Recently, Victorian Education Minister Ben Carroll announced new powers for Victorian State School Principals to commence in Term 3 2025.
The powers will empower Principals to suspend students for “behaviour outside of school or online that puts fellow students or staff at serious risk”. Additionally, the powers are aimed at better equipping Principals to respond to assaults and bullying online, including the use of AI and deepfake images.
The question for independent and Catholic schools is not “should we have this power?” but rather “don’t we have this power already?”.
The answer is yes, you probably do, subject to a few important caveats.
Schools have a duty of care to students and staff. This includes the responsibility to take reasonable measures to protect from reasonably foreseeable risks of injury. This includes physical injury (students being subjected to physical violence from other students) and psychological injury (often as a result of bullying).
The increased recognition of the duty of employers to reasonably remove psychosocial hazards also underscores that schools need to be equipped to act on bullying and harassment online. See also our article on psychosocial hazards in schools.
If non-government schools want to be able to act on image-based abuse and online bullying, there are some important steps schools need to be able to take. These include:
1. Ensure your enrolment contract actually allows you to discipline students for out-of-hours behaviour;
2. Look at the student code of conduct. Is it specific enough to be able to point to the type of behaviour you want to sanction?
3. Review your acceptable use policies, specifically considering what powers you have to look at, or seize, student devices. Consider your greater legal powers over school-issued devices such as laptops versus personal devices;
4. Review the behaviour management procedure to ensure it meets the requirements in the Minimum Standards which relate to suspensions and expulsions. Critically analyse whether you are locked into a restorative process that could prevent you from taking action swiftly; and
5. Ensure you have a School Safety Order Policy and Trespass Notice Policy to be equipped to take other steps which may be reasonably required.
Moores Education and Training Team provides expert and responsive advice to many Independent and Catholic schools, as well as education systems, peak bodies, early years managers and incorporated ministries. If you’d like to discuss your school’s needs in relation to student discipline, please contact us.
Please contact us for more detailed and tailored help.
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There has been a lot of press and discussion about the implications of the decision in Commissioner of Taxation v Bendel [2025] FCAFC 15 (Bendel case), which relates to the application of Division 7A to unpaid present entitlements. That case, detailed below, is currently operating in favour of the taxpayer but is subject to an application for special leave to the High Court.
While Bendel case considered issues around unpaid present entitlements and loans from companies to trusts, the outcome of the decision could have a ripple effect into other anti-avoidance provisions, including section 100A, which if applied, could result in a worse outcome for the taxpayer.
The Bendel case concerned with Division 7A of the ITAA36 and the decision in Bendel case has proved to be one of the more significant developments to Division 7A in modern times, particularly in the context of private family groups and businesses.
In a nutshell, the Full Federal Court of Australia in this case rejected the Commissioner’s long held view provided in Taxation Determination TD 2022/11: Income tax: Division 7A: when will an unpaid present entitlement or amount held on sub-trust become the provision of ‘financial accommodation that an unpaid present entitlement (UPE) owing from a trust to a corporate beneficiary of the trust is a form of financial accommodation or ‘loan’ for the purposes of Division 7A.
In practical terms, this means taxpayers are no longer required to put in place Division 7A complying loans for any UPEs outstanding to a corporate beneficiary at the end of financial year to protect themselves against potentially un-frankable deemed divided assessments under Division 7A. This also means that taxpayers could re-consider the historical treatment of such UPEs, either under existing Division 7A loan arrangements or past deemed dividend assessments based on now ‘incorrect’ Commissioner’s view.
While the Bendel case was decided in favour of the taxpayer (pending the Commissioner’s special leave to appeal to the High Court and possible law change), we do not think it is all good news for the taxpayers as it could lead way for more frequent application of a relatively more challenging anti-avoidance provision that is section 100A as discussed further below.
Pending the outcome of the special leave application with the High Court filed by the Commissioner, the ATO has said in its interim decision impact statement (IDIS) that, until the appeal process is finalised, the existing position will continue to apply – i.e broadly, UPEs to corporate beneficiaries are a form of financial accommodation which trigger Division 7A deemed divided unless a complying loan is put in place under prescribed terms, even though the current law says otherwise.
Notably, in the same IDIS, ‘section 100A’ appears five times – two more than ‘Division 7A’ which appears three times, while the Bendel case did not consider section 100A at all. This should highlight the fact that the taxpayers will need to consider the likely implications of section 100A as part of their decision-making process in addressing loans and UPE’s under the position in Bendel case.
Section 100A of Income Tax Assessment Act 1936 (ITAA36) generally applies where a beneficiary is presently entitled to a share of the income of a trust estate and the present entitlement of the beneficiary to that share “arose out of or by reason of any act, transaction or circumstance that occurred in connection with, or as a result of a reimbursement agreement”.
A “reimbursement agreement” is defined in section 100A(7) to mean an agreement that provides for the payment of money or the transfer of property to, or provision of services or other benefits for, a person or persons other than the beneficiary or the beneficiary and another person or persons. Section 100A(13) provides the definition of ‘agreement’ in broad terms to include any agreement, arrangement or understanding, whether formal or informal, but exclude ordinary family or commercial dealings.
Any income of a trust estate that is subject to section 100A is taxed in the hands of the trustee of the trust at the highest marginal rate, and if a beneficiary has been assessed on a relevant share of the net income of a trust and section 100A operates, that the beneficiary is treated as to never have been presently entitled to the relevant trust income.
Section 100A has been on the Commissioner’s radar for the past few years and was considered in the recent cases of Commissioner of Taxation v Guardian AIT Pty Ltd ATF Australian Investment Trust [2023] FCAFC 3 and B&F Investments Pty Ltd ATF Illuka Park Trust & Anor v FC of T 2023 ATC.
The main reason why section 100A may apply to UPEs owing to corporate beneficiaries in the absence of a complying Division 7A loan stems from the PCG 2022/2 – Section 100A reimbursement agreements – ATO compliance approach, where the Commission took the ‘green zone’ position (ATO will not dedicate compliance resources to consider the application of section 100A) of section 100A to UPEs to corporate beneficiaries on the basis of such UPEs being Division 7A loans as per the position taken in TD 2022/11, which is now rejected in Bendel case.
Accordingly, in the IDIS, the Commissioner noted if a trustee retains funds that a corporate beneficiary has been made entitled to without converting that entitlement to a loan at least as commercial as the terms set out in Division 7A, the arrangement would fall outside the green zone described in PCG 2022/2 and section 100A may be applied.
So what does it all mean and how might this play out in practice?
As Division 7A and section 100A purport to tackle different tax avoidance arrangements, both the operation and implications of each section to the taxpayers are also different.
Firstly, the application of Division 7A is limited to the relevant assessment amendment period (generally 4 years) in the absence of any fraud or evasion while section 100A has unlimited assessment period (due to the operation of subsection 170(10) of ITAA36).
This means, for example, if a taxpayer decides to make certain changes to the Division 7A loan arrangements going back more than five years relying on the Bendel case (i.e no fraud or evasion), the deemed dividend provisions in Division 7A may not apply regardless of the position the Commissioner takes, but the Commissioner may choose to apply section 100A to the relevant distribution in that relevant year instead.
Bearing in mind that UPEs to corporate beneficiaries without Division 7A loans do not automatically trigger the application of section 100A, as a separate set of requirements set out in section 100A must be met for it to apply, if the section applies to the relevant distribution, the trustee of the trust is taxed at the highest marginal rate with no legal recourse to claim the distributions made to the beneficiaries back to the trust.
This could result in the trustee with a significant tax liability with no income to appropriately fund same, and in our opinion, this is a worse outcome from the trust perspective compared to the unrankable deemed divided to the trust from the company.
Following the decision in Bendel case and as the end of financial year draws near, it is open to the taxpayers to not have a Division 7A complying loan agreement for UPEs owing to corporate beneficiaries if their circumstances allow, as that is the current ‘law’ that should apply to UPEs in the context of Division 7A.
Having said the above, there might still be merit in being conservative and keeping the existing arrangements going as per the IDIS, so that you stay on the safe side under both of PCG 2022/2 and TD 2022/11 until we have more clarity from the outcome of the High Court appeal and/or potential law change. However, if your circumstances demand to do without a complying Division 7A loan agreement for future or past UPEs to corporate beneficiaries, you will need to consider the application of section 100A to your particular circumstances as well as Division 7A before proceeding with any such restructure as it is possible that both Division 7A and section 100A applying to the same distribution.
Taxpayers, who are:
should consider if section 100A could apply to their arrangements in light of their own circumstances as the application of section 100A will depend on the facts of each specific case.
The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia with expertise in trusts and taxation. We can provide strategic advice tailored to your specific circumstances and work with you and your advisors to make sure that any restructure or arrangement involving trusts and corporate beneficiaries do not inadvertently contravene the anti-avoidance provisions under Division 7A or section 100A of ITAA36.
Please contact us for tailored advice on how you can ensure your school is staying up to date with the relevant guidelines.
Following its meeting with Independent Schools Victoria (ISV), the Victorian Registration and Qualifications Authority (VRQA) has recently released its 2025 ‘action plan’ to respond to client and stakeholder research findings. It is centred on the core theme of ‘helping schools comply’.
The VRQA has acknowledged the evolving complexity and compliance burdens being placed on schools and its 2025 cyclical review program will centre its focus on compliance with Child Safe Standards, including Ministerial order 1359.
The VRQA has identified the importance of schools having a risk management strategy to prevent, identify and mitigate child safety and wellbeing risks. In carrying out this strategy, the school environment, programs the school delivers, and the needs of the students are to be considered.
As part of their 2025 cyclical review program, the action plan will include the following:
The VRQA has also informed schools that they are in the process of reviewing the Guidelines to the minimum standards and requirements for school registration.
The new guidelines aim to clarify what tangible compliance looks like and the evidence that is required to demonstrate this.
Make sure to keep an eye out, as the VRQA will continue to consult further on the new guidelines.
Moores’ Education and Training team has a wealth of experience in navigating the complex landscape of independent school regulation and assisting clients to meet their compliance requirements. Please contact our expert Education and Training team for tailored advice on how you can ensure your school is staying up to date with the relevant guidelines.
Elder financial abuse is a growing and deeply concerning issue, particularly as we face an unprecedented transfer of generational wealth from baby boomers to their children and grandchildren. Baby boomers are the wealthiest generation in history and Australians are expected to inherit an estimated $3.5 trillion over the next two decades, making the elderly increasingly vulnerable to exploitation.
Elder financial abuse is the misuse or misappropriation of an elderly person’s money, assets or property, and often by trusted individuals – such as family members, friends, attorneys or caregivers – with close family members being the most common perpetrators.
Elder financial abuse often begins or worsens when an elderly person starts to lose decision-making capacity. Cognitive decline makes them more vulnerable to manipulation, as their ability to manage finances, detect exploitation, or seek help is reduced. Increased dependence on others, often family and carers, can create opportunities for abuse, especially when the elderly person is isolated or unable to understand or report what is happening. Further, the rapid digitalisation of government and private services has made older, less technically savvy Australians even more reliant on family to manage their finances, increasing the risk of exploitation.
Elder financial abuse situations often start with an offer to help. Below are some warning signs that can assist in the early identification and intervention of financial abuse.
If you notice some of these signs, it is important to seek legal advice.
Moores’ experienced elder financial abuse team can assist with early intervention, safeguarding assets and restoring the rights of your loved one.
In light of the election outcome, the Federal government is indicating that it will press on with the proposed changes, so that advisors will again need to turn their minds to potential implications.
This is a challenge when we don’t have certainty about the content of any reintroduced bill to Parliament nor what amendments might be sought in the Senate. In the short term, we suggest:
Longer term, if the legislation is passed, it will also require a rethink of the benefits of reversionary pensions, as the impact on the recipients total super balance could increase the impact of the proposed new tax.
Stay informed about the legislative updates and contact the Estate Planning team for expert advice and guidance in navigating the evolving landscape of superannuation.
The Aged Care Act 2024 (Cth) takes effect from 1 November 2025, implementing around sixty recommendations from the Royal Commission into Aged Care Quality and Safety. Significantly, it introduces duties that apply to aged care providers and their responsible persons. This article provides an overview of those duties and their implications for the governance of registered providers of aged care services.
On 1 November 2025, the Aged Care Act 2024 (Cth) (New Aged Care Act) will take effect and replace the Aged Care Act 1997 (Cth) as the principal legislation that governs registered providers of aged care services in Australia. This will affect registered providers of aged care services and their responsible persons.
“Registered providers” are organisations that are approved to provide funded age care services by the Aged Care Quality and Safety Commission. The term “registered providers” replaces the term “approved providers” under the current Aged Care Act.
“Responsible persons” include the members of a registered provider’s governing body (such as its board members), being persons who are responsible for executive decisions. This also includes individuals who have authority or responsibility for planning, directing or controlling a registered provider’s activities.
The New Aged Care Act establishes the following duties for registered providers and their responsible persons.
Once the New Aged Care Act takes effect, responsible persons will be personally exposed to a civil penalty of up to 150 penalty units if they:
A “significant failure” includes a significant departure from the conduct reasonably expected of responsible persons.
Responsible persons will also be personally exposed to a civil penalty of up to 500 penalty units if there is a serious failure to comply with their duty and their conduct results in the death of, serious injury to or illness of an individual.4
Taking “reasonable steps” to exercise due diligence (as described above) will assist to demonstrate compliance with the responsible person duty. Having regard to those “reasonable steps”, it will be prudent for responsible persons to:
This reflects a shift in board culture, referred to in the findings of the Royal Commission into Aged Care Quality and Safety, that requires responsible persons to: have closer oversight of their registered provider5; ensure that there is a feedback loop between responsible persons and management via a ‘quality care advisory body6’ and ensure that policies and procedures are not only developed, but actively implemented and embedded in the operations of their registered provider.
Our charity and not-for-profit team helps organisations from the ground up, from the establishment process to guiding board members through their legal duties. Moores can assist to ensure your board members understand their duties and have appropriate processes in place to support compliance.
The Aged Care Bill 2024 (Cth) is available on the Parliament of Australia website.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
When meeting with clients to discuss their estate planning, superannuation is a big part of the conversation for many. Afterall, it is often where a significant portion of their wealth lies.
It is also an area of the law, where despite the vastness of the wealth, there is a lot of confusion about how superannuation is dealt with on death. This is unsurprising though, given the seemingly constant changes to the law.
Frequently, our discussions with clients involve education that their superannuation is not automatically dealt with under their Will, and (typically) the need to have the correct nomination in place to direct the trustee of the superannuation fund as to how to deal with their superannuation on death.
But what is the ‘correct nomination’? Is a non-binding nomination enough?
The recent case of Lynn v Australian Financial Complaints Authority [2025] FCA 175 is a cautionary tale of circumstances where the deceased’s non-binding nomination in favour of his children and stepchildren, for his industry-fund super, was more-or-less disregarded in a dispute between the deceased’s children, stepchildren and his spouse, from whom he was separated at his death.
In this case, the Federal Court sided with the children of the deceased superannuation fund member over his estranged wife, in a dispute over the distribution of his superannuation benefits years after his death. The Federal Court supported the decision of the Australian Financial Complaints Authority (AFCA), which overturned the super fund’s previous decision to give 100% of the deceased’s superannuation benefit to his estranged wife, despite having a non-binding death benefit nomination in place.
For advice or guidance regarding Estate Planning and Family Law, please do not hesitate to contact us.
One of the most common questions our Commercial Real Estate team receives from non-profit entities is whether sharing use of their facilities with others will cause a land tax problem.
Here, we provide some guidance on this complex issue.
All land in Victoria is subject to annual land tax, unless an exemption applies under the Land Tax Act 2005 (Vic).
Land tax is assessed annually on the basis of land ownership as at midnight on 31 December of the year preceding the assessment year. For example, the land you own at midnight on 31 December 2024 is used to calculate your land tax liability in 2025.
Section 74 of the Land Tax Act provides an exemption from land tax for properties which are used and occupied by a charitable institution exclusively for charitable purposes.
Therefore, to gain an exemption under Section 74, two distinct limbs must be satisfied:
Where only a part of the land meets the requirements for the charitable use exemption, that part of the land is exempt from land tax, and the remaining land is subject to land tax unless another exemption applies to it.
It is important to be aware that the exemption is only available upon application to the SRO – generally you will only receive an exemption if you have applied for one.
The exclusivity requirement was added to Section 74 in 2021, and has created concern for many charities who had traditionally shared use of their facilities with the local community.
The SRO has issued a public ruling (Ruling LTA-009) which provides guidance on how the exemption is interpreted and applied by the SRO in practice, but it cannot – and does not – cover every possible scenario.
Non-profit organisations therefore need to be aware that the wording of the legislation and the associated policy creates some grey areas – some uses unquestionably qualify for exemption, but many other common uses are less certain.
The following table illustrates the issue based on a number of common scenarios, using a traffic light system:
It is the property owner’s responsibility to report any incorrect assessment to the SRO each year – whether a property is being incorrectly accorded an exemption, or whether a property with an exempt use is being assessed for land tax. If a property is incorrectly accorded an exemption and the taxpayer does not notify the SRO, the SRO can impose heavy penalties if it picks up on the issue through its own investigations.
If you are uncertain about whether your property qualifies for exemption (whether you are receiving an exemption or not), it is therefore a good idea to seek advice from a lawyer or another professional advisor with specific expertise in the land tax field.
Where a charity shares use of their facilities with a third party, there are a number of steps which should be considered in order to reduce the risk of an unexpected land tax liability arising. These may include documenting the terms of the hire arrangement and, depending on the terms of the hire, notifying SRO of the arrangements. A lawyer with experience in the field can advise on whether any such steps are recommended in your specific circumstances, and assist you with putting the appropriate documentation into place.
The Commercial Real Estate Team at Moores has extensive experience in assisting non-profit organisations with land tax matters and can provide strategic advice tailored to your specific property use, helping to guard against an unexpected land tax liability.
Disputes over Wills can be stressful, costly, and unexpected. Whether you’re making a Will, administering an estate, applying for Probate, defending a challenge to a Will or questioning your exclusion as a beneficiary, understanding the main ways Wills can be challenged is essential.
The two main ways Wills are challenged is challenging the validity of the Will itself, or by a claim challenging whether the Will-maker has made adequate provision for someone they have a moral obligation to provide for (testator’s family maintenance).
Testamentary capacity
For a Will to be valid, the Will-maker (testator) must have had testamentary capacity when creating it. This means they need to:
Testamentary capacity is usually presumed, but this presumption can be rebutted. If the testator did not have testamentary capacity, then the Will is invalid.
Knowledge and approval
A person making a will is presumed to know and approve its contents. Challenges may arise about the testator’s knowledge and acceptance if there are questions about testamentary capacity or suspicious circumstances around the creation of the Will. If there are suspicious circumstances regarding how the will came about, this can mean the party trying to prove the will needs to positively prove the testator had testamentary capacity and knew and approved what was in the will.
Undue influence (in relation to Will-making)
If someone improperly influences a person to change their Will, or create a new one, the Will may be invalid due as a result of it having been procured by undue influence. To invalidate the Will, it needs to be shown that there was actual coercion that overbore the testator’s own free will to do a Will in the form they wanted. The level of undue influence and coercion required to succeed will depend on all of the circumstances, including the testator’s vulnerability to influence.
Before disputing the validity of a Will, the terms of the previous valid Will should be investigated. Sometimes the terms of the previous Will are no more favourable to the person considering challenging the Will than the current Will.
In Australia, it is accepted that we are free to dispose of our assets however we want, including through a Will: we have “testamentary freedom”. But the courts can intervene when this freedom is abused.
Eligible persons, such as spouses, children or financial dependants, can apply for further provision from the estate when they have been left out or are inadequately provided for. These claims are called testator family maintenance claims, further provision claims, or, in Victoria, Part IV claims.
A testator family maintenance claim is not a dispute about ensuring equality between beneficiaries (for instance, children of a deceased). To be successful, applicants must establish that:
In addition to the more common types of claims discussed above, if the deceased promised to leave specific assets or benefits to someone after their death, and this promise isn’t honoured in the Will, the person to whom the promise was made may be able to enforce the promise. They must be able to show that they relied on the promise and have suffered loss because of it.
Estoppel claims often arise in relation to estates that contain shares or property related to a family business, especially farming properties.
Act Quickly
Timing is critical. Each type of claim has its own strict time limits as to when you can make an application. Failure to make a claim by the relevant deadline can mean you are unable to challenge the Will, or otherwise pursue legal rights.
The Estate Litigation Team at Moores is one of the largest and most experienced in Australia, and can advise and guide you through your challenges or disputes related to Wills and estates.
Additionally, you can:
A person’s Will only governs assets that form part of their “estate”. Therefore, when a person dies, a key responsibility of their executor is to identify which assets do, and which assets do not, form part of the estate.
Whilst this distinction may appear obvious, there are several assets that people typically consider part of their overall wealth, that will not form part of their estate, to be governed by their Will.
But even where an asset may not strictly form part of an estate, it is important for an executor to appreciate how it is dealt with, as it may require involvement from the executor, or it may ultimately impact the distribution of estate assets.
For an executor to fulfil their role properly, in a manner that reduces their exposure to liability, it is therefore crucial that an executor understands the difference.
Only the assets (and liabilities) that are owned personally by a person, will form part of their estate. This typically includes assets such as shares, bank accounts and real estate, that are registered or owned in the name of the deceased. Whilst this is not always the case, it is a good starting point.
Where the asset does not have a formal register of ownership (like personal items), then further investigation is required to determine the beneficial owner and will depend on the circumstances surrounding its acquisition and ownership.
The following are examples of assets that will not form part of an estate and will require different treatment.
Jointly held assets
Assets that are jointly held by the deceased and another person typically do not form part of an estate, as they are dealt with in accordance with the principle of survivorship, meaning that the deceased’s interest in the asset will automatically pass to the surviving owner. This is because the deceased and the surviving owner did not hold separate severable interests in the asset – but together held an interest in the entirety of the asset.
The most common examples are the jointly held matrimonial home and jointly held bank accounts. It is for this reason that a person may not leave an estate when they leave a surviving spouse.
However, the precise form of joint ownership is important. In relation to real estate, the principle of survivorship will only operate if the property is owned with another person as ‘joint proprietors’. If it is owned as ‘tenants in common’, then the deceased’s interest in that property will form part of their estate and their executor will be obliged to deal with it as part of the administration of their Will.
Superannuation
Superannuation does not automatically form a part of a person’s estate. This is because super is held in trust for the person by the trustee of the superannuation fund.
Though, whilst super may not initially form part of the estate, an executor must make enquiries with the superannuation fund as to where payment is proposed to be made, including whether the deceased left any binding nominations.
The executor should also consider making a claim for payment on behalf of the estate given their obligation to maximise the assets of an estate for the benefit of the beneficiaries, which obligation can cause a conflict of interest for the executor, if not handled carefully.
Where payment will ultimately be made depends on several factors, including whether a binding nomination was made and whether the deceased left persons who are considered dependents for superannuation purposes.
If the super is ultimately paid to the estate, then the executor must deal with it in accordance with the person’s Will.
Assets held in trusts
Assets held in a trust do not form part of a person’s estate.
This is because trust assets are not held personally by the deceased person and remain assets of the trust to be dealt with in accordance with the rules of the trust (which are typically set out in a ‘deed of settlement’). This is the case even where the deceased funded the acquisition of the assets or is the ‘primary beneficiary’ of the trust.
To complicate matters, it is not always obvious when somebody owns assets personally or as trustee of a trust and trusts may be implied (as opposed to express), such that their existence is not always apparent.
And even when a trust exists, an executor must examine whether there are any interests or roles that they need to consider; for instance:
Therefore, at the very least, the executor should ensure they review the financial statements and the deed of settlement (and any amendments) of any trusts that the deceased had involvement with.
The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and can assist you in preparing your Will to ensure that your assets do not end up somewhere unexpected.