Welcome to the third 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 articles 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).

One of the most important considerations is who will be the trustee (or trustees) of the SDT and manage the trust funds for the benefit of the principal beneficiary.

Choosing the Appropriate Trustees

The available options for who will act as the trustee(s) are generally:

• family or friends;
• professional advisors;
• trustee companies.

When making the decision about who to appoint, the factors that should be considered include:

• For family and friends:
  • Are they up to the job? Are they reasonably capable of managing their own finances (let alone somebody else’s) and will they seek professional advice if required;
    • The likely timeframe of the role.  How old are the people that are being considered?  Are they likely to outlive the principal beneficiary and be able to manage the SDT in years to come;
    • Succession provisions for the role.  If it is unlikely that the initial trustees will be able to administer the SDT for the lifetime of the principal beneficiary, consideration should be given to nominating a “backup” to take their place; and
    • The impact on the personal relationship between the trustees and the principal beneficiary;
• In appointing professional advisors and trustees the concern is often around cost and personal investment in the principal beneficiary. 
• If a professional trustee is being considered, we recommend that you meet with more than one, to assist you in deciding the most appropriate appointment. In addition to discussing their fees, you should also enquire as to how (and how often) they will engage with the principal beneficiary and/or carers to assess how the funds in the SDT are to be used for the benefit of the principal beneficiary.

Legislative Requirements

In addition to choosing who might be well suited to acting as trustee, there are legal requirements that must be considered.

Section 1209Q of the Social Security Act 1991 sets out the trustee requirements that must be complied with if the trust is to be a SDT, which includes that each trustee (or director of a company acting as trustee) must:

• be an Australian resident;
• not have ever been convicted of:
  • a dishonesty offence anywhere in the world; or
  • an offence under the Social Security Act 1991, the Social Security (Administration) Act 1999 or the Veterans’ Entitlements Act 1986;
• not have been disqualified from managing corporations under the Corporations Act 2001.

If the trustee is not a lawyer or trustee company then there must be at least two trustees (or two directors of a company acting as trustee).

The principal beneficiary cannot be a trustee.

The settlor of an SDT established by deed cannot be a trustee.

How we can help

Choosing a trustee to administer a SDT should be given careful consideration. The SDT will in most cases last for the lifetime of the principal beneficiary and will often hold significant funds to be managed.

Look out for the next article in our series, when we discuss the concessions that are available to family members gifting to a Special Disability Trust, which can increase their own eligibility to receive a Centrelink pension. 

For more information or guidance, please do not hesitate to contact us.

The recent lockdown in Victoria has once again shone a light on mental health issues for students, particularly secondary students and students who identify as LGBTIQA+.

A recent University of Melbourne study (COVID-19 Unmasked Report 2) on the impact of the second lockdown of 2020 revealed that the mental health of Victorian children was more heavily impacted than children in other states. There was a marked increase of 21 per cent in high-to-very-high depression symptoms reported to doctors/schools in children ages 12-18.

Young people who identify as LGBTIQA+ continue to experience mental health issues at a higher rate than other young people. As mentioned in our article on conversion practices and lessons for schools, the LGBTIQA+ Health Australia 2021 Snapshot uncovered some alarming statistics, revealing little improvement in the health of LGBTIQA+ people since 2016 equivalent study.[1]

As well as promoting acceptance of diversity in schools, schools also need to provide a safe place for students to return to after incidents; both are powerful tools to help improve the mental health of young people.

What are the obligations on schools when that increased depression takes the form of self-harm or suicide?

Duty of Care

Schools owe a non-delegable duty of care to their students to take reasonable measures in the circumstances to protect students from risks of harm that are reasonably foreseeable. The duty of care and standard of ‘reasonable measures’ do not diminish during periods of remote learning.

While many of our school clients report they cope well initially in a crisis of self-harm or suicide attempt, some lack the supports, documentation and structures to allow for a safe and supported return to school with an inclusive approach.

Moores recommend schools consider implementing the two key documents to equip staff to manage incidents and promote the well-being of students returning to campus after incidents:

1. Safety management plan.
2. Return to school plan.

1. Safety Management Plan

A safety management plan equips staff to respond to possible risks and threats of harm by reducing stigma around mental illness and developing helpful coping strategies for students. It equips schools with robust plans in the event a student has attempted to self-harm at school, experiences suicidal ideation or something equally adverse, such as a sexual assault, has occurred off campus. 

A safety management plan outlines steps staff need to take to respond to such incidents in real time. It envisages staff will undertake drills to ensure they are able to respond in a timely and calm fashion to any incidents occurring on campus.

It creates processes that allow staff to know what to do, who to turn to, what their obligations are in terms of documenting events and providing vital information to the investigating officers. Having a safety management plan framework also creates a basis for an individual management plan for students. This is a critically important step in ensuring the school meets its duty of care obligations for at risk students.

2. Return to School Plan

A return to school plan is relevant when a student who has previously attempted suicide, experienced loss, been diagnosed with a serious illness or been hospitalised for their mental illness wants to return to school.

The aim of the return to school plan is to maximise the social and emotional outcomes for students returning to campus by providing an engaging, safe and supportive learning environment for the student.

The return to school plan provides checklists and risk assessments to ensure the school is meeting its duty of care obligations and the student is not a risk to themselves or to others. It discusses whether additional reasonable adjustments are necessary and identifies important matters that are relevant in such situations. It can support the student to identify strategies they would like to be put in place when returning to school after a complex health concern.

If the student’s mental health is being impacted by either identifying as LGBTIQA+ or experiences they are having as a result of identifying as LGBTIQA+, then a return to school plan should provide specific supports to accommodate this.  This does not mean the student’s gender identification needs to be broadcast (a surprisingly common well-meaning bungle), rather that they unique needs will need to be considered.  This could involve avoidance of, or changes to, triggering activities (for example boy/girl events such as formals or dancing class, or sports which require getting changed in front of others).

It is important to recognise that the student, parents, external professionals and key internal staff should all be involved in development of the plan.  Too often, students are “cleared” to return to school by an external professional without the school having adequate input.  This leaves the student and school vulnerable.

Ideally, the student, school and parents will all have obligations under the plan, and there should be consequences for failing to meet those obligations, even if the consequence is simply, for example, withdrawal to a safe space on the part of the student in the event of a panic attack.

Lastly, plans need to be regularly reviewed and should have some measures of success embedded.  Many students who have a form of mental illness will also meet the definition of having a disability, and, as such, the school will have the obligation to make reasonable adjustments to support the student.

How we can help

If your school would like to implement a Safety Management Plan or a Return to School Plan, please do not hesitate to contact us. Our expert team can also point you in the direction of leading industry resources.

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[1] Snapshot of Mental Health and Suicide Prevention Statistics for LGBTIQ+ people, LGBTIQ+ Health Australia, (April 2021)  https://d3n8a8pro7vhmx.cloudfront.net/lgbtihealth/pages/549/attachments/original/1620871703/2021_Snapshot_of_Mental_Health2.pdf?1620871703

Diversity is recognising and valuing difference. Supporting diversity involves creating a culture and practices that recognise, respect, value and embrace difference for the benefit of everyone. Encouraging greater acceptance and support for all youth, particularly those who identify as LGBTIQA+, will make communities, schools and other environments safer, better places for all youth.

Many of our clients are keen to support diversity, while also respecting the values of their school community and ensuring that important values and traditions can continue. From our work with schools, we have seen many excellent examples of schools that have been able to successfully navigate the balancing act of meeting their legal obligations and upholding their beliefs, teachings and faith traditions.  Providing an inclusive environment and upholding your school’s values need not be mutually exclusive.

Promoting acceptance of diversity in schools is a powerful tool to improve the mental health of young people.

The LGBTIQA+ Health Australia 2021 Snapshot uncovered some alarming statistics, revealing little improvement in the health of LGBTIQA+ people since 2016 equivalent study.[1]

• LGBTIQA+ young people aged 16 to 17 were almost five times more likely than the general population to have attempted suicide in their lifetime.
• Transgender people aged 14-25 are fifteen times more likely than the general population to have attempted suicide.
• LGBTIQA+ young people are over four times more likely to engage in self-injury than the general population.
• 63.8% of LGBTIQA+ young people aged 14 to 21 reported having been diagnosed with a mental health condition.

A first step can be understanding different facets of diversity. Respecting and using terminology can demonstrate to others a welcoming attitude. Research strongly indicates that affirmation by acceptance of preferred labels can help to relieve distress and improve mental health.

• Gender expression: external appearance of one’s gender identity, usually expressed through behaviour, clothing, haircut or voice, and which may or may not conform to socially defined behaviours and characteristics typically associated with being either masculine or feminine
• Gender identity: concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves. One’s gender identity can be the same or different from their sex assigned at birth.
• Non-binary: An adjective describing a person who does not identify exclusively as a man or a woman. Non-binary people may identify as being both a man and a woman, somewhere in between, or as falling completely outside these categories. While many also identify as transgender, not all non-binary people do. 

Legal obligations

All schools in Victoria must take reasonable steps to eliminate discrimination on the basis of sexual orientation, gender identity or intersex status. Under federal and state-based anti-discrimination laws, schools must not engage in discrimination unless an exception or exemption applies.[2]

A key legal obligation in terms of supporting diversity is the school’s duty of care towards its students. This article considers how schools can support diversity and eliminate discrimination in the areas of uniforms, bullying and bathrooms.

Uniform and Wardrobe

Schools can support diversity by expanding available uniform options to students. This has been a recent trend in independent schools and is gaining increasing media attention. Clothing contributes to gender expression, but does not have to dictate gender identity: just because a girl chooses to wear trousers to school, just not means she views herself any less like a girl or any more like a boy.

Beyond the debate around inclusive uniform policies and gender are comments and girls’ school uniforms limit them playing, exploring the school yard and participating in lunchtime games when compared with boys. It is harder to swing upside down on the monkey bars in a skirt than shorts.[3] In addition to imposing gender expectations on girls, uniforms can limit physical activity and exercise. 

To present an environment that supports gender diversity, schools can consider implementing a uniform policy that allows students to express their gender as they choose.  And, despite positive publicity, it is arguable that it should no longer be laudable to simply permit girls to wear trousers. Perhaps this should no longer be remarkable, and could instead be considered merely one aspect of gender inclusion.

Bullying

To support diversity in schools, schools should reflect on their policies and practices, educate staff, and update procedures – but there is often a missing link: bullying between children is a powerful limitation on expression of individual diversity. The schoolyard can be a scary place for children grappling with identity – be that sexuality, gender diversity, cultural, racial or linguistic diversity.

Leadership examples from the top – for example, via a uniform policy – are highly valuable, however, education of students complimented by a hard stance on bullying are also critical factors to support diversity in schools.

Students may experience bullying because they are ‘different’ or are perceived to be different. Young people who do not conform to stereotypes of male and female can be vulnerable to bullying by other children. Statistics on harassment and bullying regarding LGBTIQA+ young people are particularly stark:

• 61% of LGBTIQA+ young people report experiencing verbal homophobic abuse
• 18% of LGBTIQA+ young people report physical homophobic abuse
• 69% of LGBTIQA+ young people report types of non-verbal, non-physical homophobia: exclusion, rumours
• 80% of respondents experienced the abuse at school.[4]

The bullying of LGBTIQA+ young people can have a significant effect on their education. A high number of school students experience homophobic bullying and discrimination in schools. A 2021 survey of 6,418 young people living in Australia aged between 14 and 21, [5] reported that:

• 60% had felt unsafe or uncomfortable in the past 12 months at secondary school due to their sexuality or gender identity
• 63% of secondary school participants reported frequently hearing negative remarks regarding sexuality at their school
• 38% of secondary school participants missed day/s at school in the past 12 months because they felt unsafe or uncomfortable
• 28.1% of secondary school participants experienced verbal harassment relating to their sexuality or gender identity at school in the past 12 months

A code of conduct for parents can be a useful tool to mitigate the harmful impacts of bullying, if it becomes apparent that bullying is not originating with students.

Bathrooms

Accessing bathrooms can be a stressful experience for gender diverse students. Students can feel harassed or humiliated when made to use bathrooms that do not match their identity. Also, the use of staff bathrooms or accessibility toilets as a solution, instead of access to identity-conforming bathrooms, can leave gender diverse students feeling alienated. In some cases, accessing bathrooms can be so overwhelming that gender diverse students opt not use bathrooms whilst at school which may invariably lead to wetting accidents.

Wherever possible, schools ought to ensure all students have the right to access bathrooms that align with their gender identity.  Directing a gender diverse student to use the disabled toilet or bathroom for their biological sex can give rise to a complaint of discrimination.

Events

School events play an important role in childhood development and the development of pro-social behaviours. It is critical to ensure gender diverse students feel safe to participate in school events and are not disproportionately impacted by gendered policies.

Consider your policies on key milestone events like formals and socials – does your school prescribe policies about who students can bring as partners, or a “traditional” binary gender dress code? To best support diversity in the school community, schools should aim to develop gender inclusive policies that inspire children to express themselves honestly and openly. Student voice is a key part of the development of such policies.

Support supporting diversity in schools – both by policy leadership on topics such as uniforms or bathrooms – and by proactive education and anti-bullying action – schools can have a wide ranging and lasting impact on young people facing adversity.

How we can help

If your school is in interested in talking to passionate specialists about developing diversity in your specific community, please contact one of our practice leaders Cecelia Irvine-So (head of education) or Skye Rose (head of workplace relations and child safety, and discrimination expert).

Having worked with many, independent, Catholic and other faith-based schools, Moores understands the importance of supporting diversity in a way which respects your unique school environment. For more information, please do not hesitate to contact us.

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[1] Snapshot of Mental Health and Suicide Prevention Statistics for LGBTIQ+ people, LGBTIQ+ Health Australia, (April 2021)  https://d3n8a8pro7vhmx.cloudfront.net/lgbtihealth/pages/549/attachments/original/1620871703/2021_Snapshot_of_Mental_Health2.pdf?1620871703
[2] Anti-discrimination laws vary from state to state. Please consider if an exemption or exception may be relevant to your school (ie exceptions for religious schools). Please note that exceptions are interpreted narrowly, and reliance on an exception will not provide a defence to a claim of negligence for breaching a school’s duty of care towards a student.
[3] Stockings, tunic and leather shoes: Why uniforms stop girls playing, Sydney Morning Herald, (10 June 2021) https://www.smh.com.au/national/nsw/stockings-tunics-and-leather-shoes-why-uniforms-stop-girls-playing-20210609-p57zm9.html
[4] Writing Themselves In 4 – National Report, Latrobe University (February 2021) https://www.latrobe.edu.au/__data/assets/pdf_file/0010/1198945/Writing-Themselves-In-4-National-report.pdf
[5] Writing Themselves In 4 – National Report, Latrobe University (February 2021) https://www.latrobe.edu.au/__data/assets/pdf_file/0010/1198945/Writing-Themselves-In-4-National-report.pdf

Practices seeking to change or suppress a person’s sexual orientation or gender identity (conversion practices) have been banned in Victoria following the passing of the Change or Suppression (Conversion) Practices Prohibition Act. The Act will come into effect on February 2022.

Some schools have sought our advice regarding religious education programs and whether they may be able to rely on religious exceptions which exist in anti-discrimination law in Victoria. 

While the new Act does not ban religious education, schools need to be aware of how they should frame discussions about religion to avoid being potentially caught by the Act.

Alongside the Act, the Equal Opportunity Act 2010 (Vic) (EO Act) continues to prohibit schools from engaging in direct and indirect discrimination in education, including on the basis of gender identity and sexual orientation, unless an exception applies.  It is not easy or straightforward for religious schools to rely on the exceptions in the EO Act, which are interpreted narrowly, so this should not be assumed. Importantly, in any event, schools are unable to rely on the religious exception under the EO Act as a defence to an allegation that it has engaged in a change or suppression practice.

The new law:

• introduces a general prohibition on change or suppression practices;
• makes it an offence for a person or organisation to:
  • intentionally engage in a change or suppression practice (or practices) if that practice (one event or cumulatively) negligently causes injury and the person or organisation is negligent as to whether the practice will cause injury;
  • take someone from Victoria or arrange for them to be taken from Victoria for the purposes of a change or suppression practice (or practices), if that practice (one event or cumulatively) causes injury and the person or organisation is negligent as to whether the practice will cause injury;
  • advertise a change or suppression practice; and
• empowers the Victorian Equal Opportunity and Human Rights Commission (Commission) to:
  • receive and respond to reports about change or suppression practices from any member of the community;
  • conduct investigations into change or suppression practices; and
  • direct a person or organisation to take, or refrain from taking, certain actions, to comply with the Act; and
• requires the Commission to establish information and education programs in relation to change or suppression practices.

Penalties apply under the new law – up to ten years’ jail or $10,000 for individuals or up to $50,000 for organisations.

What is a change or suppression practice?

A change or suppression practice is a practice or conduct:

• directed towards a person;
• on the basis of the person’s sexual orientation or gender identity; and
• for the purposes of changing or suppressing or inducing the individual to change or suppress that identity.

Change or suppression practices are prohibited regardless of whether the person has requested or given consent to the practice or conduct.

A change or suppression practice includes but is not limited to:

• psychiatry or psychotherapy treatment (or similar);
• religious practices, including prayer-based practices, deliverance practices or exorcisms ;and
• giving a person a referral for the purposes of a change or suppression practice being directed towards the person.

The Explanatory Memorandum released with the Act notes that the new law is “intended to capture a broad range of conduct, including, informal practices, such as conversations with a community leader that encourage change or suppression of sexual orientation or gender identity, and more formal practices, such as behaviour change programs and residential camps.”

What is allowed?

A practice is not a change or suppression practice if it is supportive of or affirms a person’s gender identity or sexual orientation. The Act expressly confirms that the following are not change or suppression practices:

• assisting a person undergoing or considering undergoing a gender transition;
• assisting a person to express their gender identity;
• providing acceptance, support or understanding of a person; or
• facilitating a person’s coping skills, social support or identity exploration and development;

The Act also protects a practice that is (in the health service provider’s reasonable professional judgement), necessary to provide a health service or comply with the health service provider’s legal or professional obligations. This will not be a change or suppression practice under the new law.

What about religious education or general discussions about religious beliefs?

The Act was accompanied by a Statement of Compatibility (a requirement to confirm that a proposed law is compatible with the Victorian Charter of Human Rights). That Statement says:

Although broad, the definition has been carefully designed to exclude conduct that is not directed at an individual, to reduce its impact on religious practices such as sermons. It also requires conduct be engaged in for the purpose of changing or suppression a person’s sexual orientation or gender identity (or inducing a person to change or suppress) to limit impact on general discussions of religious beliefs around sexual orientation or gender identity that aim to explain these beliefs and not change or suppress a person’s sexual orientation or gender identity. (emphasis added)

The legislation has been drafted to reduce or limit the impact on sermons and general discussions of religious beliefs. However, it remains possible that a sermon or discussion about religious belief could contravene the new law if it is found to be directed at an individual and to have a purpose of changing or suppressing the person’s sexual orientation or gender identity. 

What about the exceptions for religious schools?

If a school is able to rely on an exception in the EO Actfor religious schools, this may provide the school with a limited right to discriminate in enrolment in favour of students who are members of the school’s faith group, church or denomination (or on the basis of race, sex, age or disability IF the school is established for such a specific group).  In the faith context, these exceptions are typically only available to closed faith communities, whereas those with broader and more diverse families will struggle to meet the requirements, even if they are a religious school. 

Even if a religious school can rely on the exception for religious schools, which may permit discrimination on the basis of particular attributes, this only applies to enrolment and faith.  Importantly, it does not open the door to discrimination on other bases, and it does not dilute the obligations under the Act.  That is, a school may be able to rely on an exception to only permit enrolment by students of its faith group, but it still cannot discriminate more broadly or undertake conversion or suppression practices without breaching the law.

What happens next?

The law will not come into effect until February 2022 to allow the Commission to prepare for implementation. During this period, the Commission will develop guidance on how it considers the law should be interpreted and applied.

Should you do anything in the meantime?

Schools should review their  stance on inclusion and education regarding sexual orientation, gender identity and respectful relationships, as well as the teaching or expression of religious belief, to ensure that it is lawful and not directed at an individual..

The Commission will publish guidance, and we will keep you informed as this is communicated, along with the Commission’s plans on how it intends to exercise its new powers, appropriate preventative (or remedial) measures for organisations will become apparent. 

How we can help

If you would like more information about your schools discrimination obligations or the impact of the change and suppression practices laws on your organisation, please do not hesitate to contact us.

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Community attitudes around consent are shifting. Tireless advocacy by a number of victim-survivors and advocacy groups has sparked a national conversation about consent and sexual assault over the past few years, culminating in the announcement of landmark changes to consent in NSW in May 2021. 

In this article, we contrast the proposed affirmative consent laws in NSW to the consent laws in Victoria, and provide practical tips on what schools should do to raise awareness of these changes and prevent sexual harm.

Background

In 2018, the NSW Law Reform Commission (NSWLRC) commenced a review of consent laws, spurred by advocacy from victim-survivors like Saxon Mullins, whose protracted and highly published sexual assault case ended with the alleged perpetrator being acquitted despite multiple courts finding that she had not given consent.  Since then, Saxon has become part of a growing public campaign for affirmative consent laws.  The NSWLRC’s final report, which was released in November 2020, did not recommend this standard.  Despite this, in May 2021, NSW Attorney-General Mark Speakman announced a bill that goes beyond the recommendations of the NSWLRC, and will make affirmative consent the law in NSW. 

Consent laws in NSW and Victoria

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

1. the complainant did not consent; and
2. the accused knew that the complainant did not consent.

Currently, in NSW, an accused will be considered to know that the complainant did not consent if they have actual knowledge about lack of consent, if they are reckless as to whether the complainant consents, or if they have no reasonable grounds for believing that the complainant consents. 

The test in Victoria is whether the accused reasonably believed that the complainant consented. 

In Saxon’s case, although it was found that she did not consent to sex with the accused, the court was not ultimately satisfied beyond reasonable doubt that the accused knew she was not consenting as she froze and did not resist his advances.

Proposed reforms to require affirmative consent

The reforms proposed by the NSW Attorney-General adopt an affirmative model of consent in sexual assault laws, moving from a “no means no” to a “yes means yes” approach to consent.  Affirmative consent shifts the emphasis from the actions of the victim-survivor to those of the accused.  The NSW reforms alter the statutory language from “no reasonable grounds” to “no reasonable belief” and require a person who argues that they had a reasonable belief in consent to demonstrate what actions they took or what words they spoke to ensure they had consent.  If a person failed to take steps to confirm their sexual partner was consenting to engaging in a sexual act, any belief the person had in consent will not be considered reasonable.  The reforms are intended to address situations where a person freezes and does not offer physical resistance to sexual activity and make it clear that, in those situations, the person’s consent cannot be assumed.

Importantly, the NSW Attorney-General also tied the reforms to broader shifts in social behaviours.  The intent of the reforms is not just to hold perpetrators of sexual harm to account; it is also to set different standards for sexual interactions outside of the criminal justice system.  To that end, a campaign educating the legal and broader community on the news laws is expected to occur in the lead up to them being passed.

Is affirmative consent the law in Victoria?

Victoria has historically been viewed as a leader in consent laws.  In 1991, the Crimes Act 1958 (Vic) was amended to define consent as “free agreement”, as well as to introduce a non-exhaustive list of consent-negating situations in which a person cannot freely agree (e.g. if the person submits because of force, or the fear of force, to that person or someone else) and jury directions to reinforce the affirmative standard of consent into the law. 

However, there are divided opinions about the extent to which Victorian consent laws require affirmative consent.  On one view, they fall short of the positive requirement proposed in NSW and should be updated.  On another view, the issue lies in the interpretation and application of existing laws by practitioners and judiciary. 

Against this backdrop, the Victorian Law Reform Commission is currently reviewing Victoria’s sexual assault laws and is due to report to the Victorian Attorney-General by 31 August 2021.

What does all of this mean for schools?

All Victorian primary and secondary schools currently must comply with Ministerial Order No. 870 – Child Safe Standards – Managing the risk of child abuse in schools (Ministerial Order 870) in order to be registered and remain registered with the Victorian Registration and Qualifications Authority.  Ministerial Order 870 requires the school governing authority to develop strategies to deliver appropriate education about healthy and respectful relationships (including sexuality), standards of behaviour for students attending the school, and child abuse awareness and prevention. 

In February 2021, former independent school student Chantal Contos launched a petition calling for earlier sex education in schools.  The petition, which now has over 40,000 signatures, has revealed hundreds of testimonials from former students in NSW about sexual assault they had experienced at the hands of their peers, particularly (but not exclusively) abuse perpetrated by males at single sex private schools against females.  A recent report by the South Australian Commissioner for Children and Young People (CCYP) identified that young people have serious concerns about the adequacy, timeliness and appropriateness of the sex education they are receiving.  The young people surveyed by the CCYP stated that they wanted to gain an understanding of the legal framework around consent, and the CCYP’s report recommended that discourse around consent be evidence-based, as well as include an understanding of the social and practical complexities of consent – not just the legal definitions.

We recommend that schools review their education curriculum on consent and respectful / healthy relationships, having particular regard to its quality, appropriateness, accessibility, and timeliness. 

We also recommend using affirmative consent as a framework for teaching young people about consent.  Whilst the future of Victoria’s consent laws remains uncertain, it is clear that the affirmative consent model is replacing previous social standards and expectations.  From a welfare and risk management perspective, adopting an affirmative consent approach reflects best practice for schools seeking to navigate this important issue.

How we can help

Moores delivers education and training to schools and students across Australia on healthy and respectful relationships (including sexuality), standards of behaviour for students attending the school, and child abuse awareness and prevention. For more information or advice, please do not hesitate to contact us.

During the COVID-19 pandemic, most workplaces were forced to think creatively about how their staff could still get work done outside of the traditional office-based model of work.

Employees who were able to work efficiently and effectively from home during lockdown now expect that those flexible working arrangements will continue to be available.[1] Now that we’re on our way out of the pandemic, many workplaces are looking inward to see how they can set up their workplace to offer flexibility, while not compromising on productivity and workplace culture.

Types of flexible work

Flexible work arrangements involve an agreement between an employer and their employees to alter their traditional working arrangements to better suit their needs. These arrangements include:

• changing where employees work;
• compressed work weeks (e.g. compressing a typical 5 day, 40 hour week to 10 hours per day over 4 days);
• flexi-time (working approved overtime and then later taking that time off); or
• altering traditional start and finish times (saying goodbye to the traditional 9 ‘til 5).

Flexible work arrangements may be specifically designed to meet the requirements of one employee, or may involve a policy which offers flexible working arrangements for all employees. Hybrid workplaces, which involve a combination of staff working from home and working in the office, are becoming increasingly popular, and can be implemented as an organisation’s ‘new normal’.

Benefits to employees

In a recent survey examining the impact of COVID-19 on Australians, the Australian Bureau of Statistics found that more than half of those surveyed either wanted to retain the same working from home arrangements or wanted to increase the time they spent working from home.[2]

Employees report greater job satisfaction when they can work flexibly.[3] Having the option to be at home to accept deliveries or meet tradespeople means that employees don’t have to feel bad for asking for a morning off – they just work from home that day, or start a little later. Working from home cuts out commute time and increases time to do the basics, like put on a load of washing!

It’s also great for staff members who have caring commitments. Staff can collect their children from school or day care and then log on later that day to finish off what they were working on, instead of leaving it for the following day. They can get their work done over fewer days so they don’t need to find a day care placement for the whole week.

Benefits to employers

The digitisation of work and the advent of ‘working anywhere’ have presented opportunities for employers to save costs and increase efficiency. Many employers are already set up for flexible work as they have embraced advancements in technology by implementing paperless systems and digitising their transactions (here’s looking at you, DocuSign). The rise of the Zoom meeting permits scheduling multiple meetings without needing to move from your chair.

Staff generally report greater wellbeing and productivity, which increases job satisfaction and fulfilment. Employee satisfaction leads to positive workplace culture, increased productivity, and lower staff turnover.

Offering flexible working arrangements can also help you attract and retain good employees. The Workplace Gender Equality Agency considers flexible working arrangements to be a key factor to address the disparity in the number of women in leadership positions.[4]

Practical tips for optimizing flexible work arrangements

Whilst flexible work brings many benefits, it isn’t advisable to take a set and forget approach to implementation.  In order to optimize your flexible work arrangements and minimize the risk of a legal claim, employers should carefully consider the following issues:

• Working from home can be isolating without those everyday encounters in the office. It’s important to schedule regular virtual or phone meetings to maintain positive relationships and keep the communication channels open with employees.[5] This can include embracing the ‘hybrid meeting’ where some team members dial in virtually to join those team members who are in the office.
• Although your employees might be working from home, you still have a duty of care to provide a safe workplace. You need to update your flexible work / workplace health and safety policies and procedures to address your new arrangements, and take steps to ensure that each employee’s work from home.
• Do you have sufficient safeguards in place to protect confidential information and keep data safe? A consideration of your privacy obligations should also be evident in your flexible workplace policy.
• Recordkeeping obligations continue to apply under the Fair Work Act (Cth) and Fair Work Regulations 2009 (Cth).  This means that an employer is still required to keep records of employees working outside the spread of ordinary hours under an applicable modern award or Enterprise Agreement.  If later an employee alleges underpayment of overtime entitlements, and the employer does not have adequate records, section 557C of the Fair Work Act places the burden on the employer to disprove the allegation (no matter how far-fetched the initial allegation).
• Consider how you can demonstrate that your business’ flexible work model complies with minimum entitlements owed to employees under their award, enterprise agreement or the National Employment Standards.
• Consider what equipment your staff need to work from home and keep a log of it,
• Ensure that flexible workplace arrangements do not indirectly discriminate against your employees. If you are looking at a shared workplace for those days in the office, are you able to make reasonable accommodations for employees who have a disability or family responsibilities? You need to ensure that your employees are not discouraged from seeking accommodations for disabilities and that these issues are discussed openly and without judgment.

What should employers do now?

• Take a good look at your workplace. What do you really need to run it efficiently?
• Prepare a detailed flexible working policy, clearly communicate that policy to your staff and ask for their feedback. Consider what limits there should be on flexibility. Being open and collaborative with your team will make it easier to enforce your policy down the track.
• Implement a policy on a trial basis to allow you to tweak it as necessary.
• Walk the walk – leaders in your workplace should be role models who personally embrace flexible work. Managers should speak positively about flexible work arrangements, clearly communicate their expectations, and show trust in their employees.

How we can help

If you’re considering changes to your operations to improve flexibility, or simply want to ensure that you’re existing arrangements are compliant, our workplace relations experts have you covered. We can also assist you with reviewing the impact your flexible work arrangements might have on your compliance with legal obligations in relation to recordkeeping, work health and safety and equal opportunity laws.

Flexible work arrangements might also have you considering the way you engage future staff. For more information on the impact of flexible workplaces on the classic ‘are they an employee or a contractor’ quandary, check out our upcoming webinar on 22 June 2021 – ‘Independent Contractors: Balancing compliance, cost and flexibility’.

For more information or expert advice, please do not hesitate to contact us.

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[1] See ABS statistics – https://www.abs.gov.au/statistics/people/people-and-communities/household-impacts-covid-19-survey/feb-2021#work-from-home
[2] See https://www.abs.gov.au/statistics/people/people-and-communities/household-impacts-covid-19-survey/feb-2021#work-from-home
[3] ABS – APS Employee Census 2021
[4] See Workplace Gender Equality Agency https://www.wgea.gov.au/flexible-work
[5] Black Dog Institute: https://www.blackdoginstitute.org.au/news/working-from-home-a-checklist-to-support-your-mental-health-during-coronavirus/

A fundamental principle of estate planning is property ownership. How you own your property can affect how it passes when you die.

For example, a property held as joint tenants generally bypasses a Will and the last survivor inherits 100%; whereas where two people own property held as tenants in common they each own a distinct interest that passes under their Will.

What happens to the debt on a property when one person dies?

When borrowings are taken out for the acquisition of the property, who becomes liable when one person dies, and does it matter where the property ends up?

A recent Western Australian case, Young v Martin [2020] WASC 442, has brought attention to the importance of careful estate planning when:

• the purchasers contribute unequally;
• partially fund their purchase from borrowed funds; and
• come from blended families (or even just a second relationship).

What happened in this case?

Mr Jones and Ms Young lived together in a de facto relationship.  They each had children from previous relationships; Mr Jones’ children were still minors.  Mr Jones and Ms Young purchased a property together as joint tenants – Ms Young funding her half of the purchase with proceeds from the divorce and financial settlement with her previous spouse and Mr Jones funding his half with funds from a bank loan. 

In applying for the loan, the two of them applied jointly, and the bank secured its loan with a mortgage over their property.  Other than this property, the couple kept their finances separate, and split the utility expenses between them, rather than pooling their income or assets.

They had been together for five years before Mr Jones’ death, at which time the property passed to Ms Young by survivorship – but in this case, so did the liability for the loan. 

Ms Young claimed that the agreement between them was that Mr Jones would make loan repayments from his personal funds, despite the loan being in their joint names, such that she claimed the repayment of the loan should be made from his estate.  Ms Young claimed that this was a contract between them.  While the matter was being disputed, Ms Young made the mortgage repayments for which she claimed reimbursement from the estate.

The Supreme Court dismissed the claim on the basis that it wasn’t satisfied there was a contract (whether express or implied) regarding the payment of the mortgage debt, given there was no intention to create legal relations – one of the four basic requirements of a legally binding contract. 

The Court considered the repayments after Mr Jones’ death based on the manner of ownership of the property.  The Court said “equitable principles would not require the estate to discharge the obligation of Mr Jones to pay the mortgage where it relates to property which is not part of the estate“, noting that it may have been different if Ms Young were making repayments on the property owned as tenants in common, where the estate should have also had an obligation to contribute.   

What are the key take away points?

Where the debt is owed to a bank, most of the time the liability is ‘joint and several’ which means that both parties are responsible for the debt together, and also independently of each other.  Importantly, this doesn’t deal with how the loan will work as between the borrowers.  This raises the question of who is liable to make payments, and whether one party can require any contribution from the other. 

Where liability for debt is unclear, it may lead to disputes and Court cases.  In the Young v Martin case, the responsibility for the debt flowed to the surviving joint tenant, just as the ownership of the property did – but it may not always work like that. 

Another issue to consider is what would happen if two parties borrow from a bank, but the debt is secured against a property owned by only one of the borrowers.  What would happen if the owner of the security property dies, and leaves the property to a third party in their Will?  This is a key reason why both Wills and debt arrangements between parties need to be very clear.

How we can help

Whether you’re putting an estate plan in place, or making decisions about the structure of ownership or borrowing, these intentions need to be clear, and even documented appropriately, to ensure that they continue to play out the way you intend. For expert advice or guidance regarding Estate Planning, please do not hesitate to contact us.

Where a Willmaker wishes to avoid a challenge to their Will on the basis that a person has not been adequately provided for, their main task is to consider each of the persons to whom they owe a “moral duty” and weigh those claims against each other.

This exercise can be difficult when an estate is not large enough to provide for everyone who might have a need or a claim. This issue more commonly arises in the case of blended families or second relationships, and in balancing the needs of a new spouse against the needs of children from a prior relationship, the exercise becomes fraught for even the most well-meaning and careful Willmaker.

For better or worse, case law consistently provides for “spousal primacy”; the concept that a person’s primary duty, all things being equal, is to their spouse. The rule of thumb, for estates large enough to afford it, is that a testator should not leave their spouse without secure accommodation, an income or a nest egg. There can, of course, be factors that disrupt spousal primacy; but it is the starting point. A recent case in the New South Wales Supreme Court provides an example of when a widowed claimant was unable to establish spousal primacy.

In coming to its decision, the Court took into account various factors including that the parties had agreed early in their relationship to keep their finances separate, and by the date of death, their relationship had deteriorated (largely as a result of disputes about the terms of the wife’s Will).

Facts – Schneider v Kemeny [2021] NSWSC 524

The deceased, Kathy, died leaving a second husband of 14 years (Michael), and two children from her first marriage. Kathy’s net estate was valued at $2.9M, and consisted primarily of the house she owned solely and lived in with Michael. Kathy’s will left Michael with a right to reside in the house for 6 months following her death and approximately $100,000 of superannuation and chattels. The remaining bulk of her estate was to be split between her two children.

Michael issued a claim for further provision, seeking the sum of $1.5M to enable him to purchase secure comparable accommodation. The matter proceeded to trial where Michael was ultimately unsuccessful.
In rejecting Michael’s claim, the court took into account:

• That Michael, despite not having secure accommodation, did have a nest egg and the ability to earn income;
• That Kathy and Michael had kept their finances strictly separate during their relationship;
• That Kathy had been very clear in her intentions to provide for her children and her estate consisted primarily of assets she had acquired prior to her marriage to Michael; and
• That Kathy and Michael, despite being married, had a very poor relationship prior to Kathy’s death.

The court found that “[Michael’s] provision may not have been generous but it was entirely commensurate with the tenor of their relationship and their dealings with each other since its inception”. No further provision was ordered by the Court and the lawyers for the Estate will now no doubt make submissions as to how the $642,228 of legal fees incurred in the proceedings should be paid.

How we can help

Whilst Schneider v Kemeny is a New South Wales decision and consequently not binding in Victoria, it is a timely reminder that a plaintiff spouse in any jurisdiction should not issue proceedings on the sole premise of spousal primacy.

The case is also a reminder that in second relationships, evidence of the parties’ intentions or agreement not to claim on the other’s estate and of keeping separate finances, while not an absolute bar to a claim, can be a relevant factor. For more information or guidance, please do not hesitate to contact us.

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.