Two recent cases passing through the Victorian Civil and Administrative Tribunal in 2020 have highlighted the importance of forward planning if a person is considering voluntary assisted dying (“VAD”). The requirement for Australian citizenship or permanent residence, together with being “ordinarily resident in Victoria” can be an unexpected obstacle for prospective applicants to the scheme.

Who can access the VAD scheme?

The Voluntary Assisted Dying Act 2017 (“the Act“) sets out several eligibility criteria for a person seeking to access the scheme, being:

1. Age – the person must be over 18;
2. Residence – the person must be ordinarily resident in Victoria, and at the time of the first request, have been ordinarily resident in Victoria for at least 12 months;
3. Citizenship – the person must be an Australian citizen or permanent resident;
4. Capacity – the person must have decision making capacity in relation to voluntary assisted dying;
5. Diagnosis – the person must have a diagnosis of a disease, illness or medical condition which is:
   • Incurable
   • Advanced, progressive and will cause death
   • Is expected to cause death within weeks or months, not exceeding 6 months (or 12 months for neurodegenerative conditions)
   • Is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable

Provided a person meets the eligibility criteria, there are a number of further steps which must be taken in order for that person to be granted a permit for VAD, and ultimately prescribed the medication for themselves or their doctor to administer.

Understandably, commentary regarding the implementation of the Act has focused on striking the right balance between providing sufficient safeguards from abuse of the scheme and permitting access to the scheme for those who would seek it.

However, it is as a result of the citizenship and residency criteria that many applications have been denied, two of which resulted in legal proceedings.

Recent cases

The first case, NJT v NJT (Human Rights) [2020] VCAT 547, related to a “grey nomad” who, whilst “based’ in Victoria, had no fixed address. His initial application for access to VAD was put before VCAT due to the doubt surrounding whether he was “ordinarily resident in Victoria”.

The patient (“BTR”) lived in a caravan and regularly travelled to Queensland to escape the Victorian weather. He had no rental history since 2006 and did not own property (in Victoria or otherwise). He had physicians in Melbourne but also visited physicians in Queensland. There was no allegation that he would be ineligible for VAD on any grounds other than the residency requirement.

The evidence required to be submitted by BTR before VCAT ultimately determined that he was eligible for VAD was substantial. He provided his drivers license, passport, medical records, a statutory declaration, a timeline of his living arrangements and information as to his decision to return to Victoria for medical care. Even though BTR was ultimately granted a permit to access VAD, the process took over a month of his last few months of life and was undoubtably frustrating and traumatic.

The second case, YSB v YSV (Human Rights) [2020] VCAT 1396 dealt with the citizenship criteria. The patient in question (“UQL”) had migrated from England some 15 years earlier and had not left Australia in more than 10 years. He had owned a house in Victoria for 9 years. UQL was originally born in the UK and moved to New Zealand before settling in Australia. He did not hold Australian citizenship and his visa classed him as a temporary resident, although the period of stay was “indefinite”.

VCAT was asked to determine whether the initial decision that UQL did not meet the citizenship requirement could be challenged. Unfortunately, VCAT found that it did not have the jurisdiction to hear the question; the Tribunal did not have the jurisdiction to determine whether UQL was a permanent resident, nor could it waive the requirement. The Tribunal acknowledged the “disappointment and despair” that the decision caused, as the result left UQL with no practical avenue to access VAD despite meeting the medical criteria.

How we can help

Both of the situations in which the two patients found themselves in were born of administrative setbacks, rather than medical setback; this is reflected in commentary released by the VAD Board that the residence and citizenship requirements often catch prospective applicants unawares.

These setbacks can potentially be avoided by raising any queries in relation to potential future eligibility for VAD with an Estate Planning lawyer, particularly when considering medical directives and Powers of Attorney. Addressing the need for citizenship or residence as part of the Estate Planning process can provide substantial peace of mind and avoid a traumatic legal process in the final stages of a terminal illness. For more information and expert advice, please do not hesitate to contact us.

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 Bill. The bill has been passed, but will not become law until February 2022.

Among other things, 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 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 Victorian Equal Opportunity and Human Rights 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 $218,088 for individuals or up to $1,090,440 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 bill 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 bill expressly confirms that the following are not change or suppression practices:

• assisting a personundergoing 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 bill 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.

When can an organisation be held responsible?

Organisations may be held liable under the new law for the actions of employees and agents (including volunteers within the organisation) acting with their actual or apparent authority as well as officers (including directors or committee members). An organisation may be deemed to have intended for a practice to take place if the corporate culture within the organisation directed, encouraged, tolerated or led to the formation of the intention to carry out that practice.

It may be a defence if an organisation can demonstrate that it exercised due diligence or took reasonable precautions to prevent conversion or suppression practices by an individual.

What about sermons or general discussions about religious beliefs?

The bill 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 crafted 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 happens next?

The law will not come into effect for a further twelve months to allow for the Victorian Equal Opportunity and Human Rights 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?

This is uncharted territory in Victoria.  For organisations and institutions whose activities include personal counselling, instruction or teaching regarding sexual orientation or gender identity or the teaching or expression of religious belief, the new law will require careful consideration.

As the VEOHRC develops guidance and communicates its plans on how it intends to exercise its new powers, appropriate preventative (or remedial) measures for organisations will become apparent.  In the meantime, here are some that are immediately clear:

• Organisations should ensure that relevant officers, staff and volunteers are aware of the restraints in the new law.
• Churches, religious organisations and faith-based institutions should consider whether they need to review current practices within their organisations.
• In order to avoid corporate liability, organisations should:
  • clearly confirm what counselling or personal instruction relevant staff or volunteers are authorised to provide; and
  • prepare to adopt a policy on change or suppression practices and implement training for staff and volunteers – this is likely to be informed by the VEOHRC guidance.

How we can help

For more information or advice on how the reforms may affect you or your organisation, please do not hesitate to contact us.

Victoria will further relax its COVIDSafe settings following reduced exposure risk as Victoria continues to have low community transmission.

From 6pm on Friday 26 March 2021, places of worship must ensure that attendance records are maintained electronically through the Services Vic app or a government API-linked digital system. There will be a 28 day grace period for compliance.

To establish a check-in system for your place of worship through Services Vic, click here.

If your worship services are conducted indoors, you will continue to be subject to a density quotient of 1 per 2sqm.

If your place of worship is ordinarily used as a wedding or funeral venue, there will no longer be maximum attendee caps indoors or outdoors. However, records must be maintained in the manner set out above.

As always, Moores is here to help – for more information regarding the new rules, please do not hesitate to contact us.

The latest sexual assault allegations to consume Australia’s parliament have led many employers to consider how they would respond to serious or criminal allegations against their workers, particularly those in senior leadership.

When an employer becomes aware of criminal allegations against a worker such as theft, fraud, stalking, sexual assault, illegal drug use, child safety related offences (e.g. grooming) or driving offences, it should carefully consider its response in line with its values, commitment to maintaining a safe working environment, culture, and reporting and employment obligations.

The Child Safety and Workplace Relations teams at Moores act as trusted advisors to employers in times of crisis. In this article, we set out our top tips for responding to serious or criminal allegations.

Ensure the safety and wellbeing of the alleged victim / informant

Once the employer is aware of a serious allegation, the first priority should always be the health and safety of those concerned, particularly the alleged victim or informant.

An employer may need to separate colleagues or clients to minimise the risk of physical or mental harm. That may involve reassigning employees, changing their reporting lines or temporarily standing them down from work. Preliminary legal advice should be obtained to ensure that staff are treated fairly and appropriately, in line with organisational policies and relevant legal obligations.

Organisations will often appoint the Head of HR or a senior business leader to be the primary contact for the alleged victim and/or informant. This person typically plays a “welfare officer” role.

A “welfare officer” needs to take an empathetic approach and have the necessary organisational authority to ensure the health and wellbeing of the people closest to the incident. For example, the welfare officer would need to be able to discretely speak with relevant managers to arrange time-off, alternative duties or new reporting lines for people closest to the incident. The welfare officer would also need to be competent to advise people of their rights and obligations in relation to non-victimisation.

The welfare officer may need to discuss with internal stakeholders whether the respondent (i.e. the person against whom the allegations are made) should be removed from the workplace immediately, or stood down from duties pending an investigation. These discussions are often challenging. Whilst the presumption of innocence is important, an employer also needs to balance that against the health and safety risks based on the information it has available.

Coordinate your response

Subject to the size of the organisation, it may be appropriate for the employer to appoint a Committee responsible for coordinating its response to the concerns. This Committee typically makes strategic decisions, receives legal advice and liaises with external authorities. It is usually comprised of two to three people (including a welfare officer); anything more than five can become unwieldy.

The Committee should obtain early legal advice to deal with issues such as preserving evidence and the scope of the investigation. It should also be responsible for safeguarding privilege over legal advice. To preserve legal professional privilege in an organisation, its confidentiality must be maintained. Circulating legal advice outside of a core “need to know” group may inadvertently waive legal professional privilege attached to that advice, which could result in the organisation being compelled to disclose privileged materials to regulators or litigants.

Collect and preserve evidence

Employers should prioritise the collection and preservation of evidence. Where there is the prospect of criminal proceedings, the means by which evidence is gathered may be of crucial importance.

A careful and lawful process needs to be undertaken to ensure the integrity of all evidence obtained. This will generally involve:

• suspending a respondent’s access to emails or IT systems, and potentially their physical access to the premises (so as to prevent the destruction of records or documents);
• taking custody of original documents and portable electronic devices (such as a work issued GPS, laptop, iPad, or mobile phone);
• taking photographs and/or videos as necessary; and
• keeping careful records of witness evidence.

Where electronic evidence is involved, a forensic technology expert may be required to create a verifiable backup or mirror image of the computer system.

Employers should carefully consider their rights and responsibilities under employment contracts, policies and industrial instruments before taking steps to suspend access or recover property.

Consider whether regulators should be notified

Regulators and funders usually appreciate prompt notifications about concerns.

Depending on the incident and the employer’s sector, a serious incident may trigger reporting obligations. These obligations can be triggered even if the organisation does not have all the relevant facts, and the organisation is still investigating the allegations.

Some occupations, such as those in the medical and education sectors, have specific reporting requirements, particularly for issues such as suspected child abuse.

By way of example, some of the key mandatory reporting requirements in Victoria are summarised below.

Who does the obligation apply to?	What to notify and who to notify?	When to notify?	Possible implications of failing to notify
All workplaces covered by the Occupational Health and Safety Act 2004 (Vic) (OHS Act)	Notify WorkSafe Victoria of any incident that has occurred at the workplace (under the management and control of the employer or self-employed person).	Immediately after becoming aware that the incident has occurred.	Being found guilty of an offence under the OHS Act and liable to a fine of up to 240 penalty units (approximately $40,000) for natural persons or 1,200 penalty units (approximately $200,000) for body corporates
Certain professionals in Victoria, such as principals, medical practitioners, and nurses[1]	Notify Child Protection (part of Department of Health and Human Services in Victoria) if they believe on reasonable grounds that a child has suffered or is likely to suffer significant harm as a result of physical injury or sexual abuse.[2]	As soon as practicable after forming that belief.	The penalty for failing to make a mandatory report is 10 penalty units (approximately $1,650).
All persons in Victoria of or over the age of 18 years	Notify Victoria Police if one reasonably believes that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years, e.g. discovering child pornography.	As soon as it is practicable to provide that information.	Up to three years’ imprisonment.
Victorian NDIS provider	Notify the NDIS Quality and Safeguards Commission and/or the Victorian Disability Worker Commission if there is an allegation or reasonable belief that a disabled person has been abused (including sexual abuse). A Victorian NDIS Provider must review the reportable incident  provisions under the NDIS legislation,[3] and the notifiable conduct rules under the Victorian legislation.[4] They apply concurrently, and though they are similar, they are not the same.	As soon as practicable after forming the reasonable belief or the allegation is raised.	Notifying the Victorian Disability Worker Commission in good faith provides protection from civil and administrative liability. Failure to notify the Commission will not afford you this protection.   Failure to notify the NDIS can put the provider’s registration as a NDIS provider at risk.
All agencies and organisations covered by the Privacy Act 1988 (Cth)	Once the threshold for an “eligible data breach” is established, notify the Office of the Australian Information Commissioner and each individual to whom the information relates.  An eligible data breach will occur when there are reasonable grounds to believe that personal information has been accessed or disclosed without authorisation, or has been lost AND the breach is likely to result in serious harm  to the individual whose privacy was breached/whose data was lost.	Noting that you have 30 days to investigate, should your investigation result in a finding that the breach is “eligible”, as soon as practicable after the entity becomes aware of the eligible data breach.	If the Commissioner is aware that there are reasonable grounds to believe that there has been an eligible data breach, the agency or organisation may be directed to make the report to the Commissioner. The Commissioner also have powers to investigate, invite parties to participate in a conciliation and make orders including civil penalties.

In New South Wales, adults who know or believe that a serious indictable offence has been committed by another person are required to notify the NSW Police Force or other appropriate authority of any information which might be of material assistance to them in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence.[5]

We may see more mandatory reporting laws coming into place. The Victorian Government is considering reforms that would require employers to notify WorkSafe of incidents of sexual harassment.

Employers may be concerned about the risk of defaming individuals by reporting a concern to a regulator. However, the common law principle of qualified privilege protects people from defamation action when they make mandatory disclosures to a statutory authority in good faith.

Hasten slowly with the investigation

An employer may be required to undertake an investigation before any employment action is taken. For example, a School or an accredited NDIS provider is required to promptly investigate notifiable incidents. If the Police or other regulators are investigating, then the employer will need to consult with those authorities prior to commencing its investigation, so that the employer does not interfere with those regulatory investigations.

Rarely, if ever, should serious or criminal concerns (including concerns of sexual harassment) be investigated internally. Independence and objectivity will help to ensure that there is trust and confidence in an organisation’s response to the concerns.

When it comes to investigations there is no one-size fits all solution. The appropriate course of action will depend on various factors, including the employer’s sector, its size, its risk profile and the seriousness of the allegations.

How Moores can help

Moores has extensive experience in managing and advising on complex regulatory investigations, including in relation to child abuse, fraud, sexual harassment and criminal conduct. If you need a trusted advisor to support you through this process, please do not hesitate to contact us.

Note: This article contains general information only.  It is not legal advice and should not be relied upon as such. You should always obtain legal advice based on your needs and circumstances before taking action on the matters referred to in this article. 

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[1] See the Department of Health and Human Services’ mandatory reporting webpage for a full list of mandatory reporters.
[2] In Victoria, reporting to DHHS is due to be transferred to the Department of Families, Fairness and Housing, which will be the new government body for child safety matters.
[3] Reportable incidents include the death, serious injury, abuse and sexual misconduct of a person with a disability. See National Disability Insurance Scheme Act 2013 (Cth) s 73Z.
[4] Notifiable conduct includes practising while intoxicated by alcohol or drugs, engaging in sexual misconduct and placing, or being at risk of placing, the public at risk of harm. See Disability Service Safeguards Act 2018 (Vic).
[5] Crimes Act 1900 (NSW) s 316.

Effective 1 July 2021, employers will be required to increase the minimum superannuation contribution to employees from 9.5 percent of “Ordinary Time Earnings” (OTE) to 10 percent.[1]

Depending on whether an employee’s salary is expressed as inclusive or exclusive of superannuation, it may result in decrease in an employee’s take home pay, or increased costs for the employer. Consequently, employers should carefully consider the entitlements owed to workers and whether adjustments must be made.

It is important to get superannuation right because there is no statute of limitations on superannuation.  Furthermore, if an employer underpays superannuation, it is not a simple matter of making an additional payment to the employee’s super account.  The employer is required to pay the money to the ATO together with an administration penalty (75 percent of the liability)[2] and a penalty under Part 7 of the Superannuation Guarantee (Administration) Act 1992 (Cth), which is up to 200 percent of the underpaid superannuation.  Similar to other areas of regulation, self-reporting may reduce the penalty imposed.

The laws governing superannuation can be quite technical. This article sets out some key considerations for employers reviewing their organisation’s superannuation arrangements.

Is remuneration inclusive or exclusive of superannuation?

Superannuation is often framed as an add-on to wages.  This is why we say “the pay for this job is $60,000 plus 9.5 percent super”.  Every time we use the phrase “plus super”, we are saying that remuneration is exclusive of superannuation. 

The benefit of structuring pay as exclusive of superannuation is that it makes it easy to compare the pay rates against Award and Enterprise Agreement rates, because wage rates in Modern Awards and Enterprise Agreements are exclusive of superannuation.

Executives and professionals (including lawyers in law firms) typically have their wages expressed inclusive of superannuation: (e.g. “The salary is $60,000 inclusive of super” or “$54,794 plus 9.5 percent superannuation”).  For this group of employees, their take-home pay will reduce on 1 July 2021.

It is not safe to assume that your organisation’s overall wage costs will consistently increase on 1 July 2021 when minimum superannuation contribution rate increases, especially if your organisation’s offer letters and employment contracts have evolved over time.  Now is a good time to review your employment documents to assess whether employees have their remuneration expressed as inclusive or exclusive of superannuation.

More super than the legal minimum

Some employees receive more than the legal minimum superannuation contribution, either because they salary sacrifice superannuation or their employment contracts say that they are entitled to more superannuation than the legal minimum (which will be 10 percent on 1 July 2021).

The 0.5 percent increase in the minimum superannuation contribution does not automatically mean that all superannuation contributions in your organisation must increase by 0.5 percent. 

It is a good time to revisit your salary sacrifice and employment documentation to consider what the impact is, if any, of the increase in superannuation contributions.

Super for Contractors

The superannuation legislation deems certain contractors (non-employee workers) to be employees eligible to receive superannuation contributions.  The ATO interprets these deeming provisions to mean that your organisation (as the “Principal” in that contractor relationship) needs to make superannuation contributions if the contractor meets all of these criteria:

• the contractor is engaged directly, not through a company, trust or partnership, for whom more than half of the value of that contract is for the contractor’s labour;
• the contractor is paid for their personal labour and skills, not by reference to achieving a result (e.g. contractor is paid an hourly rate); and
• the contractor performs the work personally.

Typically, contractor agreements may push the responsibility for making superannuation contributions to the contractor-worker.  However, this does not exonerate the Principal from the statutory obligation to make superannuation contributions.

Now is a good time to consider whether your organisation has any potential liability for superannuation for any of its contractors, and whether any underpayments or other past practices need to be rectified.

Common items for super

Superannuation is paid on “Ordinary Time Earnings”.  This is a list of common payment types which the ATO has referred to in its key superannuation ruling SGR 2009/2:

Payment type	Super payable?
Overtime pay	No superannuation is payable for this, because by definition, it is overtime. Some employers regularly roster employees to work overtime (i.e. rostered overtime).  The starting point is that this is not “Ordinary Time Earnings” for which an employer needs to pay superannuation, even if it is customarily (or ordinarily) how the employees’ work is scheduled.
Leave payments	Annual leave, long service leave personal leave payments (i.e. excluding any leave loading) are “Ordinary Time Earnings”.  The Superannuation Guarantee (Administration) Regulations 2018 (Cth) exclude certain types of leave payments from superannuation contributions, such as paid parental leave and top-up payments for employees undertaking jury service or voluntary emergency management activities (e.g. CFA volunteering) and defence force service.
Annual leave loading	Annual leave loading is subject to superannuation unless the employer can demonstrate that the annual leave loading is paid to compensate the employee for the loss of opportunity to work overtime.    In our experience, very few employers explicitly state this in their policies, offer letters or employment contracts. For more on this, please see a previous Moores update here.
Allowances	Allowances that are paid as reimbursements (e.g. a car allowance that is paid by the kilometre) is not subject to superannuation. Superannuation is payable on a tool allowance or first aid allowance.

The Court says that is is meant to be simple?

From time to time, it can be difficult to determine whether a particular payment is subject to superannuation. When that happens, it can be helpful to consider the intent of the legislation. Helpfully, the Full Court in Bluescope Steel v AWU said that superannuation legislation aims to provide a simple and efficient way of securing a minimum level of superannuation for workers based on “self-assessment by employers and administration by employers and the Australian Tax Office”.[3]

The upshot is, we need to apply a different lens to superannuation to how we normally look at employment entitlements. Superannuation legislation is not beneficial legislation (beneficial legislation like the Long Service Leave Act is interpreted so that the benefit of the doubt goes automatically in favour of the employee). Superannuation legislation needs to be interpreted with this question in mind: what makes sense given that the system is meant to be simple and easy to administer?

When difficult questions arise in relation to superannuation, it might even be appropriate to approach the ATO for an administratively binding advice. 

With the increase to the minimum superannuation contribution, it is worth looking at whether your superannuation arrangements comply with prevailing standards. It pays to be proactive in this space, particularly as there is no statute of limitations.   

Next steps

In light of these changes, we recommend that employers consider:

• Reviewing worker entitlements to determine if wages are inclusive or exclusive of super;
• If workers are currently paid 9.5 percent super, employers will need to increase this to 10 percent;
• Having discussions with employees – particularly if the changes are likely to impact their take home pay;
• Whether there are any historical superannuation practices that need to be rectified;
• Whether it should ask employees to sign new contracts with more modern terms (particularly if employers wish to absorb the increase without a reduction in the take home pay of workers).

How we can help

For more information on what this might mean for your organisation or how to apply it practically, please do not hesitate to contact us.

Note: This article contains general information only. It is not legal advice and should not be relied upon as such. You should always obtain legal advice based on your needs and circumstances before taking action on the matters referred to in this article. 

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[1] From time to time, we hear news that the Coalition Government is considering delaying this superannuation contribution increase.  At this time, the Coalition Government has not put forward any legislation to change the scheduled increase.
[2] Pursuant to Section 284-75(3) of Schedule 1 of the Taxation Administration Act 1953.  This penalty is known as a TAA default assessment administrative penalty.
[3] Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union [2019] FCAFC 84 (24 May 2019), [43] Alsop CJ

Exemptions from land tax and council rates are available for properties in Victoria that are used for charitable purposes, even if the property is owned by a third party and occupied by the charity under a commercial lease. Despite the availability of these exemptions, some charities are still paying land tax and/or council rates.

Moores has been able to assist in preparing and submitting applications and ensuring that exemptions are provided where properties are used for charitable purposes. Charitable funds don’t come easy and we know that every little bit counts. Land tax and/or council rates can add up and exemptions are a welcome relief, providing extra funds for charities to get on with making a positive difference in the world.

If your charity owns or leases property in Victoria, it’s definitely worth checking whether or not it is unnecessarily paying land tax and/or council rates. Below is some further information regarding eligibility for exemptions.

Land tax

Land tax exemptions are provided for charities under the Land Tax Act 2005.  Exemption is not automatic – it is granted only in response to an application.  In order for a property to qualify for a land tax exemption, the State Revenue Office must be satisfied that:

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

Council rates

Council rates exemptions are provided for charities under the Local Government Act 1989.  In order for a property to qualify for an exemption the property must be used exclusively for charitable purposes.

Land tax and council rates exemptions for charities that are tenants

Charities don’t need to be the owner of a property in order for an exemption to be granted.  A charity that is a tenant can make an application for an exemption for land tax and/or council rates.

You may need authorisation from the taxpayer (the landlord) to make the exemption application.

There is likely to be some benefit in making an application for a tenanted property, since:

• the charity may be directly or indirectly paying land tax and/or council rates through rent and outgoings; or
• the landlord may be willing to pass on, in full or in part, the land tax and/or council rates savings to the charity.

Retrospective exemptions

Applications for exemptions are normally granted for current and future assessments.  However, in some instances retrospective applications may be successful, and it is worth making a retrospective request alongside any request for an exemption for current or future land tax and/or council rates.

How we can help

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

The Victorian Registration and Qualifications Authority (VRQA) has updated its Provider Risk Framework (Framework) that it will use to determine the appropriate level of oversight for each registered provider, including schools. It demonstrates the VRQA’s increased focus on governance and financial viability, while continuing to emphasise the importance of child safety.

Schools should view their own governance and operations through the lens of the Framework, which will enable them to identify areas of greatest regulatory exposure and proactively take steps to mitigate risks and to avoid unnecessary regulatory scrutiny.

Areas of risk

The Framework identifies five key areas of risk being:

1. Student welfare – the welfare of a student is compromised while enrolled with the provider.
2. Students’ interests – the provider fails to meet the needs of students.
3. Governance – the governance structure fails to underpin effective operations and successful management of the provider.
4. Financial viability – financial failure of the provider leading to inability to deliver education or training. 
5. Compliance – insufficient processes in place to ensure compliance with regulations and standards.

Under each area, the VRQA sets out indicators that indicate a lower level of risk is required of that provider and indicators that require an increased level of oversight. The VRQA notes that it may consider other factors.

Key risk indicators

The VRQA has set out some significant indicators of risk. Schools with these indicators are likely to be subject to increased level of oversight and scrutiny by the VRQA. Some of these indicators include:

• Provider delivers to international or exchange students or delivers courses in high risk industries such as operating boarding facilities or overseeing homestay accommodation (student welfare);
• Published curriculum does not clearly show that the eight key learning areas are offered for Years 7-10 (students interests);
• Operation of an unincorporated association or cooperative model (governance);
• Provider operates across state boundaries or internationally (governance);
• High reliance on government funding or dependence on third party loans (financial viability);
• Existence of cross-party or related party agreements (financial viability); and
• Outstanding complaints, matters raised by parents or other regulators or out-of-cycle review activity (compliance).

Red Flags

The VRQA has also identified failure to have required policies and procedures in place as a red flag, such as:

• failing to have adequate student welfare policies (including child safety); or
• lack of business planning documents.

Lessons for schools

The updated Framework aligns with the VRQA’s increased interest in a school’s governance and commercial arrangements. Following the Betrayal of Trust Report in 2013, there is increased pressure on schools that are unincorporated or do not have proper governance structures in place. While there have been several legislative changes to ensure unincorporated entities cannot escape liability for child abuse, it remains an area of significant scrutiny by the VRQA. There is no clear rule that schools in Victoria must be separately incorporated. However, organisations with unincorporated entities should carefully consider their governance structure and ensure that their governing bodies can have sufficient oversight of all schools. In many cases, schools and school systems are being required to restructure in order to meet current regulatory requirements.

The Framework demonstrates that student welfare remains a key priority for the VRQA. This is unsurprising given that in the 2019/2020 year, the VRQA’s assessment of 699 providers found that 43% were non-compliant with the Child Safe Standards / Ministerial Order 870. There was also a 10% increase in complaints received by the VRQA compared with 2018-19, and these were predominantly in the areas of student welfare and child safety.

Organisations that operate multiple schools, especially those that also operate schools in other states, are likely to continue to be a focus of VRQA’s reviews and compliance action. This is particularly where there are related party transactions or lack of transparency regarding business planning, accountability, and oversight by the governing body. Organisations that do operate across multiple states and territories need to be mindful of the unique regulatory regime in Victoria and the often more onerous obligations.

Next steps

We recommend that schools in Victoria take the following next steps in response to the VRQA’s updated framework:

1. Review risk framework – Schools should review and amend their existing risk frameworks to align with the VRQA’s risk framework. In particular, the governing body should be cognisant of the key indicators of risk and ensure it is prepared to address any scrutiny by the VRQA.
2. Strategic planning – It is likely that a school’s corporate structure will continue to be an area of scrutiny both for VRQA and other regulators, particularly in relation to responsibility for child safety. Schools should consider this changing environment in its strategic planning moving forward.
3. Governance training – While most schools have focused their training on their staff members, it is equally important that its governing body such as its Board or School Council also receives training. This is particularly so as many of the obligations under the Ministerial Order 870 are imposed on the “school governing authority” and it is important that your governing body understands their responsibility.
4. Child safety review – It is clear that child safety continues to be an area where the VRQA regularly makes findings of non-compliance. Schools, particularly those between VRQA reviews, should proactively review and amend their child safety documents.

How we can help

For more information or guidance regarding the VRQA’s Provider Risk Framework, please do not hesitate to contact us.

With little fanfare, the Victorian Government has recently passed a significant amendment to the Land Tax Act 2005 (Vic). Special land tax is gone!

Among other things, the State Taxation Acts Amendment Act 2020 (Vic) abolished special land tax in Victoria with effect from 16 December 2020. Many in the property industry and particularly not for profit landowners will breathe a sigh of relief that this land tax trap will no longer exist.

Special land tax is a one-off tax charged when certain types of land that are exempt from land tax cease to be exempt land. The amount of special land tax is significant – 5% of the land’s taxable value. Liability arises at the date when the land ceased to be exempt.

The special land tax liability arose when a certain exemption grounds ceased to apply, including:

• sporting, recreational or cultural land;
• rooming houses;
• residential care facilities or supported residential services;
• residential services for people with disabilities;
• caravan parks and
• land owned by a public statutory authority.

In the parliamentary documents for the amending Act, we are reminded that special land tax was introduced in 1973 to discourage land speculators from claiming spurious land tax exemptions while waiting for land to increase in value. The Government now considers that changes to its tax and planning framework mean special land tax is no longer fit for its original purpose. Arguably, the charging of special land tax discourages redevelopment and in reality, it often fell inequitably on not for profit entities that operated residential care facilities, disability services or cultural activities rather than speculators as originally intended.

As a result of the amendments to the Land Tax Act, from 16 December 2020 special land tax will no longer be assessed when an exempt use ceases to apply to land.  Importantly, special land tax will still be applicable when exempt land ceased to be exempt before 16 December 2020.

The removal of special land tax is positive news for some ‘for purpose’ landowners. No longer will a hefty special land tax charge be a barrier to the consideration of the best use of resources or progressing new strategic directions. For other landowners, special land tax was a potential barrier to redevelopment of land, as most of the exemption categories captured by the special land tax net were large sites with the potential for meaningful infill development. Perhaps this may result in more affordable housing in established areas. Good news for aspiring homeowners too!

Of course, it is rare for the Government to provide a gift without strings attached. We expect these consequences will come in the form of increased audit activity to identify general land tax noncompliance. 

We encourage all landowners to review their most recent land tax assessments and ensure that any anomalies are clarified and if necessary, reported to the State Revenue Office. Self-reporting is generally viewed more favourably than a noncompliance identified in an audit, which may result in significant interest and penalties. 

How we can help

If you require assistance in reviewing your land tax status or addressing any potential noncompliance, get in touch with our experienced team. We can advise you and if required, make submissions on your behalf to the State Revenue Office. For more information, please do not hesitate to contact us.

Welcome to the first 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.

Planning for a loved one

When planning or advising about how to secure the financial security of a loved one with a disability, two prominent goals stand out:

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

In providing protection, it is common to use trusts, where assets will be managed for the person’s benefit by a trustee (choosing a trustee).

To ensure that there is minimal impact on the person’s DSP when providing financial support, an understanding is needed about how Centrelink go about assessing the income and capital of a person receiving the DSP.  The tables below set out the most common tests that apply when Centrelink is making these assessments.

These tables show the standard tests, and can be affected by factors such as the age of the person, if they are getting rent assistance, have children, are permanently blind or living outside of Australia.

Centrelink – Pension Assets Test from 1 July 2020

Full pensions reduce when the assets are more than the limit for the person’s situation:

Situation	Homeowner	Non-homeowner
Single	$268,000	$482,500
A couple, combined	$401,500	$616,000

Part pensions cancel when the assets are over the cut off point for the person’s situation:

Situation	Homeowner	Non-homeowner
Single	$583,000	$797,000
A couple, combined	$876,500	$1,091,000
A couple, separated due to illness, combined	$1,031,500	$1,246,000

The assets that Centrelink will take into account include the value of things like:

• Bank accounts and cash
• Financial investments, such as shares, managed investments, money loaned to others
• Home contents, personal belongings, vehicles
• Real estate (other than the person’s main residence)
• Annuities and other income streams and superannuation pensions
• Businesses, partnerships, private trusts and private companies.

The “attribution rules” introduced into the Social Security Act 1991 (Cth) in 2002, provided the ability for Centrelink to attribute a percentage of the value of the assets and income of a designated private trust or a designated private company for the purpose of means testing a particular individual.  This attribution applies if Centrelink determines that the person can receive a distribution of income or capital from the trust or company.

However, where the trust is an SDT, the attribution rules do not apply in respect of the allowable concessional amount of capital and any right or interest the SDT has in the principal beneficiary’s main residence.  The allowable concessional amount available to the principal beneficiary as at 1 July 2020 is $694,000.

Centrelink – Income Test from 1 July 2020

The standard income test for assessing someone in relation to a DSP is:

Situation	Up to $178 per fortnight	Over $178 per fortnight
Single with no children	Full Pension	DSP reduces by 50 cents for each dollar over $178

Situation	Combined income up to $316 per fortnight	Combined income over $316 per fortnight
A couple living together or apart due to ill health	Full Pension	DSP reduces by 50 cents for each dollar over $316

However, income generated from the investment of assets in an SDT is excluded from the income test assessment of the principal beneficiary.

For income tax purposes, all income generated in the SDT, including unexpended income is taxed at the principal beneficiary’s marginal rate, rather than the highest marginal rate.

How we can help

If you or someone you are advising, are wanting to provide financial support (either during their lifetime or after their death) to a person who is receiving the DSP, the ability to use a SDT to hold assets and generate income could be the answer to both protecting the assets and preserving the DSP.

Look out for the next article in our series, when we discuss the eligibility requirements for a person to be the beneficiary of a Special Disability Trust. For more information or guidance, please do not hesitate to contact us.

Many of us are looking forward to the roll-out of the COVID-19 vaccine as a key milestone along the path to “normal”. Some employers are keen to see their employees vaccinated because it reduces COVID-related risk for all in the workplace, clients and employees alike.

Key Updates

• The priority COVID-19 vaccination program will commence in late February followed by community vaccinations from May 2021. The roll out will be in phases with the top priority being quarantine and border workers, priority groups of frontline healthcare workers (as agreed with State and territory governments), aged care and disability care staff, and aged care and disability care residents. The summary of the current roll-out strategy is available here. (Note that under 18s will only be vaccinated if medical advice indicates that it is safe to do so.)

• The COVID-19 vaccine will be free for all Medicare-eligible individuals.

• So far, the Federal, State and Territory Governments have indicated that COVID vaccinations will not be compulsory, but they will strongly encourage people to be vaccinated. 

• The Federal Government has stated that it does not intend to add the COVID-19 vaccine to the “No Job No Play” policy. The “No Jab No Play” policy is a Federal policy that withholds certain benefits and rebates from parents whose children have not received key vaccinations. It also imposes penalties on childcare centres that admit unvaccinated children.

• In 2020, the Victorian State Government passed the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic) which allows the Secretary of the Department of Health to issue directions to the Ambulance Service, public and private hospitals, day procedure centres and mobile health services to require persons employed or engaged at the establishment to be vaccinated or to prove immunity against a specified disease. The legislation says that the Secretary’s directions do not constitute discrimination on the basis of political belief or activity or religious belief or activity under Victorian equal opportunity laws. 
  
  When introducing this legislation, the Victorian Government justified this measure on health and safety grounds as part of its statement of compatibility with the Charter of Human Rights and Responsibilities, noting that:
  
  
  • vaccines are highly effective and safe,
  • healthcare workers are at particular risk of being infected with communicable diseases and transmitting those preventable diseases,
  • the Secretary’s direction under this legislation does not mandate that people will be vaccinated without consent. A refusal to be vaccinated will have consequences on the worker’s employment.

Are employers legally permitted to require its employees to be vaccinated?

An Occupational Health & Safety (OH&S) Question

Vaccine policies have been around for many years, particularly in the health sector.  Under State and Territory OH&S laws, employers and occupiers of workplaces (Duty Holders) are required to ensure, so far as is reasonably practicable,[1] the health and safety of their workers and third parties such as customers or clients. Employees are also required to take reasonable care of their own health and safety and of others’ health and safety in the workplace. 

A Duty Holder needs to eliminate the risk to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate it, it must reduce the risk as far as reasonably practicable.[2] In the context of COVID-19, employers should consider the following:

Factors relevant to what is “reasonably practicable”[3]	COVID-19 – Generally	Workplace specific issues
The likelihood of the hazard or risk concerned eventuating.	COVID-19 is more contagious than many communicable diseases we have seen, with certain strains more contagious than others.	Some workplaces where social distancing is difficult or personal touch is inherently part of the service will have a higher likelihood of the COVID-19 risk eventuating.
The degree of harm that would result if the hazard or risk eventuated.	The consequences of contracting COVID-19 can be extremely serious. Whilst certain “at risk” groups are known, there are many outside those at risk groups who have died after contracting COVID-19.	Some businesses serve particularly vulnerable clients, such as older people and people with disabilities.
What the Duty Holders knows about the hazard or risk.	Whilst our knowledge of COVID-19 is increasing, there is much that is still unknown.	The knowledge a Duty Holder should have about the virus is probably similar across all sectors. All Duty Holders have an obligation to understand the risks.
The availability and suitability of ways to eliminate risk.	A vaccine is the most straightforward way of reducing (not eliminating) the risk, but there are other ways, such as regular cleaning, providing personal protective equipment, avoiding shared tools, and providing appropriate amenities.	Some workplaces might have other methods of managing the risk (e.g. having all employees working from home). A 100% working from home model is unlikely to be practicable for the majority of employers in the medium to long term.

Employers also need to consider how they should consult with employees about their vaccination strategy. Under the Victorian OH&S Act,[4] employers are required to consult with affected employees when making decisions about measures to be taken to control risks to health and safety. A policy that has been subject to consultation is less likely to be challenged by employees, and a court might take that into account in assessing the reasonableness of a business’ vaccine policy.

OH&S is not a carte blanche – Lawful and reasonable directions

OH&S considerations might make a vaccination policy/directive lawful. Employees are only required to follow “lawful and reasonable” directions from their employer.

In a recent Fair Work Commission case, Deputy President Asbury indicated that a policy requiring mandatory vaccination may be lawful and reasonable in the context of the employer organisation’s operations which involved the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.[5]

What is reasonable in one workplace and one employment context, might not be reasonable in another. The important case of Glover v Ozcare is currently before the Fair Work Commission and is expected to provide additional guidance for employers on the lawfulness and reasonableness of vaccines. Employers are encouraged to seek legal advice in relation to their specific operations.

No law against encouraging employees to get a vaccine

After going through the above analysis, some employers might consider that it can effectively manage OH&S risks by encouraging employees to get vaccinated, for example, by offering paid time off for employees to get the vaccine.

I want to mandate vaccinations. What should I do?

While we wait for specific guidance from the Courts or the Fair Work Commission on an employer’s right to mandate vaccines, here are some things to bear in mind:

• Can risks be effectively managed by encouraging employees to obtain the vaccination rather than requiring it?
• If you’d like to make vaccination a condition of employment for new and existing staff, is vaccination an inherent requirement of an employee’s job, and is it adequately addressed in your policies and employment contracts?
• Consider the factors outlined in the above table on a role or team basis. In particular, consider whether all employees need to be vaccinated. It may be that only those employees that work with vulnerable individuals or cannot work from home need to be vaccinated.
• Address the possibility that an employee might not be able to be safely vaccinated for health reasons. What evidence might you require to grant a medical exemption under your policy? How would you manage the health and safety of that unvaccinated employee, and those in contact with them?
• Consider how you would consult with employees about your vaccination policy?

How we can help

For more information or guidance regarding mandatory vaccinations or employment advice regarding COVID-19, please do not hesitate to contact us.

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[1] All Australian OH&S legislation, except WA, expresses the duty as requiring the employer/occupier to do what is “reasonably practicable” standard. The “practicability” standard in WA is interpreted as effectively meaning the same as “reasonably practicable”.
[2] Section 20(1) of the Occupational Health &Safety Act 2004 (Vic). Other State and Territories’ OH&S legislation imposes similar duties.
[3] Section 20(2) of the Occupational Health &Safety Act 2004 (Vic)
[4] Section 35 of the Occupational Health and Safety Act 2004 (Vic)
[5] Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083, [32].