Many of our clients are keen to support diversity, while also respecting the values of their school community and ensuring that important values and traditions can continue. From our work with schools, we have seen many excellent examples of schools that have been able to successfully navigate the balancing act of meeting their legal obligations and upholding their beliefs, teachings and faith traditions. Providing an inclusive environment and upholding your school’s values need not be mutually exclusive.
The LGBTIQA+ Health Australia 2021 Snapshot uncovered some alarming statistics, revealing little improvement in the health of LGBTIQA+ people since 2016 equivalent study.[1]
A first step can be understanding different facets of diversity. Respecting and using terminology can demonstrate to others a welcoming attitude. Research strongly indicates that affirmation by acceptance of preferred labels can help to relieve distress and improve mental health.
All schools in Victoria must take reasonable steps to eliminate discrimination on the basis of sexual orientation, gender identity or intersex status. Under federal and state-based anti-discrimination laws, schools must not engage in discrimination unless an exception or exemption applies.[2]
A key legal obligation in terms of supporting diversity is the school’s duty of care towards its students. This article considers how schools can support diversity and eliminate discrimination in the areas of uniforms, bullying and bathrooms.
Schools can support diversity by expanding available uniform options to students. This has been a recent trend in independent schools and is gaining increasing media attention. Clothing contributes to gender expression, but does not have to dictate gender identity: just because a girl chooses to wear trousers to school, just not means she views herself any less like a girl or any more like a boy.
Beyond the debate around inclusive uniform policies and gender are comments and girls’ school uniforms limit them playing, exploring the school yard and participating in lunchtime games when compared with boys. It is harder to swing upside down on the monkey bars in a skirt than shorts.[3] In addition to imposing gender expectations on girls, uniforms can limit physical activity and exercise.
To present an environment that supports gender diversity, schools can consider implementing a uniform policy that allows students to express their gender as they choose. And, despite positive publicity, it is arguable that it should no longer be laudable to simply permit girls to wear trousers. Perhaps this should no longer be remarkable, and could instead be considered merely one aspect of gender inclusion.
To support diversity in schools, schools should reflect on their policies and practices, educate staff, and update procedures – but there is often a missing link: bullying between children is a powerful limitation on expression of individual diversity. The schoolyard can be a scary place for children grappling with identity – be that sexuality, gender diversity, cultural, racial or linguistic diversity.
Leadership examples from the top – for example, via a uniform policy – are highly valuable, however, education of students complimented by a hard stance on bullying are also critical factors to support diversity in schools.
Students may experience bullying because they are ‘different’ or are perceived to be different. Young people who do not conform to stereotypes of male and female can be vulnerable to bullying by other children. Statistics on harassment and bullying regarding LGBTIQA+ young people are particularly stark:
The bullying of LGBTIQA+ young people can have a significant effect on their education. A high number of school students experience homophobic bullying and discrimination in schools. A 2021 survey of 6,418 young people living in Australia aged between 14 and 21, [5] reported that:
A code of conduct for parents can be a useful tool to mitigate the harmful impacts of bullying, if it becomes apparent that bullying is not originating with students.
Accessing bathrooms can be a stressful experience for gender diverse students. Students can feel harassed or humiliated when made to use bathrooms that do not match their identity. Also, the use of staff bathrooms or accessibility toilets as a solution, instead of access to identity-conforming bathrooms, can leave gender diverse students feeling alienated. In some cases, accessing bathrooms can be so overwhelming that gender diverse students opt not use bathrooms whilst at school which may invariably lead to wetting accidents.
Wherever possible, schools ought to ensure all students have the right to access bathrooms that align with their gender identity. Directing a gender diverse student to use the disabled toilet or bathroom for their biological sex can give rise to a complaint of discrimination.
School events play an important role in childhood development and the development of pro-social behaviours. It is critical to ensure gender diverse students feel safe to participate in school events and are not disproportionately impacted by gendered policies.
Consider your policies on key milestone events like formals and socials – does your school prescribe policies about who students can bring as partners, or a “traditional” binary gender dress code? To best support diversity in the school community, schools should aim to develop gender inclusive policies that inspire children to express themselves honestly and openly. Student voice is a key part of the development of such policies.
Support supporting diversity in schools – both by policy leadership on topics such as uniforms or bathrooms – and by proactive education and anti-bullying action – schools can have a wide ranging and lasting impact on young people facing adversity.
If your school is in interested in talking to passionate specialists about developing diversity in your specific community, please contact one of our practice leaders Cecelia Irvine-So (head of education) or Skye Rose (head of workplace relations and child safety, and discrimination expert).
Having worked with many, independent, Catholic and other faith-based schools, Moores understands the importance of supporting diversity in a way which respects your unique school environment. For more information, please do not hesitate to contact us.
[1] Snapshot of Mental Health and Suicide Prevention Statistics for LGBTIQ+ people, LGBTIQ+ Health Australia, (April 2021) https://d3n8a8pro7vhmx.cloudfront.net/lgbtihealth/pages/549/attachments/original/1620871703/2021_Snapshot_of_Mental_Health2.pdf?1620871703[2] Anti-discrimination laws vary from state to state. Please consider if an exemption or exception may be relevant to your school (ie exceptions for religious schools). Please note that exceptions are interpreted narrowly, and reliance on an exception will not provide a defence to a claim of negligence for breaching a school’s duty of care towards a student.[3] Stockings, tunic and leather shoes: Why uniforms stop girls playing, Sydney Morning Herald, (10 June 2021) https://www.smh.com.au/national/nsw/stockings-tunics-and-leather-shoes-why-uniforms-stop-girls-playing-20210609-p57zm9.html[4] Writing Themselves In 4 – National Report, Latrobe University (February 2021) https://www.latrobe.edu.au/__data/assets/pdf_file/0010/1198945/Writing-Themselves-In-4-National-report.pdf[5] Writing Themselves In 4 – National Report, Latrobe University (February 2021) https://www.latrobe.edu.au/__data/assets/pdf_file/0010/1198945/Writing-Themselves-In-4-National-report.pdf
Some schools have sought our advice regarding religious education programs and whether they may be able to rely on religious exceptions which exist in anti-discrimination law in Victoria.
While the new Act does not ban religious education, schools need to be aware of how they should frame discussions about religion to avoid being potentially caught by the Act.
Alongside the Act, the Equal Opportunity Act 2010 (Vic) (EO Act) continues to prohibit schools from engaging in direct and indirect discrimination in education, including on the basis of gender identity and sexual orientation, unless an exception applies. It is not easy or straightforward for religious schools to rely on the exceptions in the EO Act, which are interpreted narrowly, so this should not be assumed. Importantly, in any event, schools are unable to rely on the religious exception under the EO Act as a defence to an allegation that it has engaged in a change or suppression practice.
Penalties apply under the new law – up to ten years’ jail or $10,000 for individuals or up to $50,000 for organisations.
A change or suppression practice is a practice or conduct:
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:
The Explanatory Memorandum released with the Act notes that the new law is “intended to capture a broad range of conduct, including, informal practices, such as conversations with a community leader that encourage change or suppression of sexual orientation or gender identity, and more formal practices, such as behaviour change programs and residential camps.”
A practice is not a change or suppression practice if it is supportive of or affirms a person’s gender identity or sexual orientation. The Act expressly confirms that the following are not change or suppression practices:
The Act also protects a practice that is (in the health service provider’s reasonable professional judgement), necessary to provide a health service or comply with the health service provider’s legal or professional obligations. This will not be a change or suppression practice under the new law.
The Act was accompanied by a Statement of Compatibility (a requirement to confirm that a proposed law is compatible with the Victorian Charter of Human Rights). That Statement says:
Although broad, the definition has been carefully designed to exclude conduct that is not directed at an individual, to reduce its impact on religious practices such as sermons. It also requires conduct be engaged in for the purpose of changing or suppression a person’s sexual orientation or gender identity (or inducing a person to change or suppress) to limit impact on general discussions of religious beliefs around sexual orientation or gender identity that aim to explain these beliefs and not change or suppress a person’s sexual orientation or gender identity. (emphasis added)
The legislation has been drafted to reduce or limit the impact on sermons and general discussions of religious beliefs. However, it remains possible that a sermon or discussion about religious belief could contravene the new law if it is found to be directed at an individual and to have a purpose of changing or suppressing the person’s sexual orientation or gender identity.
If a school is able to rely on an exception in the EO Actfor religious schools, this may provide the school with a limited right to discriminate in enrolment in favour of students who are members of the school’s faith group, church or denomination (or on the basis of race, sex, age or disability IF the school is established for such a specific group). In the faith context, these exceptions are typically only available to closed faith communities, whereas those with broader and more diverse families will struggle to meet the requirements, even if they are a religious school.
Even if a religious school can rely on the exception for religious schools, which may permit discrimination on the basis of particular attributes, this only applies to enrolment and faith. Importantly, it does not open the door to discrimination on other bases, and it does not dilute the obligations under the Act. That is, a school may be able to rely on an exception to only permit enrolment by students of its faith group, but it still cannot discriminate more broadly or undertake conversion or suppression practices without breaching the law.
The law will not come into effect until February 2022 to allow the Commission to prepare for implementation. During this period, the Commission will develop guidance on how it considers the law should be interpreted and applied.
Schools should review their stance on inclusion and education regarding sexual orientation, gender identity and respectful relationships, as well as the teaching or expression of religious belief, to ensure that it is lawful and not directed at an individual..
The Commission will publish guidance, and we will keep you informed as this is communicated, along with the Commission’s plans on how it intends to exercise its new powers, appropriate preventative (or remedial) measures for organisations will become apparent.
If you would like more information about your schools discrimination obligations or the impact of the change and suppression practices laws on your organisation, please do not hesitate to contact us.
In this article, we contrast the proposed affirmative consent laws in NSW to the consent laws in Victoria, and provide practical tips on what schools should do to raise awareness of these changes and prevent sexual harm.
In 2018, the NSW Law Reform Commission (NSWLRC) commenced a review of consent laws, spurred by advocacy from victim-survivors like Saxon Mullins, whose protracted and highly published sexual assault case ended with the alleged perpetrator being acquitted despite multiple courts finding that she had not given consent. Since then, Saxon has become part of a growing public campaign for affirmative consent laws. The NSWLRC’s final report, which was released in November 2020, did not recommend this standard. Despite this, in May 2021, NSW Attorney-General Mark Speakman announced a bill that goes beyond the recommendations of the NSWLRC, and will make affirmative consent the law in NSW.
Broadly speaking, if a sexual assault case goes to trial, the state of mind of both the complainant and the accused is relevant to the proceeding. The prosecution must prove that:
Currently, in NSW, an accused will be considered to know that the complainant did not consent if they have actual knowledge about lack of consent, if they are reckless as to whether the complainant consents, or if they have no reasonable grounds for believing that the complainant consents.
The test in Victoria is whether the accused reasonably believed that the complainant consented.
In Saxon’s case, although it was found that she did not consent to sex with the accused, the court was not ultimately satisfied beyond reasonable doubt that the accused knew she was not consenting as she froze and did not resist his advances.
The reforms proposed by the NSW Attorney-General adopt an affirmative model of consent in sexual assault laws, moving from a “no means no” to a “yes means yes” approach to consent. Affirmative consent shifts the emphasis from the actions of the victim-survivor to those of the accused. The NSW reforms alter the statutory language from “no reasonable grounds” to “no reasonable belief” and require a person who argues that they had a reasonable belief in consent to demonstrate what actions they took or what words they spoke to ensure they had consent. If a person failed to take steps to confirm their sexual partner was consenting to engaging in a sexual act, any belief the person had in consent will not be considered reasonable. The reforms are intended to address situations where a person freezes and does not offer physical resistance to sexual activity and make it clear that, in those situations, the person’s consent cannot be assumed.
Importantly, the NSW Attorney-General also tied the reforms to broader shifts in social behaviours. The intent of the reforms is not just to hold perpetrators of sexual harm to account; it is also to set different standards for sexual interactions outside of the criminal justice system. To that end, a campaign educating the legal and broader community on the news laws is expected to occur in the lead up to them being passed.
Victoria has historically been viewed as a leader in consent laws. In 1991, the Crimes Act 1958 (Vic) was amended to define consent as “free agreement”, as well as to introduce a non-exhaustive list of consent-negating situations in which a person cannot freely agree (e.g. if the person submits because of force, or the fear of force, to that person or someone else) and jury directions to reinforce the affirmative standard of consent into the law.
However, there are divided opinions about the extent to which Victorian consent laws require affirmative consent. On one view, they fall short of the positive requirement proposed in NSW and should be updated. On another view, the issue lies in the interpretation and application of existing laws by practitioners and judiciary.
Against this backdrop, the Victorian Law Reform Commission is currently reviewing Victoria’s sexual assault laws and is due to report to the Victorian Attorney-General by 31 August 2021.
All Victorian primary and secondary schools currently must comply with Ministerial Order No. 870 – Child Safe Standards – Managing the risk of child abuse in schools (Ministerial Order 870) in order to be registered and remain registered with the Victorian Registration and Qualifications Authority. Ministerial Order 870 requires the school governing authority to develop strategies to deliver appropriate education about healthy and respectful relationships (including sexuality), standards of behaviour for students attending the school, and child abuse awareness and prevention.
In February 2021, former independent school student Chantal Contos launched a petition calling for earlier sex education in schools. The petition, which now has over 40,000 signatures, has revealed hundreds of testimonials from former students in NSW about sexual assault they had experienced at the hands of their peers, particularly (but not exclusively) abuse perpetrated by males at single sex private schools against females. A recent report by the South Australian Commissioner for Children and Young People (CCYP) identified that young people have serious concerns about the adequacy, timeliness and appropriateness of the sex education they are receiving. The young people surveyed by the CCYP stated that they wanted to gain an understanding of the legal framework around consent, and the CCYP’s report recommended that discourse around consent be evidence-based, as well as include an understanding of the social and practical complexities of consent – not just the legal definitions.
We recommend that schools review their education curriculum on consent and respectful / healthy relationships, having particular regard to its quality, appropriateness, accessibility, and timeliness.
We also recommend using affirmative consent as a framework for teaching young people about consent. Whilst the future of Victoria’s consent laws remains uncertain, it is clear that the affirmative consent model is replacing previous social standards and expectations. From a welfare and risk management perspective, adopting an affirmative consent approach reflects best practice for schools seeking to navigate this important issue.
Moores delivers education and training to schools and students across Australia on healthy and respectful relationships (including sexuality), standards of behaviour for students attending the school, and child abuse awareness and prevention. For more information or advice, please do not hesitate to contact us.
Employees who were able to work efficiently and effectively from home during lockdown now expect that those flexible working arrangements will continue to be available.[1] Now that we’re on our way out of the pandemic, many workplaces are looking inward to see how they can set up their workplace to offer flexibility, while not compromising on productivity and workplace culture.
Flexible work arrangements involve an agreement between an employer and their employees to alter their traditional working arrangements to better suit their needs. These arrangements include:
Flexible work arrangements may be specifically designed to meet the requirements of one employee, or may involve a policy which offers flexible working arrangements for all employees. Hybrid workplaces, which involve a combination of staff working from home and working in the office, are becoming increasingly popular, and can be implemented as an organisation’s ‘new normal’.
In a recent survey examining the impact of COVID-19 on Australians, the Australian Bureau of Statistics found that more than half of those surveyed either wanted to retain the same working from home arrangements or wanted to increase the time they spent working from home.[2]
Employees report greater job satisfaction when they can work flexibly.[3] Having the option to be at home to accept deliveries or meet tradespeople means that employees don’t have to feel bad for asking for a morning off – they just work from home that day, or start a little later. Working from home cuts out commute time and increases time to do the basics, like put on a load of washing!
It’s also great for staff members who have caring commitments. Staff can collect their children from school or day care and then log on later that day to finish off what they were working on, instead of leaving it for the following day. They can get their work done over fewer days so they don’t need to find a day care placement for the whole week.
The digitisation of work and the advent of ‘working anywhere’ have presented opportunities for employers to save costs and increase efficiency. Many employers are already set up for flexible work as they have embraced advancements in technology by implementing paperless systems and digitising their transactions (here’s looking at you, DocuSign). The rise of the Zoom meeting permits scheduling multiple meetings without needing to move from your chair.
Staff generally report greater wellbeing and productivity, which increases job satisfaction and fulfilment. Employee satisfaction leads to positive workplace culture, increased productivity, and lower staff turnover.
Offering flexible working arrangements can also help you attract and retain good employees. The Workplace Gender Equality Agency considers flexible working arrangements to be a key factor to address the disparity in the number of women in leadership positions.[4]
Whilst flexible work brings many benefits, it isn’t advisable to take a set and forget approach to implementation. In order to optimize your flexible work arrangements and minimize the risk of a legal claim, employers should carefully consider the following issues:
If you’re considering changes to your operations to improve flexibility, or simply want to ensure that you’re existing arrangements are compliant, our workplace relations experts have you covered. We can also assist you with reviewing the impact your flexible work arrangements might have on your compliance with legal obligations in relation to recordkeeping, work health and safety and equal opportunity laws.
Flexible work arrangements might also have you considering the way you engage future staff. For more information on the impact of flexible workplaces on the classic ‘are they an employee or a contractor’ quandary, check out our upcoming webinar on 22 June 2021 – ‘Independent Contractors: Balancing compliance, cost and flexibility’.
For more information or expert advice, please do not hesitate to contact us.
[1] See ABS statistics – https://www.abs.gov.au/statistics/people/people-and-communities/household-impacts-covid-19-survey/feb-2021#work-from-home[2] See https://www.abs.gov.au/statistics/people/people-and-communities/household-impacts-covid-19-survey/feb-2021#work-from-home[3] ABS – APS Employee Census 2021[4] See Workplace Gender Equality Agency https://www.wgea.gov.au/flexible-work[5] Black Dog Institute: https://www.blackdoginstitute.org.au/news/working-from-home-a-checklist-to-support-your-mental-health-during-coronavirus/
For example, a property held as joint tenants generally bypasses a Will and the last survivor inherits 100%; whereas where two people own property held as tenants in common they each own a distinct interest that passes under their Will.
When borrowings are taken out for the acquisition of the property, who becomes liable when one person dies, and does it matter where the property ends up?
A recent Western Australian case, Young v Martin [2020] WASC 442, has brought attention to the importance of careful estate planning when:
Mr Jones and Ms Young lived together in a de facto relationship. They each had children from previous relationships; Mr Jones’ children were still minors. Mr Jones and Ms Young purchased a property together as joint tenants – Ms Young funding her half of the purchase with proceeds from the divorce and financial settlement with her previous spouse and Mr Jones funding his half with funds from a bank loan.
In applying for the loan, the two of them applied jointly, and the bank secured its loan with a mortgage over their property. Other than this property, the couple kept their finances separate, and split the utility expenses between them, rather than pooling their income or assets.
They had been together for five years before Mr Jones’ death, at which time the property passed to Ms Young by survivorship – but in this case, so did the liability for the loan.
Ms Young claimed that the agreement between them was that Mr Jones would make loan repayments from his personal funds, despite the loan being in their joint names, such that she claimed the repayment of the loan should be made from his estate. Ms Young claimed that this was a contract between them. While the matter was being disputed, Ms Young made the mortgage repayments for which she claimed reimbursement from the estate.
The Supreme Court dismissed the claim on the basis that it wasn’t satisfied there was a contract (whether express or implied) regarding the payment of the mortgage debt, given there was no intention to create legal relations – one of the four basic requirements of a legally binding contract.
The Court considered the repayments after Mr Jones’ death based on the manner of ownership of the property. The Court said “equitable principles would not require the estate to discharge the obligation of Mr Jones to pay the mortgage where it relates to property which is not part of the estate“, noting that it may have been different if Ms Young were making repayments on the property owned as tenants in common, where the estate should have also had an obligation to contribute.
Where the debt is owed to a bank, most of the time the liability is ‘joint and several’ which means that both parties are responsible for the debt together, and also independently of each other. Importantly, this doesn’t deal with how the loan will work as between the borrowers. This raises the question of who is liable to make payments, and whether one party can require any contribution from the other.
Where liability for debt is unclear, it may lead to disputes and Court cases. In the Young v Martin case, the responsibility for the debt flowed to the surviving joint tenant, just as the ownership of the property did – but it may not always work like that.
Another issue to consider is what would happen if two parties borrow from a bank, but the debt is secured against a property owned by only one of the borrowers. What would happen if the owner of the security property dies, and leaves the property to a third party in their Will? This is a key reason why both Wills and debt arrangements between parties need to be very clear.
Whether you’re putting an estate plan in place, or making decisions about the structure of ownership or borrowing, these intentions need to be clear, and even documented appropriately, to ensure that they continue to play out the way you intend. For expert advice or guidance regarding Estate Planning, please do not hesitate to contact us.
This exercise can be difficult when an estate is not large enough to provide for everyone who might have a need or a claim. This issue more commonly arises in the case of blended families or second relationships, and in balancing the needs of a new spouse against the needs of children from a prior relationship, the exercise becomes fraught for even the most well-meaning and careful Willmaker.
For better or worse, case law consistently provides for “spousal primacy”; the concept that a person’s primary duty, all things being equal, is to their spouse. The rule of thumb, for estates large enough to afford it, is that a testator should not leave their spouse without secure accommodation, an income or a nest egg. There can, of course, be factors that disrupt spousal primacy; but it is the starting point. A recent case in the New South Wales Supreme Court provides an example of when a widowed claimant was unable to establish spousal primacy.
In coming to its decision, the Court took into account various factors including that the parties had agreed early in their relationship to keep their finances separate, and by the date of death, their relationship had deteriorated (largely as a result of disputes about the terms of the wife’s Will).
The deceased, Kathy, died leaving a second husband of 14 years (Michael), and two children from her first marriage. Kathy’s net estate was valued at $2.9M, and consisted primarily of the house she owned solely and lived in with Michael. Kathy’s will left Michael with a right to reside in the house for 6 months following her death and approximately $100,000 of superannuation and chattels. The remaining bulk of her estate was to be split between her two children.
Michael issued a claim for further provision, seeking the sum of $1.5M to enable him to purchase secure comparable accommodation. The matter proceeded to trial where Michael was ultimately unsuccessful.In rejecting Michael’s claim, the court took into account:
The court found that “[Michael’s] provision may not have been generous but it was entirely commensurate with the tenor of their relationship and their dealings with each other since its inception”. No further provision was ordered by the Court and the lawyers for the Estate will now no doubt make submissions as to how the $642,228 of legal fees incurred in the proceedings should be paid.
Whilst Schneider v Kemeny is a New South Wales decision and consequently not binding in Victoria, it is a timely reminder that a plaintiff spouse in any jurisdiction should not issue proceedings on the sole premise of spousal primacy.
The case is also a reminder that in second relationships, evidence of the parties’ intentions or agreement not to claim on the other’s estate and of keeping separate finances, while not an absolute bar to a claim, can be a relevant factor. For more information or guidance, please do not hesitate to contact us.
The announcement comes as part of the 2021-22 Federal Budget, which provides a short-term opportunity for people with market-linked, life-expectancy and lifetime pensions (commencing prior to 20 September 2007) (“legacy pensions”) to access the capital supporting those accounts. Since the Government’s announcement, further commentary suggests that it will also apply for legacy pensions which commenced on or after 20 September 2007.
The commencement date and much of the detail of this opportunity has not yet been confirmed.
Legacy pensions are largely a product of the historical superannuation regime. There are a number of different types which had the potential for benefits in the context of a now out of date reasonable benefits limits regime and in some cases, benefits in terms of not being means tested for Centrelink purposes. Alongside those benefits, the pensions typically had restrictions on access to the underlying capital, which often meant that capital could end up in the reserves of the relevant superannuation fund.
Since 2007, legacy pensions have been largely phased out but it has been possible for “old” pensions to convert into different types of legacy pensions.
The law has changed significantly over the last 20 years. Instead of reasonable benefits, we have the transfer balance cap regime, and the historical means testing exemption no longer applies.
Where legacy pensions were set up with reversionary beneficiaries nominated, the pension would continue to be paid to the person nominated. However, in cases where there is no reversion, or on the subsequent death of the reversionary beneficiary, the capital balance is locked up, and held in the reserves of the fund. That means it is not part of the death benefit of the member of the fund.
For those legacy pensions in an SMSF, reserves in a super fund are notoriously difficult to access, and by default will count towards the contribution cap of the member to whom the reserves are allocated. There are some exceptions to that position but it is fairly restrictive, – including a cap of 5% of the value of the member’s total balance in the fund – a nightmare for estate planning arrangements.
The Government has announced a two-year opportunity for people to commute the entire legacy pension (and any associated reserves) back to accumulation phase, to then:
The two year period will begin at the start of the financial year following the law being passed (date to be confirmed).
If any reserves are commuted as part of this regime, the reserves will not be counted towards the member’s concessional contributions cap (which from 1 July 2021, will be $27,500 per year), and won’t be taxed as excess contributions. Instead they will be taxed at a rate of 15%.
The valuation methods that existing the superannuation legislation for legacy pensions, for the transfer balance cap purposes, will continue to apply.
As part of its announcement, the Government has confirmed that any existing social security treatment that may have been afforded by the legacy pension will not continue for any person who commutes out of their existing arrangement.
Until further detail of the changes are made available, it will be hard to definitively calculate whether a particular person is better off under these arrangements or not. The answer will likely be a combination of considering financial planning tax and estate planning objectives and outcomes of each option.
If you find yourself stuck with a legacy pension you can’t get out of, a way forward is now in sight, but each person would need to consider whether the path out is better for their particular circumstances. For more information, please do not hesitate to contact us.
The Victorian Regulation and Qualifications Authority (VRQA) has published new Guidelines to the Minimum Standards and Requirements for School Registration (the new Guidelines). The new Guidelines apply to new schools from 1 January 2021 and to existing schools from 1 July 2021. Importantly, schools operating or proposing to operate an Early Learning Centre (ELC) must amend their governing document (the Constitution, Rules or Trust Deed) to expressly provide for the delivery of ELC services.
A governing document sets out matters such as your school’s purpose, how decisions are made, the composition and role of your Board, Committee or Trustees and the role of any members. It is also the framework around which the school’s delegations and policies are built. Despite the importance of governing documents, they are often not reviewed for long periods of time. For this reason, when making changes for VRQA compliance, schools should take the opportunity to carry out a comprehensive review of their governing document.
We have highlighted some key considerations below:
Amending or replacing a governing document takes time. Many schools will form a subcommittee for this purpose, but ultimately your entire Board, Committee or Trustees will need to review and approve the document. Once it is approved, you may need to allow time for a consultation period with members (if appropriate). Then you’ll need to formally adopt the governing document – unless your school is established as a Trust or unincorporated association, this usually requires a special resolution, including convening a general meeting with a notice period of at least 21 days.
Our For Purpose team regularly assists schools (and not-for-profits across the sector) to ensure that their governing document is compliant with relevant legislation, expressed in plain English and tailored to their unique governance requirements. For further guidance, please do not hesitate to contact us.
In University of Melbourne v Commission of State Revenue [2021], the Court has interpreted the term ‘used by a charitable institution exclusively for charitable purposes’ in a much wider fashion than the State Revenue Office (SRO) has traditionally applied it, opening up the possibility of land tax exemption in circumstances where there is third party use of the land by a non-charitable entity.
The University of Melbourne leased University land to a student accommodation developer to enable a 648 bed student accommodation development, in line with the University’s strategy for student accommodation. The developer in turn engaged a student accommodation operator to operate the accommodation, who was required to do so in line with specific student accommodation requirements of the University.
In essence, the arrangements were designed to ensure that the developer and operator used the land in line with the purposes for which the University would have used it if it were to operate the accommodation facility itself.
The University took the position that the lease was a way of the University using the land for student accommodation purposes, which is a function noted in the preamble to the University’s establishing Act. The University argued that the provision of student accommodation by a third party operator (at the request of the University) should be considered part of the University’s charitable use of the land and therefore enable an exemption from land tax for the site.
Section 74 of the Land Tax Act 2005 (Vic) contemplates an exemption from land tax where land is used by a charitable institution exclusively for charitable purposes. Importantly, exemption is not automatic – it is granted only in response to an application.
In order for land to qualify for a land tax exemption, the taxpayer must satisfy the SRO that:
The Commissioner of State Revenue took the view that where the student accommodation service was being provided by a commercial operator under a lease, the land was not entitled to an exemption under section 74 because the land was not ‘used’ by the University, but rather by the developer and operator.
The University appealed the SRO decision and the matter was brought before the Supreme Court. The Court examined the two key words in the exemption:
The Court held that in both cases, the wider meaning should be adopted and therefore found that in these circumstances, the use of the land by the third party could be considered to be a use for the charitable purpose of the University. Significantly, the Court held that whether the University is the actual entity using the land or not is immaterial in assessing whether the land is being used for the charitable purpose of the University under section 74.
Moores has assisted numerous charities in obtaining exemptions from land tax on charitable grounds.
The Supreme Court’s expansion of the scope of section 74 to include land used by third party operators for the purposes of the land-owning charitable organisation opens the door for exemptions which may not have previously been possible. Given the significance of the departure from the usual SRO position which the decision represents, we would not be surprised if a public ruling is issued to ameliorate the effect of the decision for practical purposes.
However, it’s not guaranteed that the SRO will take such action and any charities who are potentially able to claim an exemption under the expanded interpretation would be wise to submit an application as soon as possible.
Moores is ready and able to:
If you need assistance with seeking a charitable exemption for land tax or council rates, please do not hesitate to contact us.
There are no major surprises or radical changes to taxation. Instead, the budget aims to promote stability and confidence in the economy by investing in jobs.
The female focus addresses the political climate of 2021. The 2021 Budget seems to pivot away from last year’s emphasis on a recovery led by high-viz infrastructure and construction industries. Instead, it focuses on the ‘care economy’ and industries where women do the heavy lifting: the sectors caring for children and senior citizens, and educating students.
A welcome evolution is the explicit acknowledgment of and funding for services that keep women and children safe. Moores will watch with interest whether this evolution will be enough to secure the structural changes that have been demanded.
Despite being rebranded a ‘care’ budget, critics have identified that the 2021 Budget largely overlooks charities, welfare (including no raise to the Disability Support Pension) and housing and homelessness – sectors that are critical to direct relief. Disappointingly, the Budget also overlooks First Nations equality, with no mention of a voice in Parliament or action to reduce deaths in custody, and fails to invest in climate action and overseas aid.
This article focuses on the 2021 Budget’s impact on for-purpose organisations, particularly those in social and community sectors. Shortcut to the following: Education | Childcare & Early Education | Women | Mental health | Aged Care | Jobs and Employment | Small and Medium Businesses | Not-for-profit sector | Housing
The budget has been criticised for its band aid response to plug gaping holes in the education sector which experienced prolonged strain during the pandemic.
Commonwealth funding of schools is substantial, but in real terms this budget simply meets the needs of the sector and the largest growing segment of lower fee and higher funded schools.
The continued border closure to international students until at least the end of 2021 has bitterly disappointed educational institutions wanting to welcome international students back to Australia, especially given that many have sought to engage with government about possible protected pathways. The 2021 Budget assumes Australia will commence phasing in international students from late 2021.
Others in the education sector are facing the ongoing wellbeing crisis among their international students who cannot get home. Likewise, there is a lack of respite for homestay and other providers. Regulators have just this week grimly acknowledged that interim regulations designed to provide flexibility around homestay standards for the December/January holidays will now apply for the rest of this year.
Accountability – not service provision – is the theme of school funding, as the 2021 Budget focuses on data collection to ensure standards are met in the sector. In education, the 2021 Budget specifically provides for:
For higher education, the Government will provide an additional 5,000 commonwealth supported short course places at non-university education providers in 2021. There is also a focus on PhD research, promoting innovation and closer integration with industry. This high level focus does not support the everyday Australian seeking to attend university.
Preschool services will be supported with $1.6 billion over the next four years. Conditions to receive this funding are yet to be set, but will include attendance targets from 2024.
In disappointing news to the early learning sector, the support for ‘universal access to 15 hours of preschool’ is limited to the year before prep (that is, four year old kindergarten). Limiting funding to four year old kinder falls significantly short of recommendations by reform advocates who sought increased funding of 3 and 4 year old kinder. Without funding for three year old kinder, many low income families will find the cost of child care and early learning education prohibitive.
The 2021 Budget does provide extra $1.7 billion over five years to make childcare more affordable. This package means families with a second or subsequent child will be able to receive the Child Care Subsidy for up to 95% of costs. This will provide some relief for families with multiple young children and ease costs of living for low and middle income families. While the increase in the Child Care Subsidy will benefit approximately 250,000 families by an average of $2,200 per annum, the changes do not come into effect until July 2022.
The 2021-22 Women’s Budget Statement provides a suite of packages totalling $3.4 billion dedicated to child care, domestic violence prevention and support, and return to work initiatives. This is a contrast to the 2020 Budget which had little reference to the Women’s Economic Security Statement.
Around half of the women’s budget is directed to the childcare package ($1.7 billion) to reduce barriers to women participating in the workforce. The measure has been positioned as one which will increase workforce participation of women and have a positive flow on effect for the whole economy. Women’s jobs were disproportionately impacted by the pandemic and many also bore the brunt of caring responsibilities during lockdowns and remote learning. Women’s workforce participation remains around 10 percentage points lower than men’s (61.8% of women are in the workforce). This echoes an overall theme of the budget: growth and recovery through jobs.
While this initiative is welcomed and reflects the reality that many women are the primary carers who take more time off work to care for young children, it has been criticised for presenting caring responsibilities as a “women’s issue”. Moores hopes to see other policies and strategies to promote gender equality between working parents, particularly those which incentivise both parents to share caring for children while working.
The Women’s Budget Statement also includes a $50 million Women@Work Plan to further address barriers to participation in the workforce, and provides for the creation of a Respect@Work Council to address workplace sexual harassment. Over 4 years, funding in response to the Respect@Work report will support the Attorney-General’s Department, Workplace Gender Equality Agency, and the Australian Public Service Commission to strengthen reporting on sexual harassment prevalence, prevention and responses. A criticism of this measure is the lack of funds for direct response and grass roots organisations.
Another support for women in the workforce is $35.9 million for women entrepreneurs to access mentoring.
Significantly, there is $1.1 billion earmarked for women’s safety, domestic violence prevention and support of domestic violence victims. This includes domestic and sexual violence prevention programs for the states, grants for women fleeing violence, consent education (do we all remember the milkshake ad?) and women’s legal services. Moores waits with interest for detail of these worthy programs and any other initiatives which are aimed at dealing with the causes of domestic and sexual violence.
Changes to superannuation will also benefit working women and part time and casual employees. Previously, eligible employees needed to earn at least $450 (gross) per month before their employer was required to make superannuation guarantee contributions on their behalf. From 1 July 2022, the $450 threshold will be scrapped. Treasurer Josh Frydenberg said the change will boost the super of about 200,000 female workers.
In contrast to the 2020 Budget (delivered a mere 7 months ago), there is a significant and welcome female focus after one of the toughest times for women in recent years.
The Federal Government will spend an extra $2.3 billion on mental health services over four years via the National Mental Health and Suicide Prevention Plan. Spending is focused on funding diagnosis and treatment centres and suicide prevention.
Of that, over half ($1.4 billion) will be allocated to Commonwealth-funded mental health centres which specialise in diagnosis and treatment of conditions. This includes Headspace facilities across the country.
The remaining funds are allocated as below:
These funding announcements are a response to the Productivity Commission’s Inquiry into Mental Health. Mental health services had also previously warned they were facing a funding crisis, from increased demand due to the pandemic and recent natural disasters.
The practical measure of creating Medicare items for mental health access to GPs, psychologists and psychiatrists is welcome.
In response to the Royal Commission in Aged Care Quality and Safety revealing the extent of the industry’s shortcomings, the 2021 Budget promises the industry $17.7 billion in funding, and $119 billion over the next four years. Aged care funding is focused on:
Aged care spending will have significant flow on effects for the care economy, and the Australian economy more broadly. Helping employees in the aged care sector helps women: 90% of the aged care workforce is female. There will be additional training places through JobTrainer and training opportunities for registered nurses to move into aged care work. Job growth in this sector will also help meet the Government’s target of record low unemployment (4.5%) by the end of 2022.
Given the industry’s flaws identified by the Royal Commission and its pandemic response, the detail of the funding will be keenly read, particularly any detail on ensuring that funding flows through to quality outcomes and that serial offenders are held accountable.
As mentioned above, from 1 July 2022, employers will be required to make superannuation guarantee contributions to all eligible employees, including those earning less than $450 per month. Superannuation guarantee contributions in 1 July 2022 will be 10.5% (see related article “Superannuation to increase, but mind the catch”). Businesses will need to factor in this increase to the cost of employment.
The Government has also committed $500 million (to be matched by state and territory governments totalling $1 billion) to expand JobTrainer to train and reskill 17-24 year olds. The Government predicts 163,000 places will support young people until 31 December 2022.
Continuing support for young people in the workforce, the 2021 Budget provides an additional $2.7 billion for 170,000 new apprenticeships and traineeships. Employers will receive a 50 per cent wage subsidy over an apprentices’ first 12 months of employment. Apprentices must be signed up by 31 March 2022 to be eligible. This subsidy, and other tax reductions for small and medium businesses, are aimed to offset increases in employment costs from superannuation.
As part of the 2021-22 Budget Deregulation Measures, there will be $10 million invested over four years in regulatory technology to assist employers interpret and comply with modern awards. This will fund development of application programming interfaces (APIs) from the Fair Work Commission’s Modern Awards Pay database, with the intention to support employers obtain real time data on award pay and conditions, hereby improving compliance.
Tax cuts for small and medium businesses are also positioned to boost employment. Companies with a turnover of less than $50 million will see new tax rate of 25% from 1 July 2021. The 2021 Budget also seeks to reduce the costs for businesses to take on new employees with wage subsidies, discussed above.
A significant measure aimed at small and medium businesses is the instant asset write off of capital expenditure. This is no longer limited to small businesses and there is no cap on tax reductions. The upfront tax deductions for capital expenditure in plant or equipment has been extended from 30 June 2022 to 2023, recognising the delayed abilities of companies to invest while bouncing back from 2020.
The 2021 Budget also supports small businesses to adopt digital technologies – with a $12.7 million expansion of the Digital Solutions – Australian Small Business Advisory Services.
The attitude of the small business concessions is that the Government wants to create breathing space so SMEs can get back on their feet.
Some critics have said the 2021 Budget is blind to the not-for-profit sector.
Many charities stand to indirectly benefit from the increase in funding for the care economy: aged care, mental health, childcare, and women’s emergency services. However, the not-for-profit sector featured as little more than a footnote in the 2021 Budget, despite employing more than 1 in 10 employees in Australia. Many of the employment incentives or tax concessions for businesses will not help charities.
Despite calls from industry that charities are critical to the care economy, the budget provides no direct support to the sector. Instead, it increases regulatory burdens on charities. From 1 July 2023, non-charitable not-for-profits will be required to provide information to the ATO to justify their eligibility for tax concession status. Affected organisations include community services, sporting associations or recreational and agricultural organisations. The ATO has been designated $1.9 million to build an online system to enhance income tax exemption transparency.
It is hoped that job creation and indirect funding will flow through to those organisation which continue to help the most vulnerable in Australian society.
Concerningly, the 2021 Budget does little, if anything, to address the significant and growing demand for social and affordable housing, and is focused entirely on measures for those with access to equity (including first home buyers).
The lowering of deposit requirements under the First Home Super Saver Scheme will help single parents and first home buyers enter the housing market. The 5 per cent deposit scheme will help an additional 10,000 first home buyers annually purchase a new dwelling. While the budget helps more Australians into home ownership, there is little concerning the social infrastructure of social and affordable housing for those in the community who cannot make it onto the property ladder and are at risk of being left behind.
Likewise, the HomeBuilder scheme provides grants of up to $25,000 for new builds or extensions, but support of large scale affordable housing projects was lacking. HomeBuilder seems geared to help the average homeowner get an extension, and employ those in the construction industry, as opposed to directly addressing the lack of affordable housing for renters. In this sector, Government appears to be relying on indirect measures such as HomeBuilder (hoping that funding extensions will allow people to stay and not move) and slowing population growth (hoping that this reduces housing demand) is being relied upon to reduce housing costs, instead of direct measures.
Mission Australia reports there are 200,000 people on social housing wait lists, and at least 116,000 people who are homeless. Despite the female focus of the budget, homelessness – which disproportionately affects women facing domestic violence – was not addressed.
Salaries for those working for homelessness services will be protected. The federal government is continuing $56.7 million in funding for homelessness services via the Equal Remuneration Order (ERO) supplementation. This funding secures 500 jobs in the sector, again supporting jobs in a female-dominated workforce (as with aged care and child care).
Moores is pleased to see so many worthy sectors, and women, being provided for in this budget. We continue to watch with interest to see measures being implemented to bring about much needed improvement to our stability, mental health and economic participation.
The team at Moores have strong expertise and experience in key sectors including education, child safety, social housing, not-for-profit and workplace relations. We use our deep knowledge and practical experience to create a positive impact in our client’s lives and organisations. For more information, please do not hesitate to contact us.