The Government has announced a long-awaited measure to allow superannuation members drawing legacy pensions to ‘get out’ of those more restrictive income streams.

The announcement comes as part of the 2021-22 Federal Budget, which provides a short-term opportunity for people with market-linked, life-expectancy and lifetime pensions (commencing prior to 20 September 2007) (“legacy pensions”) to access the capital supporting those accounts. Since the Government’s announcement, further commentary suggests that it will also apply for legacy pensions which commenced on or after 20 September 2007.

The commencement date and much of the detail of this opportunity has not yet been confirmed.

What’s the history?

Legacy pensions are largely a product of the historical superannuation regime.  There are a number of different types which had the potential for benefits in the context of a now out of date reasonable benefits limits regime and in some cases, benefits in terms of not being means tested for Centrelink purposes.  Alongside those benefits, the pensions typically had restrictions on access to the underlying capital, which often meant that capital could end up in the reserves of the relevant superannuation fund.   

Since 2007, legacy pensions have been largely phased out but it has been possible for “old” pensions to convert into different types of legacy pensions.

The law has changed significantly over the last 20 years. Instead of reasonable benefits, we have the transfer balance cap regime, and the historical means testing exemption no longer applies. 

Where legacy pensions were set up with reversionary beneficiaries nominated, the pension would continue to be paid to the person nominated. However, in cases where there is no reversion, or on the subsequent death of the reversionary beneficiary, the capital balance is locked up, and held in the reserves of the fund. That means it is not part of the death benefit of the member of the fund.

For those legacy pensions in an SMSF, reserves in a super fund are notoriously difficult to access, and by default will count towards the contribution cap of the member to whom the reserves are allocated. There are some exceptions to that position but it is fairly restrictive, – including a cap of 5% of the value of the member’s total balance in the fund – a nightmare for estate planning arrangements.

This creates a number of major issues:

1. An inability to withdraw the balance, when the costs of running the legacy pension outweigh the income stream;
2. Individuals having restricted access to capital or flexibility of drawdowns, which limited use of retirement savings for larger expenses such as relocation to retirement living or aged care; and
3. Restrictions on estate planning and passing wealth to future generations (or at least accessing it).

What’s the change?

The Government has announced a two-year opportunity for people to commute the entire legacy pension (and any associated reserves) back to accumulation phase, to then:

• start a new retirement product (such as a more flexible account-based pension), which will be subject to the transfer balance caps;
• withdraw a lump sum out of the fund; or
• retain the funds in their accumulation account.

The two year period will begin at the start of the financial year following the law being passed (date to be confirmed).

If any reserves are commuted as part of this regime, the reserves will not be counted towards the member’s concessional contributions cap (which from 1 July 2021, will be $27,500 per year), and won’t be taxed as excess contributions.  Instead they will be taxed at a rate of 15%.  

The valuation methods that existing the superannuation legislation for legacy pensions, for the transfer balance cap purposes, will continue to apply.

As part of its announcement, the Government has confirmed that any existing social security treatment that may have been afforded by the legacy pension will not continue for any person who commutes out of their existing arrangement.  

Until further detail of the changes are made available, it will be hard to definitively calculate whether a particular person is better off under these arrangements or not.   The answer will likely be a combination of considering financial planning tax and estate planning objectives and outcomes of each option.

How we can help

If you find yourself stuck with a legacy pension you can’t get out of, a way forward is now in sight, but each person would need to consider whether the path out is better for their particular circumstances. For more information, please do not hesitate to contact us. 

The Victorian Regulation and Qualifications Authority (VRQA) has published new Guidelines to the Minimum Standards and Requirements for School Registration (the new Guidelines). The new Guidelines apply to new schools from 1 January 2021 and to existing schools from 1 July 2021. Importantly, schools operating or proposing to operate an Early Learning Centre (ELC) must amend their governing document (the Constitution, Rules or Trust Deed) to expressly provide for the delivery of ELC services.

A governing document sets out matters such as your school’s purpose, how decisions are made, the composition and role of your Board, Committee or Trustees and the role of any members. It is also the framework around which the school’s delegations and policies are built. Despite the importance of governing documents, they are often not reviewed for long periods of time. For this reason, when making changes for VRQA compliance, schools should take the opportunity to carry out a comprehensive review of their governing document.

We have highlighted some key considerations below:

• VRQA compliance
  As noted above, you’ll need to expressly provide for the delivery of ELC services in your governing document. It’s also worth considering appropriate provision for compliance with the VRQA requirements relating to a schools’ not-for-profit status, distribution of income and assets, government funding, probity and prohibited agreements or arrangements.
  
• Charitable companies
  Following the establishment of the Australian Charities and Not-for-profits Commission (ACNC) in 2012, the Corporations Act 2001 (Cth) was amended to introduce flexibility for charitable companies. In particular, companies that are registered charities are exempt from certain provisions of the Corporations Act, including those that relate to general meetings. It may be appropriate to introduce this flexibility to your constitution.
  
• Victorian incorporated associations
  In 2012, the Associations Incorporation Reform Act 2012 (Vic) came into force. If your Rules have not been changed since 2012, you need to review them for compliance with the new legislation. Among other things, you’ll need to make sure you have an appropriate grievance process in place.
  
• ACNC Governance Standards
  All registered charities must comply with the ACNC Governance Standards. Does your governing document appropriately reference the standards? For example, can you remove responsible persons if they are disqualified by the ACNC or ASIC?
  
• Is your governing document clear?
  Is your governing document clear, concise and written in plain English? Lack of clarity can result in unnecessary confusion and conflict over proper interpretation. It can even expose decisions made by your Board, Committee or Trustees to the possibility of legal challenge on the basis that the governing body was not properly constituted.
  
• Is your governing document past its prime?
  We regularly see governing documents that were first prepared twenty or more years ago. Regulation and governance have changed a great deal over that time. So has written communication. Is it still appropriate to keep patching up your old document or do you need a fresh start?
  
• Does your governing document support good governance?
  A good governing document will help rather than hinder, your School’s governance. Consider matters such as term lengths for responsible persons, meetings via technology (essential under recent COVID restrictions), how and when responsible persons or members can be removed and the ability for members to require the Board to convene a general meeting.
  
• Should your governing document provide for any DGR funds?
  Does your school maintain a tax deductible school building fund, scholarship fund or library fund? It is important that you know where the rules for these funds are and ensure that the Board, Committee or Trustees has oversight of the fund operations. It may be appropriate to embed these rules in your governing document.

Allowing time for the review process

Amending or replacing a governing document takes time. Many schools will form a subcommittee for this purpose, but ultimately your entire Board, Committee or Trustees will need to review and approve the document. Once it is approved, you may need to allow time for a consultation period with members (if appropriate). Then you’ll need to formally adopt the governing document – unless your school is established as a Trust or unincorporated association, this usually requires a special resolution, including convening a general meeting with a notice period of at least 21 days.

How we can help

Our For Purpose team regularly assists schools (and not-for-profits across the sector) to ensure that their governing document is compliant with relevant legislation, expressed in plain English and tailored to their unique governance requirements. For further guidance, please do not hesitate to contact us.

In welcome news for the charitable sector, a recent Supreme Court of Victoria case has significantly expanded the types of land use which are eligible for a charitable land tax exemption. 

In University of Melbourne v Commission of State Revenue [2021], the Court has interpreted the term ‘used by a charitable institution exclusively for charitable purposes’ in a much wider fashion than the State Revenue Office (SRO) has traditionally applied it, opening up the possibility of land tax exemption in circumstances where there is third party use of the land by a non-charitable entity.

The facts

The University of Melbourne leased University land to a student accommodation developer to enable a 648 bed student accommodation development, in line with the University’s strategy for student accommodation.  The developer in turn engaged a student accommodation operator to operate the accommodation, who was required to do so in line with specific student accommodation requirements of the University. 

In essence, the arrangements were designed to ensure that the developer and operator used the land in line with the purposes for which the University would have used it if it were to operate the accommodation facility itself.

The argument

The University took the position that the lease was a way of the University using the land for student accommodation purposes, which is a function noted in the preamble to the University’s establishing Act.  The University argued that the provision of student accommodation by a third party operator (at the request of the University) should be considered part of the University’s charitable use of the land and therefore enable an exemption from land tax for the site.

The law

Section 74 of the Land Tax Act 2005 (Vic) contemplates an exemption from land tax where land is used by a charitable institution exclusively for charitable purposes.  Importantly, exemption is not automatic – it is granted only in response to an application. 

In order for land to qualify for a land tax exemption, the taxpayer must satisfy the SRO that:

• the entity utilising the property is a charitable institution; and
• the land is ‘used’ by that charitable institution ‘exclusively’ for a charitable purpose; or
• that the land is vacant and is held for future charitable use.

The SRO decision

The Commissioner of State Revenue took the view that where the student accommodation service was being provided by a commercial operator under a lease, the land was not entitled to an exemption under section 74 because the land was not ‘used’ by the University, but rather by the developer and operator.

The Supreme Court decision

The University appealed the SRO decision and the matter was brought before the Supreme Court.  The Court examined the two key words in the exemption:

• ‘used’, with regard to whether the University must use the land itself for its charitable purpose or if a third party developer and/or operator can use the land for the charitable purpose of the University; and
• ‘exclusively’, with regard to whether that term requires use of the land exclusively by the University, or allows use for the wider charitable purpose of the University.

The Court held that in both cases, the wider meaning should be adopted and therefore found that in these circumstances, the use of the land by the third party could be considered to be a use for the charitable purpose of the University.  Significantly, the Court held that whether the University is the actual entity using the land or not is immaterial in assessing whether the land is being used for the charitable purpose of the University under section 74.

How we can help

Moores has assisted numerous charities in obtaining exemptions from land tax on charitable grounds. 

The Supreme Court’s expansion of the scope of section 74 to include land used by third party operators for the purposes of the land-owning charitable organisation opens the door for exemptions which may not have previously been possible.  Given the significance of the departure from the usual SRO position which the decision represents, we would not be surprised if a public ruling is issued to ameliorate the effect of the decision for practical purposes.

However, it’s not guaranteed that the SRO will take such action and any charities who are potentially able to claim an exemption under the expanded interpretation would be wise to submit an application as soon as possible.

Moores is ready and able to:

• provide advice regarding eligibility in circumstances where a third party is using the land; and
• assist charities in making applications for charitable exemption from land tax in these circumstances.

If you need assistance with seeking a charitable exemption for land tax or council rates, please do not hesitate to contact us.

The 2021 Budget signals a move away from small government to recovery through spending and jobs. There is a welcome and significant focus on funding for the aged care sector, as well as encouraging young people and women back into workforce.

There are no major surprises or radical changes to taxation. Instead, the budget aims to promote stability and confidence in the economy by investing in jobs.

The female focus addresses the political climate of 2021. The 2021 Budget seems to pivot away from last year’s emphasis on a recovery led by high-viz infrastructure and construction industries. Instead, it focuses on the ‘care economy’ and industries where women do the heavy lifting: the sectors caring for children and senior citizens, and educating students.

A welcome evolution is the explicit acknowledgment of and funding for services that keep women and children safe. Moores will watch with interest whether this evolution will be enough to secure the structural changes that have been demanded. 

Despite being rebranded a ‘care’ budget, critics have identified that the 2021 Budget largely overlooks charities, welfare (including no raise to the Disability Support Pension) and housing and homelessness – sectors that are critical to direct relief. Disappointingly, the Budget also overlooks First Nations equality, with no mention of a voice in Parliament or action to reduce deaths in custody, and fails to invest in climate action and overseas aid.

This article focuses on the 2021 Budget’s impact on for-purpose organisations, particularly those in social and community sectors. Shortcut to the following: Education | Childcare & Early Education | Women | Mental health | Aged Care | Jobs and Employment | Small and Medium Businesses | Not-for-profit sector | Housing

Education

The budget has been criticised for its band aid response to plug gaping holes in the education sector which experienced prolonged strain during the pandemic.

Commonwealth funding of schools is substantial, but in real terms this budget simply meets the needs of the sector and the largest growing segment of lower fee and higher funded schools.

The continued border closure to international students until at least the end of 2021 has bitterly disappointed educational institutions wanting to welcome international students back to Australia, especially given that many have sought to engage with government about possible protected pathways. The 2021 Budget assumes Australia will commence phasing in international students from late 2021.

Others in the education sector are facing the ongoing wellbeing crisis among their international students who cannot get home. Likewise, there is a lack of respite for homestay and other providers. Regulators have just this week grimly acknowledged that interim regulations designed to provide flexibility around homestay standards for the December/January holidays will now apply for the rest of this year.

Accountability – not service provision – is the theme of school funding, as the 2021 Budget focuses on data collection to ensure standards are met in the sector. In education, the 2021 Budget specifically provides for:

• $20 million to continue the Nationally Consistent Collection of Data on School Students with Disability to support the capacity of Australian schools to deliver better education outcomes for students with disability;
• $5.8 million to collect Australian Teacher Workforce Data to identify long term trends and emerging issue affecting the teacher workforce;
• $4 million to deliver the Literacy and Numeracy Test for Initial Teacher Education;
• $16.6 million to assist boarding providers to respond to COVID issues and support Aboriginal and Torres Strait Islander boarding students;
• $8.1 million over four years to increase the scope of the Together for Humanity program promoting diversity and belonging; and
• $3 million to support 4,500 young people with additional assistance to participate in the Duke of Edinburgh.

For higher education, the Government will provide an additional 5,000 commonwealth supported short course places at non-university education providers in 2021. There is also a focus on PhD research, promoting innovation and closer integration with industry. This high level focus does not support the everyday Australian seeking to attend university.

Childcare & Early Education

Preschool services will be supported with $1.6 billion over the next four years. Conditions to receive this funding are yet to be set, but will include attendance targets from 2024.

In disappointing news to the early learning sector, the support for ‘universal access to 15 hours of preschool’ is limited to the year before prep (that is, four year old kindergarten). Limiting funding to four year old kinder falls significantly short of recommendations by reform advocates who sought increased funding of 3 and 4 year old kinder. Without funding for three year old kinder, many low income families will find the cost of child care and early learning education prohibitive.

The 2021 Budget does provide extra $1.7 billion over five years to make childcare more affordable. This package means families with a second or subsequent child will be able to receive the Child Care Subsidy for up to 95% of costs. This will provide some relief for families with multiple young children and ease costs of living for low and middle income families. While the increase in the Child Care Subsidy will benefit approximately 250,000 families by an average of $2,200 per annum, the changes do not come into effect until July 2022.

Women

The 2021-22 Women’s Budget Statement provides a suite of packages totalling $3.4 billion dedicated to child care, domestic violence prevention and support, and return to work initiatives. This is a contrast to the 2020 Budget which had little reference to the Women’s Economic Security Statement.

Around half of the women’s budget is directed to the childcare package ($1.7 billion) to reduce barriers to women participating in the workforce. The measure has been positioned as one which will increase workforce participation of women and have a positive flow on effect for the whole economy. Women’s jobs were disproportionately impacted by the pandemic and many also bore the brunt of caring responsibilities during lockdowns and remote learning. Women’s workforce participation remains around 10 percentage points lower than men’s (61.8% of women are in the workforce). This echoes an overall theme of the budget: growth and recovery through jobs.

While this initiative is welcomed and reflects the reality that many women are the primary carers who take more time off work to care for young children, it has been criticised for presenting caring responsibilities as a “women’s issue”. Moores hopes to see other policies and strategies to promote gender equality between working parents, particularly those which incentivise both parents to share caring for children while working.

The Women’s Budget Statement also includes a $50 million Women@Work Plan to further address barriers to participation in the workforce, and provides for the creation of a Respect@Work Council to address workplace sexual harassment. Over 4 years, funding in response to the Respect@Work report will support the Attorney-General’s Department, Workplace Gender Equality Agency, and the Australian Public Service Commission to strengthen reporting on sexual harassment prevalence, prevention and responses. A criticism of this measure is the lack of funds for direct response and grass roots organisations.

Another support for women in the workforce is $35.9 million for women entrepreneurs to access mentoring.

Significantly, there is $1.1 billion earmarked for women’s safety, domestic violence prevention and support of domestic violence victims. This includes domestic and sexual violence prevention programs for the states, grants for women fleeing violence, consent education (do we all remember the milkshake ad?) and women’s legal services. Moores waits with interest for detail of these worthy programs and any other initiatives which are aimed at dealing with the causes of domestic and sexual violence.

Changes to superannuation will also benefit working women and part time and casual employees. Previously, eligible employees needed to earn at least $450 (gross) per month before their employer was required to make superannuation guarantee contributions on their behalf. From 1 July 2022, the $450 threshold will be scrapped. Treasurer Josh Frydenberg said the change will boost the super of about 200,000 female workers.

In contrast to the 2020 Budget (delivered a mere 7 months ago), there is a significant and welcome female focus after one of the toughest times for women in recent years.

Mental health

The Federal Government will spend an extra $2.3 billion on mental health services over four years via the National Mental Health and Suicide Prevention Plan. Spending is focused on funding diagnosis and treatment centres and suicide prevention.

Of that, over half ($1.4 billion) will be allocated to Commonwealth-funded mental health centres which specialise in diagnosis and treatment of conditions. This includes Headspace facilities across the country.

The remaining funds are allocated as below:

• about $298 million to support suicide prevention;
• about $107 million to support mental health prevention among vulnerable Australians, particularly Indigenous Australians;
• $249 million to help create digital mental health services for online counselling and support; and
• $107 million to train nurses and psychologists in mental health.

These funding announcements are a response to the Productivity Commission’s Inquiry into Mental Health. Mental health services had also previously warned they were facing a funding crisis, from increased demand due to the pandemic and recent natural disasters.

The practical measure of creating Medicare items for mental health access to GPs, psychologists and psychiatrists is welcome.

Aged care

In response to the Royal Commission in Aged Care Quality and Safety revealing the extent of the industry’s shortcomings, the 2021 Budget promises the industry $17.7 billion in funding, and $119 billion over the next four years. Aged care funding is focused on:

• more home-based care with 80,000 additional home care packages available, costing $6.5 billion;
• improving residential aged care quality and safety standards. For example, $3.9 billion has been dedicated to implementing a minimum amount of front-line care minutes (200 per day) in registered care homes from 1 October 2023;
• improving aged care services quality and sustainability with innovation in aged care infrastructure;
• targeting skills and staffing shortages by recruiting and training aged care workers with an investment of $9.8 million in recruitment for the aged care workforce; and
• increasing governance requirements, including the establishment of a National Aged Care Advisory Council.

Aged care spending will have significant flow on effects for the care economy, and the Australian economy more broadly. Helping employees in the aged care sector helps women: 90% of the aged care workforce is female. There will be additional training places through JobTrainer and training opportunities for registered nurses to move into aged care work. Job growth in this sector will also help meet the Government’s target of record low unemployment (4.5%) by the end of 2022.

Given the industry’s flaws identified by the Royal Commission and its pandemic response, the detail of the funding will be keenly read, particularly any detail on ensuring that funding flows through to quality outcomes and that serial offenders are held accountable.

Jobs and Employment

As mentioned above, from 1 July 2022, employers will be required to make superannuation guarantee contributions to all eligible employees, including those earning less than $450 per month. Superannuation guarantee contributions in 1 July 2022 will be 10.5% (see related article “Superannuation to increase, but mind the catch”). Businesses will need to factor in this increase to the cost of employment.

The Government has also committed $500 million (to be matched by state and territory governments totalling $1 billion) to expand JobTrainer to train and reskill 17-24 year olds. The Government predicts 163,000 places will support young people until 31 December 2022.

Continuing support for young people in the workforce, the 2021 Budget provides an additional $2.7 billion for 170,000 new apprenticeships and traineeships. Employers will receive a 50 per cent wage subsidy over an apprentices’ first 12 months of employment. Apprentices must be signed up by 31 March 2022 to be eligible. This subsidy, and other tax reductions for small and medium businesses, are aimed to offset increases in employment costs from superannuation.

As part of the 2021-22 Budget Deregulation Measures, there will be $10 million invested over four years in regulatory technology to assist employers interpret and comply with modern awards. This will fund development of application programming interfaces (APIs) from the Fair Work Commission’s Modern Awards Pay database, with the intention to support employers obtain real time data on award pay and conditions, hereby improving compliance.

Small and medium businesses

Tax cuts for small and medium businesses are also positioned to boost employment. Companies with a turnover of less than $50 million will see new tax rate of 25% from 1 July 2021. The 2021 Budget also seeks to reduce the costs for businesses to take on new employees with wage subsidies, discussed above.

A significant measure aimed at small and medium businesses is the instant asset write off of capital expenditure. This is no longer limited to small businesses and there is no cap on tax reductions. The upfront tax deductions for capital expenditure in plant or equipment has been extended from 30 June 2022 to 2023, recognising the delayed abilities of companies to invest while bouncing back from 2020.

The 2021 Budget also supports small businesses to adopt digital technologies – with a $12.7 million expansion of the Digital Solutions – Australian Small Business Advisory Services.

The attitude of the small business concessions is that the Government wants to create breathing space so SMEs can get back on their feet.

Not for profit sector

Some critics have said the 2021 Budget is blind to the not-for-profit sector.

Many charities stand to indirectly benefit from the increase in funding for the care economy: aged care, mental health, childcare, and women’s emergency services. However, the not-for-profit sector featured as little more than a footnote in the 2021 Budget, despite employing more than 1 in 10 employees in Australia. Many of the employment incentives or tax concessions for businesses will not help charities.

Despite calls from industry that charities are critical to the care economy, the budget provides no direct support to the sector. Instead, it increases regulatory burdens on charities. From 1 July 2023, non-charitable not-for-profits will be required to provide information to the ATO to justify their eligibility for tax concession status. Affected organisations include community services, sporting associations or recreational and agricultural organisations. The ATO has been designated $1.9 million to build an online system to enhance income tax exemption transparency.

It is hoped that job creation and indirect funding will flow through to those organisation which continue to help the most vulnerable in Australian society.

Housing

Concerningly, the 2021 Budget does little, if anything, to address the significant and growing demand for social and affordable housing, and is focused entirely on measures for those with access to equity (including first home buyers).

The lowering of deposit requirements under the First Home Super Saver Scheme will help single parents and first home buyers enter the housing market. The 5 per cent deposit scheme will help an additional 10,000 first home buyers annually purchase a new dwelling. While the budget helps more Australians into home ownership, there is little concerning the social infrastructure of social and affordable housing for those in the community who cannot make it onto the property ladder and are at risk of being left behind.

Likewise, the HomeBuilder scheme provides grants of up to $25,000 for new builds or extensions, but support of large scale affordable housing projects was lacking. HomeBuilder seems geared to help the average homeowner get an extension, and employ those in the construction industry, as opposed to directly addressing the lack of affordable housing for renters. In this sector, Government appears to be relying on indirect measures such as HomeBuilder (hoping that funding extensions will allow people to stay and not move) and slowing population growth (hoping that this reduces housing demand) is being relied upon to reduce housing costs, instead of direct measures.

Mission Australia reports there are 200,000 people on social housing wait lists, and at least 116,000 people who are homeless. Despite the female focus of the budget, homelessness – which disproportionately affects women facing domestic violence – was not addressed.

Salaries for those working for homelessness services will be protected. The federal government is continuing $56.7 million in funding for homelessness services via the Equal Remuneration Order (ERO) supplementation. This funding secures 500 jobs in the sector, again supporting jobs in a female-dominated workforce (as with aged care and child care).

How we can help

Moores is pleased to see so many worthy sectors, and women, being provided for in this budget.  We continue to watch with interest to see measures being implemented to bring about much needed improvement to our stability, mental health and economic participation.

The team at Moores have strong expertise and experience in key sectors including education, child safety, social housing, not-for-profit and workplace relations. We use our deep knowledge and practical experience to create a positive impact in our client’s lives and organisations. For more information, please do not hesitate to contact us.

VRQA published a readiness tool for new school applications in late April. It contains new additional requirements which are consistent with VRQA’s ongoing focus areas and their updated risk framework.

6 key things we suggest new and current schools note include:

1. Appeals Process for Enrolments

This looks like the real sleeper of the readiness tool. It requires new schools to ensure an enrolment decision can be appealed.  This requires the enrolment policy to outline the processes for appeal.

2. Non-delegable duty of care

The school governing body is ultimately responsible for compliance and for students. Certain obligations under Ministerial Order 870 (MO870) are non-delegable.

Existing schools need to take care that their duty of care obligations, particularly to younger students and students with disabilities. This requires clear policies on not only Child Safety (including the ability of the school to assess staff, contractors and volunteers “between” police checks as to their ongoing suitability to work with children), but also:

• Restrictive Interventions;
• Anti-bullying;
• On-site supervision, including school procedures for managing on-site supervision of students in line with the duty of care policies and MO870;
• External provider and offsite strategies that consider children’s age, vulnerabilities and abilities

3. Child Safety

Although your policies and systems ought to be well-embedded in child safety, your policies may need updating to accommodate:

• the new legislation named Worker Screening Act 2020 (Vic); and
• the requirements of the Child Information Sharing Scheme (CISS), which have applied to independent and catholic schools since 19 April 2021.

The CISS changes privacy, child safety and regulatory implications and risks. Schools should be aware of how CISS operates and its impact on other parts of school governance, safety and return-to-school management, and compliance.

4. Governance Documents

All members of the school governing body must have been validly appointed to:

• effectively manage the school’s strategic finances;
• develop the school’s strategic direction; and
• fulfil its legal obligations.

Schools need to ensure there are measures taken to ensure the governing body makes decisions in the best interests of the school and that these decisions are appropriately documented by creating:

• Governance Charter;
• Constitution (with mandated changes needing to be done by 30 June 2021 for ELCs in schools);
• Instruments of delegation;
• Conflict of interest policy and register; and
• Related party transactions policy.

5. Other Policies linked to Enrolments Policy

As current schools will be aware, VRQA requires the enrolment agreement links to, or references, key policies and procedures. These include the:

• Grievance Management Policy; and
• Behaviour Management Policy.

6. Managing Complaints and Grievances

The Grievance Management Policy needs to clearly outline steps for responding to complaints, including the escalation process and provide reasonable timeframes.

There also needs to be an appeals process for the management of complaints.  The policy must also provide a review process and provide information of external organisations if the complainant is not satisfied with the complaint outcome or the way the complaint was managed.

How we can help

Moores has extensive experience in education governance and regulation, as well as child safety and enrolment policies. We can help navigate this significant area of governance for your school. Strong governance is key to child safety. For more information or expert advice, please do not hesitate to contact us.

The VRQA has just released its new Draft Guidelines to the Minimum Standards and Requirements for School Boarding Premises Registration.

Schools and organisations can submit written feedback on the draft guidelines by 5.00pm on Tuesday 18 May 2021.

Although there is significant overlap with the Guidelines to the Minimum Standards for school registration, there are also distinct requirements.

Here’s our key takeaways:

• School boarding services means accommodation services provided for the primary purpose of enabling or facilitating a person to enrol at or attend a registered school – noting that short term camps not covered, and neither is OSHC or homestay for three or fewer. However, day and weekly boarding is included.
• A boarding house must be registered as either non-government or government boarding house premises. These must declare if there is an association with a registered school and if there is any religious or other affiliation or association;
• Existing boarding houses have until 18 September to do a self assessment and statutory declaration; new ones need to apply (there is an annexure setting out the required documentation).

The Standards involve:

1. Compliance with Worker Screening Act. This involves:

• WWC clearance policy
• Register          

2. Acceptance policy

• Policy as to who is acceptable for enrolment, noting that the Education and Training Reform Act 2006 permits students of the religious denomination to be given preference in enrolment, but discrimination is prohibited (unless the school meets the requirements for the religious schools exception, which is rare).
• Written agreement including codes of conduct, facilities provided, fees, grounds for termination
• Include religious affiliation – must be same as school registration.
• Details of services – private/shared room/bathroom, meals, laundry, pastoral care, communications, entertainment, tutoring
• Links to other policies (anti-bullying etc)

3.   Register of Students

• Prescribed information including health and wellbeing information

4.   Record of Location of Students

• Location at specific times of day and night
• If absent, location of student, reasons for absence and contact details (plus parent consent if not with the parent)

5.   Care, Safety and Welfare

• Very similar to Minimum Standards – involving the usual risk assessments, critical incidents, emergency management plans
• Child safety, again very similar to Minimum Standards, staff policies and training re mandatory reporting, failure to disclose, failure to protect, grooming
•  Child safe standards in Ministerial Order 870 and reportable conduct
• Anaphylaxis
• Behavior management

6.   Buildings, Facilities and grounds

7.   Governance

• Significantly similar to Minimum Standards
• Business plan to include boarding house
• Not-for-profit and other Minimum Standards apply

Other Standards cover:

8.   Philosophy

9.   Information on performance

10. Compliance with law, registration

How we can help

With four and a half months to comply, existing boarding facilities will need to update existing policies and procedures, and create some bespoke material. With deep expertise in school regulation, Moores can assist. For more information, please do not hesitate to contact us.

Students are back in the classroom, but elevated privacy and data breach risks remain. How many programs or digital procedures adopted during the pandemic are now part of your ‘new normal’?

Even though students and teachers are back in the classroom, changes to processes and new programs adopted during the pandemic continue to be used commonly across schools.

There has been a significant increase in schools experiencing privacy and data breaches during and following the COVID-19 pandemic. In 2020, 84 data breaches were reported to the Office of the Australian Information Commissioner (OAIC) in the education sector alone. It stands to reason that many more occurred, and did not require reporting (or were not otherwise reported).

Adopting remote learning platforms and administrative tools means the information collected by schools about students, parents, guardians and staff is increasingly digital. With large amounts of valuable information assets, schools face an increasing risk of inadvertent breaches or sophisticated ransomware and hacking attacks.

Privacy and data breaches have many risks and consequences for schools

• Repeated privacy or data breaches, or a poorly handled breach, may cause parents or students to lose faith in the school when enrolments are already tenuous due to economic conditions caused by the pandemic.
• Schools may also face negative publicity and embarrassment
• Further consequences involve insurance claims, increased insurance premiums and investigations by the regulator.

Human error caused public access to a school roll

Human error was the leading source of data breaches in the education sector in July to December 2020, causing 25 of the 40 eligible data breaches (or 62.5%) notified to the OAIC under its data breach reporting scheme. The most common human error data breach was caused by personal information being sent to a wrong email recipient: 14 out of 25.

Moores recently assisted a school respond to a privacy breach. The school had introduced a new digital roll system, which was inadvertently made public when the old system was deactivated. The cause was human error in the security settings. Publically accessible personal information about students and parents included names, postal addresses, phone numbers and, in some cases, Medicare numbers.

Moores helped the school investigate and respond to the breach. The privacy breach was an eligible privacy breach so the school was required to report the breach to the OAIC.  Moores helped the school submit the required notification to the OAIC and advised on damage mitigation and system improvement. Fortunately, considering the mitigation steps and procedures Moores helped the school implement, the OAIC did not take further enforcement action.

Malicious breaches like ransomware attacks are cyber-crimes

The volume and value of information collected digitally by schools significantly increased due to the pandemic. This puts schools are a greater risk of malicious breaches like ransomware attacks. Moores recently helped a school respond to a ransomware attack by offering initial guidance as to immediate steps, including reporting the ransomware attack to Victoria Police as a cyber-crime. The school also sought assistance from a forensic IT company.

Did you know? Ransomware attacks or hacking are still considered the school’s fault and are treated in the same way as breaches caused by the school. This means you have the same privacy obligations for inadvertent breaches, like the digital roll example, or malicious breaches, like ransomware attacks.

Moores observed an increase in ransomware attacks throughout the pandemic. COVID-19 creates a perfect storm of conditions: depressed economic circumstances, criminal groups using COVID-19 themes for phishing attacks, disruption or delay in usual processes for IT security due and working from home arrangements.

Other common methods of malicious privacy or data breaches in the education sector in 2020 were hacking, phishing and brute-force attacks with compromised credentials. The OAIC was notified of 9 of these cyber incident breaches in July to December 2020.  

Responding to breaches when they do arise

When your school becomes aware of a privacy or data breach, you may respond by taking the following steps:

1. Contain the breach and conduct a preliminary assessment
2. Evaluate the risks associated with the breach. What information was disclosed or accessed? Who has been affected?
3. Notification: You may notify the OAIC and affected individuals of an eligible data breach. Even where it is not an eligible data breach (requiring OAIC notification), you may still decide to notify affected individuals so they can take steps to protect themselves for potential consequences of the breach. 
4. Review and prevent future breaches.

Moores has published more advice about how to run an internal privacy investigation.

A data breach response plan will help you navigate these steps. Having a concrete data breach response plan equips schools to confidently respond to, investigate, contain and prevent breaches. Is your data breach response plan up-to-date? If not, Moores is able to assist you with preparing or amending this crucial document.

Managing the increased risk of privacy and data breaches

More digital content in schools, in the classroom and for administration, means an increased risk of privacy and data breaches. This risk is from both inadvertent human error and malicious activity or attacks.

Schools have an obligation to take reasonable steps to protect the personal information they hold from unauthorised access or disclosure. With increased adoption and use of technology in education, the digital information assets of schools are growing exponentially. With this, the risk of privacy and data breaches is significantly greater explaining the spike in breaches following COVID-19.

The role of Privacy Impact Assessments

Schools should reflect on programs, technologies and procedures adopted during the pandemic. While it may feel like 2020 was long ago, it is important to now take a step back and consider the emergency steps taken to manage education in the pandemic, and future proof those solutions from the increasing risk of privacy and data breaches. This reflection should consider privacy and information security implications and protections. It may be useful to conduct Privacy Impact Assessments, or a review of the information lifecycle throughout the school. To implement reasonable protections against breaches – both inadvertent and malicious – schools first need to understand where data is stored and how it is used from collection through to destruction. This is the information lifecycle.

Moores has free step by step instructions for a 5 Minute Privacy Impact Assessment for Remote Learning to help schools reflect on their remote learning set up and its privacy implications. The OAIC says it is never too late to conduct a PIA.

Training is critical

Training and information are important steps to protect a school against privacy and data breaches – partly because the most common breach is caused by sending an email to the wrong email address.

Schools should offer up to date privacy training to staff which reflects the new technologies now adopted in the classroom and across schools post-pandemic. For example, staff training might explain the importance of using prescribed programs, technologies and devices to avoid inadvertent breaches or hacking of school information. Ransomware attacks are significantly more successful on home IT systems due to weaker controls and a higher likelihood of users clicking on ransomware lures outside of a professional environment on a personal device.

How we can help

With the relative calm of 2021, as we settle into the new normal, it might be appropriate to reflect on your school’s programs or technologies adopted during the pandemic, review your privacy policies (including your data breach response plan and privacy impact assessment), and educate staff about how to spot a suspicious communication, and what they need to do if they think there may have been a privacy breach.

Given the increased number of data breaches and malicious attacks in schools over the last year, now is the time to review your use of technology, key policies, and consider staff awareness training.

Moores has expertise in education governance, privacy and data security. We work with organisations to create workable and compliant privacy frameworks, including privacy training for staff. We also advise on privacy breaches or data breaches, in the event these occur. 

With our strong history of supporting the education sector, including independent and catholic schools, early childhood providers and educations industry bodies, we are well placed to provide your school strategic and pragmatic privacy advice. For more information, please do not hesitate to contact us.

Victorian schools and education providers are now captured by the Child Information Sharing Scheme (CISS). This changes privacy, child safety and regulatory implications and risks. Schools should be aware of how CISS operates and its impact on other parts of school governance and compliance.

What is the CISS?

CISS facilitates the sharing of confidential information between organisations that work with children to promote the wellbeing and safety of those children. CISS aims to remove barriers to information sharing to best facilitate early identification and remediation of child abuse, neglect or other risks to child wellbeing and safety.

The CISS commenced on 3 September 2019. Schools and education providers are captured in phase 2 which commenced on 19 April 2021. (Phase 2 was delayed in 2020 due to COVID-19.)

Which organisations are captured?

With phase 2 now in force, the CISS has expanded to capture:

• Registered schools: independent, catholic and government
• Doctors in Schools program
• Enhancing Mental Health in Schools program
• Kindergartens
• Public health services and denominational hospitals
• Regulators including the Victorian Registration and Qualifications Authority (VRQA), Victorian Curriculum and Assessment Authority and Victorian Institute of Teaching
• Registered medical practitioners who practises in the medical profession as a general practitioner in Victoria
• Registered community health centres

Information sharing can occur between any of these organisations. Organisations that are captured are referred to in the CISS as Information Sharing Entities (ISEs).

Key obligations under the CISS

Under the CISS, an ISE can:

• Share information proactively to other ISEs
• Make a request for information; and
• Share information in response to a request from another ISE.

When an ISE receives an information request, it must assess the request against a three step test. 

1. Would sharing the information promote the wellbeing and safety of the child or children concerned?
2. Would sharing the information help the receiving ISE either:
   • make a decision, assessment or plan,
   • start or conduct an investigation,
   • provide a service, and/or
   • manage any risk?
3. Is the information excluded information that cannot be shared under the CISS?

Schools – as ISEs – must respond to requests from other ISEs in a timely manner. If the sharing meets the three step threshold test, you must share the information. If the test is not met, you cannot share the information but you must respond to the request with an explanation in writing.

CISS and Privacy

The CISS regime includes legislative principles to guide the collection, use or disclosure of confidential information. It is a principle of the CISS regime that ISEs give precedence to the wellbeing and safety of a child over the right to privacy.

The use or disclosure of confidential information under the CISS regime in good faith and with reasonable care does not constitute a contravention of any other Act.

For independent and catholic schools that also must comply with the Australian Privacy Principles under the Privacy Act 1988 (Cth), disclosure under the CISS is permitted by APP 6.2(b) where it is authorised by law.

This means that where a disclosure is made in compliance with the CISS, it is not a privacy breach. However, if schools do not meet the regulatory requirements of the CISS, the disclosure may also be a privacy breach.

You may need to review your privacy policy, privacy procedures, and data security protocols, confidentiality policies, and consent and release of information forms.

We recommend that organisations:

• Train your staff – The CISS needs to be administered by staff members who will need training to understand when to make a request for information and how to respond to requests. For organisations also caught by FVISS, training will be needed for employees on the interaction between the two schemes.
• Review your policies and procedures – The CISS has significant implications for organisations, particularly in terms of privacy and child safety. These policies and procedures need to be reviewed and amended to align with the CISS, as well as other documents such as enrolment contracts and collection notices.
• Communicate to your stakeholders – While the CISS assists organisations to better share information for the wellbeing of children, the increased sharing of information could concern children and their families. It is important organisations mitigate any relationship risks that could arise by clearly communicating when it will share information under the CISS and how this will impact confidentiality and privacy.
• Seek strategic advice – For the organisations captured in the second phase of the CISS, this type of information sharing will likely be a substantial departure from previous practice. Organisations should carefully consider how they will roll out the CISS, embed it into their operations and comply with the complex legislative framework as well as their other obligations.

How we can help

Moores has extensive experience in privacy, child safety and regulation and is well placed to assist schools and other organisations in preparing for and implementing the CISS. For more information, please do not hesitate to contact us.

Welcome to the second article 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 article in this series, the two main benefits of establishing a 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).

However, it is important to note that being in receipt of the DSP does not automatically qualify a person to be the principal beneficiary of a SDT.

To be eligible for a SDT, the principal beneficiary must meet the definition set out in s1209M of the Social Security Act 1991 (Cth).  There is one definition for a person 16 years of age or older and another definition for a person who is under 16 years of age. 

Principal Beneficiary is 16 years of age or older

If the principal beneficiary has reached 16 years of age, they must:

1. qualify for the DSP; or
2. be receiving an invalidity service pension under Part III of the Veterans’ Entitlements Act; or
3. be receiving income support supplement under the Veterans’ Entitlements Act on the grounds of permanent incapacity;

AND

1. have a disability that would (if they had a sole carer) qualify the carer for carer payment or carer allowance (whether or not the carer actually applies for this); or
2. be living in an institution, hostel or group home in which care is provided for people with disabilities, which is partly or wholly funded under an agreement between the Commonwealth and the States and the Territories;

AND

1. because of the disability, are not working or they are unlikely to work more than 7 hours per week at or above the minimum wage; or
2. because of the disability, be working for wages under the Commonwealth “supported wage system”.

Principal Beneficiary is under 16 years of age

If the principal beneficiary is under 16 years of age, they must:

1. have a severe disability or a severe medical condition;

AND

2. a carer has been given a qualifying rating of intense under the Disability Care Load Assessment (child) Determination for caring for the principal beneficiary;

AND

3. a treating health professional has certified in writing that because of the disability or condition:
   • the principal beneficiary will need personal care for 6 months or more; and
   • the personal care is required to be provided by a specified number of persons:

AND

4. the carer has certified in writing that the principal beneficiary will require the same care or an increased level of care in the future.

The Social Security Guide (as at 1 April 2021) defines:

• “severe disability” as physical, intellectual and/or psychiatric disability or disabilities;
• “severe medical condition” as an intellectual, psychiatric, behavioural or physical condition;

“that result in the child requiring, permanently or for an extended period, a high level of constant care to maintain comfort, sustain life, or attend to a bodily function that the child cannot manage themselves”.

How we can help

Whilst the eligibility requirements may seem complex, the benefits of establishing a SDT for a vulnerable beneficiary can be significant, including preserving their DSP entitlements and associated benefits such as the Health Care Card.

Before a SDT is established to hold assets for a vulnerable beneficiary, it is imperative to receive confirmation from Centrelink that the intended beneficiary qualifies. Otherwise, assets could be trapped in a SDT with its stringent requirements and restrictions on expenditure and investments, without all of the hoped for benefits.

Look out for the next article in this series, when we discuss the eligibility requirements and other considerations in deciding who to appoint as the trustees of a Special Disability Trust. For more information or expert advice, please do not hesitate to contact us.

Almost a year ago, the COVID-19 Omnibus (Emergency Measures) Act 2020 (Omnibus Act) and the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations (Regulations) introduced the ability for certain documents to be signed electronically and witnessed remotely in Victoria.

The relevant part of the Omnibus Act will be automatically repealed on 26 April 2021, which by extension will revoke the Regulations.

As of 26 April 2021, the Justice Legislation Amendment (System Enhancement and Other Matters) Act 2021 (Amendment Act) provides Victorians with the permanent ability to execute certain documents electronically, before witnesses present remotely (that is, by ‘audio visual link’). 

Any program or application that permits real-time video conferencing (that is, audio and visual communication between people in different locations) would be considered an audio visual link for this purpose.[1] 

However, the process to execute and witness documents remotely is not ‘one size fits all’: there is a distinct process and set of requirements for each type of document permitted to be executed under the new framework. 

The new rules for remote execution of wills, enduring powers of attorney, affidavits and statutory declarations introduce additional requirements that do not apply when the same documents are executed in the traditional manner, or under the temporary remote execution provisions in place during the last year. 

Care must be taken to ensure that the relevant process is strictly followed, to ensure documents are validly executed.

Wills

Consistent with the existing requirements of the Wills Act 1997 (Wills Act), a will executed remotely must still be signed by the testator in the presence of two witnesses.

The parties must all be in each other’s presence, either by audio visual link and/or physical presence.  A testator could validly sign their will before one witness present in person, and one witness present by audio visual link. 

Importantly, where the will is to be signed and witnessed remotely, one of the witnesses must now be a ‘special witness’ (such as an Australian legal practitioner, justice of the peace or member of a prescribed class).   

The witnesses must clearly see the signature of the testator (or a person at their direction) being made.  The testator must also able to see each witness’s signature being made.  Arguably, this means that:

• It is not sufficient for the testator and any witnesses present by audio visual link to share their screens over a video-conferencing platform, while signing electronically.
• If the will is being signed electronically, each party should sign the will on a separate device to that which they are using for the videoconference.  This would allow the testator and each witness to clearly see the other parties “making” their signature.
• Where a will is being wet signed (that is, a paper copy of the will is being signed), the testator and each witness should be in full view of the camera at all times to enable the other parties to observe each person writing their signature.

Once the testator has signed, the will must be transmitted by electronic means to any remote witness, who signs and affixes a statement to the will that they witnessed the will by audio visual link in accordance with the remote execution procedure.  If the will is being wet signed by any party, it will need to be scanned and a copy of the signed document transmitted to the next witness, so they can:

• Print and wet sign (and scan and email to the next witness, if applicable); or
• Sign electronically using an appropriate program.

The special witness must sign last, as they are responsible for checking the will for compliance with the remote execution procedure.  They must then, after signing, ensure there is a statement on the will certifying that:

• The will was signed and witnessed in accordance with the remote execution procedure;
• That they are a special witness (and the type of special witness they are); and
• Whether an audio visual recording of the signing or witnessing of the will was made. 

The document which has been checked and signed by the special witness is the valid will.  A will cannot be signed in counterparts – even where the testator and both witnesses are in different locations.  To avoid future confusion, if the testator and/or the first witness are wet signing a copy of the will, we consider it would be best practice to immediately destroy any such partially executed document. 

All elements of the remote execution process must be carried out on the same day, with the testator and witnesses physically in Victoria.

Enduring Powers of Attorney

The remote witnessing procedure for enduring powers of attorney is similar to that for wills, in that: 

• Each witness must be able to clearly see the signature of the principal (or person signing at their direction) being made.  Interestingly:
  • There is no equivalent requirement for the principal to ‘clearly’ see the witnesses’ signatures being made. Each witness is simply required to sign and date the enduring power of attorney ‘in the presence of’ the principal and other witness/es by audio visual link). 
  • It may be therefore be sufficient for a remote witness to sign a document electronically on the same device they are using for the videoconference (that is, by sharing their screen).  However, best practice would be to ensure that the principal can likewise observe each witness affixing their signature.
• If a person directs someone to sign the enduring power of attorney on their behalf, all witnesses must see and hear this direction to the substitute signatory.
• On signing and dating the document, each witness attending by audio visual link should sign and date the document, and affix a statement to the document certifying that they witnessed it by audio visual link (in accordance with the remote witnessing procedure).
• One of the witnesses must be a ‘special witness’, who signs last and checks the enduring power of attorney for compliance with the remote witnessing procedure.  They must then certify that:
  • It was signed and witnessed in accordance with the remote execution procedure set out in section 5A of the Powers of Attorney Act 2014; and
  • That they are a special witness (and what type); and
  • Whether an audio visual recording of the signing or witnessing of the enduring power of attorney was made.     
• All elements of the signing process must take place on the same day, with the person making the enduring power of attorney and the witnesses physically in Victoria.

The document which has been checked and signed by the special witness, and contains the special witness statement, is the valid enduring power of attorney.

An attorney (other than a trustee company) may similarly accept their appointment by using the remote witnessing procedure.  However, there is no need for the witness to the acceptance of appointment to be a special witness.

Affidavits

Affidavits may now be signed or initially electronically, and witnessed over audio visual link.  All existing requirements for taking affidavits under the Oaths and Affirmations Act 2018 continue to apply.

Where an affidavit has been witnessed remotely, the jurat must also set out the following:[2]

• The affidavit has been signed and sworn or affirmed by audio visual link;  and
• Whether the authorised witness has used a scanned or electronic copy of the affidavit in completing the jurat.  

Statutory Declarations

A statutory declaration may be signed or initialled electronically, and witnessed via audio visual link.

A statutory declaration signed or witnessed under the new remote execution procedure must contain a statement specifying the manner in which it was signed or witnessed, and whether a scanned or electronic copy of the statutory declaration has been used.  This statement may be pre-filled on the statutory declaration form. 

Executing an affidavit or statutory declaration remotely does not remove the need for the deponent/declarant to state the oath, affirmation or declaration aloud.

What’s not included

The Amendment Act does not provide a mechanism for the electronic signing and remote witnessing of international wills, advance care directives or appointments of medical treatment decision maker. 

These documents must continue to be executed on paper, in the physical presence of the required witnesses.   

Key Takeaways

The above remote signing and witnessing procedures do not negate or replace other requirements under the relevant Acts for the respective documents to be valid.

While the introduction of a permanent mechanism for the above documents to be signed and witnessed remotely is to be applauded, the process is not straightforward.  If one of the requirements is not met, the relevant document would not be valid.  If the person cannot re-execute the document, the consequences could include:

• An invalidly executed will could potentially be admitted to probate as an ‘informal will’ under section 9 of the Wills Act.  This process is not without its own issues and complications, and can potentially require an expensive Court application.  If the requirements for an informal will cannot be established, the person’s assets may instead end up being distributed under an earlier will or the intestacy framework.
• In the case of an enduring power of attorney, the person would be left either without a valid enduring power of attorney or with an earlier, outdated document in force.  As a result, a VCAT application may be necessary for an appropriate person to be authorised to deal with the person’s financial or personal affairs. 

Consideration should therefore be given to how a document should be executed, and whether the remote execution procedure is appropriate for the particular document and client.  In many cases, signing and witnessing a document in person may continue to be the most appropriate approach.

How we can help

If you have been appointed under a will or power of attorney that has been signed electronically, we would be happy to assist you with understanding whether it complies with the relevant formalities, and the options open to you in the event it does not. For more information, please do not hesitate to contact us.

---

[1] Interpretation of Legislation Act 1984, s 38; Evidence (Miscellaneous Provisions) Act 1958, s 42C.
[2] Oaths and Affirmations Act 2018, s 27(1A).