We have previously reported on the provisions and commencement of the new Guardianship and Administration Act 2019 (new Act), which commenced on 1 March 2020.
VCAT has now handed down its first decision since the new Act commenced. The decision of EHV (Guardianship) [2020] VCAT 501 considered whether EHV’s share in a property should be sold, where EHV’s “will and preference” was that the property not be sold. EHV participated in all hearings, and objected to the sale of the property.
EHV is 63 and suffers from an acquired brain injury resulting from long term alcohol and drug abuse, and possibly an organic cause. EHV had “repeatedly and consistently expressed his firm wish, or his will and preference, to return to live in the property” although evidence was that his attempts to live in the property resulted in a return to substance abuse, admissions to hospital and/or arrest for intoxication-related offences, welfare organisations refusing to provide services to him at home and neighbours raising concerns about his behaviours.
Both the new Act and the old Act allow an administrator to sell, exchange, partition or convert into money any property. However, under the new Act, VCAT was required to apply the general principles under section 8 to any decision including supporting EHV to make and participate in decisions affecting him and to express his will and preferences among other things. The new Act provides that the will and preferences of the represented person should direct as far as practicable decisions made for that person.
So what of EHV’s firm wish, or will and preference, to return to live in the property? And how did VCAT balance the new Act against EHV’s right to freedom of movement and property rights under the Charter? And what of EHV’s human rights?
VCAT considered the administrator’s obligations generally, and financial factors relevant to EHV’s will and preference as well as accommodation alternatives for EHV. VCAT ultimately overrode EHV’s will and preference, on the basis that the sale of the property was necessary to prevent serious harm. Serious harm was both financial harm (EHV continuing to bear unpaid debts and a shortfall of income for his living expenses) and personal harm (in the past, EHV had been unable to live unsupervised in the community without relapsing and hospitalisation) and the loss of opportunity to remain in aged care for financial reasons and behavioural reasons with the risk that he may become homeless. From a human rights perspective, the Tribunal concluded that to limit EHV’s right to freedom to choose where to live was justified given his dire financial circumstances, in turn giving rise to a need to sell the property.
The new legislation adopts a substantially different fundamental approach and in line with the UN Convention on the Rights of Persons with a Disability. This will require administrators, family members and those subject or potentially subject to administration orders to consider how best to approach any Tribunal hearings. Documenting a person’s “will and preference” will assist both the person and the Tribunal to weigh up complex competing rights and obligations.
For more information or if you or your clients require assistance, please contact us.
Trusts are established for many reasons. One of the most common is asset protection.
The recent decision of Boensch v Pascoe [2019] HCA 49 from the High Court gives some insight into how that asset protection could be undone in the event of the bankruptcy of an individual trustee.
As part of a matrimonial settlement between Mr Boensch and his former wife, it was agreed that a jointly owned property (“the Rydalmere property”) would be held on trust by Mr Boensch for the benefit of their shared children. A simple memorandum of trust was executed by them, although the memorandum contemplated a further ‘detailed trust document’ would be prepared. No steps were taken to prepare the further trust document or transfer the Rydalmere property to Mr Boensch as sole trustee until some years later when Mr Boensch had been served with notice of bankruptcy proceedings against him. Mr Boensch had occupied the Rydalmere property and personally paid its expenses including mortgage and rates.
Mr Pascoe was appointed the trustee in bankruptcy for Mr Boensch. He formed a view that the trust was a sham to defeat creditors and proceeded to lodge a caveat against the Rydalmere property claiming a ‘Legal Interest Pursuant to the Bankruptcy Act 1966’.
In extensive subsequent proceedings, it was found that the trust was not a sham given it had been initially documented well prior to the bankruptcy. Mr Pascoe therefore allowed the caveat to lapse and did not pursue any further claim against the Rydalmere property.
The matter before the court was actually a subsequent claim by Mr Boensch against Mr Pascoe seeking compensation for an improperly lodged caveat under Section 74P(1) of the Real Property Act 1900 (NSW).
The Bankruptcy Act 1966 (Cth) provides that:
The High Court considered how the provisions under the Bankruptcy Act relate to property held on trust by a bankrupt as this informed whether Mr Pascoe had a proper basis for his caveat.
The High Court found that:
The decision will be of crucial importance for bankruptcy practitioners, but also contains useful lessons from an estate planning and structuring perspective:
For more information or guidance, please do not hesitate to contact us.
In the wake of numerous high profile underpayment cases that occurred as a consequence of deficient or unmonitored salary arrangements (footnote – Coles, Woolworths, George Columbaris to name a few), the Fair Work Commission has, effective 1 March 2020, varied a number of modern awards to impose additional obligations on employers that seek to utilise salary arrangements for their workforce.
The Clerks – Private Sector Award 2010 (Clerks Award), an occupational award that covers a myriad of clerical and administrative employees, is one of the awards impacted the changes.
Historically, salary arrangements have been regulated largely by the common law – the general proposition being that a salary can only ‘buy out’ minimum award entitlements if the employer stipulates (e.g. in an employment agreement) the specific entitlements that are satisfied by the salary.
Prior to 1 March 2020, a limited number of modern awards contained obligations that mirrored this common law requirement (including the Clerks Award). However, from 1 March 2020, employers covered by specified awards (including the Clerks Award) are required to:
The merits behind the recent changes were extensively deliberated in a number of hearings before the Full Bench of the Fair Work Commission throughout 2019 as part of its four yearly review of modern awards. In those decisions, the FWC suggested that the changes are not intended to interfere with historical common law offsetting principles. The FWC has expressed the following view:
“[E]mployers may, pursuant to private contractual arrangements, pay employees in accordance with a salary arrangement that compensates for or “buys out” identified award entitlements without engaging with the annualised wage arrangements provision in the applicable award (emphasis added).”
At first blush – many employers would air a sigh of relief from the Commissioner’s comments. But employers should exercise caution in relying too heavily on the Commission’s observations.
The newly introduced annualised wage provisions are expressed as obligations – in that employers “must” comply with certain obligations (for example, in relation to record keeping).
However, this doesn’t mean that there aren’t options. Employers wishing to provide annualised salaries may be able to rely on modern award annualised arrangements, common law offset clauses, individual flexibility agreements, guarantee of annual earnings or enterprise agreements.
Obtain legal advice. You can be forgiven for being confused, particularly since the reforms were introduced in the early stages of COVID-19 disruptions.
Our team of expert workplace relations specialists can give strategic guidance on how to practically respond to the changes and help you meet your legal and commercial objectives.
For further guidance, please do not hesitate to contact us.
On 17 April 2020, Moores ran a webinar for schools and organisations that work with children on maintaining a child safe online environment as a result of COVID-19. While some states have begun to ease restrictions, it is clear that online platforms will continue to be used by schools and organisations to engage with children. In other states such as Victoria and Tasmania, schools are expected to stay remote for the remainder of Term 2 unless medical guidance changes.
Following the webinar we received a significant number of questions, highlighting the complexity and uncertainty of remote learning. This article covers some of the FAQs.
In general, we recommend against recording one-on-one interactions for the following reasons:
Instead, we recommend that organisations provide guidance on what one-on-one interactions should look like such as requiring them to occur on the organisation’s platforms only and during school hours (or shortly before / after). Organisations should also ask staff members to keep a file note of any one-on-one interactions and should be ensuring they can have oversight of these occurring. This should be documented in policies such as a Remote Learning Code of Conduct.
Each organisation should carefully consider the unique child safety risks associated with its operations and whether it is appropriate to record interactions between staff and children. If an organisation resolves to direct staff to record their interactions with children, we recommend that it considers the following safeguards:
It is important that organisations continue to provide training and guidance to their staff members on identifying and responding to child safety concerns in an online context. Red flags may include:
Moores recorded a webinar for Safer Internet Day on 11 February 2020, including an interview with Associate Professor Nicola Henry from RMIT University regarding commonly used Apps amongst children and young people and the child safety risks. You can find the recording on our news hub here.
It is critical that organisations put in place policies and processes for online interactions with children. In particular, we recommend that organisations review, provide or implement:
Our previous article covers off on some other key tips for ensuring a child safe remote learning environment
An important part of child safety in an online context is protecting the privacy of children. Organisations will be collecting significantly more personal and sensitive information on children, potentially on platforms that they are not familiar with. We recommend that organisations review their privacy policy and make any changes needed to ensure compliance with the policy. For organisations using videoconferencing, please refer to our article on relevant privacy considerations.
For more information or guidance regarding your child safety and privacy policy, get in touch with our expert child safety team. Please do not hesitate to contact us here.
Online meeting technology exploded into popularity as social distancing was implemented across the world in response to the COVID-19 crisis. The most popular program, Zoom, went from 10 million daily users in December 2019 to 200 million daily users in March 2020. The sudden increase in both personal and business use of online meeting technology has created a raft of reports of privacy and security issues.
Issues such as data sharing with Facebook and the privacy of conversations taking place in “chat rooms” have been raised. Security concerns have included reports of “zoombombing”, where Zoom meetings were bombarded by users with racial slurs and pornographic motifs and a security vulnerability that allowed Mac users to be forced into calls without their knowledge. Serious questions have also been raised about encryption software and whether or not users’ data is being encrypted to ensure it is being kept safe.
Privacy authorities are poised to focus on video and teleconferencing apps with Privacy Commissioner Angelene Falk warning of “new risks to privacy” , requesting providers to be transparent about how they handle personal information, make their controls user-friendly and build in privacy and security “by default”. Ms Falk also states that “organisations that shift to using new mediums for doing business need to replicate, as far as possible, privacy and security measures that would apply in their regular environment”.
At the moment, it’s more important than ever to assess privacy risks and take active measures to protect personal and private internal information.
As a first step, we recommend that organisations adopt new practices to ensure that their security is protected (as far as possible).
You should consider:
Whilst using videoconferencing facilities, you should follow the guidelines below to ensure privacy and data stays safe:
The rapid transition to online learning has been made possible by videoconferencing apps. However, it is important to be mindful of the privacy and security risks that are associated with using the software.
We recommend teachers specifically take the following precautions when teaching via videoconferencing apps:
Zoom has just implemented a specific K-12 privacy policy that can be accessed here. We suggest you read this privacy policy to ensure it aligns with your own privacy policy and you are fully informed about what data is being collected.
In a move designed to encourage non-government schools to open to all students by 1 June 2020, the Federal government wrote to schools on 28 April 2020 offering earlier access to funding upon certain conditions being met.
The conditions are that the school should provide a physical learning environment from Term 2 and commit to having 50% of students in classroom learning by 1 June 2020. Meeting those conditions sees two payments of July funding made to the State by 21 May and 9 June 2020 respectively. Replies are sought by 1 May 2020, after which they may not be considered.
The conundrum is that schools were not prepared for this advice, and many have been gearing up, particularly in Victoria, to implement change from 11 May 2020, the date of the State premier’s announcement on restrictions. The Victorian government position, although non-binding on non-government schools, is that schools should offer onsite learning to only vulnerable students and those whose parents cannot work from home (aimed at essential service workers).
School boards make the call on this one and will need to meet in the next day to decide whether they want or need the funding and the implications for fee relief or JobKeeper entitlement calculations.
The Government’s Return to Classroom based learning Factsheet contains its recommendations about practices which will need to be followed to keep students safe.
It will be important for schools to make this assessment independently, especially as there is no change to minimum standards. The management of risk, with student welfare at the centre, rather than the management of money, will need to be the primary consideration.
For further support or guidance, please do not hesitate to contact us.
With the advancement of modern technology, organisations (including schools) are lucky enough to be able to manage the impact of COVID-19 through remote working and learning arrangements.
However, many schools are navigating unchartered waters trying to determine what resources and tools are needed to ensure students and teachers are supported and whether these tools can easily be used from home.
A privacy impact assessment provides a useful framework to screen for privacy issues and may help to further mitigate any privacy risks associated with remote learning arrangements.
Right now, it’s more important than ever, because we are sharing and disclosing a magnitude of personal, confidential and sometimes even sensitive information online.
Under Australian Privacy Principle 11, organisations must take active measures to protect personal information they hold from misuse, interference and loss, as well as unauthorised modification or disclosure. Organisations also have obligations under the Notifiable Data Breach Scheme.
Collection:
Consider these questions in the context of each learning platform that you’re using.
Use:
Disclosure:
NB: You should also consider whether the Collection, Use and Disclosure of the information is consistent with your own internal privacy policy.
Security:
Education:
If you’re uncertain as to how your current policies and practices may equip you for the new environment, may wish to consider:
Moores can provide assistance with all of the above and be available for online training with staff members. For more information, please do not hesitate to contact us.
The National Redress Scheme for child sex abuse survivors was established in July 2018. Established as a voluntary scheme, it gives survivors a straightforward way of seeking redress from participating institutions. Institutions that choose to participate must opt in by 30 June 2020.
As the opt-in deadline nears, pressure is mounting on organisations to join the National Redress Scheme. In Victoria, Attorney-General Jill Hennessy said on the weekend that “We will be making it a condition of contracts with the Victorian Government that institutions that have got a liability when it comes to institutional sexual abuse join the redress scheme”. The Victorian Government has identified 49 eligible organisations that could join the scheme but have not yet done so. Funding in jeopardy includes future grants and new funding arrangements to deliver social or other services. Organisations that rely on government funding may now need to choose between opting into the “voluntary” scheme and financial ruin.
There is no doubt that the Scheme is an important pathway for survivors who wish to access redress as part of their healing process. Organisations have a legal and moral obligation to support survivors of historical child abuse and for many organisations, opting into the Scheme is an important part of this commitment. However, deciding whether to join the Scheme is complex.
It is tempting to assume that the only considerations for organisations regarding opting into the Scheme is whether they are truly committed to child safety and willing to accept responsibility for historical child sexual abuse. Whilst both of those factors are extremely important and have led many organisations to join the Scheme, the considerations are far more complex than that. The directors of charities and not-for-profits have a range of duties to the organisation that they are required by law to balance. This includes a duty to manage the financial affairs of the organisation responsibly and to act in the “best interests” of the organisation. These are not considerations to be taken lightly. It is very difficult to assess potential financial liability under the Scheme. Joining the Scheme may also compromise insurance cover held by an organisation in relation to claims of molestation. Schools have also been warned by the Federal Government that they are not to use recurrent funding for the purpose of funding Redress payments, making it difficult for some non-government schools to meet the financial requirements of the Scheme. The “best interests” of an organisation include protecting vulnerable individuals, but may also include providing services to current beneficiaries, using the resources of an organisation to pursue its purpose and preserving insurance cover.
The Scheme is not the only avenue for redress and organisations can and do take responsibility for historical child abuse through alternative pathways. Organisations that do not join the Scheme are still legally liable for historical child sexual abuse and can still be sued. Organisations are increasingly responsive to direct approaches from survivors, offering processes that are not adversarial, settlement payments comparable to or greater than the Scheme and personal apologies from key personnel.
The Scheme is also not perfect, from the perspective of both survivors and organisations. Importantly for survivors, compensation is capped at $150,000 (as well as a small payment towards legal and potentially counselling costs). By contrast, some claims brought through the Courts have recently seen record compensation in the millions. Survivors that accept a payment through the Scheme also waive their right to bring a claim through the Courts. The Scheme does not cover physical and psychological abuse (except for physical abuse where there are also allegations of sexual abuse). For organisations, there is a lower standard of proof, tight time frames to respond to requests for information, little visibility of the process and reasoning behind determinations, and very limited opportunity to test the evidence of applicants. The process for joining the Scheme is time consuming and complex, particularly where there are multiple associated organisations proposing to join as a group. It can take months to work through the necessary due diligence. If an organisation joins the Scheme, they may still face civil claims and may even be managing the same claim under the Scheme and through the Courts at the same time. This administrative burden is significant, especially for small charities and not-for-profits.
This Scheme was introduced as a voluntary scheme. Arguably this meant that the detail of the Scheme was not subject to the same scrutiny as if it has been a mandatory Scheme. It is concerning to see punitive consequences for failing to opt-in being threatened at this late stage (only two months before the opt-in deadline), when many charities and not-for-profits have already undertaken their due diligence regarding their Scheme and board decisions have been made. The announcement is also likely to add additional stress for charities and not-for profits that are currently wrestling with the impact of COVID-19.
At a time when many organisations are feeling the pinch, it’s more important than ever to get sage advice on joining the Scheme, and the potential consequences if you don’t. For more information, please do not hesitate to contact us.
The $130 billion JobKeeper payment may enable your organisation to access a wage subsidy to assist you to continue paying your employees. Government guidance is helpful, but be aware of conditions of the scheme that only apply to charities and not-for-profits.
Since the release of the Jobkeeper Rules on 9 April 2020, details of the scheme have been outlined in Treasury factsheets and unpacked in extensive expert commentary. While much of this information is helpful in relation to the general structure of the scheme, it glosses over important details that may affect charities and not-for-profits.
Below we outline these key issues related to JobKeeper eligibility for charities and not-for-profits.
Under the scheme, eligible employers experiencing a decline in turnover may be able to claim a fortnightly payment of $1,500 per eligible employee. Fall in turnover is typically assessed with reference to the comparable period in 2019 and must meet the relevant threshold for the entity. Payments may be made for the duration of the scheme, being 30 March through to 27 September 2020.
Unless it qualifies as an entity that ‘carries on a business in Australia’, a charity or not-for-profit is only eligible to participate in the scheme if it ‘pursues its objectives principally in Australia’.
The phrases ‘pursues its objectives’ and ‘principally in Australia’ are not defined in the Rules or the accompanying Explanatory Statement. These phrases have, however, been considered by the ATO in a recent Taxation Ruling[1] that gives some guidance on how it may be interpreted for the purposes of the scheme. The Taxation Ruling indicates that:
A charity or not-for-profit that is wholly owned by a government body will not be eligible for the JobKeeper payment. For example, a company limited by guarantee whose sole member is a local Council will not be eligible. This overlaps with, but is different to the ‘government entity’ test – even if your organisation is not a government entity, it may still be wholly owned by government and unable to qualify for the scheme.
The relevant threshold for decline in turnover is:
GST turnover always counts for the purposes of assessing decline in turnover – this applies to all charities and not-for-profits. In addition to this:
This means that any decline in donations received by ‘mere’ not-for-profits (that is, not-for-profits that are not charities or deductible gift recipients) cannot be taken into account for the purposes of the turnover test.
Any interruption to employment due to a merger, change in structure or change of control of your organisation that results in a change of the legal employer may affect the eligibility of employees. For example:
The JobKeeper Rules attempt to ensure individuals are not disadvantaged in these circumstances, introducing the rather unhelpful concept of a ‘non-profit body’ whose purposes are currently ‘carried on by’ an entity and but were previously ‘carried on by a different entity’. Not-for-profit entities and charities that may be affected by a change in control, change in structure or merger should seek legal advice regarding the impact on the eligibility of their employees.
JobKeeper payments may be able to be claimed by a business for certain ‘business participants’ that are not employees of the business, including directors. Not-for-profits and charities cannot claim JobKeeper payments for business participants.
If you’ve jumped these hurdles and the JobKeeper scheme may still apply to your organisation, you can find more details about the scheme here.
Moores is currently providing advice and support to our clients who are navigating the complex requirements of the JobKeeper Scheme. For further information and guidance, please do not hesitate to contact us.
[1] TR 2019/6, which considers (among other things) the meaning of the requirement for certain entities to have a physical presence in Australia, and to that extent, pursue their objectives principally in Australia in order to be exempt from income tax.
If you’ve put in place a pre-paid funeral you might think that that’s a silly question. But even if you have, that doesn’t mean there aren’t still decisions to be made after your death. Burial or cremation? Religious or non-religious service? Who gets the final say?
The recent NSW case of Gus Kak v Allison Sarah Kak (nee Boman)[1] confirmed that the executor of your Will has to right to make your funeral arrangements, if they are ready, willing and able to do so.
The case concerned a contest between the deceased’s widow Allison and brother as to whether his burial rights would be conducted in accordance with either the Catholic or the Muslim faiths. Born into the Muslim faith, the deceased later adopted Catholicism; on the evidence, he maintained a connection with both faiths throughout his adult life. He married in a Catholic Church, where his widow wished his funeral to be held; this was strongly opposed by his brother, who sought that he be buried in accordance with Muslim tradition.
The decisive consideration in this battle of faiths was that the deceased’s Will appointed his wife as sole executor. In deciding in favour of Allison, the Court confirmed the executor has the right to dispose of the body, and decide where and how it is to be buried or cremated. Had the deceased not appointed Allison as his executor, the decision would doubtless have been very different.
The ‘likely administrator’ rule provides that the person most likely to be awarded the right to administer an estate on intestacy has the right to determine the deceased’s funeral arrangements and dispose of the body. In Victoria, the order of priority to determine the most likely administrator is spouse or partner, followed by children (or their guardian, if the children are under 18), then parents, or failing that then extended family members.
In the absence of either executor or family members, the decision about how to dispose of the body will rest with the householder of the premises in which the deceased passed away.
If there are two people with equal rights to deal with the body, the question becomes one of practicality and avoiding unnecessary delay.
The wishes of the deceased may also be relevant, as in the Victorian case of Keller v Keller.[2]
Although the late Mrs Keller had appointed an executor, a bitter dispute between her two children as to whether she should be buried or cremated meant the independent executor was understandably not willing to decide how to dispose of the body.
In this scenario, the trust the deceased had placed in her daughter in life by appointing her a medical attorney, and accepting her care and support throughout the progression of her final illness, played a pivotal role in the daughter receiving the right to deal with her mother’s remains.
Cultural and spiritual values may also be taken into account, as in the case of Jones v Dodd[3] where the Court released the body to the deceased’s father in accordance with Aboriginal tradition. This was despite the existence of a de facto partner and some conflicting evidence that the deceased had converted to Christianity. Importantly, the deceased in this case did not leave a Will or appoint an executor who could arrange for the disposal of his body.
Had he done so, however, it seems fairly safe to conclude that the right to deal with the body would have fallen to the executor – as long as they were ready, willing and able to do so.
These cases emphasise the importance of appointing the right executor, namely someone who is going to give effect to your last wishes (in more ways than one). However, if you have a preference (or know your loved ones may have differing views), it’s worth documenting your funeral wishes and ensuring your executor and family members are aware of your intentions well ahead of time.
[1] [2020] NSWSC 140 [2] [2007] VSC 118 [3] (1999) 73 SASE 328