Two recent Fair Work Commission (FWC) decisions offer contrasting outcomes for schools navigating the complex terrain of staff misconduct towards children. These cases highlight the legal and ethical boundaries of acceptable behaviour in student discipline and underscore the importance of proportionality, policy alignment, and procedural fairness when considering termination. They also raise key safeguarding considerations for educational institutions.
Jillian McLoghlin v St Columba’s College Ltd [2025] FWC 1554
Ms Jillian McLoghlin, a science laboratory technician at the College, was dismissed for misconduct following an incident where she forcefully slapped a student’s hand during a biology lesson.
While Ms McLoghlin claimed it was a reflexive act to prevent harm involving a scalpel, she acknowledged being frustrated with the students. The College reported the allegations to the Commission for Children and Young People (CCYP), conducted an investigation, and subsequently terminated her employment.
Ms McLoghlin’s application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) was dismissed. The FWC found that the College had a valid reason for dismissal based to her conduct, and the dismissal was not harsh, unjust, or unreasonable.
In reaching this conclusion, the FWC found:
Paramjit Brownson v Australian International Islamic College Ltd [2025] FWC 1551
Ms Paramjit Brownson, a high school teacher and Pastoral Coordinator, was summarily dismissed for allegedly yelling at misbehaving students. She argued her actions were consistent with school norms and necessary to manage escalating misbehaviour. She also alleged her dismissal followed criticisms she raised about school leadership.
This was a rehearing of an unfair dismissal application after an earlier reinstatement order was quashed on appeal.
The FWC found that Ms Brownson was unfairly dismissed and ordered the College to pay Ms Brownson $55,786.90 (plus superannuation). Reinstatement was ruled out due to ongoing fair treatment and a breakdown in trust when Ms Brownson saved confidential information to her personal device.
In reaching its decision, the FWC’s conclusion considered each of the factors under s387 of the Fair Work Act 2009 (Cth) including:
The FWC found the lack of a valid reason for dismissal and the contrived nature of Ms Brownson’s termination outweighed the procedural aspects where the College had met its obligations (e.g., notification and opportunity to respond). The FWC also noted that less severe options, such as training, counselling, or role changes, would have been fairer if genuine concerns about her interactions with students had existed.
The central distinction lies in the nature of the conduct and the integrity of the investigation.
These cases underscore the importance of proportionality, policy clarity, process integrity, and credible investigation, especially in classroom discipline contexts.
Where staff behaviour involves potential harm to children, employers must also meet external reporting obligations, including under the relevant reportable conduct scheme.
Employers should carefully consider guideline published by regulators to determine whether allegations are reportable.
Report when required: Be clear on your safeguarding obligations and act promptly where reportable conduct may be involved.
Our Workplace Relations team assists employers with managing disciplinary matters to minimise risk and ensure compliance with employment law. Additionally, our Safeguarding team advises on external reporting obligations and investigations arising from staff conduct involving children or young people.
Moores can help you navigate the complexities of staff conduct and ensure your organisation is protected—legally, ethically, and operationally.
Please contact us if you would like further information on how we can assist.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.
This is the third article in our recent series on the childcare crisis, following our advice for operational changes (Rebuilding Trust: Strengthening Child Safety in Childcare Centres During a Time of Crisis) and governance and board responsibilities (Child Safety and the Board: Boards must lead with care).
In response to the announcement on July 1 that childcare worker Joshua Brown has been charged with 70 child sex offences, both the Victorian and Commonwealth governments have taken swift and targeted action.
Notwithstanding, the Victorian government has announced a review of the sector and is expected to release its report and findings on 15 August 2025.
Meanwhile the Commonwealth government has announced that it is expediting the laws announced in March this year1 which propose to remove funding from childcare providers who are chronically non-compliant, and Education Minister Jason Clare stating that additional legislation will be introduced in the next sitting period which would allow spot-checks of childcare centres without warrants or police involvement if passed.2
While lowering barriers for childcare centres to be investigated and de-funded is aimed to increase compliance and sector integrity, educators and school communities should be aware and prepared for temporary side-effects, such as limitations on the ability to expand to new campuses whilst ‘working towards compliance’ and the potential for parents to be left without childcare and on new waiting lists at short notice if their child’s centre is de-funded.
One of the criticisms and challenges of the childcare sector is that it is subject to different state and federal regulation and different types of funding, making a complex. One proposed solution is to shift the operation of childcare to state public schools. Where this leaves the (much less criticised) not-for-profit providers, and the for-profit operators, on the matter of funding is unclear.
Notwithstanding, the changes take place within the Albanese Government’s broader initiative to championing universal childcare as the predominant mode of funded childcare. The aims target a wide range of outcomes including decreasing developmental vulnerability of children from low-income families.3 In this context, the importance of resolving these issues to ensure the wellbeing and safety of the sector is especially critical.
The move towards universal childcare is underpinned by a huge investment in increasing the capacity of the sector as well as accessibility.4 Measures include Government investment wage increases for childcare workers and funding of new centres. Additionally, in February this year, Parliament passed the Early Childhood Education and Care (Three Day Guarantee) Act 2025, which commences January 2026 and will remove the requirement for families to spend a certain number of hours undertaking ‘recognised activities’ (including paid and unpaid work or leave, approved course of study, or looking for work) in order to access 72 hours per fortnight of subsidised care (with further hours being made available to those with over 48 hours in recognised activities per fortnight).
Currently, the subsidy for a firstborn is 90% for families with an income up to $85,279, after which it decreases 1% for every $5,000 earned up to $535,279. There are also rate caps, and a lower decreasing scale for second and younger children.5 Under the Three Day Guarantee, the subsidy percentage will continue to rely on the combined family income, hourly rate caps, number of children (and their age) in care.6
We can expect to see increased uptake of childcare services, which will sharpen the spotlight on the ability of regulators to hold workers accountable and prevent harm.
More broadly, a sleeper issue could be the sunsetting of key cyber powers of the Australian Federal Police and the Australian Criminal Intelligence Commission at the end of next year. Driven by the need to disrupt and prosecute serious criminal online activity such as the distribution of child abuse material, the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth) gave these federal agencies significant powers to collect intelligence and conduct investigations (including by taking over online accounts) into serious criminal online activity.7 These powers have been subject to strong safeguards and will sunset in September 2026 unless renewed by Parliament.
The special powers of the AFP and ACIC are currently under review by the Independent National Security Legislation Monitor8 and whether by this or by other means, the expansion and investment in the growth and reform of the childcare sector could leave it vulnerable, and should be governed with both appropriate regulatory and investigative powers.
What is clear is that centres should not wait for federal reforms such as a national or state register of workers. They need to act now.
At Moores, our Safeguarding and Child Safety teams work alongside organisations to ensure their child safety frameworks are robust, compliant, and reflective of best practice. Our experienced team supports clients to:
We also provide tailored training for staff, boards, and child safety officers to ensure all individuals understand their role in protecting children.
If you would like to discuss how we can support your organisation, our education and safeguarding teams are here to help. Please contact Cecelia Irvine-So or Skye Rose if you would like further support.
View our dedicated page on the Childcare and Early Education Reforms and subscribe to receive updates directly in your inbox.
Recent distressing events in the childcare sector have drawn renewed attention to the importance of robust child safety practices. It is appropriate in this context for board members of all organisations that care for and educate children to reflect on their role in creating and maintaining safe environments.
At the end of this article, we have provided a checklist for boards to consider as they review their child safe practices.
Regulatory changes have been proposed at the state and federal level (including bringing forward existing proposed reforms in relation to creating a Victorian register of childcare workers and banning personal devices in childcare centres by Friday 26 September 2025). Additionally, the Victorian government has announced a review of childcare safety. Prudent boards will ensure that their organisations do not wait until regulatory changes are imposed and reviews are finalised (although they must monitor and respond to developments in this space). Instead, organisations must act now to anticipate foreseeable risks, mitigate those risks and promote a culture of safety and continuous improvement. In this, the board has a vital role to play.
Media reporting has been critical of the childcare centres which operate for profit. This might be false comfort for not-for-profit operators. Child safety risks exist across all types of early years providers and not just in long day care. Boards of occasional care, sessional kindergartens and school-based ELCs also need to act. It is worth emphasising that the law is not more lenient towards boards of not-for-profits – the duties and penalties are substantially the same. Board members of not-for-profit centres will not be treated with kid gloves just because they are unpaid volunteers.
Child safety isn’t just an operational concern: it is a governance issue that directly impacts an organisation’s ability to deliver on its purpose. Board members have a duty to act with care and diligence and in the best interests of the organisation1. Complying with these duties necessarily extends to ensuring child safety. Acting in the best interests of the organisation means prioritising the wellbeing of the people it serves, especially children and protecting the organisation itself from legal and reputational harm. Exercising care and diligence requires ongoing attention to whether systems, practices and culture are effective in keeping children safe.
In the years following the Royal Commission into Institutional Responses to Child Sexual Abuse, child safety laws have evolved to emphasise accountability. One important development has been the introduction of a reverse onus of proof (including in Victoria) in certain circumstances. This means that, if harm occurs, an organisation will be presumed to have breached its duty to prevent the abuse of a child unless it can show that it took reasonable precautions to prevent it.
In Moores’ view, it is a clear breach of board members’ duties to fail to ensure that an organisation takes these reasonable precautions. In the extreme case, this failure will not only be a breach of board members’ duties, but will expose directors to criminal prosecution – under ‘failure to protect’ laws across Australia it is a criminal offence for a board member in certain child facing organisations (including childcare centres) to negligently fail to act if they know that a person associated with the organisation poses a substantial risk to a child.
For boards, this reinforces the importance of having systems in place to comply with the National Child Safe Standards and to satisfy themselves that those systems are active, effective and regularly reviewed. The role of the board is to oversee these elements and satisfy itself that they are working as intended. Board members on school boards have additional specific obligations under Ministerial Order 1359 to ensure a range of child safety measures, and must have “line of sight” over all of operational measures. Boards in all organisations caring for and educating children cannot simply adopt policies without confirming they are implemented. Nor can they rely on assumptions, verbal reports or no known history of incidents. Further, boards must ensure that there are open and accessible reporting pathways as well as a culture that promotes accountability and supports speaking up.
In light of recent developments, boards should review their organisation’s current child safety arrangements. The following checklist provides questions that board members can use to guide discussion and decision-making:
1. Reaffirm the board’s commitment
2. Check capability and knowledge
3. Request evidence of implementation
4. Ensure integration with broader governance
5. Ensure risk management frameworks are robust
6. Support transparency and responsiveness
Boards do not need to have all the answers. But they do need to ask the right questions, set clear expectations, and be prepared to adapt where needed.
At a time when public confidence in safeguarding practices is under renewed scrutiny, organisations that show thoughtful leadership and a genuine commitment to improvement will be better placed to maintain trust and deliver their mission with integrity.
Ultimately, ensuring a safe environment for children is not just a matter of compliance, it is central to good governance, and to the values that many charities hold at their core.
When a member of a superannuation fund passes away, a member’s benefit (referred to as a “death benefit”) must be cashed out “as soon as practicable after the member dies”. So how long is too long to wait before paying out a member’s death benefit post death?
This question is particularly important for self managed superannuation fund (“SMSF”) trustees who are tasked with paying out the “death benefit” of the deceased member (being the deceased’s executors, usually individuals related to the deceased, rather than unrelated trustees as is the case in retail or industry funds).
What does “as soon as practicable” mean? This wording is not defined in superannuation or taxation legislation which can make it difficult for trustees to fully understand their obligations.
Despite this, the Australian Taxation Office (ATO) had previously provided guidance to trustees about the recommended timeframe. It had been of the view that “as soon as practicable” meant that the trustee had six months from the date of the member’s death, to pay out the death benefit out of the fund.
Particularly for SMSFs, the trustees are usually grieving family members. During the initial six months post death, they are already dealing with other mentally and emotionally taxing tasks arising from the death of their loved one, so the expectation that they are to also organise cashing out the member’s death benefit and paying it out to beneficiaries, in practice can be a somewhat unrealistic expectation.
The ATO has recently removed reference to their six month timeframe definition via their website, providing some relieve to the grieving trustees. But this does not mean that a trustee can take as long as they wish. The trustee still has the obligation to pay out the death benefit “as soon as practicable” under the Superannuation Industry (Supervision) Regulation 6.21(1). It is also yet to be determined whether the removal of this reference was intentional, or an omission by error by the ATO.
SMSF auditors review trustee actions in respect to administering the SMSF. Distribution of death benefits must occur, but during the administration period (post death of the member and before the distribution of death benefit), where the deceased member was in pension phase, the fund can continue to claim “exempt current pension income” (ECPI) where essentially, any income generated from the fund attributed to the pension-phase account, would not be taxed.
While this could be an incentive to trustees to take their time paying out the death benefit, an auditor will likely expect an explanation for delay in order to comply with their own obligations, even though the six-month guideline no longer appears on the ATO website.
Superannuation fund trustees are under an obligation to act honestly in all matters concerning the fund. For example, delaying payment of a death benefit to claim ECPI or waiting for the market to pick up before selling fund assets (e.g. property or shares), may be considered taking advantage of an extended time frame, and in turn possibly contravening the trustee’s obligations.
If you foresee an extended period of time (over 6-12 months) before the death benefit would be paid out of the fund, it is a good practice to document in writing the reason for delay which can assist the auditor with understanding the circumstances preventing the trustee from meeting their obligations.
Our experienced lawyers in the Moores Deceased Estates team can provide guidance to SMSF trustees by assisting with navigating pay out of death benefits, and meeting their obligations upon the death of an SMSF member.
As Australia’s workplace laws grow in complexity, so too do the compliance obligations of corporate boards in Australia. Once viewed as a function of human resources or middle management, employment compliance now sits squarely within the remit of directors. Modern regulators expect active governance, and courts are increasingly willing to impose personal liability on directors who have failed to implement or oversee adequate systems to protect employees. The consequence is that, in the event of an employment compliance failure, directors may face not only reputational and organisational consequences but also personal liability.
Against this backdrop, Boards must ask themselves a critical question: Are we discharging our duties in a manner that sufficiently mitigates employment-related risks, both for the organisation and for individual directors?
Ordinarily directors are not personally liable for actions they take on behalf of the company they serve. This is often referred to as the ‘corporate veil’. However, the corporate veil may be lifted and personal liability can arise in specific circumstances, including breaches of employment law. Under instruments such as the Fair Work Act 2009 (Cth), Sex Discrimination Act 1984 (Cth) (SD Act), state anti-discrimination laws and various WHS regulations, directors may be held personally accountable where they are deemed to have been involved in or failed to prevent contraventions.
This exposure is not theoretical. Regulators are increasingly pursuing individuals where governance failures are apparent—particularly where issues have become systemic or have resulted in harm. The threshold for liability is not limited to intentional misconduct; it can also encompass acts of recklessness, omission, or wilful blindness.
Health, safety and wellbeing risks
Emerging areas such as psychosocial hazards—encompassing stress, harassment, burnout, and toxic workplace culture—are now part of the legal landscape. SafeWork Australia’s national model WHS laws now explicitly incorporate these risks, and boards are expected to demonstrate these risks are being actively identified, assessed, and controlled. Failing to do so can expose both the organisation and its directors to liability. Individual directors can be exposed to significant penalties (fines of up to $600,000 per breach), and up to five years imprisonment for indictable offences.
While some duties can be assigned or delegated, directors should be receiving regular reports and information on psychosocial hazards and steps being taken to eliminate or control them.
Underpayments and the “involvement” principle
Wage and superannuation underpayments remain an area of intense regulatory focus. The reputational and financial damage associated with non-compliance is significant, and the Fair Work Ombudsman has shown a readiness to investigate directors personally under the involvement provisions of the Fair Work Act 2009 (Cth) (FW Act).
Under section 550 of the FW Act, a director may be liable if they are found to have:
Liability is not confined to deliberate non-compliance. A director who is aware of underpayment risks and fails to take reasonable steps to mitigate the risk and rectify them, and may be deemed to be “knowingly concerned” in the underpayment. In more egregious circumstances, their conduct may qualify as a serious contravention, which attracts even harsher penalties.
Sexual Harassment and the Positive Duty to Prevent Harm
The legal framework governing workplace conduct has shifted decisively with the introduction of the positive duty under the Sex Discrimination Act 1984 (Cth). This duty requires organisations to take proactive and reasonable measures to eliminate, as far as possible, unlawful conduct such as sexual harassment, sex-based discrimination, and hostile work environments.
This is not a matter of form over substance. Regulators expect genuine cultural leadership from the top. It is insufficient for boards to rely on policies or post-incident remediation. Instead, they must ensure that the organisation fosters a culture in which inappropriate conduct is both clearly prohibited and actively deterred.
For boards, this involves oversight of:
A workplace free from harassment isn’t just a legal requirement; it’s a driver of performance, morale, and reputation. A failure to fulfil this duty not only undermines organisational integrity but may also constitute a legal breach for which directors are ultimately accountable.
Directors are not expected to manage day-to-day operational matters. However, they are responsible for ensuring that systems exist to identify, assess, manage, and report on key risks—including those arising from employment law and workplace conduct. Effective governance is not passive; it demands oversight that is both deliberate and informed.
To discharge this duty, Boards must establish and monitor structured frameworks that provide clear, reliable, and timely information on compliance performance and organisational culture. Crucially, they must critically assess this information and consider whether it reflects reality on the ground.
Key areas of focus should include:
1. Workplace Grievances and Whistleblower Activity
The handling of complaints and disclosures is a litmus test for workplace integrity. Directors must ensure that grievance and whistleblower processes are accessible, trusted, and comply with applicable legislative frameworks—including whistleblower protections under the Corporations Act 2001 (Cth).
Key questions:
2. Internal Audits and External Investigations
Employment-related audits—whether relating to wage compliance, discrimination, or WHS obligations—must be more than procedural. They are an opportunity for boards to test the robustness of internal controls and identify systemic weaknesses.
3. Psychosocial Safety and Employee Engagement
Psychosocial risks, including mental health, workload stress, and toxic workplace behaviour, are increasingly recognised as compliance obligations—not just cultural considerations. Boards need to evaluate how these risks are being addressed both operationally and strategically.
4. Remuneration Practices and Payroll Compliance
Given the prevalence of underpayment issues in Australian workplaces, remuneration compliance must be treated as a core legal and reputational risk. Boards cannot rely solely on assurances from management or external advisors.
5. Leadership Accountability and Cultural Expectations
Culture begins at the top—and so does accountability. Boards must lead by example and ensure there are systems in place to set expectations for behaviour, monitor leadership performance, and enforce consequences where necessary.
6. Resourcing and Risk Mitigation Capacity
Effective compliance is resource-dependent. Directors must satisfy themselves that the organisation has sufficient capability to meet its legal obligations and to detect and respond to breaches in a timely manner.
Directors must not assume that delegating responsibility to management absolves them of liability. Courts and regulators are increasingly prepared to scrutinise not only the existence of systems, but also the extent to which directors have confirmed that they are properly implemented and effective.
This is not micromanagement—it is governance in action.
There are times when oversight must give way to direct involvement. Greater board oversight or direct engagement by the board may be necessary when:
Our specialist Workplace Relations and For Purpose / Not for Profit legal teams are well placed to advise boards on governance strategies and obligations in respect of employment and occupational health and safety obligations. Our teams can provide valuable expertise to guide boards through complex employment matters and disputes.
Trigger warning: This article contains references to alleged child sexual abuse that may be distressing to some readers.
The Victorian childcare sector and broader community are reeling following deeply distressing allegations against childcare worker Joshua Brown, who has been charged with 70 offences related to the sexual abuse of young children. The alleged victims range in age from just five months to two years old. Equally confronting is the fact that Brown worked at approximately 20 childcare centres over an eight-year period—while holding a valid Working With Children Check (WWCC). For many parents, this represents their greatest fear realised.
In the aftermath of these revelations, families, educators, employers and policymakers alike are grappling with urgent questions: How could this happen? What safeguards failed? And most importantly—what must change to ensure children are truly safe?
In response, the Victorian Government has announced swift and significant reforms. Premier Jacinta Allan and Government Services Minister Natalie Hutchins outlined a series of actions aimed at bolstering child safety in early learning environments, including:
Additionally, reforms to strengthen the WWCC system are underway. While these measures are welcomed, they also highlight the limitations of relying solely on screening mechanisms. As those working in child safety know too well, WWWC checks—while critical—cannot identify individuals who have not previously come into contact with the justice system or who may have hidden harmful behaviours.
In jurisdictions such as Victoria and New South Wales, a ‘reverse onus’ legal standard applies to organisations working with children. If abuse occurs, the organisation must prove it took all reasonable steps to prevent it. This legal framework underlines the need for childcare providers to act proactively and comprehensively—not only to meet their legal obligations, but to uphold the trust families place in them every day.
With a national review of safety standards likely to take months, early years providers must ask themselves: What can we do right now to better protect children in our care?
These recommendations are designed not only for childcare providers, but for any organisation engaging with children, including schools, sport and recreation providers, disability service providers, religious institutions, and sporting organisations.
1. Review and Refresh Your Child Safety Policy, Procedure and Code of Conduct
Your organisation’s Child Safety Policy and Code of Conduct must be current, comprehensive, practical and easy to understand. The Code should clearly outline acceptable and unacceptable behaviours and explicitly address online conduct and the use of social media. Policies should define clear responsibilities across all levels—from board to frontline staff—and procedures should include actionable steps for reporting and responding to concerns.
2. Actively Communicate Your Commitment to Child Safety
Policies and procedures alone are not enough. A strong culture of child safety requires regular, visible communication from leadership. Reinforce your zero-tolerance approach to abuse through staff meetings, induction programs, and ongoing engagement. Make sure your messaging is inclusive and tailored to reflect the needs of children with disabilities and diverse backgrounds.
3. Deliver Targeted, Effective Child Safety Training
All staff, board members and volunteers must understand their obligations and how to respond to child safety concerns. While compliance-focused training may tick boxes, best practice involves scenario-based, contextualised learning that empowers staff to respond confidently and appropriately. Regular refresher training ensures that awareness remains high. Early Learning Centres (ELCs) in schools, Ministerial Order 1359 requires tailored annual training and information on specific child safety topics for staff, volunteers and board members.
4. Strengthen Recruitment and Screening Processes
Effective safeguarding begins at recruitment. While WWCCs are vital, they are not foolproof. Ensure all candidates undergo thorough interviews, reference checks, and screening that assesses their values and attitudes towards child safety. For Early Learning Centres (ELCs) in schools, Ministerial Order 1359 requires ongoing evaluation of staff suitability—a best practice all providers should adopt.
5. Conduct a Risk Assessment of Your Environment
Identify potential vulnerabilities in your physical and operational environment. Are there ignorance zones in your facility? Are staff properly onboarded? Do staffing levels support adequate supervision, particularly during break times? Proactively identifying and mitigating risks is a cornerstone of a strong safeguarding approach.
6. Engage Your Board in Child Safety Oversight
Boards have a non-delegable duty to ensure effective child safety systems are in place. This requires more than rubber-stamping policies—it demands active oversight, regular reporting, and a clear flow of information from operational leaders. Board members should receive specialised training and ensure that child safety remains a standing agenda item.
The events unfolding in Victoria are a tragic and urgent reminder of what is at stake. As leaders in the education and care sector, our responsibility is not only to comply with the law, but to continuously challenge and improve the systems that protect our most vulnerable. Real child safety requires more than policy—it demands vigilance, leadership, and a relentless commitment to doing better.
If you would like to discuss how we can support your organisation, our team is here to help. Please contact Skye Rose or Tal Shmerling if you would like further support.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
Is your not-for-profit (NFP) contemplating a merger? This is part five of a five-part article series that will offer some practical guidance to your board or merger advisory committee. Subscribe to receive the remaining articles in the series.
In an NFP merger, due diligence assists boards to determine whether or not to proceed and to identify issues that may need to be prioritised and addressed as soon as practicable following any merger. More information on the due diligence process can be found in part four of our article series.
A key consideration in the due diligence process is the potential risk associated with historical liabilities.
It is important for the Board to ensure that:
In most cases, the chosen merger type will involve some sort of transfer of assets and liabilities to a recipient entity (the acquiring NFP or the new merged NFP). After the merger, the NFP that has transferred its assets and liabilities will then often be deregistered. Generally, the only liabilities transferred as part of this process will be those that the acquiring NFP or new merged NFP has expressly agreed to assume. This usually means that liabilities that are unknown or are not expressly transferred will stay with the deregistered entity.
Two potential exceptions to this general principle are clawback and historical child abuse liability.
Deregistration under the Corporation Act 2001 (Cth) is only appropriate if an entity has no outstanding liabilities.1 If a deregistered entity is found to have outstanding liabilities, an aggrieved person (including a creditor2) may make an application to the court for re-instatement of registration of the entity, typically on the basis that it is “just” to do so from the time of deregistration.3 This is the case irrespective of whether the outstanding liability was known at the time of deregistration.
After reinstatement of registration, the formerly deregistered entity may be placed in liquidation. This means that insolvent or “uncommercial transactions” of the formerly deregistered entity (which may include a transfer of assets in a merger) could be voidable.4 Remedies can include an order for assets held by the acquiring NFP or a new merged NFP to be transferred back to the formerly deregistered entity. Depending on the circumstances, the period within which transactions can be voided (looking backwards from the winding up of the entity5) can be six months, two years or even longer.
The implication for the acquiring NFP or newly merged NFP is that assets received in a merger may be able to be “clawed back” by an aggrieved person if the transferring entity is liquidated and the asset transfer is characterised as an “uncommercial transaction”.
In relation to liabilities that relate to historical child abuse, an acquiring NFP or a new merged NFP may be held directly liable for a claim against a deregistered entity (if the transferring entity was previously incorporated) or a dissolved unincorporated entity in some circumstances as legislation has been passed in all jurisdictions to ensure that claims relating to child abuse are no longer statute barred. The position differs in each jurisdiction in Australia and is summarised below:
If a potential historical child abuse liability is identified, it may be prudent to seek legal advice specific to the relevant jurisdiction, the merger parties and the merger type so that any risk to the acquiring NFP or any new merged NFP (and the directors) can be properly assessed. This will help inform the board’s decision making process including:
Moores Charity and Not-for-profit team can help if your organisation is contemplating a merger. We can also provide advice tailored to your circumstances (including the relevant jurisdiction, the nature of the liability and your proposed merger process) if possible historical liabilities are identified during the due diligence phase.
Please contact us for more detailed and tailored help.
You’ve sold your property. Can you access the deposit before settlement?It’s a common question with important implications.
Section 27 of the Sale of Land Act governs the early release of deposits in Victorian real estate transactions. The provision allows vendors to provide specified information to purchasers, who then have 28 days to indicate whether they are satisfied with the particulars provided. If the purchaser is satisfied or if a valid objection is not raised within the 28 day period, the deposit may be released before settlement.
The expectation of many vendors is that they will have access to the deposit sooner rather than later after signing a contract to sell their property. However, the early release of the deposit is not guaranteed. In particular, the law does not explicitly address whether the purchaser’s objection must be objectively reasonable or merely subjective. Recent case law suggests that the purchaser’s objection need not be objectively reasonable and that it is sufficient if the purchaser objects. If that happens, a vendor may have limited options to overcome the objection.
If you are a vendor and you need the deposit to be released perhaps to fund the deposit on a purchase, do not assume that you will be successful in having the deposit released quickly or at all. You may have to wait until settlement occurs to have access to the deposit so it would be prudent to have a Plan B.
Our Residential Property team are accredited specialists in property and leasing law, with the expertise and experience to handle even the most complex issues comprehensively and pragmatically.
The Aged Care Act 2024 (Cth) (Act) will commence on 1 November 2025, heralding a new era for aged care in Australia and adopting a rights-based focus recommended by the Royal Commission into Aged Care Quality and Safety (Royal Commission). This legislative overhaul aims to enhance transparency, accountability, and the overall quality and safety of care by empowering older people and those who advocate for them.
A key element of the new Act is strengthened whistleblower protections. These protections aim to create an environment where residents, families, staff, and others feel secure in raising concerns about potential breaches of the law. This is seen as crucial for driving accountability and improving care standards by ensuring issues are brought to light safely and addressed effectively.
This article examines the key whistleblower obligations for registered aged care providers under the Act, compares them with the existing Corporations Act 2001 (Cth) (Corporations Act) regime, and outlines essential steps for providers.
A qualifying disclosure arises when an individual (discloser) has reasonable grounds to suspect that information indicates a potential contravention of any provision of the Act by any entity. The disclosure, which can be anonymous, must be made to an eligible recipient. These include:
Disclosers receive significant protections, including immunity from civil, criminal, or administrative liability for making the disclosure, as well as protection against contractual remedies (like termination) being enforced because of the disclosure. This immunity does not cover the discloser’s own misconduct.
Strict confidentiality rules apply: Recipients must take reasonable steps to preserve anonymity if requested. Revealing the discloser’s identity or information likely to lead to it is a contravention unless specifically authorised (authorised disclosure may include disclosure to regulators or legal advisors, disclosure with consent, or disclosure to prevent serious threat). Disclosure of information (other than identity) is permitted if reasonably necessary for investigating the contravention, provided steps are taken to reduce identification risk.
Victimisation is prohibited: Causing detriment (e.g., dismissal, discrimination, harassment) or threatening detriment due to a disclosure attracts a significant civil penalty (500 penalty units or $165,000). Courts can issue remedies including injunctions, compensation, reinstatement and exemplary damages.
Registered provider obligations: Providers must ensure (as far as reasonably practicable) compliance with confidentiality and anti-victimisation rules for staff making disclosures. They must also take reasonable steps regarding staff who receive disclosures. Critically, providers must implement and maintain a compliant whistleblower system and policy as a condition of registration.
The Act creates a sector-specific regime. While sharing the fundamental aims of the Corporations Act’s whistleblower protections, there are key differences relevant to aged care providers:
The focus on contraventions of the Act, the tailored list of eligible recipients within the aged care ecosystem, and the explicit linking of a whistleblower policy to the conditions of registration for aged care providers are significant points of difference.
Given the mandatory nature of these requirements, providers should act now to prepare for the 1 July 2025 commencement:
Given the overlapping concepts between the Aged Care Act and Corporations Act regimes and the likelihood that many organisations will be covered by both, there is a real risk that confusion between the two regimes could result in a loss of protection for a whistleblower or cause organisations to inadvertently fail to comply with their obligations.
Accordingly, it is essential to ensure that:
The whistleblower protections under the Act are more than just a compliance exercise; they are fundamental to the legislative and Royal Commission’s intent of creating a safer, more transparent, and rights-focused aged care sector. By embedding these requirements into organisational culture and practice, providers can not only meet their regulatory obligations but can ensure that issues are brought to light and addressed safely, effectively and promptly.
Moores Charity and not-for-profit team can assist with a review of your whistleblower policies and processes, as well as internal training to ensure stakeholders understand their obligations.
Privacy Awareness Week 2025 is an opportunity to reflect on emerging issues schools are facing with respect to AI use and its integration in the school environment. AI is becoming increasingly relied on in schools and its use for student learning and student assessment is expected to become commonplace.
Generative Artificial Intelligence (the AI in vogue at present) refers to computer- based learning models which include large language or multimodal learning models.
Since the inception of ChatGPT in 2022 there have been several pivots from governments to move to address and in some cases welcome the use of generative AI in different contexts. Schools deploying AI tools to drive efficiency and enhanced learning are already turning their minds to the risks that comes with adopting new technologies. This article explores some of the data privacy and security implications of using generative AI tools. To read about managing the overall risk of AI in schools please refer to our previous article here.
Generative AI is intelligent and has the capacity to learn from the information that is input; it becomes part of the training model, particularly in open-source AI tools. Some of the key risks schools face when using or seeking to deploy AI-powered tools include:
There is no argument that the AI landscape is changing rapidly and as more developments occur, the accessibility and ease of its use will only grow.
Whist AI can assist schools streamline their administrative processes and support student learning outcomes, when considering generative AI tools, schools must deploy and use these technologies consistent with existing privacy laws.
Developing an AI framework can also assist to set ground rules for how schools approach implementation of AI-powered applications. The framework should ensure visible of what AI is being used or intended to be used, the intended purpose of use and data that will be fed into the tool, and considering the capabilities of each tool, and the terms and conditions of the service providers. Once this is mapped, schools can then make informed decisions about what safeguards are required to integrate those tools into regular practice and school operations with a level of confidence.
In previous articles we have emphasised the importance of privacy-by-design in combatting systems changes and reducing the risk of data breaches or non-conformance with privacy laws. When considering generative AI, the principles of privacy by design should be applied.
Key recommendations
Our Education team is in demand for up-to-date, informative and practical staff Professional Development on privacy matters including AI. Our team can assist with reviewing and updating these policies to ensure your organisation continues to mitigate privacy and data security risks posed by new technologies. We can also provide tailored advice and support on your commercial arrangements with technology service providers and data privacy impact assessments.
I want to thank you for participating in our seminar. We are extremely appreciative of your significant contribution. Overall, the feedback received from the seminar has been excellent and we are pleased with the outcome. Thanks very much for your presentation this morning. Directors commented very favourably afterwards and your advice was very useful also. Great discussion, as well. Will see you at the next breakfast session. Thanks so much Cecelia, the presentation and discussion today was fantastic.
I want to thank you for participating in our seminar. We are extremely appreciative of your significant contribution. Overall, the feedback received from the seminar has been excellent and we are pleased with the outcome.
Thanks very much for your presentation this morning. Directors commented very favourably afterwards and your advice was very useful also. Great discussion, as well. Will see you at the next breakfast session.
Thanks so much Cecelia, the presentation and discussion today was fantastic.
Learn more about our Professional Development sessions.