The recent publicity around payments to directors of the Freemason’s charitable arm in Queensland is a timely reminder to charities and not-for-profits to proceed with caution when making payments to responsible persons.
In particular, it is important to ensure that any payment made to responsible persons is:
Although there is no blanket prohibition on payments to responsible persons, any decision to make a payment must be carefully considered and documented. It may be appropriate to seek advice on the legal framework within which your organisation operates, relevant considerations and an appropriate process through which any proposal to make a payment can be considered.
For more information or expert guidance, please do not hesitate to contact us.
The new Quality & Safeguards framework has been introduced to provide a nationally consistent approach that empowers and supports NDIS participants to exercise choice and control whilst also ensuring that appropriate safeguards are in place and that service providers and their staff are delivering high quality supports to participants.
The framework has now rolled out in Victoria, Tasmania, Queensland, the Australian Capital Territory and the Northern Territory on 1 July 2019, as well as South Australia and New South Wales on 1 July 2018. On 1 July 2020 the framework will roll out in Western Australia.
Service providers should also remember that if they receive funding from both a State/Territory Government and from the NDIS, they are subject to both existing State/Territory based requirements and also NDIS Quality and Safeguards Commission regulatory obligations while they receive both forms of funding. Policies and practices should reflect the dual requirements and reporting frameworks. In time, service providers may want to consider transitioning to NDIS funding only to avoid the dual requirements.
It’s important that disability service providers understand their obligations under the new Quality & Safeguards framework and align their policies and practices to adhere to the new requirements including:
If you require a review of your organisation’s Quality & Safeguards requirements, assistance and/or advice on complying with the Framework, including implementation of policies and procedures, or training on compliance with the Framework, please do not hesitate to contact us.
As 2019 draws to an end, this article outlines the trends in the Education Sector we have seen over the year, and looks at which trends will carry into 2020.
The Sex Discrimination Act 1984 (Cth) and the Equal Opportunity Act 2010 (Vic) aim to protect people experiencing gender discrimination because of their sexual orientation, gender identity or intersex status. This includes in the education sector.
Schools have a responsibility to take reasonable steps to eliminate discrimination by providing a positive, supportive and respectful environment. Every Australian child is entitled to feel welcome and valued at school, which is why the result of the third national study on the health and wellbeing of LGBTI young people should be cause for alarm. This study found that 61% of LGBTI young people experienced verbal homophonic abuse and 80% of the respondents experienced abuse at school.
Fostering a culture of inclusion, safety and respect means that schools:
Consistent with the school’s duty of care, some things Schools will need to consider moving into 2020 to create a more gender inclusive environment is:
A recent Victorian case has reignited the concern for schools about defending failure to educate claims from parents (i.e. compensation for breach of contract or negligence by a school in failing to educate a student).
These types of claims generally arise when a school seeks to enforce payment teams and school fees. However, the current case is made significantly more complex because the student had a disability. The student was set to graduate from year 12 this year, however, his mother claimed that her son’s skills have not developed satisfactorily during the 13.5 years at the Southern Autistic School (the School) and he was left unlettered and analphabetic impacting his ability to find suitable employment or be accepted into some form of tertiary education.
What is most concerning about this case for our school clients is that the School had made reasonable adjustments and the mother appears to argue that, in making reasonable adjustments as required by anti-discrimination law, the school had actually breached another obligation to educate.
This case is listed for a three-week hearing in the Federal Court in 2020. If successful, this may give rise to another legal liability for schools.
In the meantime, schools should implement Reasonable Adjustments Assessment Rubrics and Behaviour Management Policies (compliant with VRQA July 2019 guidelines) to maximise legal compliance and engage with parents as much as possible about how the school may be able to best assist students with disabilities.
In 2019, the Victorian Government announced that it will ban mobile phone use by students during school hours in an attempt to address cyber bullying and distraction.
Independent schools are not required to follow this ban although they may introduce a similar ban (or one might already exist) regarding the use of technology by students.
Separately to this issue is the concern about the increase in children sharing sexual images through social media platforms. A recent eSafety Commission Report highlights the increased use of technology and its impact on organisations when creating a child safe culture, particularly the rise of image based abuse. Schools are not immune to this and should be aware of the risks of students using platforms such as Snapchat and Instagram given the broad nature of the duty of care and the ability of technology to stretch its application to organisations.
Removing phones will not remove a school’s liability for harm caused by cyber-bullying and image based abuse. However, having clear “bans”, enrolment documents and policies can equip schools to discipline any student that breaches them (which should occur). Although, banning phones should not be a substitute for educating students about cyber-safety and social media use and having bullying and acceptable use policies which are diligently and consistently enforced.
In terms of the Government’s ban, schools do need to be aware of removing phones from students that require it for medical purposes (e.g. blood sugar monitoring apps) and phones that are removed need to be kept secure and not accessed by staff, otherwise there are risks of theft or privacy breaches.
The Victorian Education Department will be publishing further guidance for schools on the Education and Training Reform Regulations 2017 in early 2020. The regulations relate to not-for-profit status (school funds only for the school, not the ELC) and “prohibited arrangements” (all transaction to be commercial and for the direct benefit of the school).
From what we have seen so far, it is unlikely that this guidance will address schools’ concerns. The regs are very narrow, and only exempt “related” “feeder” ELCs. Schools still need to grapple with the use (or non-use) of school funds in the operation of ELCs and:
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:
We will have to wait and see what the Regulations say in 2020 but in the meantime, we recommend that schools maintain separate accounts for schools and ELCs and have a Memorandum of Understanding in place between schools and ELCs including provisions (at a minimum) regarding services and liability.
If you’d like assistance or advice on improving your school’s policies and procedures in relation to gender inclusion, social media, managing students with disabilities, reasonable adjustments, early learning centres or enrolment contracts, please do not hesitate to contact us.
There is a mistaken belief that a substantial inheritance received after separation is automatically protected from a family law claim – sad to say, if it’s your inheritance, that this is often very wrong.
This misconception was addressed in the recent case of Calvin v McTier.
The disgruntled husband lost at trial before a judge, so he appealed to a Full Court of 3 judges and lost again.
The parties were in a relationship from 2002 to 2010 and divorced in 2011. The husband received a substantial inheritance in 2014 worth $430,686. This made up 32% of the net value of the parties’ assets and resources at the time of the trial. The husband had also brought a lot of money into the relationship at the start. The couple had one child and shared his care equally.
The Judge (the bad guy or the good guy in the story, depending on your point of view):
The husband still wasn’t happy (perhaps he should have been) and appealed on the basis that:
The case is interesting because the husband’s lawyers rather optimistically argued that there was no clear connection between the inheritance and the parties’ marriage. They submitted that the parties’ marriage was not enough, of itself, to justify the Court bringing the inheritance into account.
Further, they said that contributions to the marriage had to be made contemporaneously with the existence of the marital property up for division. This argument, if successful, would potentially support the exclusion of any money received after separation from the family law division with the other party.
The Full Court of the Family Court rejected the appeal. The Court concluded that the trial judge was perfectly entitled, in his very wide-ranging discretion (which is a characteristic of Family Law cases), to include after acquired property in the property available for division, despite 4 years having elapsed between separation and the inheritance being received.
To add insult to injury, and without surprising family lawyers who followed the case, the court concluded by ordering the husband to pay the wife’s costs of the appeal since he lost out rather comprehensively in the appeal.
In cases where one party has received or may receive the benefit of a substantial inheritance, Tattslotto win, business success or other windfall, after separation it is vital to seek expert legal advice.
If you would like our assistance in this or any family law matter, please do not hesitate to contact us.
The Victorian Government has introduced new requirements for all non-government organisations funded by the Victorian Government to deliver services to children. The new requirements came into effect on 1 July 2019 and have been introduced to improve the ability of child abuse survivors to bring a legal claim for compensation against organisations and to ensure that there is something for survivors to claim against.
Required non-government organisations must be incorporated and must be insured against child abuse. The requirements will only be applicable to new or varied funding agreements with the Victorian Government. Existing agreements are not affected. In the case of contracts under an established funding round, the new requirements will apply only after the commencement of the next funding round.
The Betrayal of Trust Report and the Royal Commission into Institutional Responses to Child Sexual Abuse identified the need for governments and institutions to prevent child abuse and to empower survivors to receive the support and compensation they deserve. One of the key findings in these inquiries was that it has not always been straightforward for survivors of abuse to identify an appropriate legal entity to bring a claim against and even when an entity was able to be identified, some did not have sufficient assets to be sued or to meet compensation orders.
The Betrayal of Trust Report recommended that the Victorian Government require non-government organisations that it funds for delivery of services to children to be incorporated and appropriately insured. The Royal Commission recommended that all state and territory governments require those they fund to maintain appropriate levels of insurance to cover claims of child abuse.
There are a number of ways in which an organisation can become incorporated, including through Consumer Affairs Victoria or through the Australian Securities & Investment Commission. Incorporation can be a complicated process and legal advice should be sought to ensure the organisation has the ability to continue to fulfil its purposes.
Not being incorporated will not necessarily preclude an organisation from entering into a funding agreement with the Victorian Government. Funding agreement may still be entered into with an unincorporated organisation if it is actively working towards incorporation and will incorporate within 12 months of the commencement of the new contract.
The Victorian Government requires that insurance is held on an ‘occurrence’ basis, or on a ‘claims made’ basis if it is to be maintained after the cessation of the funding agreement with the Victorian Government. Any exclusions in the insurance must be agreed to by the Victorian Government. A minimum insured amount of $5 million per claim or $10 million in the case of insurance for a monetary aggregated amount is required unless the Victorian Government determines that a higher level is required for a funding agreement.
If you require assistance or advice about Victorian Government funding requirements for services to children, please do not hesitate to contact us.
Every Australian child is entitled to feel welcome and valued at school, which is why the results of the third national study on the health and wellbeing of LGBTI young people should be cause for alarm. The study found that 61 percent of LGBTI young people who participated in the survey report experienced verbal homophobic abuse, and 80 percent of the respondents experienced the abuse at school. The detrimental impact of these experiences cannot be underestimated. Discrimination and exclusion reverberates beyond the learning environment to a young person’s social and emotional wellbeing. Schools have a legal obligation to ensure that young people feel safe and supported both in and out of the classroom. This obligation exists irrespective of a school’s religious doctrines, beliefs or principles.
The Commonwealth Sex Discrimination Act 1984 (SD Act) specifically protects people who experience discrimination because of their sexual orientation, gender identity or intersex status. The Equal Opportunity Act 2010 (Vic) (EO Act) also prohibits discrimination on the basis of sexual orientation and gender identity, however it is a slightly narrower definition of ‘gender identity’ because it does not extend to people who do not identify as either ‘male’ or ‘female’ gender.
Gender identity is protected under Commonwealth law and in Victoria, Queensland, and Tasmania. Very similar protections are afforded in some other states, such as ‘chosen gender’ in South Australia and the more ambiguous ‘gender history’ in Western Australia. Under both the SD Act and the EO Act, gender identity is characterised irrespective and without regard as to a person’s designated sex at birth or whether or not medical treatment or intervention has taken place.
Having regard to the significant and detrimental impact of discrimination and harassment on young people, schools must create an inclusive and safe environment for their students, including LGBTI young people. Anti-discrimination laws require schools to take reasonable and proportionate measures to eliminate discrimination on the basis of sexual orientation, gender identity or intersex status, including taking positive steps to promote an inclusive school environment; and prohibit direct and indirect discrimination on the basis of sexual orientation, gender identity or intersex status.
Schools are required to support same sex attracted, gender diverse, transgender and intersex students, by:
There are some exceptions in anti-discrimination law which permit schools to discriminate if the school or educational program is wholly or mainly for students of a particular sex, race, religious belief, age or age group, or students with a general or particular disability. In Victoria, there are also some exceptions that apply to religious schools in circumstances where it can be established that the discriminatory conduct conforms with the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of the adherents to the religion. Exceptions are interpreted narrowly by courts, and faith based schools with a “broad church” often face significant obstacles in identifying their religious doctrines, beliefs or principles with precision.
Fostering a culture of inclusion, safety and respect means that schools cannot refuse enrolment of a prospective student because the school is concerned about its ability to accommodate the student having regard to toilets or change rooms and gender specific activities. It also means that a school cannot enforce a uniform policy which dictates that students with particular characteristics must wear school shorts and dresses. While schools can set and enforce reasonable standards of dress, appearance and behavior for students after taking into account the views of the school community, the exception is interpreted narrowly.
In seeking to create a more inclusive environment consistent with a school’s duty of care, we encourage schools to consider the following:
Moores’ Education and Discrimination teams have considerable expertise in working together with schools to create a more inclusive school environment and a culture which values diversity and promotes equality. We recognise that each school has its own beliefs and identity, and we work closely with schools to build their capabilities to address these issues respectfully and sensitively.
For more information or guidance, please do not hesitate to contact us.
We have seen significant child safety developments this year – from a historic $3.5 million awarded in damages for a historical child abuse case to the rise of child safety investigations due to the Reportable Conduct Scheme. As we move towards a new year, organisations should reflect on whether child safety is truly embedded in their operations. This article will cover some of the key developments to watch and tips for organisations to be prepared for 2020.
2020 will be another big year in the child safety sector. In particular, it is likely that we will see the following areas of focus.
There are significant legislative changes that have been introduced in various states and are expected to be passed in 2020.
A key area of change will be reporting requirements. In Victoria, school counsellors will become mandatory reporters on 31 January 2020. Victoria has also passed legislation that will require people in the religious ministry to be mandatory reporters with no exemption for religious confessions. There is no confirmed date for when this will take effect but it is anticipated to be early to mid-2020.
Similar changes have taken place in Tasmania where legislation was passed in September 2019 to require individuals in religious ministry to report child sexual abuse and also makes it a crime for any person to fail to report child abuse. It is expected that similar legislation will be considered or passed in other states in 2020, being a key recommendation of the Royal Commission.
Another expected area of legislative change is in regards to the National Principles for Child Safe Organisations. The National Principles were launched in this year and align with the Royal Commission’s recommendations. While these are currently considered best practice, it is likely they will become legally mandated soon, especially as the current National Framework for Protecting Australia’s Children reaches its end in 2020.
We may also see legislative change in other areas of the Royal Commission’s recommendation including WWCCs, liability for unincorporated institutions and associated trusts, image based abuse and reverse burden of proof regarding duty of care for organisations.
Due to the Redress Scheme deadline and significant payments for historical child abuse claims, we are likely to continue seeing historical claims being brought and settled in 2020. Given the large amounts of damages being awarded in civil claims, the average Redress Scheme payment of $80,466 will be enticing for organisations expecting significant claims. With the deadline, organisations will need to move quickly in their decision making, particularly larger groups that may be joining as part of a representative model as these are time extensive to set up. Furthermore, it is likely we will get a better sense of assessments under the scheme. As of November 2019, the Scheme Operator had only processed 814 out of 5,290 applications.
In 2019, the reportable conduct schemes in Victoria and ACT entered their second year. This saw a change from regulatory bodies taking an educative approach to beginning to take increased compliance action. In Victoria, the Commission for Child and Young People (CCYP) became increasingly willing to question investigation findings. We are also beginning to see the first disputes under the scheme, demonstrating the need for a thorough investigation process in accordance with regulator’s requirements as well as your employment obligations.
This trend is likely to continue in 2020. As regulators become more focused on compliance, there will be real risks for organisations that fail to properly investigate child safety concerns. There is also discussion in other states such as Queensland and Tasmania to introduce reportable conduct schemes.
In 2019, the eSafety Commissioner produced an eye-opening report regarding the risk of image based abuse amongst children and the impact on child safety. This report as well as increasing litigation against organisations for failure to fulfil their duty of care demonstrates the need for organisations to consider child safety in the digital realm. Common concerns include inappropriate contact between employees / volunteers and children and the risk of grooming, child on child cyberbullying and inappropriately shared images or videos. With the reverse burden of proof in relation to an organisation’s duty of care in several states such as Victoria, NSW and Queensland, it is vital that organisations are adequately prepared to manage these concerns.
Organisations need to be prepared for 2020 and the child safety landscape. Aside from the expected changes above, there is likely to be less tolerance for organisations that do not have proper compliance in place. We recommend that organisations take the steps below.
For more information or guidance on any of the above, please do not hesitate to contact us.
Only last month I spoke at the Australia and New Zealand Education Law Conference and was able to report there had never been a successfully prosecuted case in Australia of “failure to educate” – ie compensation for breach of contract or negligence by school in failing to educate a student.
It had been tried and had failed historically in a 2012 case in which an ex-student of an independent school sought to recover fees on the basis that she had not obtained a specific level of academic achievement.
Schools have in fact had success in court in enforcing payment terms, including the common one term’s fees for late notice of withdrawal of a student.
A recent matter in Victorian Courts has seen a mother of a 17-year-old boy named Jake allege that a Victorian government school has abandoned her son’s education and has failed to adequately teach him the required curriculum.
This poses the first real case of “failure to educate” in recent years.
The case is made significantly more complex, because the student has a disability.
Certainly, the overseas cases which have been successful have often involved a student with a disability.
The mother advocated that the failure on part of the school has left Jake unlettered and analphabetic, impacting his ability to find suitable employment or be accepted into some form of tertiary education.
Jake is set to graduate from year 12 this year, but his mother is claiming that Jake’s skills have not developed satisfactorily during the 13 and a half years of his time at the Southern Autistic School (the School).
The statement of claim filed raises allegations that both the School and the Victorian Department of Education and Training (the Department) are responsible for restricting Jake from actively participating in several school activities such as swimming and other sports. She also alleges that the School has been unsuccessful in teaching Jake a functional method of communication and this has had a detrimental effect on his already existing severe language impairment.
It was presented to the Court that Jake was made to spend most of his time at school in non-academic activities.
The allegations appear to argue that, in making reasonable adjustments as required by anti-discrimination law, the school has actually breached another obligation.
The case is listed for a three-week hearing in the Federal Court in 2020.
This case could serve as a ground-breaking precedent for all parents and carers who believe that their child has not been able to benefit from their schools education because of their disability.
This case should serve as a cautionary tale to all schools to ensure that its programs for students with disabilities meet minimum requirements under legislation.
A Reasonable Adjustments Assessment Rubric and Behaviour Management Policy should be implemented to assist in ensuring maximum compliance with legal obligations and reduce any exposure to potential claims, such as Jake’s.
We further recommend engaging with parents as much as possible about how the school may be able to assist students with disabilities, and discuss ways in which parents can also help from home.
Lastly – do not overlook the simple things. Every enrolment contract should clearly set out that no promises of a particular level of academic achievement are made, and that schools work with students and their families on the education journey.
If you’d like assistance or advice on improving your school’s policies and procedures in relation to managing students with disabilities, and meeting their needs, reasonable adjustments, or enrolment contracts, please do not hesitate to contact us.
The Family Court of Australia has recently examined whether assets held in a testamentary trust should be considered as matrimonial property and therefore available for distribution in the event of a relationship breakdown. For those who are seeking to gain additional protection via a testamentary trust, it was a favourable result.
A testamentary trust is a trust created by a valid will, and is a common element of a modern estate plan. Often a Willmaker wishes to incorporate a testamentary trust to provide their beneficiary with improved asset protection, either from a potential bankruptcy or a relationship breakdown.
In considering the property division in a relationship breakdown, the Family Court will take a number of factors into account. Amongst other things, this typically includes what the matrimonial pool consists of and what financial resources the parties have access to.
The matrimonial pool generally consist of assets held in the parties’ individual or joint names, businesses, inheritances received in their personal names, superannuation and possibly assets held within certain trust structures. Financial resources typically include trust income or capital that the parties may have access to.
No testamentary trust is bullet proof against the powers of the Family Court and the Court has a wide degree of power afforded to it by the legislation including:
Previous case law suggests that assets held in a testamentary trust, or any other trust, are more likely to be considered as part of the matrimonial pool if the control and benefit of the trust lies with one of the parties to the relationship. However, this was not considered to be the case in the recent decision of Bernard & Bernard [2019] FamCA 421 (5 July 2019 per Henderson J) (“Bernard”).
In the case of Bernard, the Wife brought an Application under Section 79 of the Family Law Act for a property settlement and contended that the Husband’s interests in a testamentary trust formed a part of their matrimonial pool available for division. The Husband did not agree submitting that the testamentary trust should be excluded from the matrimonial pool and considered a financial resource as he had no control over the assets or income earnt as he was not a trustee.
The relevant facts of Bernard are as follows:
The Wife’s primary argument was that the two testamentary trusts were mirror trusts and that the assets of the Husband’s trust were effectively his and the assets of the sister’s trust were effectively hers despite this being contrary to the trust deeds.
The Husband submitted he had no control over the income or capital of the trust and that control and ownership was with the trustee, his sister, therefore excluding the assets from the matrimonial pool.
Justice Henderson considered the Wife’s argument, however, ultimately found that the testamentary trust should be excluded from the property pool. In reaching her decision, Her Honour considered the following factors and relied heavily on the applicable trust deeds.
The Court ultimately held that the Wife must deal with the assets the Husband holds as they are. Importantly in this case, the Husband was only a primary beneficiary under a trust, not the controller or trustee, with that power being vested in his sister.
Of note, the Court considered that if the sister provided the Husband with all the assets of the trust of which she was trustee, it would be a significant breach of her obligations as trustee to the other beneficiaries.
It is clear from Bernard, that from an estate planning perspective, one way to provide additional asset protection in the Family Court is to take away or limit the control of the beneficiary within the terms of the testamentary trust. Having the flexibility for beneficiaries to self-impose these restrictions after the testator’s death is a major benefit, even if when they sign their will, the restrictions do not appear necessary.
It is also important to ensure that if you are separating, you are aware of your assets and the matrimonial pool available for division whether it is by virtue of a trust, property or inheritance and the way they may be treated by the Family Court.
If you would like to discuss a relationship breakdown or review your estate planning, please do not hesitate to contact us.
From 1 January 2020, some entities including companies limited by guarantee will be required to have a whistleblower policy that complies with the new section 1317AI of the Corporations Act 2001 (Cth).The Australian Securities and Investments Commission (ASIC) has announced that public companies that are small not-for-profits (NFP) or registered charities with annual revenue of less than $1 million will be exempt from the new requirement.ASIC Commissioner John Price said the exemption will provide relief to small NFPs or charitable companies who may face a compliance burden that outweighs the benefits a policy might otherwise offer. Even if organisations are exempt from the Corporations Act requirement to adopt a whistleblower policy:
If your organisation would like advice on how to comply with the new whistleblowing regime, please do not hesitate to contact us.