As of 11.59pm Wednesday 5 August 2020, parents in metropolitan Melbourne will not be able to send their children to childcare unless they are vulnerable children or children of “permitted workers”.

There has been vast uncertainty in the sector regarding how child care centres will continue to operate with such a drastic reduction in children attending. Federal Education Minister Dan Tehan today provided some clarity, by announcing support for the Victoria childcare sector in the form of:

• Parents will have an extra 30 days of allowable absences from childcare for their enrolled children;
• Providers can waive the gap fee so that parents do not have to pay to keep their child enrolled at the centre for the next 30 days. If the gap fee is waived, families should not be charged fees for keeping their children at home so will not have to withdraw from the system;  
• Childcare providers will a higher transition payment of 30% of pre-COVID revenue and centres with less than half their revenue coming from the childcare subsidy that see their attendance rate drop below 30% will get extra;
• Employment is guaranteed for staff at childcare centres, which means child care centres need to keep employees on the books; and
• $6million to support measures for outside school hours care for children of essential workers and vulnerable children in regional Victoria.

We note that childcare centres are not compelled by law to waive gap fees, it is up to each individual provider to determine if they will require parents to continue to pay gap fees. Further, the employment guarantee is not an income guarantee, making it difficult for early childhood educators who were taken off JobKeeper payments.

Who can access childcare?

Childcare is only able to be accessed by vulnerable children or children of “permitted workers”, if there is no one else in their household who can look after the child. A “permitted worker” is defined as:  

• A worker from an organisation on the list of permitted activities;
• The employee is working in an approved category for on-site work; and
• The employee cannot work from home.

A full list of permitted industries is available here.

An “Access to Child Care Permit” has been set up for permitted workers to allow their children to attend childcare if they don’t have anyone else in the household who can supervise their children. The permit must be completed by the permitted worker’s employer and childcare providers must obtain Access to Childcare Permits from parents before allowing their children to attend childcare.

How we can help

If you require assistance with managing these recent changes to childcare or for more information on any of the above, please do not hesitate to contact us.

As is common across most jurisdictions, there are specific deadlines in place for issuing Court Proceedings with respect to a property settlement in Family Law matters.

For parties to a marriage, an Application can be made to the Court for a property settlement provided their Application is filed within 12 months after the date of Divorce.  Parties who are in a de facto relationship must file an Application within 2 years from the date of separation.

If the relevant time period has passed, the alternative available is to obtain leave from the Court which is colloquially known as permission to file your Application out of time.

Will the Court automatically grant leave?

When considering whether a property settlement can proceed out of time, the Court must be satisfied that hardship would be caused to either party or a child of the relationship if leave is not granted.

Hardship is not defined by the Family Law Act 1975 Cth.  The Court considers the following factors when making a determination:

1. Is there a prima facie case worth pursuing? Does your Application have a real chance of success?  
2. Does the benefit, or the anticipated result from your property settlement outweigh the cost of the legal proceedings?
3. Is there an adequate reason for the delay in seeking a property settlement?

Lacy & Cloet [2020] FCCA 791

The recently published judgement of Lacy & Cloet [2020] FCCA 791 (“Lacy & Cloet”) considered an Application for a property settlement made out of time for a de facto couple.

The relevant facts in the case that the Court considered were as follows:

1. Ms Lacy (the Applicant) and Mr Cloet (the Respondent) met in late 2008/ early 2009. They commenced cohabitation with Ms Lacy’s sister.  Mr Cloet was still married at the time to his previous Wife.  Mr Cloet paid rent to Ms Lacy’s sister.
2. Mr Cloet purchased a property in 2012 in his sole name for $399,000 with an associated mortgage of $364,930 (known as Property X).
3. Ms Lacy maintained that she contributed $24,000 towards the deposit to Property X and thereafter paid $1,000 per month towards the mortgage until separation in September 2014.
4. Mr Cloet maintained that he contributed $15,440 of savings to the deposit and Ms Lacy loaned him $8,560, which he repaid to her.  The sum of $15,440 was savings that Mr Cloet deposited into Ms Lacy’s bank account.  The regular payments of $1,000 made by Ms Lacy thereafter were her contribution to rent.
5. The parties separated in September 2014 and Mr Cloet remained living in the property.
6. Ms Lacy issued proceedings nearly 5 years later on 11 April 2019 seeking the property pool be divided on a 50/50 basis.
7. Importantly, at the time of the Hearing, both Ms Lacy and Mr Cloet were residing with their new partners, each with a young child.

Did the Court grant leave?

Ultimately, the Court dismissed Ms Lacy’s Application for a property settlement out of time. The Court’s decision was predicated on the following factors:

1. The benefit or result that Ms Lacy would receive from a property settlement would likely be outweighed by the cost of litigation. At the time of the Court Hearing, Ms Lacy’s legal fees were already estimated to be in the vicinity of $75,000. Ms Lacy’s contribution to Property X would unlikely be seen as more than payment for rent.
2. The parties’ were in similar financial positions and there was a modest pool of assets between them. They each had new partners and young children.
3. Ms Lacy did not provide an adequate reason for the delay in filing an Application for a property settlement. The parties had been separated for nearly 5 years at the date of filing and Mr Cloet had arranged for Ms Lacy to receive legal advice at the time of separation.

How we can help

Lacy & Cloet emphasises the importance of obtaining legal advice at separation so you are aware of all applicable time limits and you can make an informed decision regarding an anticipated property settlement.  

In matters where there is only a small property pool available for distribution, it is important to consider if the cost of litigation may be greater than or similar to the overall amount you may be entitled to receive. For expert advice and guidance, please do not hesitate to contact us.

The Victorian Parliamentary Inquiry into Abuse in Disability Services found a long history of widespread abuse and neglect of people with disability, and determined that more effective safeguards were needed to ensure that disability workers deliver high quality care. Following the Inquiry, the Victorian Government established the Disability Worker Regulation Scheme (the Scheme) under the Disability Service Safeguards Act 2018 (Vic) (the Act), to regulate all disability workers in Victoria, irrespective of the source of funding.

The Scheme will apply to all disability workers in Victoria from 1 July 2020. The commencement of other elements of the Scheme, such as the registration of disability workers and the online Register, have been delayed due to COVID-19 and are now due to commence from 1 July 2021.

The Scheme

The purpose of the Scheme is to ensure the quality, safety, responsiveness and sustainability of the disability workforce. The Scheme does this by:

• Creating a mandatory obligation on all disability workers and employers to notify the Victorian Disability Worker Commission (Commission) or the Disability Worker Registration Board (Board) of any allegations that a disability worker has engaged in notifiable conduct.
• Enabling disability workers to obtain registration status with the Board.
• Establishing processes to make complaints about disability workers to the Commission or the Board.
• Creating the Disability Service Safeguards Code of Conduct with which all disability workers must comply.

As the Scheme applies to all disability workers from 1 July 2020, the mandatory notification obligations have now commenced, the Code of Conduct applies, and complaints can be made to the Board and the Commission about the conduct of disability workers.

Obligation to report ‘notifiable conduct’

The Scheme aims to assist in preventing and protecting people with disability from harm by making the Commission aware of potential risks to disability service users.

Under the Act, disability workers and employers in Victoria must notify the Commission or the Board as soon as practicable after forming a reasonable belief that a disability worker has engaged in behaviour that constitutes notifiable conduct – even if they have already reported their concerns to another body. This applies to both registered and unregistered disability workers.

Notifiable conduct includes:

• engaging in sexual misconduct while practising;
• practising as a disability worker while intoxicated by drugs or alcohol;
• placing the public at risk of harm due to:
  • an impairment that detrimentally affects their capacity to practise; or
  • practising in a manner that constitutes a significant departure from accepted professional standards.

The Board may take action against disability workers who do not make the mandatory notification to the Commission or the Board. Whilst there are no direct consequences for an employer to fail to notify the Commission or the Board, the Commission can share information about registered NDIS providers with the NDIS Quality and Safeguards Commission.

Complaints

Any person can make a complaint to the Commission or the Board about the conduct of a Victorian disability worker (including employees, contractors, agents and volunteers who provide services on behalf of an organisation or agency).

The grounds on which a complaint can be made are extremely broad. Complaints can be made about any disability worker (whether registered or unregistered workers) in Victoria about their:

• their standard of work;
• their knowledge, skill or judgment;
• their capacity to provide services safely;
• if they have engaged in notifiable conduct;
• an alleged breach of the Act or the Code of Conduct.

The Commission and the Board are responsible for managing complaints and notifications about disability workers. A range of actions may be taken in response, including but not limited to:

• resolving complaints through conciliation;
• investigating the conduct;
• counselling or cautioning the disability worker;
• requiring a registered disability worker to undergo a performance or health assessment (if registered after 1 July 2021);
• imposing conditions on the registration of a disability worker requiring them to take or refrain from particular action;
• suspending the registration of a disability worker;
• referring the matter to an appropriate body (e.g. NDIS Quality and Safeguards Commission); and
• issue an order preventing an unregistered disability workers person from providing disability services for a specified time or indefinitely.

Critically, in the case of registered disability workers, VCAT can cancel their registration, disqualify the disability worker from reapplying for registration and issue a prohibition order preventing them from delivering disability services.

Code of Conduct

The Code of Conduct is set out in the Disability Service Safeguards Regulations 2020, and adopts theNDIS Code of Conduct. In effect, this means that the NDIS Code of Conduct applies to all disability workers in Victoria. In summary, this means that all disability workers are now required to:

• act with respect for individual rights to freedom of expression, self-determination and decision-making in accordance with applicable laws and conventions;
• respect the privacy of people with disability;
• provide supports and services in a safe and competent manner, with care and skill;
• act with integrity, honesty and transparency;
• promptly take steps to raise and act on concerns about matters that may impact the quality and safety of supports and services provided to people with disability;
• take all reasonable steps to prevent and respond to all forms of violence against, and exploitation, neglect and abuse of, people with disability; and
• take all reasonable steps to prevent and respond to sexual misconduct.

Registration

The Act creates a voluntary registration scheme for disability workers. Registration demonstrates that workers meet minimum standards set by the Board in qualifications, probity and safety and quality of the delivery of disability services. Service providers who engage registered disability workers will be better positioned to promote the quality and safety of their services to people with disability, their families, carers and funding agencies.

As noted above, the commencement of registration has been delayed until 1 July 2021.

Key issues for employers in the disability services sector

The Scheme creates civil offences which carry penalties under the Act and are applicable to individuals and body corporates. For example, it is unlawful to knowingly or recklessly claiming that a worker is a registered worker if that is not the case, or claiming that the registered worker has a particular registration or endorsement if they don’t.

Positively, from 1 July 2021, the Scheme will allow employers to use the online Register for recruitment and performance purposes. Under the Register, employers will be able to:

• confirm the status of potential workers by confirming and / or verifying whether they are a ‘registered disability worker’ or ‘unregistered disability worker‘;
• check any conditions on a worker’s registration imposed by the Board;
• check any endorsements on a worker’s registration; and
• check any disability action such as a caution, reprimand or cancellation of registration taken by the Board or the VCAT in accordance with the Act.

How we can help

It will be important for disability service providers operating in Victoria to consider their obligations under the Scheme and the impact it will have on their disability workers and clients.

If you have any questions or would like to discuss how Moores can provide assistance to your organisation in light of the Scheme please do not hesitate to contact us.

Victoria’s new industrial manslaughter laws came into effect on 1 July 2020. The new laws aim to prevent workplace death and provide a stronger deterrent for duty holders to comply with Occupational Health and Safety (OHS) obligations.

These laws apply to not-for-profit clients such as schools and charitable organisations, just as OHS laws do. They are broad, as they cover conduct by both the organisation and its officers, and have severe consequences. Breaching OHS duties which lead to a person’s death can result in heavy financial penalties being ordered and even jail terms for officers of an organisation.

Given the heightened apprehension around workplace safety and COVID-19, it is crucially import that workplace health and safety policies and procedures are up to date and training is provided where necessary, to ensure all appropriate persons in your organisation are made aware the new industrial manslaughter laws.

The Act

The Workplace Safety Legislation Amendment Act (Workplace Manslaughter and Other Matters) Act 2019 (the Act) amends the Occupational Health and Safety Act 2004 (OHS Act) in Victoria to create industrial manslaughter laws that apply to employers, self-employed persons or officers who, by their negligent conduct, cause the death of anyone who is owed an existing duty under the OHS Act, including employees and members of the public.

The Act will not operate retrospectively, this means only a death that occurs after 1 July 2020 will be considered. However, there is no time limit for safety prosecutions initiated by WorkSafe Victoria. The Act carries significant implications, with the suggestion that negligence could extend to a situation where an employee suicided as a result of an employer’s negligent conduct.

What does the Act apply to?

The act lists “applicable entities” in section 39G (3) of the Act, which includes:

• Bodies corporate;
• Unincorporated bodies and unincorporated associations;
• Incorporated associations; and
• Trustees of trusts.  

The Act applies to directors and officers of organisations (other than volunteers or employees), unless the employee is also an officer. “Officers” who are not directors would include:

• Board secretaries;
• CEOs – a person who participates in the making of decisions that affect a substantial part of the organisation’s business (i.e. members of the C-suite executive team); and
• CFOs – a person who has the capacity to significantly affect the organisation’s financial standing (e.g. Chief Financial Officers); or
• A Senior Manager or person of significant influence – a person in accordance with whose instructions or wishes the directors of a corporation are accustomed to act; or
• An office holder of an unincorporated association.

We note that an employee is still able to be prosecuted for breaching existing duties under the OHS Act such as the duty to take reasonable care for their own health and safety and the health and safety of others in the workplace.

What is negligent conduct?

Negligent conduct is a ‘greater falling short’ of the standard of care that would have been taken by a reasonable person in the circumstances, and involves a high risk of death, serious injury or serious illness. The test for whether conduct amounts to negligence looks at what a reasonable person in the situation of the accused would have done in the circumstances. This conduct includes failure to act, such as when a person:

• Does not adequately manage, control or supervise its employees; or
• Does not take reasonable action to fix a dangerous situation, where failing to do so results in death, serious injury or serious illness.

What are an organisation’s health and safety duties?

Additional duties are not created as a result of the law. Rather, tougher penalties apply to already existing duties under the OHS Act. Thus, an organisation will be found to have breached its standard of care if there has been a breach of the applicable duties under the OHS Act, which include (but are not limited to):

• To maintain a safe working environment for employees, including independent contractors;
• To monitor health of employees, conditions at any workplace and provide information to employees concerning health and safety at the workplace;
• To keep information and records relating to the health and safety of employees and engage suitably qualified people to provide OHS advice to employees;
• To ensure, so far as reasonably practicable, that persons other than employees (i.e. members of the public or clients) are not exposed to risks to their health and safety due to their conduct;
• Not to recklessly engage in conduct that may place another person at a workplace in danger of serious injury; and
• To ensure that a workplace and the means of entering or leaving it are safe and without risks to health.

What constitutes a breach of duty of care?

An organisation is deemed to have breached an applicable duty which amounts to industrial manslaughter in circumstances where:

• There was a high risk of death, serious injury or serious illness;
• The act that breached the duty of care was committed consciously and voluntarily; and
• The conduct causes an injury or illness to another person, who later dies from that injury or illness. The conduct must be such that an ordinary person would hold it to be the cause of death. Workplace manslaughter may apply even when death of a person occurs sometime after the relevant incident e.g. where an employee has been exposed to asbestos and they develop an asbestos-related disease.

Penalties

The penalties are severe – corporations can be fined up to $16.5 million (100,000 penalty units) and individuals can face up to 20 years’ in prison.

What can your organisation do?

Just as the OHS law currently provides, employers and duty-holders should stop to think about the risks involved in the conduct of their business, and what steps can be taken to mitigate those risks. An organisation therefore should ensure it has the right systems, controls and equipment in place and a workplace culture directed towards improving safety in the workplace. Accordingly, we recommend organisations take the following steps:

• Ensure they do not knowingly expose employees, subcontractors or clients to persons who have been diagnosed with COVID-19. There are risks associated with deliberate exposure to COVID-19 if it results in death or serious injury;
• Review all the potential hazards and risks (physical and psychological) in your workplace, and manage within a risk management framework;
• Conduct a formal review of your safety systems and controls to ensure they are effective and a correct reflection of your processes. Review your incident action plans and responses;
• Review all your existing policies and ensure they are complete, including anti-bullying and harassment policies;
• Examine your health and safety leadership and culture for possible negligent practices;
• Provide training so that all directors, senior officers and managers understand the implications of the legislation;
• Consider your business insurance arrangements to ensure they cover workplace health and safety incidents; and  
• Train all employees in the safe practice of high-risk activities. Regularly refresh the training to ensure ongoing competence and keep detailed reports and records. Ensure employees understand safety obligations and can apply their knowledge.

How we can help

If you believe your organisation may be exposed due to policies and procedures which have not been updated regularly or recently, or your staff have not received appropriate training, Moores can assist with providing workplace training.

We offer a range of training services which can be delivered in person (adhering to social distancing requirements) or in an online workshop or webinar format.

For more information or if you are interested in arranging some workplace training, please do not hesitate to contact us.

The process of returning to campus is well underway, albeit with rules around physical distancing and restrictions around normal school activities. As schools return, many will hope that things will ‘return to normal’. However, your school community is likely to have experienced significant challenges due to COVID-19 and will continue to experience these challenges in the future, meaning that a ‘return to normal’ is not realistic in the near-future.

In this article, we provide some pointers for how schools can provide assistance to their communities to support them through this difficult time.

Fee Relief

COVID-19 has had a disastrous financial impact on many families, with large scale job losses. As a result, many families will be struggling to pay school fees. We know our clients are offering an array of options for parents, including:

• Fee deferral – where parents defer payment of the outstanding fees to a later date;
• Fee discounts – the school provides a discount to parents for fees;
• Payment schedule – an agreement between the school and parents is reached for payment in instalments of outstanding fees ;
• Bursary or scholarship – students experiencing hardship apply for a scholarship or assistance with school-related expenses.

Whilst considered measures such as these are important to the ongoing sustainability of many schools, schools also need to consider what happens next.

For all of these fee arrangements, we recommend you state the following information in any documentation:

• How long the arrangement lasts, with a specified end date
• The consequences of breaching the arrangement i.e. termination of enrolment?
• Type of relief – is it a discount or a deferral?
• Does it apply to all children in the family, or just some?  
• Does the relief apply to only fees, or relate to equipment such as laptops, textbooks or other education expenses?  

Using the School’s Tax Deductible Scholarship Fund

Many schools have explored using their tax deductible scholarship fund to provide bursaries and scholarships to families in need. 

The Australian Tax Office recently released the following update in relation to scholarship funds:

Correct use of scholarship funds

• DGR-endorsed scholarship funds can only be used to award scholarships for reasons of merit or equity and must be open to individuals within a region of at least 200,000 people.

• You cannot use a scholarship fund to provide fee relief to families who are unable to pay their school fees, even if only for a limited period.

• Scholarships can only be awarded in a way that is consistent with tax law and the governing document of your fund.

In our view, the underlined phrase is poorly worded and insufficiently nuanced. This update must be read in the context of the more comprehensive ATO guidance here, which provides (amongst other things) that “reasons of equity” covers students who are experiencing socio-economic disadvantage or hardship. There is no rationale for treating hardship arising from COVID-19 related economic stress any differently from other hardship that may be experienced by families. There is nothing in the comprehensive ATO guidance to prevent the award of scholarships to current students, provided those students meet the reasons of equity or merit requirement.

Subject to careful consideration of the terms of your particular scholarship fund’s governing document, a scholarship fund may be able to be used to provide scholarships or bursaries to current or prospective families who are unable or would be unable to pay school fees, provided that:

• the scholarship or bursary is genuinely open to both current and prospective students; and
• appropriate criteria are established to ensure any scholarship or bursary is genuinely awarded on the basis of merit.

Nevertheless, in light of the ATO guidance, schools should take great care in the preparation of all communications in relation to fundraising, advertising the availability of scholarships, setting equity criteria and recording the basis for the awarding of scholarships. Moores can assist with this if required.

Other tax deductible fundraising

It remains possible for schools to use other tax deductible vehicles (such as a necessitous circumstances fund) to fundraise specifically to meet the needs of current students. Some schools have also established public benevolent institutions that can carry out projects (such as supporting communities overseas or operating a soup van) consistent with the school’s values as well as assist individuals (including school families) in need. Please let us know if you would like to discuss these options further.

Mental Health

The period of isolation at home may have caused significant disruption to the academic, family and social lives of students and teachers. A global study conducted by SAP, Qualtrics, and Mind Share Partners, found that the pandemic is impacting mental health around the world. Over 40% of people said their mental health has declined since the COVID-19 outbreak. In that same time period, the number of people who describe the state of their mental health as a 3 or less on a 10-point scale has doubled.

There are many ways schools can take action to support the wellbeing of members of the school community:

• Show you care – actions speak louder than words.
• Provide open access to school counsellors to all, e.g. arranging Zoom sessions with counsellors for parents
• Normalise the conversation around mental health – ask the simple question “are you okay?”
• Create clarity and routine – a school can’t control the uncertainty teachers and students feel, but can give them consistency.
• Conduct regular check-ins with staff and students on mental health.
• Over-communicate – ensure that the school community is hearing from you often and more than usual.

Meals

You may want to provide food to families who have suffered financial hardship. If you are giving food, be careful of the VRQA prohibition on use of school funds for a non-school purpose.  Under the VRQA Minimum Standards, a school must not use school funds for a gift which is unconnected to the conduct of the school. The best way to approach food donations would be to accept donations of food which can be distributed to families in need. As noted above, public benevolent institution can receive tax deductible donations to support projects of this kind.

If the school canteen is selling food to others, including families, ensure your food registration enables you to – many restrict provision to school families.

How we can help

Moores is able to assist you with implementing some of the measures described in this article to support your school community through this unprecedented time. For more information or guidance, please do not hesitate to contact us.

The VRQA released the new Guidelines to the Minimum Standards on 17 June 2020.

These will take effect from 1 January 2021 (new schools) or 1 July 2021 (existing schools). The updated guidelines include changes which further confirm the focus of the VRQA on tightening school governance and operations in key areas, with continued emphasis on child safety and the not for profit regulations.

Some key amendments are set out here.

Child Safety

Currently, schools must provide evidence of the school’s policies and procedures for ensuring all staff understand mandatory reporting, the failure to disclose offence and the failure to protect offence.

From 2021, a further will be required: The grooming offence under the Crimes Act 1958 which is included in the definition of child abuse in Ministerial Order No. 870.

Constitution and Governance

Every school intending to operate an ELC must from 2021 have a provision in the school constitution relating to the delivery of ELC services.

Continuing on tightening school governance, new requirements will also be in place including in relation to:

• audited independently verified business plans;
• conflicts of interests (plus “duties”) now need to have a “detailed plan” as to how they will be managed (rather than an “explanation”);
• firmer requirements for school contracting – confirming that both of the not for profit regulations (reg 5 and 7) cannot be breached by a school contract.

ELCs

On the topic of ELCs, further requirements now apply, in addition to the new constitutional requirement.

The “carve-out” announced early this year will continue, which provides that a school will not be considered to be operating for “gain” only because it operates a not for profit ELC using non-government funds which is a “feeder”, however it must from 2021 also have evidence of:

• a published statement to the effect that a proportion of funds raised or fees collected by the school may be used to support the operation of the ELC. The statement must be published in general policies, such as the enrolment policy, enrolment agreement, fee schedule or policy, and promotional materials;
• separate financial records for the school and ELC, with cross-subsidisation clearly identifiable (separate bank account not required); and
• copies of any loan or security arrangements entered into by the school for the purpose of constructing or maintaining ELC infrastructure or funding the ELC.

Clarifying statements also note:

• Playgroups are NOT ELCs – ie they will not be able to rely on the carve-out (ELCs are more broadly defined now, thankfully, following their narrow definition in the carve-out regs, which appeared to exclude younger students not in the “kinder” years);
• ELCs must include a 3 or 4 year old kindergarten program;
• ELCs which are co-ed will be considered a feeder for a single sex school provided some students do in fact go onto the school;
• The ELC must be an approved education and care service.

Enrolment and Students

Enrolment policies will have to have from 2021 “For a non-government school operating or intending to operate an ELC, the policy must state that a proportion of funds raised or fees collected may be applied to the conduct of the school’s ELC.”

Implications

There will be more work to do on ELCs, not only in the constitution and enrolment documents and evidence, but in structuring. This will continue to be challenging for those who may not be able to show evidence of being a true feeder, for those which are running “loss leaders” or for those who offer a mixed service of both long day care and “kinder” years within one entity or set of accounts. We can assist if your school is in this category.

You will also need to ensure that your child safety and staff policies, training and documentation (e.g, staff contracts) cover the offence of “grooming”. The new Guidelines make it absolutely clear that the board and principal are responsible for complying with Ministerial Order 870. Again, we can assist.

You will need to check your procurement policy and practices with the even tighter controls on contracts not being permitted to breach the “not for profit” regulations. Let us know if you would like more information on this.

Similarly, please check your constitution not only for the ELC provision but more broadly against the not-for-profit and governance standards. Many older constitutions do not pass muster.

How we can help

If you have any queries about any of these matters, our education team can assist and has deep expertise and experience in education, and including child safety, regulation, not for profit compliance, governance, enrolments and constitutions.

For further guidance, please do not hesitate to contact us.

How to optimise your use & return on capital, while ensuring safety & compliance

With the return to campus, many schools are considering how they can ensure optimum use of school facilities, while complying with social distancing requirements and hygiene obligations.

Now that restrictions are being eased, face to face teaching has resumed, and life is returning to a new “normal”, other aspects of operation of school facilities need to be considered.

This includes the hiring out of school facilities such as halls, gyms and other spaces within the school to external community groups and other users.

In short, schools can still hire out the school hall (and other facilities) to third parties, however all restrictions on activity, social distancing rules and other restrictions apply.  Importantly, these are the responsibility of the hirer, but the school also has the obligation to maintain a safe environment.

Because you owe a duty of care to students, you must conduct a risk assessment for any resumed activities on campus and have the means to terminate non-compliant arrangements.  This will likely require additional provisions in your hire terms.

To ensure compliance with the VRQA Minimum Standards relating to the operation of a school being not for profit, schools are required to have a compliant policy in place regarding the hire of its facilities to third party groups or organisations in any event.  This may also need additional provisions.

When reviewing hire terms and conditions, schools should consider matters such as:

• Imposing responsibility on the hirer for compliance with COVID restrictions – making sure there is an agreement from the hirer to comply (more guidance on restrictions can be found here).
• Implications of breach of COVID restrictions by the hirer.
• Who will pay for extra cleaning, especially in the case of a positive test being returned by someone who attended the school as part of a third party group and deep cleaning being required before the facilities can be used.
• Whether there is a liability risk for the school if an attendee contracts COVID at the event
• All other usual requirements including child safety.

You also need to consider time between multiple events (one hour for dispersal and cleaning), so scheduling is important.

In addition to the above relating to indoor facilities, on and from 11.59pm on 21 June 2020, guidance from the Department of Health and Human Services (DHHS) states that schools may approve the use of outdoor facilities on school property for the purpose of sport and recreation by community sporting clubs and groups if the following conditions are met.

• Any community sporting club or group using school facilities must agree to comply with current (DHHS) advice (as amended from time to time) in relation to sport and exercise, including the type(s) of activity permitted and the maximum number of participants.
• Physical distancing must be maintained at all times, regardless of participant age.
• Compliance with current DHHS advice is required, regardless of any pre-existing or previous arrangements agreed with a community sporting club or group.
• Only one group of participants is permitted to use a single facility at a time (e.g. basketball court or oval).
• Facilities should not be made available for use by a community sporting group if physical distancing (at least 1.5 metres apart) cannot be maintained, for example because of the size of the facility or the facility’s proximity to other facilities that are or will be in use.
• If multiple sessions will be run back to back, there must be a break of at least 15 minutes between each session to avoid congregation of multiple groups on a school site. For this reason, participants must also be advised that they must not arrive prior to their scheduled start time or remain after the scheduled end time.
• School facilities cannot be used by local sporting clubs or community groups within 30 minutes of the start or end of the school day. This is to avoid unnecessary mixing with other members of the school community.
• Access to outdoor facilities should be arranged so that participants do not encounter any staff or students remaining on the school premises, for example, for out-of-hours school care programs.
• Changing room facilities cannot be used (except for toilets). Where toilets are used, they must be cleaned prior to the next school day.
• Any sporting equipment that is property of the school cannot be used. Community and sporting groups should use their own equipment, and this should be maintained in accordance with DHHS advice.
• A register of indoviduals in attendance at each session must be kept by the community group and provided to the school. This should include individuals’ name, contact phone number, and dates and times they were present.
• In the event of a confirmed case of coronavirus (COVID-19) in the school community, all access to school facilities must immediately cease while contact tracing and cleaning of the school premises is undertaken, on the advice of the DHHS.

When hiring out its facilities, a school needs to be able to clearly articulate its requirements, ensure those requirements are incorporated as terms and conditions of hire, and make it clear that failure to comply will result in termination of arrangements with non-compliant hirers.  

Ultimately, schools need to be able to manage the risk of having outside parties use its facilities and must be able to ensure that those facilities continue to be safe for use by its students.

How we can help

If you need assistance with preparing new or updated terms and conditions for facilities hire, please do not hesitate to contact us.

The recent increase in Covid-19 cases within Victoria has caused there to be further discussion between state governments regarding cross border travel restrictions which continues to present unprecedented complexity in the context of separated families and parenting orders.

Parenting orders in family law matters often provide for children to spend time in two households with interstate travel sometimes being a common feature.  Currently, Victoria, NSW and ACT borders remain open.  Western Australia, South Australia, Queensland, the Northern Territory and Tasmania remain closed.

The Family Court recently considered the impact of Covid-19 and interstate travel in the case of Kardos & Harmon [2020] FamCA 328 (7 May 2020) (“Kardos & Harmon”).  The relevant factors were as follows:

1. The Father brought proceedings against the Mother alleging she had contravened Final Orders made in December 2018 with respect to spend time arrangements for their 3 year old child. 
2. The Father lived in Brisbane and the Mother and child lived in Adelaide. Pursuant to Final Orders, the child spent time with the Father for 4 days, falling in the last week of each month.  Changeover was to occur at Darwin Airport, or alternatively Brisbane Airport if the Father provided the Mother with advance notice of 90 days.
3. As the Covid-19 pandemic began to escalate in Australia, the Mother suggested to the Father that he spend time with the child in Adelaide to reduce the child’s risk of exposure to the virus from plane travel.  The Mother confirmed she held significant concerns regarding the child’s health and wellbeing. 
4. On 22 March 2020, a Major Emergency was declared in South Australia with respect to the Covid-19 pandemic with cross border travel being restricted.  The Mother did not facilitate time between the child and Father in March and April.
5. The Father issued proceedings in the Family Court on an urgent basis alleging the Mother had contravened the Final Orders by not delivering the child to Brisbane Airport and she had no reasonable excuse not to do so. 
6. The Mother contended that she did not facilitate time due to:
   • her concerns regarding the child being exposed to Covid-19 during interstate travel; and
   • the cross border travel restrictions that were in place in South Australia at that point in time mandating that, she and the child would have to self-isolate for a period of 14 days upon returning to South Australia. 
7. Importantly, the Mother had communicated to the Father:
   • On 14 April 2020, the Emergency Management (Cross Border Travel No. 3) (COVID-19) Direction 2020 was issued which provided that all people who arrived in South Australia must ensure they are able to self-isolate for a period of 14 days; and
   • On 23 April 2020, the South Australian Police advised that essential travel on compassionate grounds does not relate to Court Orders.
8. The Father’s position was that travel on “compassionate grounds” and under the “compulsion of the law” were exempt from the cross border restrictions. 

Did the Mother have a reasonable excuse to not facilitate time?

Yes. 

The Father’s contravention application ultimately failed as there was no evidence to suggest that he had provided the Mother with written notice within a 90 day period that changeover should occur in Brisbane. 

The Court considered that if the Father had provided the Mother with written notice, the Mother would have had a reasonable excuse for failing to take the child to Brisbane Airport to spend time with the Father due to the following factors:

• The Mother had a clear and identifiable concern regarding the child’s health which was communicated to the Father by email prior to her suspending time.
• The Mother reasonably believed that by not allowing the child to spend time with the Father was necessary to protect the health of the child and the Mother. The relevant factors included:
  • the Mother would not have been able to maintain safe social distancing during the period of the aircraft travel; and
  • there was an unacceptable risk that the child would come into close contact with a person infected by the virus during the course of the aircraft travel.

The Final Orders were varied to allow the Father to spend time with the child in Adelaide with the cost of travel to be shared between the parties.  Both the Mother and Father acknowledged the importance of the child spending time with both parents. 

Did the Court consider Cross-Border travel restrictions?

Yes. 

Whilst it was not the deciding factor in this case, the Court made comment that had it been necessary, it would have found that the Mother had a reasonable excuse for contravening parenting orders due to cross-border travel restrictions. 

Importantly the Court emphasised, “in other words, orders made by the Family Court of Australia or the Federal Circuit Court of Australia pursuant to pt VII of the Family Law Act are intended to operate in the context of the restrictions and sanctions imposed by State and Territory governments including those imposed for the protection of the broader community.”

What should we learn from this?

The Chief Justice of the Family Court has released guidelines for parents and cares of children which make clear that they must act in the best interests of the child and comply with parenting Orders, where it is safe to do so.

As evidenced by Kardos & Harmon, there may be circumstances in which parenting Orders are untenable and unable to be complied with such as:

• restrictions on cross-border travel;
• one parent is unwell, or unable to care for a child due to Covid-19;
• a child may be required to self-isolate;
• a parent may withhold a child from another parent due to safety concerns (with or without basis);
• changeover locations may not be available; and
• supervised contact centres may be closed.

If you find yourself in a situation where it is difficult to comply with your parenting Orders, it is vital that you initially communicate with the other parent in an attempt to reach a practical and reasonable resolution. 

How we can help

In the event you are unable to reach a resolution, it may be possible to vary your parenting Orders through negotiations, mediation, or if necessary litigation. The Family Court has recently established a specialised COVID-19 List which enables urgent matters to be listed before the Court that are a direct result of the pandemic. 

When considering varying your parenting Orders, it is important to obtain legal advice to ensure that any changes made are applicable to the current climate rather than on a final basis.  For further information and guidance please do not hesitate to contact us.

Estate planning strategies frequently involve the use of testamentary trusts (ie – trusts created in a Will).

For many years it has been accepted that income that is derived by the trustee of a testamentary trust and is distributed to children is taxed at ordinary “adult” rates. Where such children have no other income, then up to the first $22,000 of income distributed from a testamentary trust to each child per annum can be tax-free. This is considered “concessional” tax treatment because income earned by minors is typically is taxed at higher rates. Further it is any minor beneficiary that enjoys this concession, not just children of the deceased.

On 17 June 2020 Parliament passed legislation to implement the Government’s 2018-19 Budget measure of “improving the taxation of testamentary trusts”, and the new law tax takes effect from 1 July 2019.

The law is aimed at tightening the requirements for the property that can generate the concessionally taxed income (referred to as “excepted income”). The language however is not altogether clear so some questions remain about how it will be interpreted.

Willmakers, estate planning lawyers, accountants and financial advisors will all need to be alive to the changes introduced, and potentially modify how the trusts are planned for and administered.

The Issue

Prior to the passing of the amendments, the relevant tax law  provided that income of a trust estate is excepted income to the extent that it resulted from a Will, codicil, (or a Court order varying a Will or codicil) or an intestacy, in relation to the estate of a deceased person.

The new law imposes additional tests in relation to the “property” that can generate concessionally taxed or excepted income. The tests include that the property that generates the income is “transferred from the estate of the deceased person concerned, as a result of the Will”. In addition, the excepted income can be generated from “property that represents accumulations of income of capital” from the property transferred from the estate.

The existing definition of “property” in section 102AA(1) of the ITAA still applies and includes real estate, personal property and money. 

It is now clear that property unrelated to the deceased estate cannot be “injected” into the testamentary trust and generate excepted income. The wording in the legislation does not, however expressly address whether concessionally taxed income can be generated from:

1. Assets acquired from the sale of the original assets transferred from the estate (“replacement assets”); and
2. Superannuation death benefits paid to the estate.

To consider the question of replacement assets, the explanatory memoranda goes someway in that it refers to the intention that the concessional tax treatment continues to apply to “assets of the deceased estate or assets representing assets of the deceased estate”. This would at least suggest that replacement assets are eligible to continue to generate concessionally taxed income.

In relation to superannuation death benefits, they do not form part of the estate as at the date of death. However, under superannuation law the death benefits can only be paid to a limited range of persons including the legal personal representative of an estate (ie – executor or administrator). Superannuation death benefits cannot, in compliance with the superannuation law be paid direct to the trustee of a testamentary trust and also must be paid on the death of a member.

This means that superannuation death benefits can only form part of a testamentary trust if they have first been paid to the deceased estate (during administration of the estate). On that basis, the superannuation death benefits would be property transferred to the trustee of the testamentary trust from the estate of the deceased person concerned. It would also appear to be transferred as a result of the Will.

Separately there is a question of whether the mechanism by which superannuation death benefits are paid to the executor makes any difference. The explanatory memorandum to the amendments indicates that the intention is to disallow concessional tax treatment on income generated from property “injected” into the trust. The example relates to a discretionary family trust making a capital distribution into a testamentary trust. Superannuation death benefits can be received by the legal personal representative either by way of a binding document such as a binding nomination, or via the exercise of the discretion of the superannuation trustee. On one view, where the receipt is as a result of the exercise of discretion, this may cause an issue. However, we consider the better view to be that regardless of whether the mechanism is via binding nomination or via discretion, the payment is connected with the death of the Willmaker and the first recipient is the legal personal representative, such that after that point the property is transferred to the trustee of testamentary trust, and ought to satisfy the new requirements.

Why does it Matter?

It is clear that more scrutiny around the use of testamentary trusts is likely as a result of the change in this law. Assets which now are excluded from being able to generate concessionally taxed income include assets acquired with borrowings by a testamentary trust trustee, and assets injected from family trusts directly to the testamentary trust trustee.

There are a number of planning and administrative issues that arise from the changes including:

1. In the planning phase, consideration of:
   • whether or not to use a binding nomination or rely on trustee discretion for superannuation death benefits;
   • the viability of a superannuation death benefits testamentary trust (as a standard testamentary trust would have other tax consequences not covered here);
   • the terms of the testamentary trusts and appropriate powers; and
   • the need for flexibility about the use and terms of testamentary trusts.
      
2. In the administration of the estate:
   • Whether or not to accumulate income of the estate (in the first three years) – this would increase the assets forming part of the property transferred to a testamentary trust;
   • Whether to pay out debt or transfer assets subject to debt;
   • Which assets ought form part of a testamentary trust;
   • What liability does the executor carry for making these decisions;
      
3. In the administration of the testamentary trust:
   • What records need to be kept in relation to evidencing the property that can generate concessionally taxed income (this is already an issue in respect of capital gains tax and after acquired assets but different records are likely to be needed); and
   • Accounts may need to be more detailed and considered to confirm which property qualifies under the new rules;
   • Decisions about funding of assets will need to take into account the impact of borrowings;
   • Distributions to beneficiaries will reduce the property that is capable of generating concessionally taxed income (even if loaned back).

This could affect me – what do I do next?

This area of the law is becoming more complex, and under more scrutiny. Off the shelf testamentary trust Wills may not address these issues. Specialist advice should be obtained at each of the stages referred to (planning, estate administration and testamentary trust administration).

In addition, limiting consideration of the issues to just the matters raised herein is dangerous. All estate planning and administration of trust issues need to also factor in asset protection issues and other elements.

How we can help

The team at Moores is one of the largest specialist estate planning teams in Australia, with several accredited specialists. For further information or guidance, please do not hesitate to contact us.

Compulsory collection of information “at the door” to contain COVID-19

With the easing of COVID-19 restrictions, Victoria is managing the ongoing risks associated with the disease by requiring that particular organisations collect personal information about customers and visitors to their premises to assist with COVID-19 contact tracing.

The Victorian Government has issued specific Directions and Orders stating that contact information of customers and visitors must be sought as a condition of particular organisations re-opening.

If a Direction or Order applies to you, the collection of this personal information will be necessary for your organisation’s functions or activities.

Government orders to collect personal information

If you are subject of a Direction or Order, then this means the collection of contact information is permitted under the Privacy Act 1988.

The Restricted Activity Directions (No 9) – Public Health and Wellbeing Act 2008 (Vic) – (the Act) provides Directions or Orders for facilities, including:

• Community facilities which host essential public support such as food banks, or homeless persons services, or that host weddings or funerals;
• Places of worship; and
• Accommodation facilities (such as hotels, guesthouses or Airbnbs) which are operating for the purposes of providing emergency accommodation, including in relation to family violence or other vulnerable groups

Records required to be kept

The Acts states that these facilities are subject to a “records requirement” which requires them to request that each person who attends the facility for more than 15 minutes provide their first name and contact phone number.

The facility must keep a record of these details for 28 days together with the information about the date and time at which the person attended the facility and if there are multiple indoor spaces, the indoor space(s) which the person visited. 

We note that requirements in relation to signage, cleaning and the number of people permitted per indoor space are specific to each facility and detailed in the Act.

What do you need to do if you are required to collect personal information for contact tracing?

If you are required to collect contact information due to government Orders or Directions, you should abide by the following principles:

1. Notify people prior to collecting personal information and include details regarding: what information you are collecting, that the collection is required by law, the purpose of collection, who the information will be disclosed to and consequences of failing to provide the information (i.e. they will not be allowed into the facility).  
2. Only collect personal information which is required under the direction or order  i.e. only collect first names and phone numbers;
3. Securely store the information once you have collected it. Only provide access to staff that need to see it.
4. Only disclose if the Victorian health authority requests it.  You may not use the information for mailing lists or to share within your group.
5. Destroy the information as soon as reasonably practicable following 28 days after the visit, unless another statutory requirement permits or requires that the personal information is retained. If you have collected personal information and believe you have another obligation, for example to disclose the information under the Family Violence Information Sharing Scheme, quarantine the information and assess it against the guidelines, or seek advice.

What about services that rely on anonymity?

There are some exceptions to the “records requirement”, including for support groups held in community facilities or places of worship where confidentiality is typically required such as drug and alcohol or domestic violence support groups (such as Alcoholics Anonymous) and private worship at places of worship.

Your obligations to protect people may require you to nevertheless ask for personal information, for example, in an emergency or if a participant in an anonymous group falls ill during a meeting. 

Can you collect customer information if you are not required to?

If there isn’t a Direction or Order that applies to your operation, you are not required to ask for customer and visitor names and contact details for contact tracing purposes. However, you can still collect contact information if you would normally do so for the functions and activities of your business.

What about COVID-19 related information?

You can collect information from employees or visitors in relation to COVID-19 which is ‘reasonably necessary for preventing or managing COVID-19’ such as:

• Whether a person or a close contact has been exposed to a confirmed case of COVID-19
• Whether the person has recently travelled overseas and to which countries

If an employee or visitor has or may have contracted COVID-19, you should only disclose personal information which is reasonably necessary in order to prevent or manage COVID-19 in the workplace.

For more information on workplace obligations, please read our article on safeguarding against COVID-19.

Next steps

Organisations still need to be mindful of privacy laws when collecting information for the purposes of contact tracing, or to prevent or manage the spread of COVID-19. It is essential for employers to have clear policies and processes which detail how personal and health information is collected, stored, used or disclosed so that these processes can be adhered to during the process.

How we can help

If you need assistance with ensuring your privacy policy or processes are up to date, please do not hesitate to contact us.

A full list of operations subject of a direction or order is available here.