VRQA published a readiness tool for new school applications in late April. It contains new additional requirements which are consistent with VRQA’s ongoing focus areas and their updated risk framework.
This looks like the real sleeper of the readiness tool. It requires new schools to ensure an enrolment decision can be appealed. This requires the enrolment policy to outline the processes for appeal.
The school governing body is ultimately responsible for compliance and for students. Certain obligations under Ministerial Order 870 (MO870) are non-delegable.
Existing schools need to take care that their duty of care obligations, particularly to younger students and students with disabilities. This requires clear policies on not only Child Safety (including the ability of the school to assess staff, contractors and volunteers “between” police checks as to their ongoing suitability to work with children), but also:
Although your policies and systems ought to be well-embedded in child safety, your policies may need updating to accommodate:
The CISS changes privacy, child safety and regulatory implications and risks. Schools should be aware of how CISS operates and its impact on other parts of school governance, safety and return-to-school management, and compliance.
All members of the school governing body must have been validly appointed to:
Schools need to ensure there are measures taken to ensure the governing body makes decisions in the best interests of the school and that these decisions are appropriately documented by creating:
As current schools will be aware, VRQA requires the enrolment agreement links to, or references, key policies and procedures. These include the:
The Grievance Management Policy needs to clearly outline steps for responding to complaints, including the escalation process and provide reasonable timeframes.
There also needs to be an appeals process for the management of complaints. The policy must also provide a review process and provide information of external organisations if the complainant is not satisfied with the complaint outcome or the way the complaint was managed.
Moores has extensive experience in education governance and regulation, as well as child safety and enrolment policies. We can help navigate this significant area of governance for your school. Strong governance is key to child safety. For more information or expert advice, please do not hesitate to contact us.
Schools and organisations can submit written feedback on the draft guidelines by 5.00pm on Tuesday 18 May 2021.
Although there is significant overlap with the Guidelines to the Minimum Standards for school registration, there are also distinct requirements.
1. Compliance with Worker Screening Act. This involves:
2. Acceptance policy
3. Register of Students
4. Record of Location of Students
5. Care, Safety and Welfare
6. Buildings, Facilities and grounds
7. Governance
8. Philosophy
9. Information on performance
10. Compliance with law, registration
With four and a half months to comply, existing boarding facilities will need to update existing policies and procedures, and create some bespoke material. With deep expertise in school regulation, Moores can assist. For more information, please do not hesitate to contact us.
Even though students and teachers are back in the classroom, changes to processes and new programs adopted during the pandemic continue to be used commonly across schools.
There has been a significant increase in schools experiencing privacy and data breaches during and following the COVID-19 pandemic. In 2020, 84 data breaches were reported to the Office of the Australian Information Commissioner (OAIC) in the education sector alone. It stands to reason that many more occurred, and did not require reporting (or were not otherwise reported).
Adopting remote learning platforms and administrative tools means the information collected by schools about students, parents, guardians and staff is increasingly digital. With large amounts of valuable information assets, schools face an increasing risk of inadvertent breaches or sophisticated ransomware and hacking attacks.
Human error was the leading source of data breaches in the education sector in July to December 2020, causing 25 of the 40 eligible data breaches (or 62.5%) notified to the OAIC under its data breach reporting scheme. The most common human error data breach was caused by personal information being sent to a wrong email recipient: 14 out of 25.
Moores recently assisted a school respond to a privacy breach. The school had introduced a new digital roll system, which was inadvertently made public when the old system was deactivated. The cause was human error in the security settings. Publically accessible personal information about students and parents included names, postal addresses, phone numbers and, in some cases, Medicare numbers.
Moores helped the school investigate and respond to the breach. The privacy breach was an eligible privacy breach so the school was required to report the breach to the OAIC. Moores helped the school submit the required notification to the OAIC and advised on damage mitigation and system improvement. Fortunately, considering the mitigation steps and procedures Moores helped the school implement, the OAIC did not take further enforcement action.
The volume and value of information collected digitally by schools significantly increased due to the pandemic. This puts schools are a greater risk of malicious breaches like ransomware attacks. Moores recently helped a school respond to a ransomware attack by offering initial guidance as to immediate steps, including reporting the ransomware attack to Victoria Police as a cyber-crime. The school also sought assistance from a forensic IT company.
Did you know? Ransomware attacks or hacking are still considered the school’s fault and are treated in the same way as breaches caused by the school. This means you have the same privacy obligations for inadvertent breaches, like the digital roll example, or malicious breaches, like ransomware attacks.
Moores observed an increase in ransomware attacks throughout the pandemic. COVID-19 creates a perfect storm of conditions: depressed economic circumstances, criminal groups using COVID-19 themes for phishing attacks, disruption or delay in usual processes for IT security due and working from home arrangements.
Other common methods of malicious privacy or data breaches in the education sector in 2020 were hacking, phishing and brute-force attacks with compromised credentials. The OAIC was notified of 9 of these cyber incident breaches in July to December 2020.
When your school becomes aware of a privacy or data breach, you may respond by taking the following steps:
Moores has published more advice about how to run an internal privacy investigation.
A data breach response plan will help you navigate these steps. Having a concrete data breach response plan equips schools to confidently respond to, investigate, contain and prevent breaches. Is your data breach response plan up-to-date? If not, Moores is able to assist you with preparing or amending this crucial document.
More digital content in schools, in the classroom and for administration, means an increased risk of privacy and data breaches. This risk is from both inadvertent human error and malicious activity or attacks.
Schools have an obligation to take reasonable steps to protect the personal information they hold from unauthorised access or disclosure. With increased adoption and use of technology in education, the digital information assets of schools are growing exponentially. With this, the risk of privacy and data breaches is significantly greater explaining the spike in breaches following COVID-19.
The role of Privacy Impact Assessments
Schools should reflect on programs, technologies and procedures adopted during the pandemic. While it may feel like 2020 was long ago, it is important to now take a step back and consider the emergency steps taken to manage education in the pandemic, and future proof those solutions from the increasing risk of privacy and data breaches. This reflection should consider privacy and information security implications and protections. It may be useful to conduct Privacy Impact Assessments, or a review of the information lifecycle throughout the school. To implement reasonable protections against breaches – both inadvertent and malicious – schools first need to understand where data is stored and how it is used from collection through to destruction. This is the information lifecycle.
Moores has free step by step instructions for a 5 Minute Privacy Impact Assessment for Remote Learning to help schools reflect on their remote learning set up and its privacy implications. The OAIC says it is never too late to conduct a PIA.
Training is critical
Training and information are important steps to protect a school against privacy and data breaches – partly because the most common breach is caused by sending an email to the wrong email address.
Schools should offer up to date privacy training to staff which reflects the new technologies now adopted in the classroom and across schools post-pandemic. For example, staff training might explain the importance of using prescribed programs, technologies and devices to avoid inadvertent breaches or hacking of school information. Ransomware attacks are significantly more successful on home IT systems due to weaker controls and a higher likelihood of users clicking on ransomware lures outside of a professional environment on a personal device.
With the relative calm of 2021, as we settle into the new normal, it might be appropriate to reflect on your school’s programs or technologies adopted during the pandemic, review your privacy policies (including your data breach response plan and privacy impact assessment), and educate staff about how to spot a suspicious communication, and what they need to do if they think there may have been a privacy breach.
Given the increased number of data breaches and malicious attacks in schools over the last year, now is the time to review your use of technology, key policies, and consider staff awareness training.
Moores has expertise in education governance, privacy and data security. We work with organisations to create workable and compliant privacy frameworks, including privacy training for staff. We also advise on privacy breaches or data breaches, in the event these occur.
With our strong history of supporting the education sector, including independent and catholic schools, early childhood providers and educations industry bodies, we are well placed to provide your school strategic and pragmatic privacy advice. For more information, please do not hesitate to contact us.
Victorian schools and education providers are now captured by the Child Information Sharing Scheme (CISS). This changes privacy, child safety and regulatory implications and risks. Schools should be aware of how CISS operates and its impact on other parts of school governance and compliance.
CISS facilitates the sharing of confidential information between organisations that work with children to promote the wellbeing and safety of those children. CISS aims to remove barriers to information sharing to best facilitate early identification and remediation of child abuse, neglect or other risks to child wellbeing and safety.
The CISS commenced on 3 September 2019. Schools and education providers are captured in phase 2 which commenced on 19 April 2021. (Phase 2 was delayed in 2020 due to COVID-19.)
With phase 2 now in force, the CISS has expanded to capture:
Information sharing can occur between any of these organisations. Organisations that are captured are referred to in the CISS as Information Sharing Entities (ISEs).
Under the CISS, an ISE can:
When an ISE receives an information request, it must assess the request against a three step test.
Schools – as ISEs – must respond to requests from other ISEs in a timely manner. If the sharing meets the three step threshold test, you must share the information. If the test is not met, you cannot share the information but you must respond to the request with an explanation in writing.
The CISS regime includes legislative principles to guide the collection, use or disclosure of confidential information. It is a principle of the CISS regime that ISEs give precedence to the wellbeing and safety of a child over the right to privacy.
The use or disclosure of confidential information under the CISS regime in good faith and with reasonable care does not constitute a contravention of any other Act.
For independent and catholic schools that also must comply with the Australian Privacy Principles under the Privacy Act 1988 (Cth), disclosure under the CISS is permitted by APP 6.2(b) where it is authorised by law.
This means that where a disclosure is made in compliance with the CISS, it is not a privacy breach. However, if schools do not meet the regulatory requirements of the CISS, the disclosure may also be a privacy breach.
You may need to review your privacy policy, privacy procedures, and data security protocols, confidentiality policies, and consent and release of information forms.
Moores has extensive experience in privacy, child safety and regulation and is well placed to assist schools and other organisations in preparing for and implementing the CISS. For more information, please do not hesitate to contact us.
Welcome to the second article in our series on Special Disability Trusts (SDTs), where we hope to demystify particular aspects of these trusts, and highlight the benefits, eligibility requirements and restrictions to look out for.
As discussed in our previous article in this series, the two main benefits of establishing a SDT for a vulnerable person are:
However, it is important to note that being in receipt of the DSP does not automatically qualify a person to be the principal beneficiary of a SDT.
To be eligible for a SDT, the principal beneficiary must meet the definition set out in s1209M of the Social Security Act 1991 (Cth). There is one definition for a person 16 years of age or older and another definition for a person who is under 16 years of age.
If the principal beneficiary has reached 16 years of age, they must:
AND
If the principal beneficiary is under 16 years of age, they must:
The Social Security Guide (as at 1 April 2021) defines:
“that result in the child requiring, permanently or for an extended period, a high level of constant care to maintain comfort, sustain life, or attend to a bodily function that the child cannot manage themselves”.
Whilst the eligibility requirements may seem complex, the benefits of establishing a SDT for a vulnerable beneficiary can be significant, including preserving their DSP entitlements and associated benefits such as the Health Care Card.
Before a SDT is established to hold assets for a vulnerable beneficiary, it is imperative to receive confirmation from Centrelink that the intended beneficiary qualifies. Otherwise, assets could be trapped in a SDT with its stringent requirements and restrictions on expenditure and investments, without all of the hoped for benefits.
Look out for the next article in this series, when we discuss the eligibility requirements and other considerations in deciding who to appoint as the trustees of a Special Disability Trust. For more information or expert advice, please do not hesitate to contact us.
Almost a year ago, the COVID-19 Omnibus (Emergency Measures) Act 2020 (Omnibus Act) and the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations (Regulations) introduced the ability for certain documents to be signed electronically and witnessed remotely in Victoria.
The relevant part of the Omnibus Act will be automatically repealed on 26 April 2021, which by extension will revoke the Regulations.
As of 26 April 2021, the Justice Legislation Amendment (System Enhancement and Other Matters) Act 2021 (Amendment Act) provides Victorians with the permanent ability to execute certain documents electronically, before witnesses present remotely (that is, by ‘audio visual link’).
Any program or application that permits real-time video conferencing (that is, audio and visual communication between people in different locations) would be considered an audio visual link for this purpose.[1]
However, the process to execute and witness documents remotely is not ‘one size fits all’: there is a distinct process and set of requirements for each type of document permitted to be executed under the new framework.
The new rules for remote execution of wills, enduring powers of attorney, affidavits and statutory declarations introduce additional requirements that do not apply when the same documents are executed in the traditional manner, or under the temporary remote execution provisions in place during the last year.
Care must be taken to ensure that the relevant process is strictly followed, to ensure documents are validly executed.
Consistent with the existing requirements of the Wills Act 1997 (Wills Act), a will executed remotely must still be signed by the testator in the presence of two witnesses.
The parties must all be in each other’s presence, either by audio visual link and/or physical presence. A testator could validly sign their will before one witness present in person, and one witness present by audio visual link.
Importantly, where the will is to be signed and witnessed remotely, one of the witnesses must now be a ‘special witness’ (such as an Australian legal practitioner, justice of the peace or member of a prescribed class).
The witnesses must clearly see the signature of the testator (or a person at their direction) being made. The testator must also able to see each witness’s signature being made. Arguably, this means that:
Once the testator has signed, the will must be transmitted by electronic means to any remote witness, who signs and affixes a statement to the will that they witnessed the will by audio visual link in accordance with the remote execution procedure. If the will is being wet signed by any party, it will need to be scanned and a copy of the signed document transmitted to the next witness, so they can:
The special witness must sign last, as they are responsible for checking the will for compliance with the remote execution procedure. They must then, after signing, ensure there is a statement on the will certifying that:
The document which has been checked and signed by the special witness is the valid will. A will cannot be signed in counterparts – even where the testator and both witnesses are in different locations. To avoid future confusion, if the testator and/or the first witness are wet signing a copy of the will, we consider it would be best practice to immediately destroy any such partially executed document.
All elements of the remote execution process must be carried out on the same day, with the testator and witnesses physically in Victoria.
The remote witnessing procedure for enduring powers of attorney is similar to that for wills, in that:
The document which has been checked and signed by the special witness, and contains the special witness statement, is the valid enduring power of attorney.
An attorney (other than a trustee company) may similarly accept their appointment by using the remote witnessing procedure. However, there is no need for the witness to the acceptance of appointment to be a special witness.
Affidavits may now be signed or initially electronically, and witnessed over audio visual link. All existing requirements for taking affidavits under the Oaths and Affirmations Act 2018 continue to apply.
Where an affidavit has been witnessed remotely, the jurat must also set out the following:[2]
A statutory declaration may be signed or initialled electronically, and witnessed via audio visual link.
A statutory declaration signed or witnessed under the new remote execution procedure must contain a statement specifying the manner in which it was signed or witnessed, and whether a scanned or electronic copy of the statutory declaration has been used. This statement may be pre-filled on the statutory declaration form.
Executing an affidavit or statutory declaration remotely does not remove the need for the deponent/declarant to state the oath, affirmation or declaration aloud.
The Amendment Act does not provide a mechanism for the electronic signing and remote witnessing of international wills, advance care directives or appointments of medical treatment decision maker.
These documents must continue to be executed on paper, in the physical presence of the required witnesses.
The above remote signing and witnessing procedures do not negate or replace other requirements under the relevant Acts for the respective documents to be valid.
While the introduction of a permanent mechanism for the above documents to be signed and witnessed remotely is to be applauded, the process is not straightforward. If one of the requirements is not met, the relevant document would not be valid. If the person cannot re-execute the document, the consequences could include:
Consideration should therefore be given to how a document should be executed, and whether the remote execution procedure is appropriate for the particular document and client. In many cases, signing and witnessing a document in person may continue to be the most appropriate approach.
If you have been appointed under a will or power of attorney that has been signed electronically, we would be happy to assist you with understanding whether it complies with the relevant formalities, and the options open to you in the event it does not. For more information, please do not hesitate to contact us.
[1] Interpretation of Legislation Act 1984, s 38; Evidence (Miscellaneous Provisions) Act 1958, s 42C.[2] Oaths and Affirmations Act 2018, s 27(1A).
This legislation significantly amended the Fair Work Act 2009 (Cth) (Amended FW Act) for employers of casual employees. The Amended FW Act received royal assent on 26 March 2021 and came into effect on 27 March 2021.
Non-Small Business Employers[1] have until 26 September 2021 to review their casual employment arrangements by determining who should be (and should not be) offered conversion to permanent employment. This creates an opportunity for these employers to set themselves up for success in managing their casual workforce.
All employers need to start providing the new Casual Employment Information Statement to its new casual employees. This document can be downloaded from the Fair Work Ombudsman’s website now.
The Amended FW Act casual conversion provisions are aimed at “longer-serving regular casuals”[2], i.e. casual employees with 12 months of service and who, during at least six of the last 12 months, have worked regular shifts, which, without significant adjustment, can continue as full-time or part-time employment arrangements.
The two new paths to permanent employment for longer-serving regular casuals are as follows:
The Amended FW Act’s “right to request” provisions look very similar to the casual conversion provisions in Modern Awards. Modern Awards will be updated between now and 26 September 2021 (i.e. the first six months of the Amended FW Act coming into effect – see our response to question 5 below).
When an employer offers permanent employment to a casual employee, it needs to be either on a full-time or part-time basis depending on the casual employee’s regular work hours.
For Small Business Employers, longer-serving regular casuals (with at least 12 months of service) can now request conversion to permanent employment.
For Non-Small Business Employers, there is a transition period ending on 26 September 2021 during which they must review all their current casual employees (i.e. those employed as casuals before 27 March 2021, when the Amended FW Act came into effect)[3] for conversion to permanent employment. As part of this review, the employer must proactively inform these casual employees whether they will be converted to permanent employment or not, and give reasons if they refuse to offer permanent employment. The employer is not legally required to offer permanent employment to anyone who is not a longer-serving regular casual. The employer may refuse to offer permanent employment to a casual on “reasonable grounds” (see our response to question 3 below).
While Non-Small Business Employers are working through this review process, their current longer-serving regular casuals (i.e. those employed as casuals before 27 March 2021, when the Amended FW Act came into effect) will not have the statutory right to request conversion to permanent employment until 26 September 2021 (when the transition period ends).
In these coming five months or so, Non-Small Business Employers have an invaluable opportunity to review how they use casual employees in their organisation, set expectations and right-size their casual workforce.
Under the Amended FW Act, an employer can only decline to offer conversion on reasonable grounds. The employer must document that refusal in a statement provided to the employee explaining the reasons for the refusal.
The concept of “reasonable grounds” is not exhaustively defined in the Amended FW Act, but any refusal by an employer must be based on facts that are known or reasonably foreseeable at the time that the employer decides not to make the offer to convert the casual to permanent employment.
The Fair Work Commission is authorised to handle disputes in relation to casual conversion.
As mentioned above, if a casual employee refuses an offer to convert to permanent employment, they are not permitted to make a request for conversion for six months after that refusal.
Some commentators expect that casual employees will refuse to convert because they do not want to take a reduction in pay by losing the casual loading. We anticipate that the rate at which casuals will accept offers to convert to permanent employment is likely to vary by industry.
As noted above, Modern Awards and many Enterprise Agreements also give certain casuals the right to request conversion to permanent employment. The new conversion provisions in the Amended FW Act will operate alongside current casual conversion provisions in Modern Awards and Enterprise Agreements.
Technically, casual conversion provisions in Modern Awards and Enterprise Agreements may provide another path to convert from casual to permanent employment, but the significance of those Modern Award and Enterprise Agreement provisions will diminish with time. This is because the Amended FW Act requires the Fair Work Commission to review the Modern Award terms relating to casuals during the six-month transition period (ending on 26 September 2021). We can expect that this process will align the casual conversion provisions in Modern Awards with the Amended FW Act, and, in due course, equivalent provisions in Enterprise Agreements will follow suit.
Statutory definition of “Casual Employee” – A safe harbour
The new statutory definition of “casual employee” gives employers a safe harbour if they have clear offers of employment stating that employment is on a casual basis, and evidence that those offers were accepted by employees.
No double dipping
A casual employee claiming to have been a permanent employee who was misclassified as casual (like the claimant in WorkPac v Rossato) will have their claim reduced by the amount of identifiable casual loading paid to them during the employment period related to their claim.
Clarifying how the National Employments Standards operate after conversion to permanent employment
The National Employment Standards have been clarified to deal with minimum entitlements of employees who converted from casual to permanent employment. For example, service as a casual is not taken into account when determining minimum entitlements to notice of termination or redundancy payments.
Casual Employment Information Statement
The new Casual Employment Information Statement is now available on the Fair Work Ombudsman’s website linked here.
From 27 March 2021 onwards, all employers must provide a “Casual Employment Information Statement” before or as soon as practicable after a new casual employee starts employment. This requirement will apply in addition to the current obligation on employers to issue “Fair Work Information Statements” to their employees.
Small Business Employers need to provide the new Casual Employment Information Statement to all their casual employees as soon as practicable after 27 March 2021.
Non-Small Business Employers must provide the new information statement to casual employees who were hired before 27 March 2021, as soon as practicable after 27 September 2021 (i.e. after the six-month transition period has ended – see our response to question 2 above for more details about the significance of this six-month transition period from 27 March to 26 September 2021 for Non-Small Business Employers).
In light of these changes, we recommend that:
For more information on what this might mean for your organisation or how to apply these new provisions practically, please don’t hesitate to contact us.
[1] “Small Business Employer” is defined in section 23 of the FW Act. A Small Business Employer is an employer with less than 15 employees. Casual employees who are not employed on a regular basis are excluded from the count of 15 employees, whilst employees of associated entities are included within the count.[2] “Longer-serving regular casuals” is a shorthand we use in this article and is not a defined term in the Amended FW Act.[3] The Amended Fair Work Act refers to casual employees who were employed by Non-Small Business Employers immediately before the amendments came into effect on 27 March 2021 as “transitioning casual employees”.
Family law proceedings can often stretch over a number of years whilst parties progress through the Family Court system. Where one party is unwell, a commonly asked question is what happens if my partner passes away before we reach a resolution? Can I control what my spouse includes in their will?
In the recent Family Court of Australia Decision in Baskin & Baskin [1], the Husband passed away during the proceedings. The following facts are important to the decision reached:
Following the Husband’s suicide, the Wife was granted Letters of Administration of the Husband’s Estate on 19 November 2019. Letters of Administration is an Order granted by the Supreme Court which gives a person the legal right to deal with the estate of a deceased person who died without leaving a valid will. The Wife, as the Husband’s spouse and subject to any claim for further provision was entitled to the whole of the Husband’s Estate [2].
Following the grant, the Wife then sought to be substituted as legal personal representative of the Husband’s Estate meaning effectively, in the Family Law proceedings, she would be both the Applicant and the Respondent. The Wife therefore sought that her Application for a property settlement be dismissed and she retain the property pool in its entirety.
Justice Macmillan delivered a judgement on 25 May 2020 that the Wife in her capacity as administrator of the Estate of the Husband be substituted as a party for the Husband. After doing so, Justice Macmillan made a further order that the proceedings be dismissed.
Her Honour’s decision was predicated on the following basis:
Whilst the circumstances in Baskin & Baskin are tragic for all involved, it highlights the importance of making a Will, even if your property proceedings have not yet been finalised.
The trajectory of this case could have been very different if the Husband had a valid Will and had appointed a third party as an executor, or provided for his Estate on his death to pass to the parties’ son, rather than the Wife.
If you are contemplating separation from your spouse, or have separated but not yet made a Will, our expert team can assist you with your Family Law or Estate Planning queries. For more information and guidance, please do not hesitate to contact us.
[1] Baskin & Baskin [2020] FamCA 401 (25 May 2020)[2] Section 70K Administration and Probate Act 1958 (Vic)
Two recent cases passing through the Victorian Civil and Administrative Tribunal in 2020 have highlighted the importance of forward planning if a person is considering voluntary assisted dying (“VAD”). The requirement for Australian citizenship or permanent residence, together with being “ordinarily resident in Victoria” can be an unexpected obstacle for prospective applicants to the scheme.
The Voluntary Assisted Dying Act 2017 (“the Act“) sets out several eligibility criteria for a person seeking to access the scheme, being:
Provided a person meets the eligibility criteria, there are a number of further steps which must be taken in order for that person to be granted a permit for VAD, and ultimately prescribed the medication for themselves or their doctor to administer.
Understandably, commentary regarding the implementation of the Act has focused on striking the right balance between providing sufficient safeguards from abuse of the scheme and permitting access to the scheme for those who would seek it.
However, it is as a result of the citizenship and residency criteria that many applications have been denied, two of which resulted in legal proceedings.
The first case, NJT v NJT (Human Rights) [2020] VCAT 547, related to a “grey nomad” who, whilst “based’ in Victoria, had no fixed address. His initial application for access to VAD was put before VCAT due to the doubt surrounding whether he was “ordinarily resident in Victoria”.
The patient (“BTR”) lived in a caravan and regularly travelled to Queensland to escape the Victorian weather. He had no rental history since 2006 and did not own property (in Victoria or otherwise). He had physicians in Melbourne but also visited physicians in Queensland. There was no allegation that he would be ineligible for VAD on any grounds other than the residency requirement.
The evidence required to be submitted by BTR before VCAT ultimately determined that he was eligible for VAD was substantial. He provided his drivers license, passport, medical records, a statutory declaration, a timeline of his living arrangements and information as to his decision to return to Victoria for medical care. Even though BTR was ultimately granted a permit to access VAD, the process took over a month of his last few months of life and was undoubtably frustrating and traumatic.
The second case, YSB v YSV (Human Rights) [2020] VCAT 1396 dealt with the citizenship criteria. The patient in question (“UQL”) had migrated from England some 15 years earlier and had not left Australia in more than 10 years. He had owned a house in Victoria for 9 years. UQL was originally born in the UK and moved to New Zealand before settling in Australia. He did not hold Australian citizenship and his visa classed him as a temporary resident, although the period of stay was “indefinite”.
VCAT was asked to determine whether the initial decision that UQL did not meet the citizenship requirement could be challenged. Unfortunately, VCAT found that it did not have the jurisdiction to hear the question; the Tribunal did not have the jurisdiction to determine whether UQL was a permanent resident, nor could it waive the requirement. The Tribunal acknowledged the “disappointment and despair” that the decision caused, as the result left UQL with no practical avenue to access VAD despite meeting the medical criteria.
Both of the situations in which the two patients found themselves in were born of administrative setbacks, rather than medical setback; this is reflected in commentary released by the VAD Board that the residence and citizenship requirements often catch prospective applicants unawares.
These setbacks can potentially be avoided by raising any queries in relation to potential future eligibility for VAD with an Estate Planning lawyer, particularly when considering medical directives and Powers of Attorney. Addressing the need for citizenship or residence as part of the Estate Planning process can provide substantial peace of mind and avoid a traumatic legal process in the final stages of a terminal illness. For more information and expert advice, please do not hesitate to contact us.
Practices seeking to change or suppress a person’s sexual orientation or gender identity (conversion practices) have been banned in Victoria following the passing of the Change or Suppression (Conversion) Practices Prohibition Bill. The bill has been passed, but will not become law until February 2022.
Among other things, the new law:
Penalties apply under the new law – up to ten years’ jail or $218,088 for individuals or up to $1,090,440 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 bill notes that the new law is “intended to capture a broad range of conduct, including, informal practices, such as conversations with a community leader that encourage change or suppression of sexual orientation or gender identity, and more formal practices, such as behaviour change programs and residential camps.”
A practice is not a change or suppression practice if it is supportive of or affirms a person’s gender identity or sexual orientation. The bill expressly confirms that the following are not change or suppression practices:
The bill also protects a practice that is (in the health service provider’s reasonable professional judgement), necessary to provide a health service or comply with the health service provider’s legal or professional obligations. This will not be a change or suppression practice under the new law.
Organisations may be held liable under the new law for the actions of employees and agents (including volunteers within the organisation) acting with their actual or apparent authority as well as officers (including directors or committee members). An organisation may be deemed to have intended for a practice to take place if the corporate culture within the organisation directed, encouraged, tolerated or led to the formation of the intention to carry out that practice.
It may be a defence if an organisation can demonstrate that it exercised due diligence or took reasonable precautions to prevent conversion or suppression practices by an individual.
The bill was accompanied by a Statement of Compatibility (a requirement to confirm that a proposed law is compatible with the Victorian Charter of Human Rights). That Statement says:
Although broad, the definition has been carefully designed to exclude conduct that is not directed at an individual, to reduce its impact on religious practices such as sermons. It also requires conduct be engaged in for the purpose of changing or suppression a person’s sexual orientation or gender identity (or inducing a person to change or suppress) to limit impact on general discussions of religious beliefs around sexual orientation or gender identity that aim to explain these beliefs and not change or suppress a person’s sexual orientation or gender identity. (emphasis added)
The legislation has been crafted to reduce or limit the impact on sermons and general discussions of religious beliefs. However, it remains possible that a sermon or discussion about religious belief could contravene the new law if it is found to be directed at an individual and to have a purpose of changing or suppressing the person’s sexual orientation or gender identity.
The law will not come into effect for a further twelve months to allow for the Victorian Equal Opportunity and Human Rights Commission to prepare for implementation. During this period, the Commission will develop guidance on how it considers the law should be interpreted and applied.
This is uncharted territory in Victoria. For organisations and institutions whose activities include personal counselling, instruction or teaching regarding sexual orientation or gender identity or the teaching or expression of religious belief, the new law will require careful consideration.
As the VEOHRC develops guidance and communicates its plans on how it intends to exercise its new powers, appropriate preventative (or remedial) measures for organisations will become apparent. In the meantime, here are some that are immediately clear:
For more information or advice on how the reforms may affect you or your organisation, please do not hesitate to contact us.