolated or unable to understand or report what is happening. Further, the rapid digitalisation of government and private services has made older, less technically savvy Australians even more reliant on family to manage their finances, increasing the risk of exploitation.

Elder financial abuse situations often start with an offer to help. Below are some warning signs that can assist in the early identification and intervention of financial abuse.

Unusual financial activity

• Unexplained or frequent withdrawals from bank accounts;
• Unexplained transfers or new joint accounts;
• Sudden changes in spending habits or account access;
• Missing valuables or possessions.

Changes to legal documents

• Abrupt or unexplained changes to a Will, Power of Attorney or other legal documents;
• The creation of new structures such as trusts;
• New legal documents that the elderly person cannot recall signing or understand.

Living conditions and person care

• Unpaid bills despite having adequate funds;
• Lack of food, medication or essential care;
• Sudden decline in personal hygiene or living standards.

Social or physical isolation

• An individual actively isolating the elderly person from family and friends, or stoking tensions;
• They appear withdrawn, isolated or have reduced contact with family and friends;
• Limited phone or communication access.

Behavioural changes

• Anxiety, confusion, or fear when discussing money;
• Reluctance to speak freely in the presence of certain individuals;
• Appearing unusually submissive or worried.

Presence of a controlling or over-involved individual

• The suspected abuser is overly protective, speaks on the elderly person’s behalf, or resists outside involvement;
• The elderly person appears overly dependent on the suspected abuser.

If you notice some of these signs, it is important to seek legal advice.

How we can help

Moores’ experienced elder financial abuse team can assist with early intervention, safeguarding assets and restoring the rights of your loved one.

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 light of the election outcome, the Federal government is indicating that it will press on with the proposed changes, so that advisors will again need to turn their minds to potential implications.

This is a challenge when we don’t have certainty about the content of any reintroduced bill to Parliament nor what amendments might be sought in the Senate.  In the short term, we suggest:

1. Refresh your understanding of what the last bill proposed to do. Our earlier articles (What are the estate planning implications of the proposed “$3m super tax”? Published in January 2024 and Superannuation Tax Increase – Should I pull my money out? Published in February 2023) dealt with the operation of the proposed law prior to the bill lapsing before the recent election.
2. Be aware that the new law may not be the same so keep up to date the with the progress of the bill.
3. Consider all implications before taking action and recognise that we are still operating under uncertainty. Apart from the number crunching exercise to be performed, there are other potential implications to be considered including:
   • Impact on the Will and powers of attorney of the member who has withdrawn super – if super is directed specifically to a person, the withdrawal will change its nature and the existing documents may not operate as intended;
   • Asset protection implications – assets in a member’s personal name will have increased exposure to bankruptcy risk and estate challenge.

Longer term, if the legislation is passed, it will also require a rethink of the benefits of reversionary pensions, as the impact on the recipients total super balance could increase the impact of the proposed new tax.

How we can help

Stay informed about the legislative updates and contact the Estate Planning team for expert advice and guidance in navigating the evolving landscape of superannuation.

Contact us

Please contact us for more detailed and tailored help.

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

The Aged Care Act 2024 (Cth) takes effect from 1 November 2025, implementing around sixty recommendations from the Royal Commission into Aged Care Quality and Safety. Significantly, it introduces duties that apply to aged care providers and their responsible persons. This article provides an overview of those duties and their implications for the governance of registered providers of aged care services.

The new Aged Care Act

On 1 November 2025, the Aged Care Act 2024 (Cth) (New Aged Care Act) will take effect and replace the Aged Care Act 1997 (Cth) as the principal legislation that governs registered providers of aged care services in Australia. This will affect registered providers of aged care services and their responsible persons.

Who are “registered providers” and “responsible persons”?

“Registered providers” are organisations that are approved to provide funded age care services by the Aged Care Quality and Safety Commission. The term “registered providers” replaces the term “approved providers” under the current Aged Care Act.

“Responsible persons” include the members of a registered provider’s governing body (such as its board members), being persons who are responsible for executive decisions. This also includes individuals who have authority or responsibility for planning, directing or controlling a registered provider’s activities.

What are the statutory duties?

The New Aged Care Act establishes the following duties for registered providers and their responsible persons.

• Registered provider duty: “A registered provider must ensure, so far as is reasonably practicable, that the conduct of the provider does not cause adverse effects to the health and safety of individuals to whom the provider is delivering funded aged care services while the provider is delivering those services.”¹ The New Aged Care Act elaborates on what it means to take “reasonably practicable” measures to comply with this duty and imposes civil penalties on registered providers that fail to comply with this duty.
• Responsible person duty: Responsible persons must exercise due diligence to ensure that registered providers comply with their duty. Exercising “due diligence” includes taking reasonable steps:
  • to acquire and maintain knowledge of requirements applying to registered providers under the New Aged Care Act;
  • to gain an understanding of the nature of the funded aged care services the registered provider delivers and the potential adverse effects that can result to individuals when delivering those services;
  • to ensure that the registered provider has available for use, and uses, appropriate resources and processes to manage adverse effects to the health and safety of individuals accessing funded aged care services delivered by the provider;
  • to ensure that the registered provider has appropriate processes for receiving and considering information regarding incidents and risks and responding in a timely way to that information; and
  • to ensure that the registered provider has, and implements, processes for complying with any duty or requirement of the registered provider under the New Aged Care Act.

Practical implications for board members

Once the New Aged Care Act takes effect, responsible persons will be personally exposed to a civil penalty of up to 150 penalty units if they:

• without reasonable excuse, engage in conduct that does not comply with the duty; and
• their conduct amounts to a serious failure to comply with their duty, in that it:
  • exposes an individual to a risk of death or serious injury or illness; and
  • involves a significant failure or is part of a systematic pattern² of conduct.³

A “significant failure” includes a significant departure from the conduct reasonably expected of responsible persons.

Responsible persons will also be personally exposed to a civil penalty of up to 500 penalty units if there is a serious failure to comply with their duty and their conduct results in the death of, serious injury to or illness of an individual.⁴

Taking “reasonable steps” to exercise due diligence (as described above) will assist to demonstrate compliance with the responsible person duty. Having regard to those “reasonable steps”, it will be prudent for responsible persons to:

• ensure they have and maintain an understanding of both the aged care sector (including the regulatory requirements that apply to the sector) and the registered provider’s services; and
• ensure that their registered provider:
  • not only has adequate resources to manage health and safety risks, but uses those resources to that effect;
  • has appropriate risk management and incident reporting processes that ensure the registered provider receives, considers and responds to information regarding incidents and risks; and
  • not only has, but implements policies and procedures for protecting the health and safety of individuals; and
• monitors compliance with its policies and procedures and updates those documents as needed over time.

This reflects a shift in board culture, referred to in the findings of the Royal Commission into Aged Care Quality and Safety, that requires responsible persons to: have closer oversight of their registered provider⁵; ensure that there is a feedback loop between responsible persons and management via a ‘quality care advisory body⁶’ and ensure that policies and procedures are not only developed, but actively implemented and embedded in the operations of their registered provider.

How we can help

Our charity and not-for-profit team helps organisations from the ground up, from the establishment process to guiding board members through their legal duties. Moores can assist to ensure your board members understand their duties and have appropriate processes in place to support compliance.

Further reading

The Aged Care Bill 2024 (Cth) is available on the Parliament of Australia website.

Contact us

Please contact us for more detailed and tailored help.

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

---

_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

1. Section 179(1) of the New Aged Care Act. ↩︎
2. Sections 180(4)-(5) of the New Aged Care Act. This equates to a maximum civil penalty of $49,500. ↩︎
3. When determining whether the conduct of a registered provider or responsible person is part of a “systematic pattern of conduct”, regard must be had to the following (under section 19(2) of the New Aged Care Act): (a) the number of times the provider’s or responsible person’s conduct has not complied with a provision of this Act (the relevant contraventions); (b) the period over which the relevant contraventions occurred; (c) the number of individuals affected by the relevant contraventions; (d) the provider’s or responsible person’s response, or failure to respond, to any complaints about the relevant contraventions. ↩︎
4. Section 180(6) of the New Aged Care Act. This equates to a maximum civil penalty of $165,000. ↩︎
5. Recommendation 88 and 90 of the Aged Care Quality and Safety Royal Commission Final Report. ↩︎
6. Recommendation 90 of the Aged Care Quality and Safety Royal Commission Final Report. ↩︎

When meeting with clients to discuss their estate planning, superannuation is a big part of the conversation for many. Afterall, it is often where a significant portion of their wealth lies.

It is also an area of the law, where despite the vastness of the wealth, there is a lot of confusion about how superannuation is dealt with on death. This is unsurprising though, given the seemingly constant changes to the law.

Frequently, our discussions with clients involve education that their superannuation is not automatically dealt with under their Will, and (typically) the need to have the correct nomination in place to direct the trustee of the superannuation fund as to how to deal with their superannuation on death.

But what is the ‘correct nomination’?  Is a non-binding nomination enough?

The recent case of Lynn v Australian Financial Complaints Authority [2025] FCA 175 is a cautionary tale of circumstances where the deceased’s non-binding nomination in favour of his children and stepchildren, for his industry-fund super, was more-or-less disregarded in a dispute between the deceased’s children, stepchildren and his spouse, from whom he was separated at his death.

In this case, the Federal Court sided with the children of the deceased superannuation fund member over his estranged wife, in a dispute over the distribution of his superannuation benefits years after his death. The Federal Court supported the decision of the Australian Financial Complaints Authority (AFCA), which overturned the super fund’s previous decision to give 100% of the deceased’s superannuation benefit to his estranged wife, despite having a non-binding death benefit nomination in place.

What happened?

• The late Mr Lynn had four daughters and two stepsons, who were the children of his estranged wife, Ms Lynn.
• Mr Lynn and Ms Lynn married in 2007, but their separation and divorce proceedings were ongoing, followed by family violence intervention orders by each against the other. At the time of his death in December 2021, the pair were still legally married, despite living a part for the six years prior.
• In 2018, Mr Lynn had made a non-binding death benefit nomination (non-BDBN) that excluded Ms Lynn and instead listed his children and stepchildren as intended recipients.
• In 2019, Mr Lynn had executed a will leaving his estate to Ms Lynn which in 2021, he asked his lawyers to update for his four daughters as equal beneficiaries instead. The request was not completed at the time of his death.
• Following Mr Lynn’s death, Ms Lynn disputed his non-BDBN and sought to claim the full super benefit herself.

AustralianSuper’s decision

• The trustee of Mr Lynn’s industry super fund decided to distribute 100% of Mr Lynn’s super benefits to her, ignoring his non-BDBN.
• Mr Lynn’s daughters then complained to AFCA, basing their argument that the allocation was unfair.

AFCA decision

• AFCA decided differently. It decided to split the superannuation benefit, distributing 50% to Ms Lynn and 50% divided equally amongst the six children.
• Unlike AustralianSuper, AFCA did actually consider the deceased’s non-BDBN even though it is not legally enforceable. The AFCA considered the deceased’s intentions according to the non-BDBN and used it to guide their decision.
• Ms Lynn then appealed to the Federal Court.

Federal Court decision

• The Federal Court ultimately decided in support of AFCA’s decision.

What can we take away from this decision?

• Is there any purpose of a non-BDBN? Seemingly no.  It was ignored by the super fund, and while it was considered by AFCA, it was not ultimately a deciding factor.
• Don’t leave it until it’s too late: Have well-prepared and up-to-date estate planning documents, including making binding death benefit nomination as part of your estate planning, and keep this in mind when separating. 
• Ensure that we have appropriate nominations in place: To reduce the risk of the benefit going against the deceased’s intentions, a valid BDBN – as opposed to a non-BDBN and subject to the terms of the fund’s rules – trustee would be bound to follow the deceased’s directions (save for some exceptions typically provided for in an industry/retail fund deed, such as a significant change to the member’s personal circumstances).
• Superannuation and family law: Despite having issued family law court proceedings for a property settlement, followed by a reconciliation and further separation, the property settlement was never finalised.  Throughout these ongoing separation proceedings, Mr Lynn did not update his non-BDBN or execute a binding death benefit nomination; a timely reminder that a prompt from either his estate planning or family lawyer to do so and the importance of formally finalising a property settlement soon after separation, could have avoided the dispute.

How we can help

For advice or guidance regarding Estate Planning and Family Law, please do not hesitate to contact us.

Contact us

Please contact us for more detailed and tailored help.

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

---

_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}