Many employers have operated on the assumption that, because employee records are exempt from the Privacy Act, employers have significant freedom when dealing with employee privacy.

A recent Fair Work Commission decision from the Full Bench has clarified this is limited. The case also gave rise to interesting considerations around an employer’s ability to issue a lawful and reasonable direction for drug and/or medical testing.

Background

In the decision of Lee v Superior Wood^[1] the Fair Work Commission found that a direction requiring an employee to consent to having a fingerprint scan was not lawful.

In fact, this insistence infringed the employee’s rights under privacy legislation.

The employee’s dismissal for failing to follow this direction was therefore deemed unfair.

Superior Wood sought to introduce fingertip scanners into the organisation to record employees’ start and finish times. Mr Lee did not consent to registering his fingerprint, and continued to manually clock in and clock out of work.

The employee records exemption is limited: it only applies to records actually held by the employer and does not extend to records that are not yet in existence.

Because Mr Lee did not give consent, and there were actually other means of recording an employee’s start and finish time, the direction to register his fingerprints was not deemed to be lawful and reasonable, and therefore, his refusal to follow it did not constitute an adequate reason for his dismissal. 

Implications for drug and alcohol testing and employee surveillance

This case raises some important issues relating to not just surveillance but also drug and alcohol testing.

The question has now been raised as to the legality behind requiring an employee to attend a medical examination, or a drug or alcohol test. It’s common practice to do so. This may be to ensure adherence to duty of care obligations, or ascertain what ability an employee has to perform the full requirements of their role.

While there is no test case to answer this, Australian Privacy Principal 3 is an exception stating that consent it not required where the collection of such sensitive information is required by law.

This could provide an avenue for employers to argue that a lawful and reasonable direction to undertake a drug or alcohol test, for example, is necessary to protect workplace health and safety. There will no doubt be cases in future applying this reasoning that will help determine the way forward.

What employers need to know

The most important take away is to ensure that any direction given to an employee is not only reasonable, but is lawful. You should be sure to consider the contents of relevant legislation before giving the direction.

Employers who are bound by the Privacy Act should consider:

1. Do you have a compliant privacy policy in place? This policy should be clear about what, how and when personal and/or sensitive information may be collected, and when consent may be required.
2. Are your policies and procedures around issues such as drug and alcohol influence in the workplace clear and up to date? Policies and procedures should be flexible enough to ensure that employees abide by all of them and that they can be changed from time to time.
3. Are employment contracts drafted in a way that protects your organisation, and is in line with legal obligations concerning the collection of personal information? You should also consider including a privacy statement in your employment contracts that state the type of personal and/or sensitive information may be collected.
4. If you are introducing new technology, such as fingerprint scanning, have you performed a Privacy Impact Assessment to ensure you are compliant with privacy when introducing it?

It’s also important to remember not only privacy laws need to be considered in this context. Depending on what is monitored, collected and stored, employers also need to be aware of applicable surveillance legislation (which differs state by state) and health records legislation.

How can Moores help?

Our privacy and employment law gurus here at Moores can help in a number of ways including reviewing/drafting a compliant privacy policy, employment contracts and other relevant policies and procedures.

We can also provide you with strategic advice and implementation strategies in a variety of different matters. Should you have any questions or queries, please do not hesitate to contact us.

^{[1] [2019] FWCFB 2946}

This article continues our series which explores the investigation process and provides tips to ensure processes and decisions are fair and defensible. Read Part 1 “Workplace Investigations – Getting it right” here.

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You are ready to go… you’ve decided to begin a workplace investigation and arrangements have been made but…what now? In this article we look at how to handle some common roadblocks you may face when managing a workplace investigation.

It is vital to maintain the independence and fairness of a process whilst managing some common human responses to a complaint being made. As we have already discussed, where a process is flawed or procedurally unfair, employers can be exposed to claims from all involved and this can lead to uncertainty and risk. In this article, we highlight some issues to consider to assist with choosing the right path.

What if the complainant refuses to participate in a workplace investigation?

You may be dealing with a complaint by one individual or several, and the complaint may involve one Respondent or several.  Complaints can be made in a number of ways, whether verbally to a trusted colleague or HR representative or more formally in writing in accordance with a procedure.

Regardless of how you receive the detail of a complaint, once an organisation is on notice about an issue or potential misconduct, the obligations to manage the situation begin. 

Sometimes complainants do not wish to pursue a complaint, or be involved any further; however this does not mean that you need to drop the investigation.  You will need to decide if the issue is serious enough to warrant an investigation without the involvement of a complainant.  Ask yourself whether the issue is of wider importance to a team or the organisation or if it is confined to a dispute between two individuals.  If it is the latter and the complainant is adamant that they don’t wish to pursue their complaint, we recommend that you satisfy yourself that this decision has been made without undue influence and that there is limited risk to the complainant if the issue is not managed. 

If you decide to place an investigation on hold it is good practice to keep in touch with the complainant and refer them to appropriate supports, such as an Employee Assistance Program.  At this point you may also consider other ways of managing the issue such as:

• providing training on appropriate workplace relationships;
• review your code of conduct, bullying and harassment, grievance and whistleblowing policies and procedures (or any other relevant documents);
• consider if the issue should be handled as an issue of performance management; or
• whether informal feedback should be provided to those involved.

If you do decide to proceed with a workplace investigation and have sufficient detail of the issue, check whether your policy requires that individuals participate.

If you don’t have a complainant willing to be interviewed, what other evidence do you have to consider?  Were there witnesses to the incident or interaction, is CCTV or other electronic records available, was the issue the subject of documents or email records?

Ultimately, you will have to decide whether the complaint can be pursued without the complainant’s involvement?

How should we manage personal leave during a workplace investigation?

Making a complaint and participating in an investigation can be distressing.  This is true for everyone involved as they consider the potential impact of the investigation and the potential trauma involved in re-telling their version of events to an investigator.

Of course, investigators should be supportive and reassure those participating that the process will be fair and not impact their employment but this does not always prevent individuals feeling unwell during this time.

If an individual requests a period of personal leave or is suffering from a condition connected to their experiences in the workplace it is essential that the relevant manager, or HR representative be supportive and responsive to the information received. 

It is possible that participating in the process could help an individual.  We’ve had individuals report feeling like a weight has been lifted from them by talking about their experience and participating in a supportive and fair investigation process.  However care should also be taken not to exacerbate a mental health issue by encouraging an individual to discuss their experience before they are ready. 

It is difficult to “look behind” a medical certificate and encourage or require participation when a doctor has certified an employee as being unfit for work and this should be handled with care.  There are competing obligations at play in such situations.  Personal leave is an entitlement for those employees who are unfit for work because of their own personal illness or injury but employers owe it to a complainant, and others affected by a situation, to act on reports of misconduct or other damaging workplace issues.

Also relevant to this issue is the ability for an individual to make a workers’ compensation claim for work related injuries or illnesses.  If a claim is made, it is important for employers to assess the claim and consider how it will respond within the relevant timeframes.

Sometimes the taking of personal leave is used by a respondent who is facing potential disciplinary action as a way to delay a process.  If you suspect this is the case, this should be handled carefully to avoid the suggestion that action is being taken against the individual because they have taken leave or have a medical condition or illness.

What if the Respondent refuses to participate in a workplace investigation?

Following on from the possibility that a respondent to a complaint will take personal leave to delay a process, sometimes respondents disengage completely.  They may refuse to respond to correspondence or calls or confirm in no uncertain terms that they will not participate.

At this point it is useful to consider what evidence you have and the scale of the issue; for example, is it essential that you have the respondent’s input? Can you make findings without their response? 

We recommend that you encourage the respondent to participate and reassure them that the process is fair and unbiased.  They may be getting advice from a lawyer or union representative which is encouraging them not to participate and this can be difficult to overcome.

Some tips for how to handle a refusal to participate:

• make sure that you have been reasonable in giving them an opportunity to have their say;
• offer the opportunity to respond to allegations in writing, by attending a meeting, or having a phone conference; 
• invite them to participate more than once to be satisfied that you have been reasonable, and you can satisfy yourself that you have tried everything;
• make sure that they have received your correspondence by using registered mail and delivery receipts on emails. 

If the respondent is an employee, you could give them a lawful and reasonable direction to participate in the investigation and warn them of the consequence of not participating.  It will be important to also consider relevant policies and employee obligations to participate.

What if a claim or complaint is received during the process?

As discussed above, WorkCover claims are a risk during investigation processes and times when individuals are in conflict or under pressure.  However, other claims open to employees are for an application to stop bullying (in the Fair Work Commission) or that they have been treated adversely in their employment under the general protections provisions of the Fair Work Act. 

The fact that a claim is made does not necessarily stop the investigation process; but we recommend that you consider the claim and how it impacts the process and the individuals involved.

Equally, an investigation cannot override the claim process and so you will need to make sure that all relevant timeframes are managed to protect the organisation.

Finally, if a claim is made by an individual involved in an investigation process, care should be taken to ensure that no action is taken against them which could be perceived as retaliation for them making the claim or asserting their rights.

This is a complex area and we recommend that you seek support if any claim is received against your organisation.

How we can help

Moores regularly advises clients how to respond to misconduct and manage workplace investigations, and can assist with conducting investigations in house or working with an external investigator.  We can also provide training and coaching for your human resources and senior management teams on how to manage the many issues which may arise, in accordance with your organisation’s policies, procedures and values.

If you would like to discuss our services further, or have any questions in this space, please do not hesitate to contact us.

The Australian Charities and Not-for-profits Commission (ACNC) has substantial powers of investigation in support of its compliance functions^[1]. Outcomes of investigations can include revocation of charity status or the charity entering into a compliance agreement with the ACNC concerning the future conduct of the charity.

In August 2019 , the charity status of five organisations was revoked, while another charity entered into a compliance agreement with the ACNC. With a broad range of enforcement powers available to the ACNC, how should a charity facing investigation respond to ensure the best outcome for that charity and its beneficiaries?

Understand the framework

All charities are required to comply with the ACNC Governance Standards and, if the charity has overseas operations, the External Conduct Standards (the Standards) in order to remain registered as charities and eligible to receive charity tax concessions. If the ACNC becomes aware of a potential failure to comply with these Standards, it may carry out an investigation. The purpose of the investigation is to obtain and critically review information and documentation from the charity to assess whether the Standards have been breached. If the ACNC finds that there has been a breach of the Standards, it may exercise its compliance powers – including, in the most serious cases, revocation of charity registration – in accordance with the ACNC’s Regulatory Approach.

Take it to the top

Compliance with the Standards is a governance matter, not an operational matter. A charity’s responsible persons (the Board, Committee or Trustees) should be immediately informed of any ACNC compliance action. Any notice of investigation should be circulated to all responsible persons and a meeting convened as soon as possible. A charity’s responsible persons should be actively involved in determining how the charity will respond to an investigation and settling any formal written response to the ACNC.

Get moving

An ACNC notice of investigation typically includes a request for the provision of a detailed and extensive range of documents and information. The deadline for providing this documentation and information is usually short – a matter of weeks – and the ACNC may refuse to grant an extension. It is prudent to instruct trusted administrative staff, professional advisers or volunteers to begin collating this material immediately, even if the charity’s responsible persons have not yet been able to meet.

Be responsive

Due to secrecy provisions, there is limited information available about how the ACNC has managed compliance actions in the past. This can create some uncertainty about how the ACNC will respond to a particular compliance matter. One thing is certain, however – ignore the ACNC investigation, obfuscate or fail to cooperate and the ACNC’s response will escalate. It is critical that a charity facing investigation communicates with the ACNC, meets deadlines (or seeks extensions if absolutely necessary) and provides the information sought in a clear and comprehensive format. Don’t put your head in the sand – an ACNC investigation won’t go away if you don’t address it.

Tell your story

Compliance is, in part, a question of context. There is no universal way to apply the Standards. The Standards are, broadly, principles based. This means that each charity must determine how it should apply the principles set out in the Standards in its particular context, including its purpose, size, operations, beneficiaries and other stakeholders. When responding to an ACNC investigation, the charity’s story and context may be critical to explaining conduct that might otherwise appear to be a breach of the Standards.

Get on the front foot

Most charities that assess their governance and operations closely against the Standards will identify areas for improvement. A prudent charity will proactively make improvements in the course of an investigation. Improvements made can be communicated to the ACNC as part of the response to the investigation, rather than waiting until the ACNC identifies the organisation’s shortcomings and requires them to be addressed.

Involve advisers early

A lot is at stake in an ACNC investigation. An experienced charity lawyer can assist throughout the process – from understanding the scope of any request for documents and information, to assisting the organisation to articulate and explain its context, identifying areas of non-compliance and recommending improvements. For this reason, it’s important to bring any advisers on board early.

A silver lining

An ACNC compliance investigation usually requires a significant investment in terms of time spent collating documents, reviewing an organisation’s operations and governance and preparing a response. Nothing focuses the collective minds of a charity’s responsible persons and executive team quite like an ACNC investigation. When done well, however, a considered and strategic response to an ACNC investigation will not only mitigate the risk of ACNC compliance action, it will result in improvements to the charity that will ensure its good governance well into the future.

How Moores can help

Moores’ For Purpose team provides strategic and practical advice to charities experiencing change and crisis. To find out more, please do not hesitate to contact us.

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^{[1] [see section 70-1 ACNC Act 2012]}

Moores is proud to have assisted our client Aussie Helpers to retain its registered charity status following an investigation by the Australian Charities and Not-for-profits Commission (ACNC).  

Today’s release of a joint statement confirms that Aussie Helpers will remain a registered charity and be able to continue to provide support to rural families.

Moores was approached by Aussie Helpers in late 2018 to assist in responding to the ACNC investigation. Like many growing charities, Aussie Helpers’ governance practices and policies had not kept with the expansion in its operation.

Moores worked alongside Aussie Helpers throughout the investigation, identifying areas for improvement, providing governance training, updating the charity’s constitution and recommending changes to internal policies and processes. Moores will continue to assist Aussie Helpers as it implements the remaining requirements of the compliance agreement which will enable their governance infrastructure to grow and keep up with changes to the size, nature and complexity of the charity’s operations in the future.

Aussie Helpers’ gave its full cooperation to the ACNC investigation and was diligent in making improvements. As well as providing all of the information and documentation sought by the ACNC, Aussie Helpers’ team have done extensive work on improving governance policies and practices in the charity.

This is a great outcome for Aussie Helpers that will enable them to continue their valuable work in rural Australia.

How we can help

Moores’ For Purpose team provides strategic and practical advice to charities experiencing change and crisis. To find out more on responding to ACNC investigations – click here.

For more information please do not hestitate to contact us.

Although awareness of child safety is increasing, some organisations still struggle to engage their board on child safety matters. It can be common for directors, committee members and trustees of not-for-profits (referred to as ‘directors’ and ‘board’ more generally from here on) to think that child safety is an operational matter only. However, a clear lesson from the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) is that a child safe culture needs to start from the top, with poor leadership being a significant risk factor for child abuse. Legal obligations are beginning to reflect this with specific requirements being imposed personally on directors.

The role of the board in child safety

Child safety intersects with several of the board’s key obligations, including directors’ duties. The Royal Commission was scathing of boards that failed to take action when allegations emerged regarding employees or worse, helped hide the abuse. For example, the board of Swimming Australia in 2004 was criticised for appointing Mr Scott Volkers as Head Coach of the Australian Swim Team competing in Europe, despite several child abuse complaints against him and an arrest in 2002.

Boards should be aware that there are a range of obligations that apply to them in relation to child safety, including:

1. Directors’ duties – these apply under the Corporations Act 2001 (Cth) for companies and under common law for all directors. Committee members of incorporated associations have duties under the Associations Incorporation Reform Act 2012 (Vic) or equivalent state based legislation and trustees owe fiduciary duties. These duties are similar and several of the duties, including the duty to exercise powers with care and diligence and in good faith in the best interests of the organisation, are relevant in the context of child safety.
2. Duty of care – Boards owe a duty to children in the care of the organisation to take reasonable care to prevent harm and abuse from occurring. In some states such as Victoria and New South Wales, a reverse onus applies, meaning if child abuse occurs and is caused by an individual associated with the organisation, the organisation may be found to have breached its duty unless it can prove that it took reasonable care. Boards will need to ensure the organisation is complying with its legal obligations and duty of care.
3. Strategic alliance and reputation – an organisation’s response to child protection and redress includes consideration of strategy and reputation management. For example, directors of organisations with a possibility of historical abuse should be consider whether they should join the National Redress Scheme. In a post-Royal Commission environment, organisations that fail to protect children are also at risk significant adverse publicity.  
4. Funding agreements and financial risk – a failure of duty of care opens organisations up to costly negligence claims. We are seeing claims as high as in the millions, threatening the financial viability of organisations. Merely investigating and responding to allegations may involve significant cost. Child abuse claims or mishandling of claims could also lead to funding agreements being revoked or not renewed.
5. Culture and Purpose – boards of charities and not-for-profits need to keep their purpose at the centre of their work. All boards also need to consider the culture they are setting within the organisation. A child safe culture must begin with the board.

ACNC’s role and standards

The Australian Charities and Not-for-profit Commission (ACNC) oversees compliance with governance obligations that apply to registered charities. At present, one of the ACNC’s compliance priorities is the protection of vulnerable individuals, including children. This priority will inform the ACNC’s use of resources and compliance response to charities that fail to take reasonable steps to protect children. Failure to comply with the ACNC Governance Standards and External Conduct Standards (discussed below), particularly in respect of safeguarding children, is likely to result in ACNC compliance action such as imposing conditions, disqualifying responsible persons and (in serious cases) revoking the organisation’s registration as a charity. 

This priority is also reflected in the ACNC’s involvement in the development of the National Principles for Child Safe Organisations (it is a member of the Implementation Advisory Group). While these Principles are not compulsory, the ACNC will view this as best practice for registered charities. Charities should also comply with the applicable Child Safe Standards in each state.

Governance Standards

The ACNC Governance Standards are a set of five standards that apply to all registered charities. These include complying with Australian legislation such as child safety legislation (standard three) and acting consistently with the organisation’s purpose (standard one).

Significantly, the duties imposed on responsible persons (standard five) impose duties on the board members (or committee members) to comply with obligations that reflect directors’ duties in legislation and common law. Again, many of these duties are relevant to child safety, including the duty to act with reasonable and care and diligence, acting in the best interests of the registered charity and managing financial affairs.

External Conduct Standards

The External Conduct Standards (ECS) came into effect on 23 July 2019. You can read more about the ECS in our previous article. These standards apply to charities with overseas operations.

Registered charities that operate outside Australia or with third parties that operate outside of Australia need to be cognisant of ECS. Importantly, standard 4 expressly requires registered charities to take reasonable steps to ensure the safety of vulnerable individuals outside Australia involved in their programs or programs provided by third parties in collaboration. This includes not only beneficiaries of a charity’s programs, but also those vulnerable individuals involved in the delivery of programs.

The reach of the ECS is broach and requires registered charities in Australia to ensure the protection of vulnerable individuals in their own activites, the activities of any third parties with whom they collaborate and the third party’s partners involved in any collaboration.

Personal liability for directors

Criminal penalties may apply to director’s personally if they do not meet child safety requirements.

For example, in Victoria, the failure to protect legislation under the Crimes Act 1958 (Vic) states that a person in a position of authority will commit a crime, punishable by a maximum of five years’ imprisonment, if they know there is a risk of child abuse by an adult associated with the organisation and fail to reduce or remove the risk. Similarly, criminal penalties apply in Victoria, New South Wales and Tasmania for failure to report allegations of child abuse.

Key lessons and next steps

Child safety is everyone’s responsibility. For organisations, the prioritisation of child safety needs to begin with the board. With the increased focus on the safeguarding of children by regulators including the ACNC, it has never been more important for For Purpose boards to actively engage with child safety.

We recommend that organisations:

1. Consider whether the External Conduct Standards apply to your organisation and of so, take reasonable steps to comply, including implementing appropriate policies and procedures.
2. Consider placing child safety as a recurring item on the board agenda to raise any key concerns, risks and strategic decisions that need to be discussed.
3. If you haven’t already, determine whether your organisation should join the National Redress Scheme, noting that the deadline for organisations to join is 1 July 2020.
4. Run child safety training with your board so that they understand their child safety obligations, the intersection between their duties and child safety and the relevant risks.

For more information or assistance with your officeholders and board members in relation to child safety, please do not hesitate to contact us.

Click here to watch our short video on LinkedIn as part of National Child Protection Week 2019.

As flagged in a letter published by Education Minister James Merlino last week, the Victorian Education Department will be publishing further guidance for schools on the Education and Training Reform Regulations 2017 in early 2020.

Many schools have sought our advice on these Regulations, and the VRQA’s restrictive requirements regarding the use (or non-use) of school funds in the operation of ELCs. The specific Regulations in question relate to not-for-profit status (school funds only for the school, ie not the ELC) and “prohibited arrangements” (all transactions to be commercial and for direct benefit of the school).

The proposed changes may involve amendments to the Regulations.

In recognition that many ELCs are fundamental to schools, the Minister has stated independent and Catholic schools “should be able to use both privately generated funds and offer space […] for the operation of related, not-for-profit early learning centres”.

This letter provides a timeframe but does not provide immediate guidance on:

• How separate the accounting must be, particularly noting the funding mix between private (tuition fees) and government funding;
• 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”.

For ELCs, we’d expect there may be further guidance on how to run these, with certain principles relating to commerciality and transparency being emphasised. These could include:

• requirements for documentation between school and ELC;
• requirements for recording and passing of funds between school and ELC; and
• limiting liability of the school.

How we can help

We will continue to monitor, as will Independent Schools Victoria, noting in the meantime, schools should maintain separate accounts for schools and ELC, and have a MOU in place between schools and ELC including provisions (at a minimum) regarding services and liability.

Cecelia Irvine-So is a Practice Leader at Moores, she advises extensively on regulatory compliance in education, reviews and agreements. Cecelia is also a parent of children at an independent school and a school board member. If you would like to discuss any of the above, please do not hesitate to contact us.

On Wednesday 21 August 2019, Yarra Ranges Council demanded that Stable One cease sheltering rough sleepers in church buildings. How did it come to this?

Stable One is what we would call a micro-charity, with one full time staff member and a volunteer board. But Stable One is, in the words of one of its guests, a “godsend”. Stable One facilitates a winter shelter program which allows ‘rough sleepers’ to take shelter in a church building overnight during the winter months. Multiple churches (usually seven churches in a local area) take turns providing shelter. A bus transports guests from a central location to that night’s particular shelter. No-one is sure how many guests will show up on any particular night. Volunteers attend the shelter and provide guests with a hot meal and the opportunity for good conversation.

Guests are provided with the opportunity to lay on a stretcher bed and sleep, men segregated from women. A number of the volunteers remain on site and are required to be awake all night to supervise and ensure that all in attendance are safe.

Being a guest with the winter shelter, but it is safe, warm and dry – it beats rough sleeping, which is the alternative for that night.

So why would a Council try to stop them?

In a genuine attempt to do the right thing, Stable One sought some guidance from Council about what permits might be required in order to be operating within relevant planning and building legislation. Council, however, took the view that the church buildings would need to be upgraded to the standards of an “accommodation” building.

This is cost-prohibitive for some of the churches, many of which would still have separate outdoor toilet facilities and no functioning kitchen or bathroom. Many of them would require renovation in order to comply with the relevant standards.

Ironically, Council’s concern is that the buildings may not be ‘safe’ for those sleeping there overnight.  But where your only alternative is sleeping on the street, a church seems very safe – no doubt being warm and dry on a winter night could save lives.

What can be done?

There are so many ways to fix this issue – it’s hard to imagine why we ended up here in the first place.

• Common sense interpretation of the rules. Plain and simple, the provision of 13 nights’ shelter in a church building is no different to having a youth group sleepover. It doesn’t turn a church building into an accommodation building.
• Council could just back off. Even if churches were in breach of some technical rule (which they’re not), Council could choose to spend its enforcement efforts on buildings which are actually dangerous rather than disrupting a micro charity from sheltering the homeless.
• Council could issue temporary permits for churches each year. Just as it can in crisis situations, Council could issue a temporary permit each year to the churches which participate each year. Being homeless is a crisis for those affected. This is a way that Council could help instead of hinder.
• The VBA could clarify its advice regarding the standing of this kind of crisis shelter or issue a ruling for the benefit of Stable One (and other charities who might choose to catch the vision). VBA appear to be claiming that Yarra Ranges Council took a ‘strict interpretation’ of its advice – now would be a good time to clarify.
• Stable One could defy Council and take the matter before the Building Appeals Board. As a body with the ability to allow ‘alternative solutions’ to compliance with building regulations, the Building Appeals Board would be an ideal body to step in and make a ruling. However, for the matter to get to the Building Appeals Board, Council would have to issue a Building Order against one of the participating churches – this requires one of the churches to risk prosecution just so that they can shelter the homeless!
• The Victorian Government could arrange for an urgent amendment to the Building Regulations in order to clarify that the provision of shelter in a crisis does not require someone to obtain a re-classification of their buildings.

We commend Stable One for another creative way to respond to a part of Melbourne’s homelessness problems. Let’s hope that government can find a way to assist too.

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

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Read more about this in The Age: ‘Out in the cold’: Council shuts down scheme to help homeless sleep in churches.

There is no doubt about the need for more social housing to be constructed in Victoria. Victoria’s new combined waiting list for social housing, the Victorian Housing Register, is but one recent indicator of what many have known for so long – the desperate need for homes for those who cannot currently provide for themselves in the private market.

What is less widely known is that there are innovators in the community housing space who are not waiting for government to construct or fund more social housing. Rather than waiting for funding for traditional projects to simply ‘buy land and build dwellings’, we are seeing more and more entities use alternative levers to try and tackle the housing crisis.

Recent innovations we have seen and/or helped our clients with include:

• Development rights to construct social housing apartments above a local government council car park. Council got its car park back (minus a few spaces) and a host of new housing was delivered without any land cost.
• Placing transportable homes on government land reserved for future roads. Not only have these homes been provided with no material land cost, but they can be deployed elsewhere once the time comes to finally build that road extension or freeway.
• Enlisting local churches to provide, on a rostered basis, overnight shelter for rough sleepers during the winter months. These churches have only been too happy to make use of their buildings for those in need, and the program is now expanding into other areas as more churches see this opportunity to serve.
• Seeking to enable the placement of investment property into affordable housing by obtaining a tax ruling from the Australian Tax Office that the owner could claim a tax deduction for the difference between the property’s market rent and the rent actually charged.
• Creating a head lease program which allows a person leaving prison to take a formal sublease of a rental property (leased by private investors to the housing provider) in order to build up a rental history to ultimately enable a direct lease in the private rental market.  
• Housing young people in a motel while the motel owner goes through the long process of seeking a planning permit for it redevelopment.
• Repurposing a disused aged care facility in order to house 20 women for 2 years while they seek permanent housing.

We are sure that there are also many other organisations out there whose projects are possibly more impressive and innovative than this short list.

We don’t doubt the need for the construction of a huge number of additional long-term dwellings for social housing. The need is real and current. But while we all work towards the delivery of that outcome, we feel that it is important to start asking different questions to try and tackle the social housing crisis in different ways, both to help as many people in need as possible and to maintain our own hope that we will ultimately get on top of this problem.

Here at Moores, we don’t just love answers – we love really good questions. And it’s our pleasure to be working alongside some of the community housing innovators who are starting to ask really good questions. And they’re getting really good answers.

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

On 21 August 2019, the Court of Appeal of the Supreme Court of Victoria dismissed Cardinal George Pell’s appeal. Late last year, Cardinal Pell was convicted of five sexual offences by a jury and sentenced to 6 years’ imprisonment with a non-parole period of 3 years and 8 months.

At the time of offending, Cardinal Pell was the Catholic Archbishop of Melbourne. While Pell has indicated that he will appeal the decision, the case demonstrates is a strong reminder that organisations must respond swiftly to allegations of child abuse, particularly allegations against trusted senior leaders.

Background

In 1996, Cardinal Pell was appointed Archbishop of Melbourne and introduced the Melbourne Response to provide support towards victims of sexual abuse. However, the effectiveness of this response has been heavily criticised. In 2001, Pell was scrutinised for his role in spending $1 million fighting a legal claim by John Ellis, the case that set up the Ellis defence for churches which has now been set aside.

Allegations of unlawful sexual conduct against Cardinal Pell arose in 2002 when Pell was accused of sexually assaulting a 12-year-old boy at a Catholic youth camp in 1961. The investigation by Retired Victorian Supreme Court Justice, Alec Southwell, found that there were forensic difficulties given the length of time that had based and stated that he was “not satisfied that the complaint has been established”.

During the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), Cardinal Pell was asked to appear in several hearings in relation to the criticised Melbourne Response, the Ellis defence and claims that he was aware of other allegations of sex abuse by priests but failed to intervene.

The allegations

In 2017, Cardinal Pell was charged with multiple sexual offences. The allegations relate to abuse that occurred on two occasions in 1996 – 1997 against two choirboys in the St Patrick’s Cathedral choir. The first instance was said to involve two boys (one of whom was now deceased) and the second instance only involved one. The first instance is alleged to have occurred in the priest’s sacristy and involved forced oral sex. The second instance is alleged to have included groping and molestation in a corridor at the back of the cathedral.

In December 2018, after less than four days of deliberation, the jury returned a unanimous verdict of guilty on all five charges.

The appeal

Cardinal Pell’s appeal was based on three grounds. The first ground related to the argument that the guilty verdict was unreasonable and could not be supported having regard to the evidence. The other two grounds related to procedural and technical points, including that the plea of not guilty was not made in front of the jury.

The procedural grounds of appeal were both unanimously dismissed by the Court of Appeal in George Pell v The Queen [2019] VSC 260.

In relation to the first ground, the judges had to determine if the evidence presented to the jury meant it was reasonably open to the jury to convict Cardinal Pell. The judges had to consider the evidence of other witnesses, the evidence of the complainant and its reliability. Cardinal Pell’s case on the appeal raised 13 ‘obstacles’ that meant it would be impossible for the jury to convict beyond a reasonable doubt.

Chief Justice and Justice Maxwell dismissed all 13 ‘obstacles’ and made the following key observations:

1. The complainant was a compelling witness. Throughout his evidence, he came across as someone who was telling the truth. Nothing about his account of the events suggest that it was either fabricated or a product of his imagination.
2. Cardinal Pell’s defence also argued that it was improbable or implausible for the events to occur given his seniority and the gravity of the risk as both offences occurred during high risk times. The justices noted that previous proven allegations against high profile offenders of sexual abuse demonstrated that sexual offending does take place in circumstances carrying a high risk of detection.
3. The claim by Cardinal Pell’s defence that it was ‘impossible’ to pull aside his robe to commit the sexual abuse was rejected. The justices found that the robe, which they and the jury physically examined, was not as heavy or immoveable as contended by the witness statements relied on by the defence. 
4. Cardinal Pell was “not to be made a scapegoat for any [perceived] failings…of the Catholic Church”. His conviction and sentence were only concerned with the five offences alleged to have been committed by him.

Interestingly, Justice Weinberg dissented and found that the evidence presented made it “impossible to accept” the complainant’s account. In particular, Justice Weinberg did not find the complainant to be a credible and reliable witness, finding that at times he embellished his account and that there were discrepancies in his account. He also found the witnesses presented by the defence to be compelling.

Nonetheless, the majority means that Cardinal Pell’s appeal was dismissed. Cardinal Pell has foreshadowed that he will seek leave to appeal to the High Court. It is not clear whether the Catholic Church will be paying for the cost of the appeal.

Lessons on child safety

As stated by Commissioner Robert Fitzgerald AM who presided over the Royal Commission, one of the biggest mistakes an organisation can make is to assume allegations of child abuse will not happen in their organisation. The dismissal of Cardinal Pell’s defence of ‘impossibility’ signals a growing reluctance to accept that senior leaders of organisations would be less likely to “risk it all” and commit child abuse.

It is important that all organisations have in place clear and strict reporting requirements. In states with a Reportable Conduct Scheme like Victoria, additional obligations need to be considered such as the requirement to investigate. We further recommend that organisations undertake training with their employees and volunteers to clarify that trusting a person is not reasonable grounds on which to fail to report, including senior leaders of that organisation. The recently introduced Bill adding religious and spiritual leaders as mandatory reporters and removing confessional privilege demonstrates the resolve of legislators to require organisations to proactively report child abuse.

Contact us

For more information on preparing your organisation’s response to child safety concerns, please do not hesitate to contact us.

Hiring out school facilities to local sports clubs, other schools or business groups can be a great way for schools to give back to their local community. Getting this right generates goodwill, positive reputation and revenue. Getting it wrong can generate frustration, administrative burden and regulatory questions. This article highlights some key things for schools to consider when hiring out facilities.

1. VRQA Guidelines

The Victorian Registration & Qualification Authority (VRQA) recently released new Guidelines to the Minimum Standards and Requirements for School Registration, which took effect from 1 July 2019.

Amongst other things, the new Guidelines impact on the external hire of school facilities, requiring such arrangements to be recorded in writing and subject to commercial terms. Agreements for the hire of school facilities must contain provisions consistent with the Guidelines, and the day-to-day hiring process for externally-hired facilities should comply with the Guidelines. 

2. Hire fees

It goes without saying that both the hire fee and the payment terms must be clearly stated in any hire agreement. For compliance with the Guidelines, it is important that hire fees are set at market rates. 

Other related points which should be considered include:

• Do hirers need to pay a deposit to secure their booking?
• Do you require hirers to pay a security deposit? And if so, in what circumstances can the security deposit be withheld by the school?

3. Facility area

It is essential that everyone is clear on what facilities the hirer will be entitled to use. Does hiring the school lecture theatre include use of the school’s sound and lighting equipment? Does hire of the gymnasium include basketball equipment? These issues should be explicitly addressed in the hire agreement.

Our experience suggests another minor detail can prove very important – clarify where cars attending the event should (and should not) be parked. Headaches in this area can be easily avoided by making expectations clear in the hire agreement.

4. Risk management

External hire of school facilities attracts a level of risk. Public liability matters are at the forefront – who is responsible for personal injury occurring during the hire period? What about property damage? Hire agreements should include provisions allocating risk and responsibility for these matters, as well as provisions requiring hirers to comply with school policies and directions as to use of the facility. 

Schools should also ensure that every hirer provides evidence of appropriate insurance prior to the hire event.

5. Use of the school’s name

Consider whether the school is happy for its name to be used by the hirer organisation (think “ABC College Basketball Club”) and what conditions you wish to impose on such use. Reputational factors are key, and you want to be sure that you have appropriate control over how the school name is used. Ensuring your agreement deals with the topic of naming rights will minimise the potential for issues to arise in this regard.

What is the right balance?

We don’t advocate for hire agreements that are longer than a Microsoft software licence. The answer is not in a longer document, but a smarter system. We believe in good process, clear terms and flexibility. The best set up will deliver a template document(s) for your school ,including a policy, than can be used for the way you manage external hiring arrangements.

How we can help

The team at Moores is experienced in helping our school clients design processes and documents that manage external hiring arrangements, including compliance with current VRQA Guidelines.

Get in touch with us and we’ll help you to get your facility hire arrangements right first time. For more information, please do not hesitate to contact us.