One of the most common questions our Commercial Real Estate team receives from non-profit entities is whether sharing use of their facilities with others will cause a land tax problem.

Here, we provide some guidance on this complex issue.

Land tax overview

All land in Victoria is subject to annual land tax, unless an exemption applies under the Land Tax Act 2005 (Vic).

Land tax is assessed annually on the basis of land ownership as at midnight on 31 December of the year preceding the assessment year. For example, the land you own at midnight on 31 December 2024 is used to calculate your land tax liability in 2025.

The “charitable use” exemption

Section 74 of the Land Tax Act provides an exemption from land tax for properties which are used and occupied by a charitable institution exclusively for charitable purposes.

Therefore, to gain an exemption under Section 74, two distinct limbs must be satisfied:

• The user is a charitable institution (noting that the State Revenue Office (SRO) has specific requirements on what qualifies as a charitable institution for these purposes – ACNC registration is not necessarily determinative, although is usually a good indicator)
• The property is used and occupied by that entity exclusively for charitable purposes (this requires a consideration of the purposes of the entity as set out in its governing document, along with consideration of the activities which it carries out at the property)

Where only a part of the land meets the requirements for the charitable use exemption, that part of the land is exempt from land tax, and the remaining land is subject to land tax unless another exemption applies to it.

It is important to be aware that the exemption is only available upon application to the SRO – generally you will only receive an exemption if you have applied for one.

The issue

The exclusivity requirement was added to Section 74 in 2021, and has created concern for many charities who had traditionally shared use of their facilities with the local community.

The SRO has issued a public ruling (Ruling LTA-009) which provides guidance on how the exemption is interpreted and applied by the SRO in practice, but it cannot – and does not – cover every possible scenario.

Non-profit organisations therefore need to be aware that the wording of the legislation and the associated policy creates some grey areas – some uses unquestionably qualify for exemption, but many other common uses are less certain.

The following table illustrates the issue based on a number of common scenarios, using a traffic light system:

Green light	The property is used and occupied solely by one charitable institution for the charitable purposes of that entity – for example, a property owned by a church property trust and used by a church congregation exclusively for church activities.
Green light	The property is occupied by a charitable institution which allows other charitable institutions to use it for a nominal fee – such as a church which allows a domestic violence charity to hold weekly support groups in the church hall.
Amber light	The property is occupied by a charitable institution which allows other non-charitable entities to use it. Our experience handling such matters with the SRO suggests that the level of risk from a land tax perspective depends on the nature and extent of the non-charitable use, and the fees which are paid by the non-charitable user. At the low risk end is occasional use by a community group in exchange for a nominal donation. These kinds of uses will usually be viewed by the SRO as not affecting an existing charitable use exemption. At the opposite end of the spectrum, regular use for extended periods for a fee equivalent or close to a market rent would be a high risk use. The further along this spectrum, the greater the risk of triggering a land tax liability. Certainty can be obtained by applying to the SRO for a private ruling in respect of the specific property.
Amber light	The property is owned by a charitable institution, but leased to a residential tenant at a discounted rate (for example, a former church manse which is leased to a congregation member in need at 50% of the market rent would be a low-risk use).
Red light	The property is owned by a charitable institution, but leased to a commercial business.
Red light	The property is owned by a charitable institution, but leased to a residential tenant at market rates (for example, a former church manse which is leased to an unrelated third party).

It is the property owner’s responsibility to report any incorrect assessment to the SRO each year – whether a property is being incorrectly accorded an exemption, or whether a property with an exempt use is being assessed for land tax. If a property is incorrectly accorded an exemption and the taxpayer does not notify the SRO, the SRO can impose heavy penalties if it picks up on the issue through its own investigations.

If you are uncertain about whether your property qualifies for exemption (whether you are receiving an exemption or not), it is therefore a good idea to seek advice from a lawyer or another professional advisor with specific expertise in the land tax field.

Where a charity shares use of their facilities with a third party, there are a number of steps which should be considered in order to reduce the risk of an unexpected land tax liability arising. These may include documenting the terms of the hire arrangement and, depending on the terms of the hire, notifying SRO of the arrangements. A lawyer with experience in the field can advise on whether any such steps are recommended in your specific circumstances, and assist you with putting the appropriate documentation into place.

How we help

The Commercial Real Estate Team at Moores has extensive experience in assisting non-profit organisations with land tax matters and can provide strategic advice tailored to your specific property use, helping to guard against an unexpected land tax liability.

Contact us

Please contact us for more detailed and tailored help.

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

---

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

Disputes over Wills can be stressful, costly, and unexpected. Whether you’re making a Will, administering an estate, applying for Probate, defending a challenge to a Will or questioning your exclusion as a beneficiary, understanding the main ways Wills can be challenged is essential.

The two main ways Wills are challenged is challenging the validity of the Will itself, or by a claim challenging whether the Will-maker has made adequate provision for someone they have a moral obligation to provide for (testator’s family maintenance).

1. Validity disputes

Testamentary capacity

For a Will to be valid, the Will-maker (testator) must have had testamentary capacity when creating it. This means they need to:

• Understand what a Will is and its effect;
• Have a general idea of what property they own and what they are giving away in their Will;
• Recognise any likely claims against their estate or people who they should be considering when disposing of their assets;
• Make decisions about the disposition of their property free from irrational beliefs or delusions.

Testamentary capacity is usually presumed, but this presumption can be rebutted. If the testator did not have testamentary capacity, then the Will is invalid.

Knowledge and approval

A person making a will is presumed to know and approve its contents. Challenges may arise about the testator’s knowledge and acceptance if there are questions about testamentary capacity or suspicious circumstances around the creation of the Will. If there are suspicious circumstances regarding how the will came about, this can mean the party trying to prove the will needs to positively prove the testator had testamentary capacity and knew and approved what was in the will.

Undue influence (in relation to Will-making)

If someone improperly influences a person to change their Will, or create a new one, the Will may be invalid due as a result of it having been procured by undue influence. To invalidate the Will, it needs to be shown that there was actual coercion that overbore the testator’s own free will to do a Will in the form they wanted. The level of undue influence and coercion required to succeed will depend on all of the circumstances, including the testator’s vulnerability to influence.

Before disputing the validity of a Will, the terms of the previous valid Will should be investigated. Sometimes the terms of the previous Will are no more favourable to the person considering challenging the Will than the current Will.

2. Testator’s family maintenance

In Australia, it is accepted that we are free to dispose of our assets however we want, including through a Will: we have “testamentary freedom”. But the courts can intervene when this freedom is abused.

Eligible persons, such as spouses, children or financial dependants, can apply for further provision from the estate when they have been left out or are inadequately provided for. These claims are called testator family maintenance claims, further provision claims, or, in Victoria, Part IV claims.

A testator family maintenance claim is not a dispute about ensuring equality between beneficiaries (for instance, children of a deceased). To be successful, applicants must establish that:

• the deceased owed them a moral duty to adequately provide for their support and maintenance;
• the deceased has failed that duty;
• they have need for further provision than what the Will provides.

3. Estoppel

In addition to the more common types of claims discussed above, if the deceased promised to leave specific assets or benefits to someone after their death, and this promise isn’t honoured in the Will, the person to whom the promise was made may be able to enforce the promise. They must be able to show that they relied on the promise and have suffered loss because of it.

Estoppel claims often arise in relation to estates that contain shares or property related to a family business, especially farming properties.

Act Quickly

Timing is critical. Each type of claim has its own strict time limits as to when you can make an application. Failure to make a claim by the relevant deadline can mean you are unable to challenge the Will, or otherwise pursue legal rights.

How we can help

The Estate Litigation Team at Moores is one of the largest and most experienced in Australia, and can advise and guide you through your challenges or disputes related to Wills and estates.

Additionally, you can:

• download our Estate Planning Checklist; or
• use our online Estate Planning Assistant to get started online, in your own time and space. It will ask you a series of questions, and provide valuable feedback.

Contact us

Please contact us for more detailed and tailored help.

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

---

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

A person’s Will only governs assets that form part of their “estate”. Therefore, when a person dies, a key responsibility of their executor is to identify which assets do, and which assets do not, form part of the estate.

Whilst this distinction may appear obvious, there are several assets that people typically consider part of their overall wealth, that will not form part of their estate, to be governed by their Will. 

But even where an asset may not strictly form part of an estate, it is important for an executor to appreciate how it is dealt with, as it may require involvement from the executor, or it may ultimately impact the distribution of estate assets.

For an executor to fulfil their role properly, in a manner that reduces their exposure to liability, it is therefore crucial that an executor understands the difference.

Estate assets

Only the assets (and liabilities) that are owned personally by a person, will form part of their estate. This typically includes assets such as shares, bank accounts and real estate, that are registered or owned in the name of the deceased. Whilst this is not always the case, it is a good starting point.

Where the asset does not have a formal register of ownership (like personal items), then further investigation is required to determine the beneficial owner and will depend on the circumstances surrounding its acquisition and ownership.

Non-estate assets

The following are examples of assets that will not form part of an estate and will require different treatment.

Jointly held assets

Assets that are jointly held by the deceased and another person typically do not form part of an estate, as they are dealt with in accordance with the principle of survivorship, meaning that the deceased’s interest in the asset will automatically pass to the surviving owner. This is because the deceased and the surviving owner did not hold separate severable interests in the asset – but together held an interest in the entirety of the asset.

The most common examples are the jointly held matrimonial home and jointly held bank accounts. It is for this reason that a person may not leave an estate when they leave a surviving spouse. 

However, the precise form of joint ownership is important. In relation to real estate, the principle of survivorship will only operate if the property is owned with another person as ‘joint proprietors’. If it is owned as ‘tenants in common’, then the deceased’s interest in that property will form part of their estate and their executor will be obliged to deal with it as part of the administration of their Will.

Superannuation

Superannuation does not automatically form a part of a person’s estate. This is because super is held in trust for the person by the trustee of the superannuation fund.

Though, whilst super may not initially form part of the estate, an executor must make enquiries with the superannuation fund as to where payment is proposed to be made, including whether the deceased left any binding nominations.

The executor should also consider making a claim for payment on behalf of the estate given their obligation to maximise the assets of an estate for the benefit of the beneficiaries, which obligation can cause a conflict of interest for the executor, if not handled carefully.   

Where payment will ultimately be made depends on several factors, including whether a binding nomination was made and whether the deceased left persons who are considered dependents for superannuation purposes.

If the super is ultimately paid to the estate, then the executor must deal with it in accordance with the person’s Will.

Assets held in trusts

Assets held in a trust do not form part of a person’s estate. 

This is because trust assets are not held personally by the deceased person and remain assets of the trust to be dealt with in accordance with the rules of the trust (which are typically set out in a ‘deed of settlement’). This is the case even where the deceased funded the acquisition of the assets or is the ‘primary beneficiary’ of the trust.

To complicate matters, it is not always obvious when somebody owns assets personally or as trustee of a trust and trusts may be implied (as opposed to express), such that their existence is not always apparent. 

And even when a trust exists, an executor must examine whether there are any interests or roles that they need to consider; for instance:

• whether the trust owed the deceased person assets (such as beneficial loans or unpaid present entitlements); this will typically be evident upon examination of the trust’s financials; and
• whether the executor is obliged to step into any controlling roles on behalf of the trust (such as trustee, appointor or guardian), which may be determined by examination of the deed of settlement.

Therefore, at the very least, the executor should ensure they review the financial statements and the deed of settlement (and any amendments) of any trusts that the deceased had involvement with.

How we can help

The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and can assist you in preparing your Will to ensure that your assets do not end up somewhere unexpected.

Additionally, you can:

• download our Estate Planning Checklist; or
• use our online Estate Planning Assistant to get started online, in your own time and space. It will ask you a series of questions, and provide valuable feedback.

Contact us

Please contact us for more detailed and tailored help.

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

---

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

When does faking a sick day to watch a footy game cross the line from a questionable choice to grounds for dismissal? A recent Fair Work Commission (FWC) decision highlights that a fabricated sick leave claim can justify an employee’s summary dismissal. The case of Fuller v Madison Branson Lawyers Pty Ltd [2025] FWC 784 provides valuable insights for employers on managing dishonest conduct by employees and the action that employers can take in response to malingering.

Background

Mr. Fuller, a Melbourne based solicitor, planned an interstate trip for the AFL ‘Gather Round’. Despite booking flights and AFL tickets earlier in the week, he didn’t request leave. Instead, after flying to Adelaide, he emailed work on Friday claiming he was unwell and unable to come in. He then spent the weekend socialising and attending games. While driving home from Adelaide on Monday, he again emailed his employer claiming “discomfort” prevented him from using public transport. He obtained an online medical certificate for Monday and later provided a (false) statutory declaration to support his application for personal leave on Friday. His employer, Madison Branson Lawyers (a small business), later discovered social media photos of his Adelaide trip. Following an investigation where Mr Fuller was evasive, he was dismissed for serious misconduct due to dishonesty.

FWC Decision

Deputy President Andrew Bell upheld the dismissal as fair for the following reasons:

• the dismissal was consistent with the Small Business Fair Dismissal Code. The employer reasonably believed Mr. Fuller’s dishonesty was serious misconduct justifying immediate dismissal;  
• dishonesty (false emails and statutory declaration, wrongly claiming sick leave) constituted valid reasons for dismissal under s 387 of the Fair Work Act 2009 (Cth);  
• Mr Fuller failed to prove he was unfit for work due to illness on the relevant days. Planning the trip and admitting he could physically attend work contradicted his claim. Feeling stressed or needing a break doesn’t satisfy the criteria (as the commissioner said, there are not many people whose outlook wouldn’t improve by taking a paid day off to spend with friends);
• an online medical certificate obtained without consultation held diminished weight. The FWC also found Mr. Fuller gave false evidence during the hearing, calling it “inexcusable” for a solicitor.

Deputy President Bell noted that Mr. Fuller’s conduct and attitude was “utterly incompatible with his ongoing employment as a solicitor at the firm, where integrity and honesty are paramount”. Not only did Mr. Fuller make false representations to his employer, but he was also found to have given false evidence to the FWC.

While the decision has been welcomed by employers, it has also prompted an important discussion about the interplay between neurodiversity, mental health, and leave. While mental health conditions are recognised as a potential ‘illness’ under the Act allowing for personal leave, the employee must be unfit for work because of that illness. Mr. Fuller, who has ADHD (unknown to the employer), made submissions that burnout necessitated a ‘mental health day’. However, the FWC found that feeling stressed or needing time off didn’t automatically meet the Act’s requirements for paid leave, distinguishing this from being incapacitated by illness. The decision underscores that despite the obligations of employers to regarding psychosocial risks, employees must satisfy leave criteria and remain honest.

Key takeaways for employers

• Employees can apply for personal leave on the basis of their mental health, but it must be genuine and honestly communicated. Malingering and deliberately misleading an employer about leave may warrant an employee’s summary dismissal.
• Paid personal leave requires genuine unfitness for work due to illness. It’s not for pre-planned leisure.
• Social media can provide a valid source of evidence that an employee was fit for work.
• Compliance with the Small Business Code provides significant protection against unfair dismissal claims for small business employers. A reasonable belief based on reasonable grounds is key.
• Employers must conduct reasonable investigations and give employees a reasonable opportunity to respond.
• Questionable medical evidence can be challenged and dishonest claims may constitute fraud.

What should employers do now?

• Ensure policies and contracts are clear on entitlements to leave, leave notice and evidence requirements, and expected standards of honesty, and consistent with National Employment Standards/relevant industrial instruments.
• Conduct fair, documented investigations into suspected misconduct, putting clear allegations to the employee.
• Small businesses should understand and utilise the Small Business Fair Dismissal Code where applicable.
• Take steps to monitor and prevent burnout and psychosocial hazards of staff. 

How we can help

Managing employee conduct, leave entitlements, and honesty requires careful navigation. The Moores Workplace Relations team provides pragmatic, commercially focused advice to help employers manage these situations effectively.

Contact us

Please contact us if you would like further information on how we can assist.

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

---

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

Spoiler warning!

For those who have been living under a rock, the new hit show Adolescence has everybody talking. Based in the UK, at the centre of story is a 13-year-old boy, Jamie Miller, who is accused of murdering his female classmate, Katie.

The show, with its one-take hour long episodes, has mesmerised viewers and prompted a healthy international debate around the world on the topic of physical violence and online harm.

Watching this show through the lens of someone who works in the child safety and safeguarding space, there were 3 parts of the show that grabbed our attention.

The first point that struck us was the profound detrimental impact the online environment is having on children’s psyche and wellbeing.

In the show, it is revealed that in the lead up to her murder, Katie shared a private topless image of herself with a male classmate, who, without Katie’s consent, distributed the image to his other male classmates. In an engrossing conversation with his forensic psychologist Jamie admits that he pursued Katie romantically because he thought his romantic prospects with Katie were improved because of the harm Katie has suffered to her reputation. In a complicated twist, it is also revealed that following Jamie’s romantic approach to Katie, he is bullied by Katie and his other classmates online, including via Instagram posts which, using emojis, ridicule Jamie and label him as an incel and part of the ‘red pill community’.

It is clear the bullying and toxic online environment have an immense impact on Jamie, Katie and other children at the school. In the episode with the forensic psychologist, Jamie flips chaotically between self-hatred, misogyny and ferocious anger at a world which he perceives as being biased against him and other boys.

The second point that struck us was the utter confusion and lack of understanding shown by every adult in the show about the challenges young people are facing online. This is most powerfully demonstrated in episode 2, when the police detectives try to find answers at Jamie and Katie’s school. The detectives are hopelessly out of their depth and misconstrue the online interactions between Jamie, Katie and their other classmates. They incorrectly believe that Katie was friendly with Jamie online when she was actually bullying him.

Online bullying at the school is rampant, affecting most students. There appears to be no systemic approach to managing the issue of online harm at the school, and the teachers are overwhelmed and ill-equipped to support their students to deal with it. This leads to a defeatist attitude from teachers who throw their hands up in the air because it is all too hard.

The third powerful point in the show for us was the heartbreaking despair shown by Jamie’s parents as they ponder whether there was anything they could have done differently to protect Jamie, see the signs and steer him in a better direction.  Jamie’s father recalls buying Jamie a computer and a headset, and thinking he was doing the right this for his child who would be safe in his room at home. Jamie’s mother recalls Jamie being online in his bedroom until 1am every night, and her not realising what was happening to Jamie as he sat in front of his computer night after night.

Laws prohibiting intimate image abuse and deep fakes under Victorian and Australian Federal Laws

In Adolescence, Katie’s intimate image was shared online by one of her classmates.

This conduct, if it occurred in Victoria, would be criminal conduct.

Under section 53S of the Crimes Act 1958 (Vic), if a person (A):

• intentionally distributes an intimate image of another person (B) to another person (C); and
• the distribution is contrary to community standards of acceptable conduct; and
• person (B) did not consent the distribution of the image or the manner in which the image was distributed; that person (A) is guilty of an offence.

The penalty is up 3 years imprisonment. Consent is irrelevant if person (B) is under 18 years of age.

Under section 53T of the Crimes Act 1958 (Vic),if a person (A):

• threatens another person (B) to distribute an intimate image of (B) or another person (C); and
• the distribution is contrary to community standards of acceptable conduct; and
• (A) intends that (B) will believe they will carry out that threat; that person (A) is guilty of an offence

The penalty is up 3 years imprisonment.

These Victorian offences clarify that:

• consent means free and voluntary agreement;
• a person doesn’t consent to the production or distribution of an intimate image just because they consented:
  • to a different image;
  • on a different occasion;
  • to an image being taken or shared in a different way (i.e. video vs photo, or text message vs social media); or
  • to an image being distributed to a different person.
• consent to the production of an image doesn’t mean consent to distribution of an image; and
• a person distributing their own image does not consent to another person distributing that image (or a different one).

There are also a range of federal offences that may be relevant to this conduct.

For example, under section 75 of the Online Safety Act 2021 (Cth), a person (A) must not post or threaten to post an intimate image online of another person (B) without (B)’s consent. The eSafety Commissioner has the power to issue a removal notice or formal warning and can make a civil penalty order of up to 500 penalty units (currently $165,000).

Under section 474.17 of the Criminal Code 1995 (Cth), it is an offence to use a carriage service in a way that reasonable persons would regard as being menacing, harassing or offensive. Under section 474.17A, there is also an offence to target those who use technologies to artificially generate or alter sexually explicit material (such as deepfakes) for the purposes of non-consensual sharing online. These offences are subject to serious criminal penalties of up to six years imprisonment for sharing of non-consensual deepfake sexually explicit material.

Australian context

It is not enough in today’s world to say that online harm is all too hard to address. Online abuse is not just happening overseas or in fictional TV shows like Adolescence.

In 2023-24, the eSafety Commission received 7,270 reports about image-based abuse and requested removal from more than 947 locations across 191 platforms and services.

In February 2025, two Year 11 students from Gladstone Park Secondary College were suspended pending a police investigation after fake sexually explicit images of up to 60 students from the school were circulated online.

The risks are real, and it is incumbent on organisations that exercise care, supervision and control over children (and parents) to deeply consider ways to empower students to be safe online, and support students to understand their rights and options if they are victims of online abuse.

Key takeaways

There are many lessons that could be taken from this show, but for us, two key lessons are:

1. Schools and organisations that exercise care, supervision and control over children have a duty of care to keep children safe. In this new era of online harm, this means they should:
   • train their staff to understand and respond to risks to children in the online environment;
   • develop meaningful, systematic strategies to address and prevent bullying and online harm; and
   • equip children in their care, supervision or control with the knowledge, skills and confidence to be safe online.
2. Parents should take steps to understand the risks associated with the online environment so they can better understand what their children are being exposed to and support them to promote respectful behaviours online.

How can we help?

Our child safety and safeguarding team helps organisations with incidents of online harm between students and can provide support in navigating any investigations that may arise.

Moores can also provide tailored training about online harm for staff and support organisations that provide care, supervision and support to children to develop meaningful strategies for preventing and responding to online harm at their school.

Contact us

Please contact us for more detailed and tailored help.

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

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

Expansion of hate speech laws in Victoria

The Victorian government has passed new laws¹ to expand the scope of hate speech laws. The new laws amend the Crimes Act 1958 (Vic) and Equal Opportunity Act 2010 (Vic) to expand protection from vilification to people based on disability, gender identity, sex, sex characteristics or sexual orientation in addition to race and religious belief or activity. These new laws will replace the Racial and Religious Tolerance Act 2001 (Vic), with commencement of criminal and civil provisions coming into operation on 20 September 2025 and 18 September 2027 respectively, unless proclaimed earlier.

These laws introduce offences for serious vilification and inciting hatred and threatening physical harm or property damage on the basis of a person’s disability, gender identity, race, religious belief or activity sex, sex characteristics, sexual orientation, or personal association with a person with any of these attributes. Serious vilification includes a broad range of seriously hateful conduct. Prohibiting serious vilification is intended to protect the dignity and health of all people and promote full and equal participation in all social, political, economic and cultural aspects of public life.

The offence of inciting hatred carries a maximum penalty of three years imprisonment whereas the offence of threatening physical harm or property damage carries a maximum penalty of five years imprisonment.

Body corporates can be liable for offences under the new laws, and an officer of a body corporate can be guilty of an offence if they authorised or permitted the conduct or they were knowingly concerned in any way in the commission of the offence.

Additionally, there is a pathway for people to make a complaint about vilification to the Victorian Equal Opportunity and Human Rights Commission. There are exceptions that can apply, such as where conduct was engaged in reasonably and in good faith and:

• in the performance, exhibition or distribution of an artistic work;
• for any genuine academic, artistic, public interest, religious or scientific purpose; or
• reporting a fair and accurate report of any event or matter of public interest.

Conversion practice laws introduced in South Australia and New South Wales

Bans on conversion and suppression laws have come into effect in South Australia and New South Wales this month.

South Australia

As of 1 April 2025, it is a criminal offence in South Australia to engage in a practice directed to changing or suppressing the sexual orientation or gender identity of another person that causes serious harm.² The maximum penalty is imprisonment for five years.

What is allowed?

The Conversion Practices Prohibition Act 2024 (SA) (SA Act) contains qualifications and exceptions which significantly narrow the scope of the offence. Specifically, the SA Act states that a conversion practice does not include:

• a health service or treatment provided by a registered health practitioner that:
  • they have assessed as clinically appropriate in the registered health practitioner’s reasonable professional judgement; and
  • complies with all relevant legal, professional and ethical requirements;

• genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs, including by providing acceptance, support or understanding to the individual; or

• the use by a person, without more, of the following expressions:
  • an expression, including in prayer, of a belief or principle, including a religious belief or principle;
  • an expression that a belief or principle ought to be followed or applied.

The legislation appears to have been drafted to reduce or limit the impact on religious teachings, prayer, sermons and general discussions of religious beliefs relevant to gender identity and sexual orientation. 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. 

The SA Act provides the following examples of what does not constitute a ‘conversion practice’:

• stating what relevant religious teachings are or what a religion says about a specific topic;
• general requirements in relation to religious orders or membership or leadership of a religious community;
• general rules in educational institutions; and/or
• parents discussing, or providing guidance on, matters relating to sexual orientation, gender identity, sexual activity or religion with their children.

New South Wales

As of 3 April 2025 in NSW, it is unlawful to engage in a ‘conversion practice’ directed to changing or suppressing an individual’s sexual orientation or gender identity and causes mental or physical harm that endangers their life or is substantial. The Conversion Practices Ban Act 2024 (NSW) (NSW Act) makes conversion practices, which can include ‘conversion therapy’ and suppression practices, a crime punishable by up to five years’ imprisonment. 

The NSW Act contains the substantially similar exceptions and qualifications about what is and is not a change and suppression practice as the SA Act.

It is an offence for a person to provide or deliver a conversion practice to an individual with the intention of changing or suppressing the individual’s sexual orientation or gender identity and the practice causes mental or physical harm to the individual that endangers the individual’s life or is substantial. This can include psychological or medical interventions, counselling, or subtle and repeated messages that LGBTQ+ people can change or suppress their sexual orientation or gender identity with faith or effort.The maximum penalty is imprisonment of five years.

It also creates a scheme allowing civil complaints about conversion practices to be made to Anti-Discrimination NSW and complaints can be referred to the NSW Civil and Administrative Tribunal (Tribunal). The Tribunal can order up to $100,000 compensation to a person affected.

Importantly, principals and employers may be liable for the conduct of an employee or agent unless they took all reasonable steps to prevent the contravention.

Both jurisdictions also have offences for taking a person outside of their state with the intention to deliver a conversion practice.

What does this mean for your organisation?

There are several lessons for organisations affected by the reforms:

• organisations in Victoria should also consider updating their workplace policies and codes of conduct to clarify that hate speech and serious vilification are unlawful; and
• faith based organisations in South Australia and New South Wales should provide practical guidance to employees and agents on the extent to which they can lawfully engage with matters of faith relevant to sexual orientation and gender identity. This will help to minimise the significant risks associated with harmful conversion practices, and the risk of criminal offences and financial penalties.

Contact us

Our Safeguarding team can provide more information about these reforms or the potential impact on your organisation.

Please contact us for more detailed and tailored help.

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

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

---

1. Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024 (Vic) ↩︎
2. Conversion Practices Prohibition Act 2024 (SA) ↩︎

A recent article by ABC News highlights the importance of asset protection where second relationships are concerned.

Millie was aware that she was in a de facto relationship but thought her home was protected because her partner, Paul never paid any bills associated with the property and was not listed on the mortgage. This was not the case.

Millie had previously been in a 10 year marriage and shared a son with her ex-husband. Mille and Paul dated on and off before they commenced a de facto relationship in 2012 when Paul moved into her home.  Paul entered the de facto relationship with a tax debt. He also owned a home which he sold during the relationship and applied some of the proceeds of sale toward the family’s living expenses for the benefit of Millie and her son. He built a carport at Millie’s home. Millie maintained that his contribution toward these expenses and labour were in lieu of him paying rent or board.  In 2018 Millie and Paul separated.

Millie did not realise that under Family Law, Paul’s tax debt could be considered a joint liability despite being in his name only. The first step in reaching a financial settlement in Family Law is to determine the property pool (assets and resources) available for distribution between the parties. This involves identifying all assets including superannuation and liabilities and financial resources. All assets may be taken into account including those owned jointly, individually, or by a family trust or company. What is ultimately taken into account is at the Family Court’s discretion.

Paul, a sole trader, had not been filing his tax returns. Following the separation, he filed over a decade of returns and in total owed $300,000 to the Australian Taxation Office (ATO). Prior to the commencement of the de facto relationship, Millie helped Paul write a letter to the ATO to be put on a payment plan for a $50,000 tax debt. She maintained that she never thought of it again and did not realise Paul had such a significant tax debt.

Ultimately the Family Court found that Paul’s tax debt was a joint liability which formed part of the property pool available for distribution between the parties, on the basis that Millie was aware of it or at least his reluctance to file tax returns. Millie benefited from expenses paid by Paul. His non-payment of tax enabled him to have more income to meet these expenses. Millie did however receive a 15 per cent adjustment of the net property pool in her favour in recognition of Paul accumulating an ‘unnecessary’ tax debt. Millie was ordered to pay Paul the sum of $500,000. She could not afford to do so, so her home of 27 years was sold to pay Paul out.

It is becoming more common for people in second relationships to enter into a Financial Agreement (also known as a ‘Pre-nup’ or ‘Continuing relationship’ agreements) to protect assets accumulated prior to the relationship.

A Financial Agreement is a private contract entered into by a couple that governs the financial relationship between them. They address how the parties’ property and financial resources are dealt with at separation. Importantly, Financial Agreements remove the power of the Family Court to make orders in relation to all financial matters to which the agreement applies. The common misconception that Financial Agreements ‘are not worth the paper they are written on’ is not the case when drafted correctly and carefully.

If Millie and Paul had agreed to enter into a Financial Agreement, the outcome may have been very different.

Contact us

Please contact us for more detailed and tailored help.

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

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

A new bill concerning the Victorian education system passed in February 2025 and made amendments to the Education and Training Reform Act 2006 (Act).¹

The Act aims to strengthen compliance and enforcement powers of the Victorian Registration and Qualifications Authority (VRQA). It seeks to make it more difficult for unregistered or non-compliant schools to escape scrutiny or consequences of non-compliance.

The changes demonstrate that the VRQA wants to have the ability to keep other bodies including the Commission for Children and Young People (CCYP), the Victorian Institute of Teaching (VIT) and the Fair Work Ombudsman (FWO) informed of developments, including in relation to to staff conduct.

In March this year, the VRQA released a statement about its regulatory focus for 2025, namely that:

• Our 2025 cyclical review program will focus on compliance with the Child Safe Standards, including Ministerial Order 1359.

A further announcement outlined an agreement with the FWO called an ‘Exchange of Letters’ whereby each body will inform the other of compliance investigations to increase their regulatory oversight.

Key Takeaway: Coupled with the increased powers in the Act, schools and other education providers can be in no doubt that the VRQA will be focussed on child safety, health and wellbeing as its top priority, from Board line of sight to the day-to-day operations. This includes a focus in relation to employee investigations.

Immediate changes

Some of the reforms were enacted on the passing of the bill in February and therefore it is important to be mindful of these now. The following two reforms have already been enacted:

• The VRQA may now cancel the registration of a school or school boarding premises that has ceased to operate²
• The VRQA may more easily share information with a prescribed person or body³

In practical effect, this will remove the show cause process involved in the cancellation of the registration of education providers that have ceased to operate. It will also allow the VRQA to share information with a prescribed person or body such as the VIT, CCYP or FWO without receiving express written request from education providers to do so.

This may occur in the process of assessing whether prescribed minimum standards have been met.

Changes coming into effect 1 October 2025

Along with the changes already enacted, the Act will implement changes that provide the VRQA with more investigative powers that will come into effect on 1 October 2025. These powers relate to:

• Requirement that a person or organisation produce documents or information that helps the VRQA determine if they should be registered.⁴
• A significant increase in the penalties for operating an unregistered school or school boarding premises.⁵
• The VRQA is allowed to consider a Registered Training Organisation’s (RTO) historical non-compliance with child safe standards⁶.
• The ability of the VRQA to accept an enforceable undertaking when there is a risk or likelihood of non-compliance.⁷

In effect, this will allow the VRQA to issue a notice for an education provider to provide any documents that it believes are reasonably necessary.

The changes will grant the VRQA greater authority to proactively disclose information to relevant bodies such as the CCYP without awaiting a written request. It may also request information from such bodies to assist in compliance assessment.

They will also empower the VRQA to issues notices to comply to schools it believes are operating without registration. Non-compliance with these notices can lead to civil penalties outlined below.

It will increase the maximum penalty units for operating an unregistered school or school boarding premises from 10 penalty units to 120 penalty units for an individual and 600 units for a body corporate.

Application

The new reform Act applies to schools and school boarding premises that the VRQA has reasonable cause to believe are required to be regulated from operating without registration or approval. From October 1, the VRQA will have the capacity to require such providers to produce information or documents that are relevant to the health, safety and wellbeing of students. This aligns with the specified regulatory focus of compliance with Ministerial Order 1359.

Implications

The Act has been introduced to provide the VRQA with more streamlined methods to assess whether education providers are meeting minimum required standards. The Act provides the VRQA with the power to require education providers to supply relevant documents.

It will allow the VRQA to:

• Issue a notice to produce information that the VRQA reasonably believes is necessary to its determination of an education providers registration.
• Issue a notice to comply to a person or body that the VRQA has reasonable cause to believe is required to be regulated by the VRQA.
  o This aims to target (among others) unregistered schools who operate and claim they do not require registration.
• Requesting in the notice that an education provider apply for registration, approval or cease engaging in relevant conduct.

What schools and education providers can do to prepare for changes in October

Schools and Education providers may consider doing the following to prepare for the upcoming legislative changes in October.

• Boards: ensure you are actually following the requirements of Ministerial Order 1359, including:
  – Be responsible for sighting and approving all key child safety documents;
  – Undertake training at least annually;
  – Ensure reporting from management is sufficiently detailed to permit the Board to discharge its non-delegable duties and have line of sight; and
  – Review and evaluate the child safety processes at least every two years AND after every significant incident.
  
• Management: ensure:
  – Records are kept in accordance with the PROV standard and no documents relating to child safety and wellbeing are destroyed;
  – Having regard to expanded information sharing powers, understand when investigations should be conducted under legal privilege;
  – There is a process for assessing the ongoing suitability of staff to work with children (as opposed to just checking at the beginning).

How we can help

Contact our Education and Training team for tailored advice on how the Reform Act may impact to your organisation. We can also help to review and develop policies as well as review third party arrangement contracts.

Contact Us

Please contact us for more detailed and tailored help.

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

1. Education and Training reform Act (2006). ↩︎
2. Education and Training Reform Amendment Bill (2024) Part 4.3.4B (1)(a)(i) ↩︎
3. Education and Training Reform Amendment Bill (2024) Part 4.9.4A (1)(a)(i) ↩︎
4. Explanatory Memorandum, Education and Training Reform Bill 2025 (Vic). ↩︎
5. Explanatory Memorandum, Education and Training Reform Bill 2025 (Vic). ↩︎
6. Education and Training Reform Amendment Bill (2024) Part 3 cl 49. ↩︎
7. Explanatory Memorandum, Education and Training Reform Bill 2025 (Vic). ↩︎

Interdependency relationships play a crucial role in determining eligibility for superannuation death benefits. Many parents assume their children will automatically receive these benefits tax-free after death. However, this isn’t the case. Understanding how these benefits are taxed is essential for estate planning, as tax rates can vary from 0 – 30%.

Children under 18 years are automatically dependants and will receive the money tax free. But for adult children (18 or older), it’s much more complex as the ATO has specific criteria for determining whether an adult child qualifies as a “death benefits dependant” of their deceased parent.

Under the Income Tax Assessment Act 1997 (“Tax Act”), adult children and parents are typically not classified as “dependants” unless they are financially dependent or in an interdependency relationship.

Under Tax Law, key factors in assessing an interdependency relationship include:

• A close personal relationship;
• Living under the same roof; and
• One or both parties providing financial, domestic support and personal care.

In our previous article, we referenced earlier private ATO rulings where in a number of cases, the definition of an “interdependent relationship” was satisfied. However, all but 1 private ATO rulings since January 2024 (to date) failed to demonstrate that a ‘close relationship’ existed between the parent and adult child – a key factor considered in establishing interdependence.

In a publishing of private rulings (PBR) from April 2024, a parent was considered independent with their deceased adult child who suffered from a range of medical conditions and substance abuse. These issues left them with physical and intellectual limitations. Prior to their death, the child was reliant on their parent for personal and domestic care, comprising menial day-to-day and financial support including general living and medical expenses, while paying minimal rent. Furthermore, there were several documentations evidencing the nature of their relationship, including a letter from the deceased’s daughter and their doctor, confirming that the two had lived together for some years before the deceased passed.

In the other examples of PBR’s we reviewed since 2024, where adult children were claiming an interdependent relationship with their deceased parent, all failed. There were a variety of reasons but contributing factors included not living together for long period and unable to show a mutual commitment to a shared life, and in other cases no documentary evidence of financial support being provided.

What can we take away from these decisions?

• More than “just family” – It is not easy for a child to establish an interdependent relationship with a deceased parent. Clear evidence of living together, and something beyond a “typical” family relationship is required.
• Documentation is essential – Keep thorough records of financial support, including regular bank transfers, receipts for living expenses (rent, groceries, utilities), and other evidence showing both frequency and purpose of financial assistance.
• If in doubt, a private ruling application might be appropriate. This is particularly the case for executors of an estate, because they bear the liability when the death benefits are paid via the estate.

How we can help

The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and can assist you in preparing your Will and Enduring Powers of Attorney to ensure that your assets are not only looked after in the event of your death, but in the event of your incapacity to make decisions.

Contact Us

Please contact us for more detailed and tailored help.

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

Is your not-for-profit (NFP) contemplating a merger? This is part four of a five-part article series that will offer some practical guidance to your board or merger advisory committee. Subscribe to receive the remaining articles in the series.

Due diligence is the process of obtaining and reviewing information in order to critically evaluate a potential merger partner. The primary purpose of due diligence is to assist the board to identify potential risks and issues that could impact a merger, ensuring that the board can make an informed decision regarding whether or not to proceed with the merger. Due diligence also assists to inform the choice of merger type (discussed in article 2) and identify issues that may need to be prioritised and addressed as soon as practicable following any merger.

The due diligence process should include:

• defining the scope and objectives of the due diligence process (this is dependent on the size and complexity of each organisation and the proposed merger type).
• preparing a comprehensive due diligence checklist outlining the documentation and information that is required from the prospective merger partner.
• establishing a data room for the due diligence materials that can be accessed by the due diligence team.
• agreeing on a project plan with agreed timeframes for the process to help the parties stay on track.
• coordinating efforts among the board, executive team, legal advisors (particularly those with expertise in dealing with NFPs), accountants, and other consultants to efficiently review the documents and information disclosed.
• assessing potential risks, including legal, operational, strategic, and reputational risks, to evaluate the feasibility and benefits of the merger. These risks should be assessed in the light of each organisation’s risk appetite and the identified objectives for the merger.

The culmination of the due diligence process is a report that is provided to the board in order to inform and support its decision regarding whether or not to proceed with a merger agreement.

Some of the key considerations that should be taken into account in the due diligence review include:

Financial viability

A detailed analysis of the financial health of the prospective partner should be carried out to determine its ongoing financial viability. A review of donor and grant history as well as projected grant income will help inform the analysis. This work is often carried out as a discrete component of the due diligence process by a financial advisor who is experienced in working with not-for-profit organisations.

Assets and liabilities

A complete list of assets (tangible assets and intangible assets – intellectual property and goodwill) and liabilities (security interests registered on the Personal Property Securities Register and mortgages recorded on any certificates of title) should be reviewed, including conducting appropriate searches.

Historical liabilities

These are the liabilities that will be transferred from the one entity to another (usually the acquiring NFP or the new merged NFP). Historical liabilities can create significant risks for NFPs in a merger. This is because child abuse liabilities in particular: do not have a limitation period; may be uninsured; and depending on the merger type and jurisdiction, may transfer between entities in a merger. It is important to assess the risk of historical liabilities – this will include reviewing the claims history of the organisation and enquiring about known historical issues. Part five of our article series will address historical liabilities in more detail.

Employees

If a merger will result in one or more NFPs closing, it will be necessary to provide for the transition of employees to the acquiring NFP (and for the redundancy of any employees who will not be retained). Ideally terms of employment will be substantially the same as or better than the employee’s current terms of employment. A substantial difference in the employee benefits between the two merging organisations may result in unanticipated costs if parity requires an increase for a number of employees. The acquiring NFP will also need to confirm the current status of leave entitlements, fringe benefits tax exempt benefits (relevant for Public Benevolent Institutions and Health Promotion Charities) and superannuation guarantee contributions. Other employment risks that should be considered in the due diligence process. These include (without limitation) the possibility of a wage underpayment (liability for which may be able to be traced to any parent entity) and any unresolved workplace disputes.

Contracts

A comprehensive contracts register that tracks key information (including the name of the contract, whole-of-life costs, the supplier, the contract manager, the commencement and termination date and performance and payment milestones) should be prepared. A review of all contracts should be carried out to identify material risks and ascertain whether the contract can be novated or assigned (if appropriate).

Insurance

Insurance documents will need to be reviewed to confirm that the prospective merger partner is appropriately insured.

Privacy

The prospective merger partner’s privacy policy should be reviewed to confirm it allows for any disclosure of personal information, health information or sensitive information that is anticipated as part of the merger process. Any risk of significant non-compliance with privacy obligations should be also identified and assessed.

Technology and systems

The anticipated efficiencies of a merger may be significantly impacted by an inability to integrate systems and data. An expert IT consultant can assist to review technology systems and data sets to determine how different technology systems might interact post-merger and give a considered assessment of the potential cost and complexity of systems integration.

Reviewing the due diligence report

Once the due diligence report has been prepared and submitted to the board, the acquiring NFP will need to determine whether or not to proceed with a merger agreement. This involves returning to any non-negotiables and merger principles established up front (discussed in article 3) as well as assessing identified risks in the context of the organisation’s risk appetite. It may also involve a review of cultural alignment – have any cultural red flags been identified in terms of the merger partner’s transparency and conduct during the due diligence process? Depending on the nature of the risks identified, it may be possible to choose a merger type and/or include conditions in the merger agreement that will assist to mitigate the risks.

How can we help

Depending on the complexity of the merger, the due diligence process can be daunting and time-consuming. The Charity and Not-for-profit Law team at Moores can help with developing a fit-for-purpose due diligence strategy or assisting with the due diligence process.

Contact us

Please contact us for more detailed and tailored help.

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

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