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.
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:
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.
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.
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:
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:
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:
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:
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.
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.
There are so many ways to fix this issue – it’s hard to imagine why we ended up here in the first place.
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.
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:
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.
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.
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.
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.
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:
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.
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.
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:
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.
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.
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.
Planning for a loved one who may have a disability or have some other form of vulnerability such as a drug addiction, financial susceptibility or pressure from undue influence can present many challenges. Often, there is a need to find a balance between ensuring that the beneficiary is looked after for their lifetime and ensuring that they do not have control over the funds.
Where there is a disability involved, the beneficiary may be in receipt of a government disability pension and in this case, one of the key objectives in an estate plan may be to preserve pension eligibility.
When planning for vulnerable beneficiaries, there are a number of matters that need to be considered when determining the appropriate provision and structure for the beneficiary. These include:
For many vulnerable beneficiaries, the straightforward option of outright ownership and control can have significant pitfalls. It can expose assets to the consequences of unsatisfactory decision making or cause a beneficiary to lose their disability pension and healthcare and services associated with receiving that pension. Paying a superannuation pension to the beneficiary is generally also not an option these days as these benefits can be readily accessed by the person and there can be broader tax and superannuation consequences.
Special Disability Trusts (SDTs) and Protective Trusts are two types of trusts that may be considered as a means of benefitting a vulnerable beneficiary. Advice should be sought on the appropriateness of either or both of these types of trusts having regard to the particular circumstances and needs of the beneficiary.
SDTs are trusts that primarily provide for the care and accommodation of a person with a severe disability. They potentially allow for income and assets means tested pension concessions for a principal beneficiary with a severe disability.
The key characteristics and requirements of a SDT are:
A Protective Trust is another type of trust that can be established to financially protect a vulnerable beneficiary who has not been assessed by Centrelink as having a severe disability. A Protective Trust is free of the constraints of a SDT which means that it can used for broader purposes such as providing financial support for recreation, entertainment, holiday travel, personal furniture and fittings and personal belongings.
The capital in a Protective Trust and any generated income is fully assessed for the purposes of the Centrelink means testing. Unlike a SDT, there is no stamp duty concession or exemption for gifting dutiable property into a Protective Trust nor an exemption from CGT.
The Protective Trust may be more suited where pension eligibility is not a priority and decisions regarding the distribution of income and capital distribution are made by someone other than the principal beneficiary. For example, a protective trust is established with an independent controller to provide for a beneficiary who has a drug addiction.
A SDT and Protective Trust can be established by deed or via Will.
A SDT or Protective Trust that is provided for in a Will does not come into effect until the Will-maker dies. If a Will contains provisions for a SDT and Protective Trust, an expertly drafted Will should give the executors discretionary powers to consider the beneficiary’s circumstances, needs and any other relevant factors to determine whether they hold the beneficiary’s share of the estate in a SDT, Protective Trust or a combination of both trusts. For example, the executors may determine to hold such of the inheritance that will not impact on the beneficiary’s pension eligibility in a Protective Trust where the funds can be used for broader purposes.
For over 40 years Moores has been providing legal assistance for people who wish to provide for a loved one with a disability or other vulnerability. We also provide advice to clients and their financial advisors with respect to any taxation, state duty or Centrelink implications upon establishing a SDT or Protective Trust.
If you or someone you know would like to talk with us about estate planning, please do not hesitate to contact us.
Recently, you might have seen the media splash that was the launch of the Australian Banking Association (“ABA”) campaign to stop elder financial abuse (if not, you can read about it on their website). The ABA is calling for nationally consistent powers of attorney laws, a national powers of attorney register and the establishment of somewhere to report abuse in each state that can investigate and act.
Why, you might ask, has the ABA launched a campaign against elder financial abuse? It could be explained on the basis that banks are best placed to identify suspicious transactions and to speak with their customers about suspicious transactions. Banks already operate subject to anti money-laundering regulation and report any cash transaction over $10,000 to AUSTRAC. Banks already have internal fraud monitoring systems – you, like me, may have received a call about possible fraud when trying to book overseas holiday accommodation on your credit card.
However, these issues are not new. The harmonisation of states’ powers of attorney regimes has been under discussion and development by stakeholders for many years. Recommendation 5-3 of the Australian Law Reform Commission’s 2017 report Elder Abuse – A National Legal Response was that a national online register of enduring documents and Court/Tribunal appointments should be established after agreement on nationally consistent laws.
Federal and State governments are increasingly taking steps to address elder financial abuse. The community sector is working hard on awareness raising and primary prevention. Private enterprise is now joining the call to action but not necessarily for benevolent reasons.
Private enterprise – whether a bank, superannuation fund, private advisers, aged care facilities – regularly deals with substitute decision makers whether attorneys or Tribunal appointed administrators or guardians. Sometimes the personal legal representative does not understand limitations on their appointment, sometimes those dealing with them do not. It is a risk to any organisation to allow a person not properly authorised to act on behalf of a principal, and they may be held liable. We have assisted elderly or vulnerable clients where a family member or friend is able to obtain personal information about the principal, or carry out transactions on behalf of the principal, despite not being properly authorised. For example, a guardian cannot carry out financial or legal transactions on behalf of a principal. Or an enduring attorney may purport to carry out financial or legal transactions, but that will be unlawful if their powers commence only on the principal’s loss of capacity and there is no medical evidence that is the case.
Banks appreciate the liability risk to them of allowing transactions to occur without proper authorisation. There are a growing number of determinations by the Australian Financial Complaints Authority in favour of an applicant against a bank for allowing unauthorised transactions to occur.
While we applaud the ABA for drawing attention to the growing problem of elder financial abuse, we also remind our clients and their advisors that losses can be recouped from third parties where transactions are carried out without a valid mandate or proper authorisation.
If you would like more information regarding this article or to speak to an Elder Financial Abuse expert, please do not hesitate to contact us.
Several recent cases in NSW and Victoria have highlighted the difficulties that can arise in family provision claims by adult children.
In Piercy v Douras [2019] NSWSC 1013 (9 August 2019 per Henry J), an adult son received no provision from his father’s estate.
The estate was valued at $4.1m at date of death. However, family law property orders were made between the deceased and his ex-wife, the applicant’s mother which reduced the estate to only $743K at the time of the hearing. That was to pass to the deceased’s second wife of a few weeks (total relationship less than 3 years in duration) who had limited assets & employment prospects.
The son and the father were estranged, but this was only for less than a year before the date of death and there was no disentitling conduct on the son’s part. There was an expectation the applicant would inherit from his mother. The son’s claim failed, and he had to bear his own costs.
In Firth v Reeves [2019] VSC 357 (7 June 2019 per Dixon J), an elderly widow, Cecily, made a will leaving her estate to her daughters Glenda and Roseann. Under the will, Glenda was to receive two-thirds and Roseann the remaining one-third. When Cecily died in 2017, Roseann brought a claim seeking half of her mother’s estate. She contended that one-third was inadequate, and sought one-half of the estate.
The estate was worth $5.52 million when Roseann first brought her claim, but had increased to $8.15 million under the executors’ management by the time the case was heard. As a result, the one-third she ultimately stood to receive under the will was similar in value ($2.72 million) to what half the estate was worth at the time of her mother’s death ($2.76 million).
The Court found that Cecily’s will made sufficient provision for Roseann, and dismissed the claim. The Court found:
In Wengdal v Rawnsley [2019] NSWSC 926 (18 June 2019 per Hallen J), two sisters Jill and Susan were pitted against each other. Their mother had a small estate valued at $297k. She left Jill a gift which equated to $34k and the balance to Susan. Jill had for many years been independent, and self-sufficient. The mother had instructed the lawyer that Susan did everything for her and was the “only one who cares”. Whilst Jill had some needs, she had home (with a small mortgage), a car, superannuation and a secure income (by way of pension). The mother knew all of this. The Court dismissed the claim and ordered the plaintiff to pay the estate’s costs.
These cases highlight:
Family provision legislation is designed to provide proper maintenance where a will or intestate distribution is inadequate for a person’s needs. While a parent generally has a moral obligation to provide for their children, this does not equate to a testamentary duty to treat their children equally.
However, if a parent does wish to dispose of their estate unequally between children, they should be very careful as there is always a risk of litigation. They should always get professional estate planning advice to reduce the risk of challenge.
For expert advice and guidance, please do not hesitate to contact us.
Capital gains tax (CGT) is a tax payable when you sell an asset for a profit.
Fortunately, it does not apply to your family home. This exemption also applies if you have died, provided that the home is sold and settled by your executors within 2 years.
But what if there is a delay with the estate? For example, if there is litigation such that the home cannot be sold in that time? Up to now, it was “bad luck” – whilst the Commissioner does have some discretion, it was generally the case that CGT would be payable (although at a reduced rate).
Recently, however, the Commissioner has provided a Practical Compliance Guideline (PCG 2019/5), which provides a useful guide to executors, beneficiaries and their advisors. The benefit of this guideline is that now, if certain conditions are met, the executor or beneficiary can rely on an additional 18-month period. This means there could effectively be a 3.5 year exemption period.
The guideline sets out that the beneficiary can rely on this period for situations where for example, there has been a challenge to the estate, or the deceased’s will contained a life interest that delayed the disposal of the property. Another example would be if the property sold, but settlement was never completed through no fault of the executor or beneficiary.
Importantly, the guideline sets out certain delays which would not qualify for the extended concessionary period including:
If the executor or beneficiary meets all the conditions in the guideline, they must keep records evidencing this compliance.
The Commissioner’s discretion still exists to consider other factors which may have caused delay to the disposal of the property.
To find out whether your situation qualifies for the extended concessionary period, and for clarity about what your obligations are, please do not hesitate to contact us.