The Fair Work Commission (the Commission) has once again cautioned employers against dismissing employees by text message, deeming it rarely appropriate or considerate. Despite text messaging being a now common form of communication, the Commission, in two recent decisions, has described dismissal by text message as repugnant.

The cases

In Kurt Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292, a casual employee was awarded $12,465 in compensation after being told by text message that his services as a causal patrol guard with AFS Security were no longer required.

The employee had been employed by AFS for two years and had previously been verbally counselled regarding his work performance. Shortly after the employee raised a concern about not receiving payment for a shift he had worked, the employee was dismissed from his employment by text message.

The Commission determined the employee was a regular and systematic casual employee and therefore able to make unfair dismissal application. In response to the application, AFS argued that text messaging was the normal method of communication within the company.

Finding the employee had been unfairly dismissed, the Commission noted that:

“Notification of dismissal should not be made by text message or other electronic communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous”.

In forming its decision, the Commission considered that:

• the employee was not provided with a reason for the dismissal;
• the employee was not provided with an opportunity to respond to any issues before being dismissed; and
• the employee was notified by text message of the dismissal and did not receive any documentation relating to the dismissal.

A similar warning was issued by the Commission in Van-Son Thai v Email Ventilation Pty Ltd [2019] FWC 4116, after an employee of 12 years was terminated by text message. Here the Commission stated:

“It is not the first time I have had cause to point out that informing an employee of their dismissal by phone, text or email is an inappropriate means of conveying a decision, which has such serious ramifications for an employee. I consider it would only be in rare circumstances that a decision to dismiss an employee should not be conveyed in person”.

What should employers do?

The Commission has made clear that it will rarely, if ever, be reasonable to terminate an employee by text message. This is the case even in small businesses or where text messaging is the common method of communication.

Even where there is a valid reason for dismissal, if an employee is dismissed other than in person, the employer is likely to be at significant risk of an employee succeeding in an unfair dismissal claim. The Commission has wide ranging powers in unfair dismissal claims including ordering reinstatement or awarding significant compensation.

How can Moores help?

If you need assistance to navigate the complex path associated with managing or dismissing an employee, please do not hesitate to contact us.

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https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4292.htm

https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2019fwc4116.pdf

From 1 October 2019, employers will have greater certainty on when they can reject job applications from people with criminal records.  The introduction of the Australian Human Rights Commission Regulations 2019 (Regulations) clarifies that it is lawful for employers to discriminate on the basis of a ‘relevant criminal record’. The Regulations also introduce a more contemporary definition of disability.

Overview of the Commission’s powers

The Australian Human Rights Commission Act 1986 (AHRC Act) enables the Commission to inquire into, and attempt to settle by conciliation, complaints of discrimination in employment on specified grounds. Subsection 3(1)(b) of the AHRC Act provides that the Attorney-General may declare, by regulation, additional grounds which constitute discrimination for the purposes of the Commission’s equal employment opportunity powers.  There are ten additional grounds declared in the Regulations.

The Commission’s powers with respect to equal opportunity in employment differ to existing mechanisms to resolve workplace discrimination, such as complaints to the Commission under federal anti‑discrimination legislation.  The powers have been described by some as a “toothless tiger” because the complainant has no right pursue their claim in the Federal Court or Federal Circuit Court, and there are no enforceable remedies for these complaints. If conciliation is unsuccessful and the Commission finds unlawful discrimination, the Commission can simply report the matter to the Attorney-General and make non-enforceable recommendations.

Further, the Commission’s equal opportunity in employment function provides broader coverage of protections for workplace discrimination than that under Commonwealth discrimination laws. For example, volunteers are not explicitly covered in the Disability Discrimination Act 1992, the Sex Discrimination Act 1984 or the Age Discrimination Act 2004 but are covered under the Commission’s equal opportunity in employment functions.

What do the new Regulations cover?

Irrelevant Criminal Record

The Regulations amend the ground of ‘criminal record’ to irrelevant criminal record. This amendment was introduced in response to concerns raised by the Commission’s report in BE v Suncorp Group Ltd [2018] AusHRC121, which involved a case where an employer discriminated by withdrawing a job offer to a man who had failed to disclose child pornography convictions, arguing that the criminal record demonstrated he was not of sufficient character and integrity to be trusted at work.

The effect of the amended ground is to clarify that, while employers can discriminate on the basis of a ‘relevant criminal record’, they will not be able to discriminate if the conviction is ‘irrelevant’ to the role for which the person is applying.  By ensuring that employers don’t discriminate on the basis of an irrelevant criminal record, the Regulations strike a better balance between enabling people with criminal records to find employment, whilst protecting an employer’s right to refuse employment when a person’s criminal record makes them unsuitable for the position they’ve applied for.

Disability

The Regulations also introduce a single ground of disability, which includes all disabilities and does not distinguish between different disabilities, like the old Regulations did. As well as aligning the definition with the Disability Discrimination Act 1992, it provides welcome clarity to employers and employees and limits the risk of uncertainty around whether a person’s disability fits within the protected ground.

Whilst the Regulations provide welcome clarity for employers and employees about the scope of the Commission’s powers to help resolve workplace discrimination complaints on the grounds of disability and irrelevant criminal records, it can also be a sensitive terrain that employers have to navigate.

How Moores can help

If you are facing any challenges around potential workplace decisions involving people with disability or a person with a criminal record, we can help you to navigate this challenging landscape. Please do not hesitate to contact us.

Moores recently hosted a seminar alongside staff of the Fair Work Commission (Commission) to discuss the Enterprise Bargaining Agreement (EBA) approvals process and debunk some of mystery around how the Commission assesses applications.

An EBA is a registered agreement which sets out the terms and conditions of employment between a group of employees and one or more employers. Once approved by the Commission, EBAs have the effect of prevailing over Modern Awards that may otherwise cover employees unless the Modern Award is incorporated into the EBA.

Under the Fair Work Act 2009 (Cth) (Act), the Commission can only approve an EBA if it is satisfied that the Agreement:

1. has been genuinely agreed to
2. covers a group of employees who were fairly chosen
3. passes the better off overall test
4. only includes permitted matters
5. includes all mandatory terms, and
6. includes no unlawful terms.

The Act sets out specific time frames which organisations must comply with when negotiating and drafting an EBA. The consequences of non-compliance with the Act can result in significant delays in the process and even the EBA being rejected by the Commission.

Our top tips for ensuring you have the best prospects of having your EBA approved by the Commission, are:

1. understand and comply with the timeframes set out in the Act – we recommend organisations have a bargaining plan which sets out key milestones throughout the process;
2. provide employees with the correct Notice of Employee Representational Rights in the form as prescribed by the Fair Work Regulations 2009 (Cth);
3. include enough information in your application so the Commission understands how your business operates and what steps were taken during the EBA process; and
4. be sure to submit all the required forms to the Commission with supporting documents.

How Moores can help:

If you want to implement an EBA within your organisation and don’t know where to start, Moores can guide you through the process. For more information on enterprise bargaining, please do not hesitate to contact us.

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Alert:

Currently the Fair Work Commission is trialling a new system which will enable organisations lodging an EBA to complete and submit all necessary documents on-line by using a smart form system. The system will assist parties to lodge compliant applications by:

• prompting users for mandatory information
• alerting users when dates entered may not meet statutory timeframes or when questions have not been answered, and
• allowing frequent users to create template versions of the forms with common information saved for re-use.

Organisations can take part in the trial during October and November ahead of an expected roll out of the system in late 2019. Further information can be obtained by contacting the Fair Work Commission.

A recent Supreme Court Decision highlights the risk to schools of using enrolment documents which don’t provide sufficient protection, after finding a school was unable to recover unpaid tuition fees from parents.

It’s an issue we see frequently: simply rolling out new terms and conditions does not mean all parents are bound.  Many schools are – or have just advised of – fee increases. Do these notifications actually form part of the binding enrolment agreement?

The case: Whitworth v Christian Brothers College Adelaide

In the case of Whitworth v Christian Brothers College Adelaide,^[1] the Supreme Court found that the College was unable to recover unpaid fees of close to $15,000. The student’s mother had entered into an enrolment contract with the College in 2009. In 2017 and 2018 updated School Fee Agreement Forms were sent to the mother along with a request to pay the applicable fees. The mother did not sign the forms or pay the applicable fees.

In finding that the College was unable to recover the unpaid fees, the Court found that the enrolment documents were deficient for the following reasons:

• the contract did not expressly state that the terms and conditions contained therein would continue beyond the first year of enrolment;
• in the absence of express terms, the contract was not clear that the relationship between the College and the mother was ongoing; and
• the contract specifically stated that fees would be reviewed each year, which the Court held, could be taken to mean contracts would be renewed each year.

Having regard to the specific facts of the case, the Court held that:

1. the enrolment documents were not entirely clear;
2. it was at least arguable that on proper construction of the contract, the relationship between the College and the mother was one of a series of enrolment contracts rather than a continuation of the original contract; and
3. the original enrolment contract had been superseded.

Key takeaways for School’s Enrolment Documents

Following this Decision, we recommend that schools review their enrolment documents to ensure they are up to date and offer adequate protection.

A few key points:

• it’s extremely problematic to have parents sign any form of terms and conditions upon enrolment application, then seek to bind parents to those terms many years later upon actual enrolment; and
• rolling out new terms and conditions needs to be done properly, to ensure parents are bound, noting that many schools find this out the hard way when seeking to enforce a version of terms and conditions the parents have never seen.

Consider:

• what terms need to be contained within the contract and what terms should sit within a policy external to the contract – then, how are these brought into the contract;
• what terms are implied or incorporated into the contract by reference or by statements made within communications to parents/guardians, potentially over many years;
• whether the contract deals with the requirement to pay fees, whether fees are refundable or non-refundable, and whether the contract enables the school to increase fees, noting that non-refundable fees must actually be a reasonable pre-estimate of the school’s cost arising from parent breach (e.g. one term’s forfeiture for late withdrawal);
• whether the contract actually provides for consequence of breaching the agreement;
• whether the contract deals with the collection, storage and use of information;
• whether there is an ability to vary the terms of the contract embedded into it; and
• what the relationship is between fee update notices and the enrolment contract.

How we can help

If you would like to discuss any of the above, please do not hesitate to contact us.

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_{[1] [2019] it’s SASC 154}

Have you covered your bases?

“First base is when you meet someone, second base is when you send a nude image and third base is when you kiss them.”

This is how teenagers are viewing the progression of relationships according to eSafety Commissioner, Julie Inman Grant.  In an eye-opening new report released in September 2019 (the Report), the eSafety Commissioner revealed that since it started accepting reports around 18 months ago, it has received 1,400 reports of image based abuse. In particular, sharing sexual images is a normalised aspect of dating for children and young people.

The new report demonstrates the importance of considering technology when creating a child safe culture. It is a strong message to schools and other organisations that work with children that they must cover all their bases when ensuring the safety of children, including the electronic bases.

Key findings from the eSafety Commissioner’s Report

The Report focused on the attitudes and motivations of individuals who engage in image-based abuse.  It noted that there were generally five types of image based abuse (IBA):

1. Relationship-based IBA;
2. Sharing images where the victim is identifiable;
3. Sharing unsolicited images where the victim is unidentifiable (e.g. on dating apps);
4. IBA related to child exploitation; and
5. Taking images of strangers such as ‘upskirting’.

Relevantly for organisations that work with children, sharing images where the victim is identifiable is particularly prevalent amongst young people. This is often done by males as a form of social status. The sexualised image is often shared with the perpetrator consensually but then distributed further without consent.  

Furthermore, organisations that work with children should also be aware of the fourth typology relating to child exploitation. Like all forms of child abuse, this is typically done as an opportunistic form of asserting power and dominance. Organisations will need to ensure they have proper procedures in place to prevent this type of abuse.

Unfortunately, the Report also found that IBA is occurring at increased rates. It was found that 1 in 10 Australians have committed IBA and sadly, due to lack of education and poor understanding of the impact of their actions, perpetrators often show little remorse.

Prevalence amongst young people

IBA is defined by the eSafety Commissioner as when intimate or sexual photos or videos are shared online without consent. It is also commonly called ‘revenge porn’, although this can be misleading as revenge is not always the motive.  IBA should also not be confused with sexting which refers to the sharing of intimate or sexual images, photos or videos and is often done consensually. 

The rates of IBA are rising rapidly, with 21% of people who have experienced IBA stating that it occurred in the last year. 15% of all individuals who have experienced IBA are aged 15 – 17. The reason rates are higher amongst young people is considered due increased rates of sharing of initiate images and videos.

Surprisingly, amongst young people, the most common situation of IBA is where a friend shares an intimate image (29%). This is followed by ex-partner at 13%. Again, this demonstrates that intimate image sharing amongst young people is often due to social factors.  

Child safety concerns for organisations

It can be tempting for organisations that work with children to think that IBA and sexting have nothing to do with the organisation as it occurs in the children’s own time.  However, we know that an organisation’s duty of care is broad and we are seeing technology stretch its application.

For example, in August 2019 a video was posted on Snapchat of a vicious brawl at Berwick Secondary College, including a teacher being attacked. The video was widely circulated. This follows a discovery in April 2019 of Instagram and Snapchat accounts that specifically hosted videos of students fighting and being bullied. 

From a sexting and IBA perspective, apps such as Snapchat are also generally involved. For young girls aged 15 – 17 who have experienced IBA, 47% of these incidents occur over Snapchat. The impact of these incidents for individuals and organisations is well documented in the SBS show “The Hunting” which follows the story of several young people during incidents intimate images shared without consent.

You can read more about how organisation’s duty of care and child safety considerations in a digital world in our previous article.

Key lessons and next steps

Organisations that work with children need to ensure that they are prepared to address child safety concerns in a digital context quickly and effectively. Unfortunately, this is often an area that is not prioritised. 

We recommend that organisations undertake the following steps:

1. Train your staff on digital trends – it is important that your staff and volunteers are aware of rising child safety concerns such as IBA.  Recently, we were presenting to staff members and upon discussing Yubo (an app advertised as Tinder for teenagers), a teacher realised that her students had been using it in her class.  With that knowledge, she was able to have conversation with her students about the risks associated with that app and how to mitigate them.
2. Train your students on appropriate social media use – organisations that work with children should be having conversations with them about appropriate social media use.  Often, young people are unaware of the potential repercussions of their actions and how to navigate relationships in a digital world.  Engaging with parents on this topic can also help build a shared understanding.
3. Review your policies – consider if your policies and procedures currently set out your organisation’s expectations in relation to digital citizenship.  Additionally, it is worth reviewing if your documents currently provide you with enough authority to be able to manage electronic child safety concerns.  For example, can you confiscate a child’s phone?
4. Prepare to respond and investigate – while responding to all child safety concerns can be challenging, those that involve a digital aspect have the added challenge of trying to quarantine evidence and prevent further spread.  Organisations should review their incident response and investigation procedures and consider if they document key steps to take in a digital incident.  Details for the eSafety Commissioner should also be provided as they are able to assist in removing intimate images shared without consent, quoting a 90% success rate in removing this content.   

How we can help

For more information regarding the eSafety report or for assistance with reviewing your existing policies and procedures, please do not hesitate to contact us.

Background

Testamentary trusts qualify for an income tax concession in respect of income derived and paid for the benefit of minor beneficiaries. This means that children are taxed at adult rates on income they received and that has been derived from the trust, as opposed to the standard penalty rates that apply to children.

In the 2018-19 Federal Budget, it was announced that the Income Tax Assessment Act 1936 (“ITAA”) would be amended to clarify the application of this concession. The existing law does not specify that the assessable income of the testamentary trust be derived from assets of the deceased estate (or assets representing assets of the deceased estate).

A Bill amending the ITAA has recently been introduced to clarify that income derived from assets that “top up” or are “injected” into the testamentary trust do not obtain concessional tax treatment.  

If passed, the legislation will apply in relation to assets acquired by or transferred to the testamentary trust on or after 1 July 2019.

What is the change?

The draft legislation amends s102AG of the ITAA to provide some pre-requisites to the ability to access the concessional tax treatment, namely:

• The assessable income must be derived by the trustee of the testamentary trust from property which satisfies one of the following three requirements:
  • the property must be transferred from the estate of the deceased person concerned, as a result of the Will, Codicil, intestacy or order of a Court; or
  • the property, in the Commissioner’s opinion, represents accumulations of income or capital from property transferred from the estate of the deceased person; or
  • the property, in the Commissioner’s opinion, represents accumulations of income or capital from previously accumulated income or capital.  This essentially ensures that income on subsequent accumulations of income or capital will generally be able to be concessionally taxed.
• The explanatory memorandum provides that the property can be converted from one asset type to another, without losing the concession, however the actual legislation is less clear.

The ATO is calling for submissions by the end of October, after which time, the legislation can be expected to be finalised.

Implications – General

On one view this is not a change and merely serves as a reminder as to when income distributions will not be concessionally taxed. Prior to these proposed amendments, Furse’s case suggested that the concessional tax treatment could apply to assets injected into the estate.

There is, however, some uncertainty in respect of certain aspects of the draft legislation, including:

• It is not clear as to whether superannuation death benefits paid to an estate will lose concessional income tax treatment. From a policy point of view, that doesn’t appear to make sense, as the concessional tax treatment applies to income paid to minors directly; and
• Much of the new legislation hinges on the Commissioner’s discretion, such that self-assessment may not be appropriate; and
• although the explanatory memorandum appears to suggest the concession will apply to assets reinvested from original assets, the drafting of the Bill is not clear.

Further, the proposed changes apply to assets acquired or transferred to the testamentary trust on or after 1 July 2019. That appears to mean the current law applies to deceased estates in place prior to 1 July 2019 (but still being administered at that time), which will require a complete review of the status of the assets in testamentary trusts.

What now?

Pending finalisation of the law, it is difficult to be conclusive about how strategies might change.

If however the changes outlined above do come to fruition, then:

• All existing testamentary trusts will need to be able to separate in their accounts assets from the deceased and after acquired assets. Further separation in some cases could be required if estates were part administered as at 1 July 2019;
• Testamentary trusts with no power to distribute capital may be problematic in respect of “after acquired” assets;
• Accurate inventories prepared in any probate application will take on extra significance;
• It will impact on the investment strategy of each trust, eg, possible investments made from borrowings of the testamentary trust.
• It will affect the decision about the utility of superannuation death benefits testamentary trusts. They will retain the benefit of control and protection but without access to the income tax concession. It may enliven a review of superannuation death benefits trust created by deed.

How we can help

If you would like further assistance or clarification regarding testamentary trusts and the proposed changes, please do not hesitate to contact us.

Labour hire providers only have until the end of October to hold, or have applied for, a licence to continue to operate in Victoria.

The Labour Hire Licensing Act 2018 (Vic) (Act) was introduced for the purpose of protecting vulnerable labour hire workers from exploitation. The Act, along with the Labour Hire Licensing Regulations 2018 (Vic) (Regulations), requires businesses who supply one or more workers to work in a business owned by another person to have, or have applied for a licence by 29 October 2019.

Who is covered by the Labour Hire Licensing Act?

The Act and Regulations broadly cover businesses outside the traditional concept of labour hire, and extend to businesses that provide an employee to work in and as part of another business or undertaking.

Additionally, the Regulations prescribe certain circumstances where an individual is taken to perform work in and as part of a business or undertaking. This can include where a business supplies workers to work:

• as a cleaner in a commercial premise;
• in the horticultural industry, performing certain activities;
• in a meat manufacturing or processing establishment, performing certain activities; and/or
• poultry processing establishment, performing certain activities.

Exclusions to the Labour Hire Licensing Act

The Regulations exclude certain individuals from being considered a worker under the Act, including:

• secondees;
• providing workers within a group;
• small body corporate providing a director;
• public sector employees;
• students; and
• vocational placements.

What are the penalties for not having a licence?

If your business is captured by the Act, there are significant penalties for continuing to operate without having applied for or been granted a licence. There are also penalties for organisations that use a labour hire provider who has not applied for or been granted a licence.

How we can help

There appears to be significant uncertainty regarding the breadth of the Act. If you are unsure whether you are required to apply for a labour hire licence, please do not hesitate to contact us.

As we move towards becoming global citizens it is increasingly common to have to deal with assets outside Australia as part of the estate planning process.

While a Will can be drafted to apply to a Willmaker’s worldwide assets, it is important to carefully consider whether this is the most appropriate approach. 

Three golden rules to keep in mind are:

1. If the overseas asset is real property it is vital to develop the estate plan in conjunction with a lawyer in that country
   
   Real estate assets are governed by the laws of the country in which they are situated, meaning that it will be the law in that country which dictates whether the Australian Will is recognised as validly dealing with property held there, or if a forced heirship or other regime applies.
    
2. It may be possible to prepare the Australian Will so it is recognised as valid in other jurisdictions
   
   Moveable assets (which generally include everything except real estate) are governed by the laws of the country in which the Willmaker is domiciled at death. Domicile is determined as the country which the Willmaker intended to be their long term home, whether or not they were living there at the time of their death.
   
   For some countries it is possible to prepare the Australian Will in a manner that ensures it will be recognised as validly executed in that jurisdiction, pursuant to an International Wills Convention. However, not all countries are signatories to this convention.
    
3. Multiple Wills may be most appropriate, but beware of revocation!
   
   Whilst it is possible for moveable assets overseas to be dealt with under an Australian Will, it may be worth having a Will in place in each country in which significant assets are owned, for the following reasons:
   
   a) The Will can be made in accordance with the laws of that country and prepared by a lawyer familiar with the succession laws of that country.  This is particularly important in countries where death taxes apply and strategies may be implemented to minimise the impact of such taxes; and
   
   b) The distribution of assets may be dealt with in a more efficient manner as the executors would only need to apply for probate of the Will in the country that it was made. This avoids the needs for the probate to be resealed in each country in which the Will is required to be proven, which could be time consuming and complicated. 
   
   If a decision is made to prepare Wills in multiple jurisdictions it will be important to ensure the Wills do not revoke each other, and the overseas Will is potentially limited to the assets in that jurisdiction.

Ideally, an estate plan involving overseas assets will be developed in conjunction with an appropriate legal practitioner in that jurisdiction, so that the best estate planning result can be achieved. 

How we can help

Moores Practice Leader, Krista Fitzgerald has recently completed an Advanced Certificate in Cross-Border Estates through STEP (Society of Trusts & Estates Practitioners) and as a member of this organisation has access to a network of overseas lawyers who practice in this area.

If you or your clients have international estate planning issues, please do not hesitate to contact us.

In response to the current debate around the protection of religious freedoms, the federal Government released a suite of legislative reforms for public consultation recently. The reforms were made up of three Bills:

• The Religious Discrimination Bill 2019,
• The Religious Discrimination (Consequential Amendments) Bill 2019, and
• The Human Rights Legislation Amendment (Freedom of Religion) Bill 2019 (the Reforms).

Politicians, the media and advocacy groups have all added their voice to the chorus of responses – but what would the actual impact of the Reforms be on organisations?

We’ve summarised the Reforms, as well as provided some key takeaways for organisations and not-for-profits.

Summary of the Reforms

The Reforms (if passed) will introduce the Religious Discrimination Act 2019, which will make it unlawful to discriminate on the ground of religious belief or activity in certain areas of “public life”. The proposed legislation mirrors federal discrimination laws in relation to age, sex, disability and race. In doing so, it misses an important opportunity to modernise the patchwork scheme of discrimination laws, which developed in a piecemeal manner over a 45 year period. The result is an overly complex mix of laws that are difficult to use and have unnecessary differences in definitions and coverage between them. This makes it harder for organisations to take measures to comply with the laws, and harder for people who have been discriminated against to receive access to justice.

Discrimination on the grounds of religious belief or activity is broadly defined. It includes protection from direct discrimination (treating someone differently because of the belief or activity) and indirect discrimination (imposing unreasonable conditions, requirements or practices that have the effect of disadvantaging people who engage in certain religious beliefs or activity).

Under the Reforms, treatment of indirect discrimination for large employers (turnover of over $50 million) is contentious – it states that large organisations have to show employee conduct rules that discriminate against religious beliefs will not be “reasonable” unless compliance is necessary to avoid “unjustifiable financial hardship” to the employer.

This is arguably a response to the Israel Folau case, where he has launched court proceedings against Rugby Australia for an unfair dismissal claim. In Folau’s case, Rugby Australia would have to demonstrate that they would suffer “unjustifiable financial hardship” as a result of Folau’s conduct, which was arguably a breach of their social media policy.

The Reforms will make it unlawful to discriminate on the grounds of religious belief or activity in relation to certain areas of public life, relevantly:

• Employment;
• Education;
• Access to premises that the public or a section of the public can enter;
• Provision of goods, services and facilities;
• Accommodation;
• Sport; and
• Clubs.

There are a number of exceptions and exemptions that apply. For organisations this includes:

• When the religious belief or activity  promotes or encourages serious criminal offences;
• Registered charities following their own religious purposes;
• Statements of belief;
• Inherent requirements of jobs;
• Religious clubs; and
• Religious voluntary bodies.

Organisations and individuals can also apply for an exemption from the application of the law from the Australian Human Rights Commission (AHRC).

The Reforms address religious “statements of belief” and their interaction with other discrimination laws. Under the proposed law, religious statements of belief would not breach discrimination laws unless they are malicious, would harass, vilify or incite hatred or violence, or promote/encourage serious criminal offences. This may be a response to the recent situation in Tasmania where priests were taken to court under anti-discrimination legislation for voicing opposition to same-sex marriage.

Amendments to Charity Laws

The Reforms include an interesting amendment to the Charities Act 2013. The amendment aims to protect charities engaging in or promoting activities that “support a view of marriage as a union of a man and woman to the exclusion of all others” from losing their charity status.

This amendment reflects concerns from some faith-based charities that they would lose their charity status (and associated tax concessions) for advocating “traditional” marriage during and after the 2017 same-sex marriage plebiscite. These concerns followed cases in New Zealand and the UK where this happened, including a New Zealand charity losing its charity status for promoting views about marriage and family that were not seen as being for the “public benefit”.  

A proposal to “clarify” the position of this in Australian charity law was in the leaked Ruddock Report in 2018. Experts at the time indicated this was unnecessary, noting a charity’s right to advocate in pursuit of its charitable purpose has been firmly recognised in Australian law. Regardless, the proposal is now contained in the Reforms and given it is a fairly innocuous clarification it is unlikely to face push-back.

Faith-based charities will appreciate the clarification, otherwise this will have little impact.

Amendments to other Anti-discrimination legislation

Proposed amendments were made to other federal anti-discrimination laws to state that in giving effect to the objects of the legislation, regard is to be given to:

• “The indivisibility and universality of human rights; and
• The principle that every person is free and equal in dignity and rights”.

Key lessons for organisations

The effect of this is unclear, but the intention is to put all human rights (including religious freedom) on an equal playing field.

Of interest is the effect of the proposed laws in relation to conscientious objections.  Federal Attorney General Christian Porter has noted that where a state law is silent on conscientious objections, the proposed law would step in and have some work to do.  It states that nurses, doctors and other healthcare providers should not be compelled to provide services where they have a genuine religious objection.

• Review your employment policies and ask whether they indirectly discriminate against religious beliefs or activities. For example, do your policies unreasonably require employees to work during prayer hours?
• If you are a large organisation (turnover of more than $50 million), do you limit the ability of employees to express religious beliefs outside of work hours? If you do, then you would need to show that this conduct would cause unjustifiable financial hardship to the organisation.
• In general terms, the proposed Reforms provide a good opportunity to stop and take stock. Ask yourself the question: how open and appropriate is your organisation for people of faith?

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

The Australian Charities and Not-for-profits Commission (ACNC)’s Annual Information Statement (AIS) provides for charities to disclose whether they intend to fundraise in the next reporting year and if so, in which jurisdiction. Many charities are still unaware of the scope and impact of Australian fundraising laws, which differ in every Australian jurisdiction. Below we have set out some considerations for charities carrying out fundraising activities.

Fundraising reform 

Fundraising regulation is badly in need of reform in Australia. The current patchwork of laws creates an unnecessary compliance burden for fundraising organisations. A coalition of not-for-profits and charities behind the #fixfundraising campaign has called on the federal, state, and territory governments to implement a nationally-consistent, contemporary and fit-for-purpose charitable fundraising regime. However, it appears that any reform is unlikely to occur in the near future. Charities are still required to comply with the current, fragmented system.

Online fundraising is borderless

There is widespread non-compliance across the not-for-profit sector in relation to fundraising outside of a charity’s home State or Territory. This is particularly the case in respect of online fundraising. Although a charity may only intend to fundraise from donors within its home State, its website is visible across Australia and potentially subject to seven different fundraising regimes. Technically, this means that the charity is “fundraising” across Australia and required to separately obtain and comply with a fundraising approval in each State. In practice, compliance may be extremely difficult for a charity whose operations are based entirely within one State. For example, the NSW legislation requires a fundraiser to have a NSW postal address to which correspondence can be sent.

Charities need to weigh the benefits of online fundraising against the burden of and practical impediments to compliance across Australian jurisdictions.

Australian Consumer Law (ACL)

Charities are not only required to comply with State and Territory fundraising regulations – fundraising activities carried out in “trade or commerce” are also subject to the ACL. Importantly, fundraising that is organised, continuous and repetitive is likely to be in trade or commerce. Among other things, the ACL prohibits misleading and deceptive conduct and applies to representations made when seeking a donation, including representations about where the money collected will go, how it will be used and the proportion of a donation directed towards the particular cause. More information about ACL requirements is set out in this guide.

Some fundraisers are exempt

In most jurisdictions fundraising exemptions apply to churches and religious organisations, kindergartens, schools, TAFEs, and tertiary education providers. The detail and scope of these exemptions varies between jurisdictions and should be carefully reviewed by fundraising charities.

Fundraisers may need to be audited

Western Australia, Queensland, South Australia and New South Wales all require certain fundraisers to have their financial statements audited. Charities should ensure that their auditor is aware of their fundraising activities and understands the regulatory requirements of the jurisdictions in which they are fundraising.

Failure to comply with fundraising obligations

Fundraising in breach of the relevant legislation may be an offence – both for the charity and individuals involved. Depending on the jurisdiction, penalties of up to $160,000 or a two year term of imprisonment may apply. Although fundraising prosecutions are extremely rare, regulators will use their enforcement powers in response to significant breaches, as demonstrated by the high profile inquiry into the Returned Services League in New South Wales. Failure to comply may also result in ACNC compliance action.

Next steps

Our Not-for-profit team regularly works with charities to assist them to make an assessment of their fundraising obligations and to comply with those obligations, as well as register and obtain the necessary registrations, licences, permits and approvals.

If you have any questions, please do not hesitate to contact us.