The Education and Training Reform Regulations 2017 have now passed as amended with effect from 20 January 2020.

Schools which operate an early learning centre now have capacity to operate their ELCs without automatically breaching the not-for-profit regulations.

However, there are conditions.

Firstly, the operation of an ELC is not automatically compliant, irrespective of its structure and operations.

ELCs must still, under the regs:

• Be operated not using government funding;
• Be operated as a “feeder for enrolments to the school”; and
• Be operated commercially, meaning that all fees and charges, including any paid to outside operators, must still meet the other “not for profit” requirements of the Act and regs.

Further restrictions apply.

Only services in the (now) three years before prep (draft regs said two) will meet the exemption in the regs (ie, 3 and 4 year old kinder years, and the year before). Services akin to daycare which accept babies up to the year before 3 year old kinder are not recognised as exempt. This has important implications for their structure (whether it needs to be separate from school and other “kinder” ELC for example) and registration for funding and registration as a charity -we can advise.

The issue of “feeder” also remains. This is restrictive and may pose challenges for schools where many ELC students do not go onto prep, or where they go on to attend another school in the school system, but not the school which operates the ELC. Legal and policy documentation, including within school systems, becomes important here. We can assist.

Broadly, our advice remains consistent and is now further confirmed that independent and Catholic schools still:

1. should operate separate accounts for school and ELC;
2. should have a MOU for the ELC;
3. in some cases, establish a separate legal entity for the ELC (and possibly more than one);
4. should seek advice if they are concerned about their baby and toddler service;
5. should seek advice if concerned about whether they qualify as a “feeder”; and
6. if in a system, should note that School systems will require advice and internal documentation if they recognise that their ELCs may act as feeders to different schools in the same school system.

How we can help

For further guidance or if you have any queries about this new regulation, please do not hesitate to contact us.

It’s common for a house, car or other item to be gifted to a beneficiary via a Will. However, there could be unintended consequences if that property is sold prior to death, or can’t be found. 

Everyone owns something that has particular sentimental value. It could be anything, an item of jewellery, the family home, or an investment that has withstood the test of time. It’s only natural that when we die we might want these items to be passed directly to a loved one, rather than put into the general ‘pot’ of assets to be sold.

The key question is: What happens to a gift of specific property in a Will, if you no longer own the gifted item at the time of your death?

Amendments to the Powers of Attorney Act 2014 (Vic) and Administration and Probate Act 1958 (Vic) which commenced on 1 November 2017 have helped to clarify the answer to this question, but also raise new potential issues.

Ademption

The general principle is that the gift of a specific item under a Will fails, if the item is not owned at time of death. This is called ‘ademption’ and it results in the Will being read as if the specific gift was never made. This can cause problems in a number of scenarios, for example:

In the Will, son Max is left the family home and daughter Maxine is left the residue of the estate. The Will-maker sells the family home before their death.  What happens?

The answer is that Max misses out and Maxine gets the whole estate. The rationale for this rule is simple: in selling the property, the Will-maker ought to have been aware of their own Will, and must have intended that result.

But what if the Will-maker didn’t deliberately sell the property? What if the property was sold by an attorney who may not have known what the Will said?  Worse still, what if the Will-maker lacked capacity and had no chance to update their Will accordingly?

Historically, it was bad luck for Max. In more recent years, however, the courts have attempted to address this issue by recognising a potential exception to the ademption rule.

Exceptions to ademption

In Simpson v Cunning [2011] VSC 466, the Court recognised an exception to the ademption rule in the case of property intended to be gifted via a Will being sold by an attorney. 

However, this exception could only apply if the Will-maker lacked capacity when the property was sold and the Court was satisfied the Will-maker would have intended the beneficiary (Max in the above example) to have a share of the remaining proceeds. Further, as this is not binding legislation, it is difficult for Will executors to rely on this exception without a costly application to the court seeking guidance to confirm that the exception applies.

A legislative exception has also existed under the Guardianship and Administration Act 1958 (Vic) but only applied where specifically gifted property had been sold or disposed of by administrators appointed by VCAT to act for disabled or incapacitated persons. This exception continues.

Exception to ademption for sale by attorney

Since 2017, Section 83A of the Powers of Attorney Act 2014 (Vic) introduced an exception to the ademption principle for any property gifted by a Will which is sold by an attorney.  This section provides that a beneficiary under a Will has the same interest in any money or other property arising from a sale, mortgage, exchange, partition or other disposition of gifted property that they would have had if the disposition had not occurred.

Unlike the court recognised exemption, this legislative exception applies regardless of whether the Will-maker knew that the property was being sold and had the capacity to change their Will.

There is no requirement for the attorney (who may not even know what the Will says) to keep the proceeds of sale from a gifted item separate to the Will-maker’s other assets.  However, if the sale proceeds are intermingled with other assets, it can be difficult at the time of death to trace the proceeds. Accordingly, it would be preferable for the Will to specify a backup or alternate provision for a beneficiary if the gifted asset (eg property) is sold during the Will-maker’s lifetime.

Where this exception causes unintended consequences, then a further new Section 50 of the Administration and Probate Act 1958 (Vic) allows a beneficiary of a Will to apply to the court to rectify this. This requires that a beneficiary under a Will gains an ‘unjust advantage’ or suffers and ‘unjust disadvantage’. We are yet to see exactly what this means but perhaps, using the initial example above:

The family home is sold and the proceeds paid towards a refundable accommodation deposit (RAD), while all other assets are used to cover the Will-maker’s daily living costs.  Then it could be that Max would get the full proceeds of the RAD (applying Section 83A), while Maxine is left empty handed.

Perhaps the court would consider that an ‘unjust advantage’ and step in to rectify the distributions? 

How could this impact you?

The new provisions impact on strategy and drafting for both Wills and Powers of Attorney. In particular:

• Specific gifts in your Will need to be drafted to contemplate whether you wish the gift to lapse or whether alternate provision is to be made if the gifted item is disposed of (eg sale of a house);
• It’s more important than ever before that your Powers of Attorney are carefully drafted and, if required, include special conditions to address the sale of specific items. This may include directions to your attorneys about which assets are to be sold first to fund care, or put them on notice that you want an item to eventually pass to a particular beneficiary; and
• You may need to consider how a sale of property could impact your Will where it is completed by an attorney (eg while you are overseas), even if done with your full knowledge and consent.  

How we can help

For more information, please do not hesitate to contact us .

All registered schools must have a Bushfire Preparedness Plan which complies with the minimum standards.

The VRQA prompted schools to review these last October. We recommend they be reviewed now in light of the devastating bushfires, with particular regard to:

• Camp sites, whether owned by the School or not;
• Travel routes to and from School (including review of school bus routes);
• Excursions and camps; and
• Community and personal development trips such as visits to remote communities.

Schools on the Bushfire At Risk Register are required to close on days which are declared Code Red. The Register is available online at the Victorian Department of Education website. Many schools, even those which are not considered “bushy” and which are in the middle of suburbs, are on the register, in addition to regional schools.

Schools should review the Victorian Department of Education’s Air Quality and activity guide, noting that bushfire smoke may require cancellation of all outdoor activities and re-calibration of air-conditioning systems. Staff should also be reminded on imminent PD days of students who have an asthma management plan.

If your school is looking to kick off the year with a bushfire fundraiser, non-government schools in NSW must comply with the Department’s Not for Profit guidelines, including the requirement that any fundraising must benefit students at the school and therefore be connected to curriculum.

How Moores can help

Moores can assist Schools with ensuring their bushfire management plans are up to date and all policies compliant. We can also assist with any specific queries about the extent of regulatory compliance and duty of care, as well as critical incident plans and responses.

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

The Commission for Children and Young People (CCYP) has released data from the Reportable Conduct Scheme’s (the Scheme) second year of operation in 2018/19. The data has provided a helpful insight into the mandatory reports made under the Scheme and provides lessons to organisations on priorities moving forward.

Key statistics

In 2018/19, the CCYP received a total of 805 mandatory notifications.  This is similar to the 806 notifications received in 2017/18 and demonstrates a steady number of notifications over the first two years of the Scheme. However, the CCYP has indicated that they expect this number to increase, especially in the religious bodies and health and disability sectors, which has had a surprisingly low number of notifications.

Some other key statistics include:

• Out-of-home care was the sector with the most amount of mandatory notifications, accounting for 40 percent of all notifications. This was followed by the education sector which represented 28 percent of all notifications.
• The most commonly reported type of reportable conduct was physical violence which accounted for 54 percent of all mandatory notifications. However, in the education sector, sexual misconduct was the most commonly reported.
• In relation to alleged victims in mandatory notifications, it was reported that:
  • 58 percent of alleged victims were male.  However, allegations of sexual misconduct more commonly involved a female alleged victim.
  • 11 percent of alleged victims were identified as being Aboriginal and / or Torres Strait Islander.
  • 13 percent of alleged victims were identified as being from a culturally and/or linguistically diverse (CALD) background.
  • 7 percent of alleged victims were identified as having a disability.
  • 26 percent of alleged victims were reported as being in the 10-14 years age group.
• A total of 31 percent of reported allegations were found to be substantiated. 

Key learnings

1. Child safety concerns can affect all individuals but some groups are more vulnerable
   
   The data from the CCYP provides information on the landscape of reportable conduct. Interestingly, females and males were generally equally represented both in statistics regarding alleged victims and alleged perpetrators. This demonstrates the importance for organisations to take all child safety concerns seriously regardless of the person’s sex or gender identity. However, it is also worth noting that the CCYP statistics reflect the findings from the Royal Commission into Institutional Responses to Child Sexual Abuse that individuals from an Aboriginal / Torres Strait Islander background, a CALD background or with a disability are particularly vulnerable to child abuse.
    
2. A tailored approached to child safety needed for different sectors
   
   The CCYP data helpfully identifies trends in specific sectors. It demonstrates that for the education sector, sexual misconduct is the most commonly reported conduct and organisations in this space should be focusing prevention and education on this. On the other hand, out-of-home care providers and disability service providers are most likely to report physical violence, demonstrating a need to provide better education on appropriate and boundaries and physical interactions, including the use of restraint.
    
3. Public awareness is increasing the risk to organisations that fail to report
   
   There has been a sharp increase in public disclosures (i.e. disclosures from individuals other than the head of an organisation), which jumped 60 percent in 2018/19 compared to 2017/18. This is indicative of greater public awareness of the Scheme and the CCYP. Where organisations fail to report, it is increasingly common for another individual to report to the CCYP, which can lead to scrutiny and compliance action against organisations.
    
4. Organisations that fail to produce high quality investigation reports risk compliance action
   
   Another important learning is that for the first time in 2018/19, the CCYP took compliance action in two instances where it undertook its own investigation into organisations in the education and religious sectors. As anticipated, the CCYP have played a more interventionist role in investigations, including questioning and scrutinising how investigations are conducted and the findings that were made. As the Scheme develops, there will be increasing pressure on organisations to produce high quality investigation reports that align with the requirements of the Scheme.

Next steps for organisations

As the Scheme progresses through its third year, we recommend that organisations:

1. Review and update child safety policies and procedures – many organisations have still not embedded the Scheme into their documents, especially their child safety reporting procedures. This creates a risk that they will fail to comply with their reporting requirements under the Scheme.
2. Undertake investigation training – organisations should be training their staff on investigations under the Scheme which are quite unique in their requirements. This is especially so for organisations which intend to run internal investigations into child safety concerns.
3. Know when to report – the CCYP statistics indicate that organisations are still unsure when to report with some over-reporting (leading to a low rate of substantiated allegations) and some under-reporting (leading to compliance action and public notifications). It is important that you are providing clear guidance to your employees and head of the entity on when a report is required and when it isn’t, noting that a report will require you to conduct an investigation.
4. Understand your sector – it is clear that different sectors deal with different types of child safety concerns. Organisations should review their priorities in light of the CCYP statistics. Additionally, organisations in the religious and health and disability sectors should be on notice that the CCYP has indicated it will be scrutinising why notifications from these sectors remain concerningly low. 

Moores has experience working with organisations in determining if a mandatory notification needs to be made, providing training on the Scheme and assisting in investigations.

For further information or guidance please do not hesitate to contact us.

The recent publicity around payments to directors of the Freemason’s charitable arm in Queensland is a timely reminder to charities and not-for-profits to proceed with caution when making payments to responsible persons.

In particular, it is important to ensure that any payment made to responsible persons is:

1. Consistent with your organisation’s purpose
   
   Charities and not-for-profits have an overriding obligation to ensure that their resources are directed towards their purpose. Your organisation’s purpose is usually set out in its  governing document (which may be a Constitution, Rules or a Deed of Trust) – this purpose should guide all your organisation’s decisions, including expenditure. 
    
2. Not a private benefit
   
   For purpose organisations are required to operate on a not-for-profit basis – that is, they can’t operate for the profit, personal gain or other benefit of particular individuals.  Excessive payments or payments that cannot be reasonably justified to responsible persons will undermine your organisation’s not-for-profit status.
    
3. Not expressly prohibited
   
   There may be an express prohibition against the payment your organisation proposes to make. Consider (for example): any restrictions on payments to responsible persons in your organisation’s governing document; relevant legislation (such as the Related Party Transactions provisions in the Corporations Act); the conditions of any fundraising licence; and the requirements of any funding agreement.
    
4. Agreed on through a proper process
   
   How your organisation decides to make a payment to responsible persons is just as important as the decision itself. All too often For Purpose organisations fail to properly manage the inherent conflict of interest in decisions of this kind. This undermines the integrity of the decision, risks the organisation’s reputation and may result in compliance action by regulators (including the ACNC).

Although there is no blanket prohibition on payments to responsible persons, any decision to make a payment must be carefully considered and documented. It may be appropriate to seek advice on the legal framework within which your organisation operates, relevant considerations and an appropriate process through which any proposal to make a payment can be considered.

For more information or expert guidance, please do not hesitate to contact us.

The new Quality & Safeguards framework has been introduced to provide a nationally consistent approach that empowers and supports NDIS participants to exercise choice and control whilst also ensuring that appropriate safeguards are in place and that service providers and their staff are delivering high quality supports to participants.

The framework has now rolled out in Victoria, Tasmania, Queensland, the Australian Capital Territory and the Northern Territory on 1 July 2019, as well as South Australia and New South Wales on 1 July 2018. On 1 July 2020 the framework will roll out in Western Australia.

Dual Requirements

Service providers should also remember that if they receive funding from both a State/Territory Government and from the NDIS, they are subject to both existing State/Territory based requirements and also NDIS Quality and Safeguards Commission regulatory obligations while they receive both forms of funding. Policies and practices should reflect the dual requirements and reporting frameworks. In time, service providers may want to consider transitioning to NDIS funding only to avoid the dual requirements.

New Requirements

It’s important that disability service providers understand their obligations under the new Quality & Safeguards framework and align their policies and practices to adhere to the new requirements including:

• NDIS Practice Standards which set a benchmark for providers to be assessed on performance and to demonstrate provision of high quality and safe supports and services to NDIS participant.
• Code of Conduct which set out acceptable, appropriate and ethical conduct for NDIS providers and workers and in doing so, promote the health, safety and wellbeing of persons with disability.
• Management of and Reporting of Incidents requirements which provide appropriate systems to respond to any incidents that occur or are alleged to have occurred in connection to provision of supports or services to NDIS participants.
• Complaints Management requirements which provide an appropriate complaints management and resolution system for providers to respond to complaints in connection with provision of supports or services to NDIS participants.
• Worker Screenings requirements which play an important role in supporting the dignity, safety and wellbeing of NDIS participants, ensuring that only screened and appropriate workers are delivering services to persons with disability.
• Regulation of Behaviour Support and Restrictive Practices requirements which ensure the correct safeguards, oversight and reporting are in place to ensure safety and dignity for persons with disability.

If you require a review of your organisation’s Quality & Safeguards requirements, assistance and/or advice on complying with the Framework, including implementation of policies and procedures, or training on compliance with the Framework, please do not hesitate to contact us.

As 2019 draws to an end, this article outlines the trends in the Education Sector we have seen over the year, and looks at which trends will carry into 2020.

The biggest themes of 2019 have been:

• Gender inclusion;
• Disability discrimination;
• Use of technology; and
• Early Learning Centres.

Gender Inclusion

The Sex Discrimination Act 1984 (Cth) and the Equal Opportunity Act 2010 (Vic) aim to protect people experiencing gender discrimination because of their sexual orientation, gender identity or intersex status. This includes in the education sector.

Schools have a responsibility to take reasonable steps to eliminate discrimination by providing a positive, supportive and respectful environment. Every Australian child is entitled to feel welcome and valued at school, which is why the result of the third national study on the health and wellbeing of LGBTI young people should be cause for alarm. This study found that 61% of LGBTI young people experienced verbal homophonic abuse and 80% of the respondents experienced abuse at school.

Fostering a culture of inclusion, safety and respect means that schools:

• cannot refuse enrolment of a prospective student because the school is concerned about its ability to accommodate the student having regard to toilets or change rooms and gender specific activities.
• cannot enforce uniform policies which dictate that students with particular characteristics must wear school shorts and dresses. While schools can set and enforce reasonable standards of dress, appearance and behaviour for students after taking into account the views of the school community, this exception is interpreted narrowly.

Consistent with the school’s duty of care, some things Schools will need to consider moving into 2020 to create a more gender inclusive environment is:

• School Sports – consider developing a policy which facilitates inclusion for all students in sporting activities. At a minimum, consider appointing a staff member who students can speak to about joining a sporting team;
• School camps – schools are unlikely to be able to rely on the exceptions in anti-discrimination legislation to restrict a student’s participation in a camp due to concerns about segregating students based on sex;
• Bullying, harassment and discriminatory language/behaviour – challenge derogatory language and ensure there are student policies and codes of conduct which enforce inclusion and respect;
• Training – schools should consider training and up skilling current staff (including counsellors) on gender inclusion and create sensitive strategies to assist having sensitive conversations with students.

Disability Discrimination

A recent Victorian case has reignited the concern for schools about defending failure to educate claims from parents (i.e. compensation for breach of contract or negligence by a school in failing to educate a student).

These types of claims generally arise when a school seeks to enforce payment teams and school fees.  However, the current case is made significantly more complex because the student had a disability. The student was set to graduate from year 12 this year, however, his mother claimed that her son’s skills have not developed satisfactorily during the 13.5 years at the Southern Autistic School (the School) and he was left unlettered and analphabetic impacting his ability to find suitable employment or be accepted into some form of tertiary education.

What is most concerning about this case for our school clients is that the School had made reasonable adjustments and the mother appears to argue that, in making reasonable adjustments as required by anti-discrimination law, the school had actually breached another obligation to educate. 

This case is listed for a three-week hearing in the Federal Court in 2020. If successful, this may give rise to another legal liability for schools.

In the meantime, schools should implement Reasonable Adjustments Assessment Rubrics and Behaviour Management Policies (compliant with VRQA July 2019 guidelines) to maximise legal compliance and engage with parents as much as possible about how the school may be able to best assist students with disabilities.

Use of technology

In 2019, the Victorian Government announced that it will ban mobile phone use by students during school hours in an attempt to address cyber bullying and distraction.

Independent schools are not required to follow this ban although they may introduce a similar ban (or one might already exist) regarding the use of technology by students.

Separately to this issue is the concern about the increase in children sharing sexual images through social media platforms. A recent eSafety Commission Report highlights the increased use of technology and its impact on organisations when creating a child safe culture, particularly the rise of image based abuse. Schools are not immune to this and should be aware of the risks of students using platforms such as Snapchat and Instagram given the broad nature of the duty of care and the ability of technology to stretch its application to organisations.

Removing phones will not remove a school’s liability for harm caused by cyber-bullying and image based abuse. However, having clear “bans”, enrolment documents and policies can equip schools to discipline any student that breaches them (which should occur).  Although, banning phones should not be a substitute for educating students about cyber-safety and social media use and having bullying and acceptable use policies which are diligently and consistently enforced.

In terms of the Government’s ban, schools do need to be aware of removing phones from students that require it for medical purposes (e.g. blood sugar monitoring apps) and phones that are removed need to be kept secure and not accessed by staff, otherwise there are risks of theft or privacy breaches.

Early Learning Centres

The Victorian Education Department will be publishing further guidance for schools on the Education and Training Reform Regulations 2017 in early 2020. The regulations relate to not-for-profit status (school funds only for the school, not the ELC) and “prohibited arrangements” (all transaction to be commercial and for the direct benefit of the school).

From what we have seen so far, it is unlikely that this guidance will address schools’ concerns.  The regs are very narrow, and only exempt “related” “feeder” ELCs.  Schools still need to grapple with the use (or non-use) of school funds in the operation of ELCs and:

• how separate the accounting must be, particularly noting the funding mix between private (tuition fees) and government funding;
• what constitutes related not for profit activities and whether the reference to “related” imposes a form of connection (and what this might be – for example, whether childcare for staff and the ELC be treated differently).

We expect that the basic framework of the Regulations will not change and that there will continue to be an emphasis in them on both:

• use of funds – currently worded as “solely for the conduct” of the school; and
• the need for schools to acquire services at market rate to avoid being “prohibited”.

We will have to wait and see what the Regulations say in 2020 but in the meantime, we recommend that schools maintain separate accounts for schools and ELCs and have a Memorandum of Understanding in place between schools and ELCs including provisions (at a minimum) regarding services and liability.

How we can help

If you’d like assistance or advice on improving your school’s policies and procedures in relation to gender inclusion, social media, managing students with disabilities, reasonable adjustments, early learning centres or enrolment contracts, please do not hesitate to contact us.

There is a mistaken belief that a substantial inheritance received after separation is automatically protected from a family law claim – sad to say, if it’s your inheritance, that this is often very wrong.

This misconception was addressed in the recent case of Calvin v McTier.

The disgruntled husband lost at trial before a judge, so he appealed to a Full Court of 3 judges and lost again. 

Background

The parties were in a relationship from 2002 to 2010 and divorced in 2011. The husband received a substantial inheritance in 2014 worth $430,686. This made up 32% of the net value of the parties’ assets and resources at the time of the trial. The husband had also brought a lot of money into the relationship at the start. The couple had one child and shared his care equally.

The Judge (the bad guy or the good guy in the story, depending on your point of view):

1. Followed the usual analysis process for deciding what was a fair split of assets, and
2. Assessed the contributions of the parties, both financial and otherwise, before, during and after the relationship.NB: Contributions during the relationship are usually treated as equal.
3. However, due to the substantial contributions both pre relationship and from the inheritance after separation, which the wife did not have a role in contributing to, overall the contributions were found to be 75/25 in favour of the husband.
4. Next, as often happens, due to the disparity in the earning capacity of the parties, the judge made a 10% adjustment in the wife’s favour; and
5. Ultimately subtracted one from the other and divided the assets 65/35 in favour of the husband.She got 35% of the total of $1.3mil, or $455,000.If the inheritance was removed, this represented 52% of the other assets.

The husband still wasn’t happy (perhaps he should have been) and appealed on the basis that:

• The inheritance should not have been available for division; and
• A proper assessment of their contributions could have been made without including the inheritance in the net assets and resources to be divided.

The case is interesting because the husband’s lawyers rather optimistically argued that there was no clear connection between the inheritance and the parties’ marriage. They submitted that the parties’ marriage was not enough, of itself, to justify the Court bringing the inheritance into account.  

Further, they said that contributions to the marriage had to be made contemporaneously with the existence of the marital property up for division. This argument, if successful, would potentially support the exclusion of any money received after separation from the family law division with the other party.

Outcome

The Full Court of the Family Court rejected the appeal. The Court concluded that the trial judge was perfectly entitled, in his very wide-ranging discretion (which is a characteristic of Family Law cases), to include after acquired property in the property available for division, despite 4 years having elapsed between separation and the inheritance being received.

To add insult to injury, and without surprising family lawyers who followed the case, the court concluded by ordering the husband to pay the wife’s costs of the appeal since he lost out rather comprehensively in the appeal.

Take away points

• The Court has a broad discretion to make orders regarding property acquired after separation;
• This discretion is not affected if the property is an inheritance;
• The Court will usually include all property acquired post-separation in the pool for division – however you receive it;
• If your position post separation is likely to get better compared with the other party, get your property settlement done and documented in a legally binding way without delay!Only then will you be protected from any further claim in relation to assets that come your way later.
• Finally, if you have informally divided your assets with the other party, they can potentially come back and make another claim against you later. The most extreme case of this sort which we have seen was brought 22 years after the informal division agreed to by our client – when his superannuation had grown dramatically!

In cases where one party has received or may receive the benefit of a substantial inheritance, Tattslotto win, business success or other windfall, after separation it is vital to seek expert legal advice.

How we can help

If you would like our assistance in this or any family law matter, please do not hesitate to contact us.

The Victorian Government has introduced new requirements for all non-government organisations funded by the Victorian Government to deliver services to children. The new requirements came into effect on 1 July 2019 and have been introduced to improve the ability of child abuse survivors to bring a legal claim for compensation against organisations and to ensure that there is something for survivors to claim against.

Required non-government organisations must be incorporated and must be insured against child abuse. The requirements will only be applicable to new or varied funding agreements with the Victorian Government. Existing agreements are not affected. In the case of contracts under an established funding round, the new requirements will apply only after the commencement of the next funding round.

Why are the requirements being introduced?

The Betrayal of Trust Report and the Royal Commission into Institutional Responses to Child Sexual Abuse identified the need for governments and institutions to prevent child abuse and to empower survivors to receive the support and compensation they deserve.  One of the key findings in these inquiries was that it has not always been straightforward for survivors of abuse to identify an appropriate legal entity to bring a claim against and even when an entity was able to be identified, some did not have sufficient assets to be sued or to meet compensation orders. 

The Betrayal of Trust Report recommended that the Victorian Government require non-government organisations that it funds for delivery of services to children to be incorporated and appropriately insured. The Royal Commission recommended that all state and territory governments require those they fund to maintain appropriate levels of insurance to cover claims of child abuse.

How does an organisation become incorporated?

There are a number of ways in which an organisation can become incorporated, including through Consumer Affairs Victoria or through the Australian Securities & Investment Commission.  Incorporation can be a complicated process and legal advice should be sought to ensure the organisation has the ability to continue to fulfil its purposes.

Not being incorporated will not necessarily preclude an organisation from entering into a funding agreement with the Victorian Government.  Funding agreement may still be entered into with an unincorporated organisation if it is actively working towards incorporation and will incorporate within 12 months of the commencement of the new contract.

What level of Insurance is required?

The Victorian Government requires that insurance is held on an ‘occurrence’ basis, or on a ‘claims made’ basis if it is to be maintained after the cessation of the funding agreement with the Victorian Government. Any exclusions in the insurance must be agreed to by the Victorian Government. A minimum insured amount of $5 million per claim or $10 million in the case of insurance for a monetary aggregated amount is required unless the Victorian Government determines that a higher level is required for a funding agreement.

How we can help

If you require assistance or advice about Victorian Government funding requirements for services to children, please do not hesitate to contact us.

Every Australian child is entitled to feel welcome and valued at school, which is why the results of the third national study on the health and wellbeing of LGBTI young people should be cause for alarm. The study found that 61 percent of LGBTI young people who participated in the survey report experienced verbal homophobic abuse, and 80 percent of the respondents experienced the abuse at school. The detrimental impact of these experiences cannot be underestimated. Discrimination and exclusion reverberates beyond the learning environment to a young person’s social and emotional wellbeing. Schools have a legal obligation to ensure that young people feel safe and supported both in and out of the classroom. This obligation exists irrespective of a school’s religious doctrines, beliefs or principles.

What does the law say?

The Commonwealth Sex Discrimination Act 1984 (SD Act) specifically protects people who experience discrimination because of their sexual orientation, gender identity or intersex status. The Equal Opportunity Act 2010 (Vic) (EO Act) also prohibits discrimination on the basis of sexual orientation and gender identity, however it is a slightly narrower definition of ‘gender identity’ because it does not extend to people who do not identify as either ‘male’ or ‘female’ gender.

Gender identity is protected under Commonwealth law and in Victoria, Queensland, and Tasmania. Very similar protections are afforded in some other states, such as ‘chosen gender’ in South Australia and the more ambiguous ‘gender history’ in Western Australia. Under both the SD Act and the EO Act, gender identity is characterised irrespective and without regard as to a person’s designated sex at birth or whether or not medical treatment or intervention has taken place.

What does an inclusive school environment look like?

Having regard to the significant and detrimental impact of discrimination and harassment on young people, schools must create an inclusive and safe environment for their students, including LGBTI young people. Anti-discrimination laws require schools to take reasonable and proportionate measures to eliminate discrimination on the basis of sexual orientation, gender identity or intersex status, including taking positive steps to promote an inclusive school environment; and prohibit direct and indirect discrimination on the basis of sexual orientation, gender identity or intersex status.

Schools are required to support same sex attracted, gender diverse, transgender and intersex students, by:

• providing a positive, supportive and respectful environment;
• respecting privacy and confidentiality in relation to all students;
• supporting students who want to affirm or transition gender identity at school;
• challenging all forms of homophobia, biphobia, transphobia and intersexism to prevent discrimination and bullying;
• giving proper consideration to the impact of any requirement to participate in school activities according to gender identity or an assumption of heterosexuality (e.g. school formals, sports activities, camps).

There are some exceptions in anti-discrimination law which permit schools to discriminate if the school or educational program is wholly or mainly for students of a particular sex, race, religious belief, age or age group, or students with a general or particular disability.  In Victoria, there are also some exceptions that apply to religious schools in circumstances where it can be established that the discriminatory conduct conforms with the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of the adherents to the religion. Exceptions are interpreted narrowly by courts, and faith based schools with a “broad church” often face significant obstacles in identifying their religious doctrines, beliefs or principles with precision.

Fostering a culture of inclusion, safety and respect means that schools cannot refuse enrolment of a prospective student because the school is concerned about its ability to accommodate the student having regard to toilets or change rooms and gender specific activities.  It also means that a school cannot enforce a uniform policy which dictates that students with particular characteristics must wear school shorts and dresses. While schools can set and enforce reasonable standards of dress, appearance and behavior for students after taking into account the views of the school community, the exception is interpreted narrowly.

What can schools do?

In seeking to create a more inclusive environment consistent with a school’s duty of care, we encourage schools to consider the following:

• Sport can commonly be divided by gender – schools should consider developing a policy which facilitates inclusion for all students in sporting activities. At a minimum, schools should nominate a staff member who students can speak to about joining a sporting team.
• School camps can also often result in division of students by gender. The current discrimination law landscape has highlighted that the health and safety exception in anti-discrimination law applies only in extreme cases. Schools are unlikely to be able to rely on this exception to restrict students’ participation in camp due to concerns about segregating students based on sex.
• Schools must take a stand against and challenge all forms of bullying, harassing and discriminatory language or behaviour, including against LGBTI students. Consistently challenging derogatory language such as ‘that’s so gay’ and ‘what a fag/dyke’ can have an immediate impact on a school’s culture. Even questions which are not intended to cause offense, such as ‘are you a boy or girl’ can be confronting and damaging for students who are transitioning or questioning their identity.
• The focus of the school should be in relation to assessing how it can accommodate gender diversity. This is where the engagement of expert opinions can be helpful.
• Expert guidance can also be useful for schools to train and up skill current staff including counsellors. This will help with the creation of sensitive strategies and assist in having sensitive conversations.

How we can help

Moores’ Education and Discrimination teams have considerable expertise in working together with schools to create a more inclusive school environment and a culture which values diversity and promotes equality. We recognise that each school has its own beliefs and identity, and we work closely with schools to build their capabilities to address these issues respectfully and sensitively.

For more information or guidance, please do not hesitate to contact us.