The Royal Commission into Institutional Responses to Child Sexual Abuse shone a light on the failure of a number of not-for-profits to properly protect children in their care.

Late last year, Commissioner Robert Fitzgerald publicly stated that through his involvement in the Commission, it became clear that three elements were vital to the proper functioning of an organisation: governanceleadership and culture.

In our view, these three elements are of particular relevance for directors. Directors bear ultimate responsibility for the governance of an organisation. They support the organisation by providing leadership, strategic vision and oversight. Well-functioning boards set the tone and culture of the organisation. All of this has a significant impact on how effective the organisation is in achieving its mission.

Because directors have such control over the proper functioning of an organisation, the law imposes a range of duties upon them. The duties are not intended to be burdensome, but require people in a position of authority, to act reasonably and responsibly, both in relation to their obligations and the obligations of the organisation.

Many of these duties are aimed at ensuring that the organisation is properly governed, with effective leadership, and with a culture of transparency and accountability.

Following the Royal Commission, it is likely that there will be increased scrutiny over whether NFP directors understand and comply with those duties, alongside existing obligations under the Australian Charities and Not-for-Profits Commission (ACNC) and its Governance Standards.

While directors should ensure they are familiar with the rules in their states, which may vary, here’s a brief summary of key duties based on standards in Victoria.

Don’t forget, if a director breaches those duties, there can be consequences for the organisation, the director personally, and – as the Royal Commission has shown – for others associated with the organisation.

Duties and liabilities of directors

The term “directors’ duties” generally refers to a number of overlapping principles imposed on directors by virtue of the position of trust and power that they hold. These principals, from a number of sources – including ACNC governance standards, common law and legislation – are summarised below.

Use of position and information:

Directors must not use their position, or information that they gain as a director, to obtain an advantage for themselves or another, or to cause detriment to the organisation.

Reasonable care, skill and diligence:

Directors must exercise their powers and discharge their duties with a reasonable degree of care, skill and diligence.

An important part of this duty involves making sure that the director has all the information required for making a decision. This includes reading board papers and any reports provided by management, being engaged in board discussions, and proactive in their role.

This duty also includes taking steps to make sure the organisation is complying with its obligations and having appropriate financial controls in place to ensure that the assets of the organisation are being used appropriately.

Good faith, best interests of the organisation and proper purpose:

Directors should act honestly, fairly and with loyalty to the organisation. When making decisions, the interests of the organisation must always be the principal consideration for the board. Additionally, directors must only exercise their powers for a proper purpose.

In the context of a charity, this involves a clear understanding of the charitable purpose of the organisation. The board should ensure that decisions are made and actions are taken in order to further that purpose.

Disclose (and manage) conflicts of interest:

Conflicts of interest often arise for directors. The mere existence of the conflict is not generally a problem. Rather it is how the conflict is dealt with that is important.

If a director identifies a conflict (or even a perceived conflict), they should disclose it to the board (and in some cases, the members) as soon as possible. The conflict should also be recorded (for example, in a conflicts of interest register).

As a general rule, directors who have a conflict in a matter being discussed by the board should not be present while the matter is being considered and should not vote on the matter.

The board minutes should reflect that the director left the room and did not vote.

Insolvency:

Directors have a duty to prevent an organisation from trading while insolvent. This requires directors to take steps to be satisfied that the organisation will be able to pay its debts when they become due. Some steps that directors can take to comply with this duty (ASIC guidelines here) are:

  • Staying informed about the financial affairs of the organisation and regularly assessing solvency.
  • If any concerns about the financial viability are identified, immediately taking positive steps to confirm the financial position of the organisation and assessing the options available to deal with any financial difficulties.
  • Obtaining appropriate advice.
  • Considering and acting appropriately on advice received in a timely manner.
  • Where directors breach this duty, they may be personally liable for some of the organisation’s debts.

To read more…

Click here for Part 2 – Tax and superannuation, Occupational Health and Safety Laws (OH&S Laws),Employment laws,  Child safety laws, Competition and Consumer Laws

Click here for Part 3 – How can directors protect themselves?

How we can help

For more information or not-for-profit legal advice, please do not hestitate to contact us.

The increasing governance burden requires greater sophistication…

Particularly in smaller organisations, directors and committee members (referred to as ‘directors’ from here on) are often volunteers chosen primarily for their connection to the organisation’s mission rather than their governance experience.

Unfortunately, good governance requires an increasingly sophisticated skill set and understanding. In 2019, directors may need to consider the impact of matters on their organisation as diverse as: recommendations from the banking royal commission; the new ACNC External Conduct standards; changes for deductible gift recipients that are not registered charities; and a potential change in government.

Each organisation should consider whether the level of experience of its committee or board is appropriate for the complexity of the organisation and the regulatory environment in which it operates. It may be appropriate to provide professional development to current directors or recruit additional directors with specialist governance qualifications.

Managing culture is a governance responsibility

The recent royal commissions have caused significant reputational damage to organisations and the individuals responsible for their governance. Almost invariably, those investigations found cultural failures had allowed misconduct to thrive.

The lesson for directors is not only that culture is important, but that the public considers that setting and overseeing the culture of an organisation is a key part of good governance. Culture is no longer a solely operational issue – if it ever was.

Directors need to ensure that their organisation’s values meet changing community expectations and meaningfully translate into day to day operations.

The cresting Baby Boomer wave

Baby Boomers make a disproportionately large contribution to the bottom line of many not-for-profit organisations. But the boomer wave is cresting. – By the end of 2019, almost half of the Baby Boomers will have retired, and will no longer be earning a regular income.

The window of time within which not-for-profit organisations can engage with their most rusted-on and generous donors is starting to close. Directors need a strategic,  segmented fundraising strategy to engage with retiring boomers, Generations X and Y and the emerging Gen Z workforce.

Options for organisations wanting to get onto the front foot

  • Tell your story
    Many organisations are so focused on what they do, that they fail to step back and consider why they are doing it. Worse, they fail to articulate the ‘“why” to their internal and external stakeholders. Today’s culture is far more energised by authentic purpose than annual reports. Great directors will ensure not only that their organisation’s story is told well and often, but that it informs and guides the organisation’s values, mission and operations.
     
  • Collaboration: Work with others for more impact
    Collaboration with other organisations can create benefits including economies of scale, increased opportunity to attract government funding and shared know-how. Mergers continue apace in the sector, but are not always necessary,  or appropriate. Strategic alignment through activities such as joint ventures, co-branding or colocation can offer many of the same benefits. This can also provide a good opportunity to investigate cultural “‘fit” for a potential future merger.
     
  • Protect the vulnerable
    This may not be an opportunity in the traditional sense, but it is fast becoming an imperative. Vulnerability can affect any stakeholder in an organisation, – from the single mother receiving services, to the employee with a physical disability or the community director with depression. Both not-for-profit and for-profit organisations risk a severe backlash if they fail to engage compassionately with vulnerable individuals.

    For registered charities, the protection of vulnerable beneficiaries is an ACNC compliance focus for 2017 – 2019. It is also an express requirement of the new External Conduct Standards.

    Not-for-profit organisations that get this right have an opportunity to differentiate their organisation in a crowded marketplace. But the real reason to protect vulnerable individuals is not about risk management or branding,  – it is simply the right thing to do.

For more information on the issues facing NFPs in 2019, please do not hesitate to contact us.

This article was first featured in the Community Directors Intelligence newsletter in February 2019.

New Guidelines will come into force on 1 July 2019 in respect of every School registered in Victoria. 

These set out the new evidence requirements under each Minimum Standard and set out detailed hoops for schools to jump through.

The focus is increased student welfare and outcomes, and more transparency for boards and management.

Whilst some existing requirements have been removed, many requirements are new and specific.

Here are our Top 5:

1. Transparency – Online publication of enrolment agreements

This is a new requirement. The guideline requires the enrolment agreement to be publicly available and include specific clauses, including fees and codes of conduct.

In my experience, many enrolment agreements do not contain these items. Many also contain potentially discriminatory content and (wrongly) form part of enrolment applications.

Unfortunately, the guideline requirement is named “enrolment policy”, but requires publication of the “enrolment agreement”.  These are not the same, and should not be in the same document.

If you have not already separated your enrolment documents into the best practice Moores Enrolment Trifecta, now is the time. 

2. More Scrutiny regarding services to students with a disability

One new requirement is that the school must show evidence that, in respect of lands and buildings, reasonable adjustments have been made. This, along with the new requirements to demonstrate how a school “enacts its philosophy”, suggest that the area of discrimination will be scrutinised. Schools are also advised, in light of the focus on enrolment documentation, to check their enrolment policy is consistent with legal requirements regarding discrimination, including reasonable adjustments. Many schools believe they can rely on exemptions in legislation. These are typically much narrower than is widely believed.

3. Student Behaviour Management and Procedural Fairness

From 1 July 2019, grievance procedures will need to include a statement as to how the school manages “procedural fairness”. Note that policies are required here, as is a statement of the school’s approach to behaviour management. Please also review your parent code of conduct. You will need to include this in the enrolment agreement to be published online. If it does not include procedural fairness, or is used as a “stick” when it is not binding on parents, this will be non-compliant. I’ve seen many parent codes of conduct, and many which are introduced and managed badly. They can be enforced, and can be extremely useful, but need to be correct and compliant.

4. Not for Profit Purpose and Governance

As discussed at many an education law conference last year, and on my school board, new guidelines have been introduced regarding board transparency and relationships with third parties. The VRQA requires, for example, board delegations of authority, and a conflict of interest register, but the largest compliance requirement relates to third party arrangements. Copies of a range of funding and other contracts are required in order to ensure there are no “prohibited arrangements” – ie school funds being applied for purposes not related to the school. Whilst “uncommercial” and “mates” deals are a focus here, religious schools in particular need to carefully consider financial and other relationships with faith bodies which may form part of the school’s community.

5. Overseas Students

The significant evidence requirements relating to international students (including prescribed documents and training) remain in place. These do not form part of these guidelines, but are in separate documentation, including a specific evidence guide and evidence portfolio.

If you are not already familiar with these, it’s important to become familiar as you review these new guidelines. You are probably expected to publish your international student enrolment agreement online, as part of these new requirements. This, therefore, must also be up-to-date. We have Moores guides on these international student requirements.

Please contact Cecelia Irvine-So below if you would like a copy or for more information regarding the new guidelines.

At Moores, we work extensively with schools in the independent and Catholic sectors. If you have any queries about these guidelines, or any other matter, please do not hesitate to contact us.

The Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was delivered by Commissioner Hayne on 1 February 2019. The recommendations focus on financial advice (fee arrangements, conflicted remuneration and quality of advice) as well as the banking industry – in particular, consumer lending. 

While the financial services industry, mortgage brokers and the banking sector are abuzz about the scope of the recommendations, elderly bank customers garnered no specific mention in the final report. This is despite evidence having been given by elderly bank customers in relation to inappropriate lending, inappropriate financial advice and (to some extent) the targeting of these consumers by product hawkers. 

Financial Advice Reforms – where did we get to with FOFA?

Post-GFC FOFA reforms resulted in the legislating of a “best interests” duty, grandfathering of commission arrangements and giving of renewal notices/fee disclosure obligations.  While these reforms have imposed a compliance burden on financial services businesses, they went a long way to protecting consumers’ rights – inappropriate advice given to clients pre-FOFA which may have been motivated by commissions no longer necessarily complies with the “best interests” duty.  Nevertheless, the banking royal commission heard evidence of post-FOFA advice that arguably did not meet the “best interests” requirement. 

Future Reforms and Consumer Protection

The Hayne recommendations will result in further reform and the end to grandfathered commission arrangements. While this change will have a significant impact on a number of businesses, an end to these arrangements is an important step for consumer protection and perhaps one that ought to have been included in the FOFA reforms.

A major development will be the creation of a compensation scheme of last resort. The legal profession has the “Fidelity Fund” which is a compensation scheme of last resort, the National Guarantee Fund operates in respect of the Australian Securities Exchange. A financial advice sector compensation scheme would protect consumers with a meritorious claim who are otherwise unable to recover losses because the licensee no longer exists, has insufficient insurance coverage or if their insurance will not respond (due to e.g. the timing of when a claim is made). 

It is worth noting that AFCA will have an extended jurisdiction to consider financial advice compensation claims. The time period for claims that AFCA can deal with will be extended beyond the current 6 year limitation period to 10 years. That means those with potential claims against financial advisors for losses during or immediately post-GFC can lodge an application (if they did not raise their complaint within the existing statutory time limit).

What about Banks?

Do the recommendations go far enough to protect consumers from inappropriate financial advice, or from advice that is not in their best interests? We will see. What the recommendations do not deal with is whether and if so, how, banking practices can or should be amended to protect vulnerable elderly customers. Various jurisdictions in the United States have implemented banking reforms to allow banks to suspend suspicious transactions and to report concerns around vulnerable customers (and eg, intra family loans). 

When dealing with your clients, it is important to bear in mind that:

  1. The time limit for financial advice compensation claims has been extended – consider whether your new clients’ existing portfolio might be the result of actionable inappropriate advice.
  2. Older clients who seek assistance with intra-family loan arrangements (whether funded by a bank or funded by family) or substantial gifts to family members should be referred for legal advice to ensure their interests are documented and protected.
  3. When you are retained by new clients, consider whether their existing estate planning and structuring is appropriate and whether their investment portfolio is appropriate. If you have concerns, raise those concerns with your client, your licensee or refer your client for independent advice.

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

New Guardianship and Administration Legislation

The Guardianship and Administration Bill 2018 (“the Bill”) was introduced on 19 December 2018 and is currently before the Legislative Assembly for debate. It is expected to be passed in its current form in due course, and come into effect on 1 March 2020, unless proclaimed earlier.

This is the first in a series of articles that will provide an explanation of the new legislation. Here, we provide an outline of the Bill and key changes.

Why new legislation?

The Bill was introduced to bring guardianship and administration matters in line with changing legislation and more contemporary views on disability having regard to the United Nations Convention on the Rights of Persons with Disabilities among other things.  

The Bill now expressly acknowledges the gradations of impairment and disability, as opposed to a binary view on capacity. This brings it in to line with other recent legislation such as the Mental Health Act 2014 (Vic), the Powers of Attorney Act 2014 (Vic) (POA Act), and the Medical Treatment Planning and Decisions Act 2016 (Vic) (MT Act).

What are the key changes?

Criminal offences:

The Bill creates new offences for guardians or administrators who dishonestly use their powers to obtain a financial advantage, with penalties of up to 5 years imprisonment or 600 penalty units. The same offence exists for officers of body corporates.

While a represented person is and remains entitled at common law to claim compensation for an administrator’s dishonest use of powers (or oversight), incorporating new criminal offences is welcome. The next article in this series will address this in more detail.

The offence provisions are in response to the Victorian Law Reform Commission’s concerns of rising rates of elder financial abuse. These concerns have also led to the creation of a new Elder Financial Abuse and Elder Law practice at Moores, led by Jessica Latimer.

Changes to VCAT’s powers and procedures:

While VCAT has retained its powers in relation to making guardianship and administration orders, there will be significant changes under the new legislation.

This includes the ability for VCAT to make more flexible and tailored orders, in order to promote the person’s personal and social wellbeing. The Act provides that a person’s personal and social wellbeing is promoted by:

  • recognising the inherent dignity of the person; and
  • respecting the person’s individuality; and
  • having regard to the person’s existing supportive relationships, religion, values and cultural and linguistic environment; and
  • respecting the confidentiality of confidential information relating to the person.

The act also includes a new definition of decision making capacity consistent with the POA Act and MT Act, where capacity is presumed unless there is evidence to the contrary.

The third article in this series will address VCAT’s powers and procedures in greater detail.

Supported decision-making:

Supported decision-making is an emerging concept that is also in the POA Act and MT Act. It recognises that individuals may have decision making capacity if they are given additional support. The Bill allows VCAT to appoint a supportive guardian or administrator (with consent of the represented person), who will be authorised to do things such as collecting information, communicating information and giving effect to decisions.

The fourth article in this series will look at supported decision making.

Transitional provisions

Orders made under the old Act will continue to remain in force unless revoked or set aside by a Court or VCAT. The provisions of the old Act will continue to apply and the powers and duties of guardians or administrators will continue to be dictated by the old Act. 

However, some provisions of the new Bill, if passed, will apply such as the provisions regarding resolution of disagreements, enforcement orders and offences. If an order is required to be reassessed, it will be reassessed under the new Act.

What next?

Individuals and organisations that are involved with guardianship and administration matters or represented persons should take the following steps.

  1. Organisations should review their advice on the feasibility of guardianship and administration orders for individuals with decision making impairments, particularly in light of new provision regarding supportive guardianship and administration orders and tailored orders.
  2. Organisations should be aware of the new offences under the Bill and officers should understand their obligations for the actions of the body corporate and their potential liability.
  3. Individuals currently appointed under guardianship and administration orders should be aware of the new offences and ensure that they are carefully recording financial transactions and not mixing finances with their own.
  4. Individual family members of people who are showing signs of diminished capacity, and don’t have existing powers of attorney, should consider the new definition of capacity and more flexible options now available to assist them.

How we can help

If you seek further advice about these matters, please feel free to contact us.

This article is part of our Guardianship and Administration Bill series:
Guardianship & Administration Bill 2018 – Administrator liability and new offences
Guardianship & Administration Bill 2018 – Supported Decision-Making

The recent High Court case of Commissioner of Taxation v Tomaras determined the Court has the power to shift a tax liability from one party to another.  Lawyers, accountants and financial advisors and their clients with substantial tax considerations should take heed.

The case determined if the conditions of section 90AE(3) are satisfied, a transfer of a tax debt from one party to the other may be on the cards.  While this case was limited to a tax debt, it could apply to any debt.

So what happened in the High Court case?

The case of Commission of Taxation v Tomaras considered whether the Family Court could substitute the husband to be solely liable to the ATO for a tax debt in the wife’s name.

The basic facts of this case are:

  1. During the relationship, the Commissioner of Taxation obtained default judgment against Mrs Tomaras for $127,669.36 consisting of outstanding income tax, Medicare levies, penalties and general interest charges.  The debt remains unpaid and given further general interest charges now stands at nearly $260,000.00.
  2. Subsequently, Mr Tomaras became bankrupt.
  3. In the next month Mrs Tomaras initiated proceedings in the Court seeking a family law property settlement. In particular she sought an order that the husband be responsible for her tax debt.   The Commissioner of Taxation also became a party to the proceedings.

The question put to the High Court

Section 90AE(1)-(2) of the Family Law Act grants the Court the power to order, during their family law case, that a debt – any debt – of one party, be paid by the other party.    Importantly, this is binding on creditors. The Question for the High Court, was whether the ATO was exempt as a Commonwealth revenue authority and had Crown Immunity from such general provisions of legislation? 

The unanimous decision of the High Court was that the Family Law Courts do have the power to bind the ATO.  

Question answered, the matter has now been referred back to the Federal Circuit Court for adjudication of the competing claims.  It is critical to note that even though the High Court has confirmed that the lower Court can make an order directing that one party to a marriage be substituted in the place of the other as a debtor to the ATO, it does not mean that the  Court will in fact follow that course of action. 

Section 90AE(3) of the Family Law Act sets out the conditions which must be satisfied for an order of substitution to be made.  In a nutshell the Court must be satisfied that:

  • The making of the order is reasonably necessary;
  • It is not foreseeable that the order would result in the debt not being paid in full;
  • The third party debtor has been accorded procedural fairness (in other words, they have been given the opportunity to be heard by the Court);
  • The Court is satisfied it is just and equitable to make the order; and
  • The order takes into account the taxation effect on the parties to the marriage, the third party and social security, the administrative costs and the capacity of the party of the marriage to repay the debt after the order is made.

Judges, Kiefel CJ and Keane J commented that:

‘Given that, so far as it appears from the record in the present case, the husband is a bankrupt and the wife is solvent, it is not possible to see how the condition in s 90AE(3)(b) could be satisfied in this case.  More generally, it is difficult to see how any case where there is a real prospect that the substitution of one spouse for another as a debtor of the revenue authority would create or enhance a risk of non-payment would not fall foul of Section 90AE(3)(b) of the Act.’

In other words, since the husband is bankrupt he won’t be able to pay the debt and there is no real chance that the order the wife wants will be made.

Other Considerations

Before seeking an order or coming to an agreement in a family law dispute that shifts the liability for a debt, the implications would need to be carefully considered.  These can include:

  • The impact on deductibility of the interest;
  • The impact if the underlying security is no longer with the party who holds the debt;
  • The estate planning implications.

In practice, this question does not regularly arise.  

A more common issue with debt in the Family Court is where one party is failing to meet their obligations which mean the asset put up as security is at risk.  In this case, the approach may not be to move the debt, but instead to stop the creditor from recovering the debt for a defined period.

Moores Case Study

Moores applied under this law to restrain a creditor from pursuing a debt until a family law case was finalised.

In a case Moores ran last year, our client sought to keep the family home which had a large mortgage on it.  It was in the other party’s sole name and he had not been paying the mortgage. The bank was threatening to foreclose. 

Moores successfully got an injunction to stop the bank proceeding, and ultimately got a very good result.  This enabled our client to keep the home and catch up the arrears of the mortgage payments.  Importantly, at all times our evidence was clear that the bank was not at risk of being out of pocket as there was plenty of equity in the home to cover their debt.

Contact Us

If you have any questions regarding this article, taxation matters or family law settlements in general please do not hesitate to contact us.

Privacy is becoming an increasing risk for organisations, including those in the education sector. 

This article by Moores’ privacy expert Cecelia Irvine-So first appeared in the Belonging Early Years Journal.

In 2018, Australia saw the introduction of the Notifiable Data Breach (NDB) Scheme and the prevalence of data breaches became clear. In the Office of the Australian Information Commissioner’s (OAIC) second quarterly report of the NDB Scheme, a total of 242 breaches were reported from 1 April to 30 June 2018.

The education sector was listed as the fourth most likely sector to suffer a data breach in the OAIC second quarterly report. Early learning providers are bound by the National Ouality Standards (the Standards), as well as the Australian Privacy Principles (APPs). Data security falls under Standard 7, relating to governance and leadership.

Early learning providers also have data security obligations under privacy laws in order to prevent data breaches. This article will set out the basics of privacy and outline an organisation’s data security obligations with a focus on the ECEC sector.

What is privacy?

Privacy is a set of principles protecting the collection, use, disclosure, storage and destruction of personal information. An early learning provider is likely to hold children’s health information such as allergies, medical conditions, disabilities, and medications – a type of information that is particularly sensitive.

Both personal information and sensitive information must be carefully secured by early learning providers to prevent data breaches and protect an individual’s privacy.

Most early learning providers are bound by the Privacy Act and APPs because they have a turnover of $3 million or more (or are part of a larger organisation with a turnover of $3 million or more).

Early learning providers need to be across all the privacy principles in order to appropriately and securely store privacy data. Most importantly, early learning providers will need:

  • a privacy policy that not only complies with legislation, but that also realistically reflects operations
  • a data breach response plan to follow in the event of a privacy or data breach
  • practices, procedures and systems that will ensure compliance with the law.

Penalties of up to $1.8 million apply for companies that have a privacy breach.

Data breaches

Since February 2018, all companies who are required to comply with the Privacy Act must also prevent data breaches, and report any eligible data breaches that occur to the regulator.

The recent regulator’s report highlighted the main causes of data breaches. The majority of breaches were caused by malicious or criminal activity (59 per cent) or human error (36 per cent). The most common examples of malicious or criminal activity were:

  • cyber incidents, including phishing, malware, ransomware, brute-force attack, compromised or stolen credentials, and hacking
  • theft of paperwork or storage device
  • rogue employee/insider threat.

Human error was a key source of data breaches.

The most common errors were:

  • sending an email with personal information to the wrong person, or accidentally pressing ‘reply all’ or forgetting to Bcc
  • lost laptops, removable storage devices and paper records
  • employees accidentally accessing or disclosing personal information outside of the requirements of their employment.

How to respond to breaches

Only eligible data breaches need to be reported. Therefore, you need to be equipped to consider, in the event of a breach, whether the breach is ‘eligible’.

An eligible data breach arises when:

  • there is unauthorised access to, or disclosure of, personal information, or a loss of personal information, that an entity holds
  • this is likely to result in serious harm to one or more individuals
  • the entity has not been able to prevent the likely risk of serious harm with remedial action.1

Your data breach response plan should contain the following elements:

  • containment and assessment
  • evaluation
  • notification – if required, the affected individuals and the OAIC should be notified. Even if the data breach is not notifiable, the organisation may still need to notify other stakeholders such as its insurance company, board members, and/or service provider
  • review and prevention.

Record keeping

Record keeping is an important aspect of data security and privacy compliance. Privacy legislation requires the destruction of personal information that is no longer needed. Equally, you must retain information you are required to keep!

Conclusion

As privacy and data security become an increasing concern, it is important that organisations prioritise action in relation to both prevention and response.

Assess which scheme or legislation applies to your organisation.

Review your privacy policy to ensure that it is tailored to your needs and compliance requirements.

Create a data breach response plan to ensure swift action to mitigate risk, including:

  • legislative requirements to contact individuals affected
  • steps for potential remedial actions to prevent serious harm eventuating
  • when data breaches need to be reported and the process for reporting
  • creating templates for notifications and external communication.

Provide training to your staff on your privacy policy and data breach response plan as well as when data breaches need to be reported. Review your service provider agreements and other information ­sharing arrangements to help you understand the responsibilities and rights of each party.

Early learning providers are uniquely placed in holding the sensitive information of young children and families. While privacy can seem like a daunting topic, taking an active approach can allow early learning providers to set themselves apart as leaders in the sector and ensure protection of families’ data.

How we can help

As a privacy expert and practice leader in the Corporate Advisory Team at Moores, Cecelia Irvine-So has significant experience working with education and early childhood clients, helping them prevent data breaches and respond if they do occur. For more information, please do not hesitate to contact us.

The ATO’s benchmark rates for “market rent” have changed. Here’s why it matters.

The basic rule

Non-commercial supplies made by charities are GST-free.

For a housing agency, rent must be set below 75% of the market rent to be non-commercial and therefore GST-free. 

When a housing agency makes GST-free supplies, it can claim input tax credits for all the GST spent in making the supply. This allows a housing agency to claim back all the GST it spent on a new development, or purchase of new residential property. This is a significant economic advantage for NFP charitable housing agencies.

As an aside, that is also why a charitable housing agency should never purchase brand new residential property using the GST margin scheme.  The GST margin scheme prevents the purchaser from claiming any input tax credits.

Less than 75% of market rent

DHHS and the Victorian Housing Registrar have rent-setting policies. But the ATO threshold (less than 75% of market rent) matters too – if rents cross this threshold, GST input tax credits are put in jeopardy.

Obviously, market rent differs from property to property. This creates some difficult work in administering the many (sometimes thousands) of dwellings under management. You don’t have to obtain a sworn valuation in relation to each property, but you must have a sound basis for working out market rent in relation to each property.

The ATO requires ‘market value’ to be worked out by either:

  • using ATO market value benchmarks; or
  • applying the following successive tests:
    • The ‘same supply’ test – where there is another person in the market making the same supply, you can use that supply as a market value benchmark.  This would allow you to benchmark against identical dwellings.  However, identical dwellings are rare.
    • The ‘similar supply’ test – where there is no identical supply, you may benchmark against dwellings which are sufficiently similar.  For housing, this would look at similarities in size, quality, features, location and lease conditions.  Comparison should be against private rental, not other affordable rental property.
    • Other methodology – where no similar supply can be identified, charities can ask the ATO to approve an alternative methodology.  It would be surprising to find this approach in housing, since similar supplies are almost always available.

What is the catch with ATO benchmark rates?

ATO benchmark rates are convenient, but arbitrary. They are now divided into geographic areas, with different benchmark rates set for each area. Previously, benchmark rates were just set on a capital city basis.

Where a housing agency was relying on generous ‘Melbourne’ benchmark rates previously, some properties may now fall into other geographic categories with different (lower) benchmark rates. The benchmark rate may fall far enough to cause your current rental to exceed 75% of the benchmark rate for some properties.

What should I do?

If you rely on market values, you don’t need to do anything in response to the benchmark rates. However, you should be reviewing and re-setting your market values for properties on an annual basis.

If you rely on benchmark rates, you should:

  1. Review the new benchmark rates and re-categorise your properties into the relevant geographic areas.  Look for instances where your current rents exceed 75% of the new benchmark rates.
  2. Where you find anomalies, look to actual market rates (similar supply test) to verify whether you are charging in excess of 75% of the market rent.
  3. Make sure you’re not charging more than 75% of the market rent.

Contact us

Please contact us for more detailed and tailored help.

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ACNC data tells us that total charity assets sit around $200 billion.[1] Small charities (with annual turnover less than $250k) hold the majority of those assets – around $170 billion. However, those small charities represent only 1.4% of annual charity income.

It comes down to this – plenty of charities there who are asset rich and income poor. And insufficient reliable income is often a restraint on how much a charity can do in achieving its mission.

The community (and charity law) expects charities to use their assets to further their charitable purposes. The big questions for these asset-rich charities seem to be “are we doing enough?” And “how could we do more with what we have?” It is a high order governance question.

Plenty of charities are in the enviable position of having a large asset base in real estate. For those who are “land rich” in that sense, here are a few ideas to ponder as you ask yourself the question “how could we do more with what we have?”

  1. Consider selling lazy land.

    If lazy land is doing nothing for your mission and you have no foreseeable need to grow onto it, turn it into something useful. But before you do, consider whether you can add value to the land (lift covenants, obtain permits, create separate access, etc). Make the most of what you have.
     
  2. Consider leasing lazy land or underutilised spaces.

    Identify ways to permanently free up space and obtain an income stream. Car parks, office spaces, even vacant land can attract a rental. Hiring arrangements can also produce good outcomes – a ballet school can operate without owning buildings, and might even use the church hall more hours per week than the church itself! Think about whether there might be people or organisations who would be a great strategic fit in your spare space.
     
  3. Develop for sale.

    Some charities hate the thought of selling dirt to a developer, so want to develop their property prior to sale. You were cash poor, remember? Are you borrowing to pay for this? This is sometimes appropriate but requires serious consideration of skill, capacity, financial risk and project management. Don’t jump into property development simply because you have a board member who has some experience in the field.
     
  4. Develop for lease.

    A charity may want to improve its property and make it suitable for creating rental income. This may be appropriate, but beware the vortex of becoming a ‘property management charity’ over time. You should have a sound business case for this kind of venture and a clear exit plan if you ever need to regain that space for your own charitable use.
     
  5. Develop for joint use.

    Property can often be developed for blended use. If you’ve got spaces that will have regular short-term use, then you’re starting a business – have a business plan. If you’re developing for a specific partner and it’s needs, then your partner might put money towards the development, but will want something in return (long tenure, an agreed buy out if they leave early, equity in the property, etc).  Whatever you do, don’t go into a venture like this without knowing what it might look like when it ends. All lease arrangements come to an end at some point.
     
  6. Swap land for buildings.

    That’s right, it can be done.  It’s a variation on option 1 – exchange some spare land for new buildings which can better serve your purposes. These are bespoke arrangements and things can get really creative. This is not nirvana, but can save significant transaction costs and planning risks. Just don’t forget to measure the value of the land you’re giving up vs the value of the buildings you have been promised.
     
  7. Use the air space above you.

    The basic concept here is to partner with a developer to completely rebuild your site, giving back to you a brand new building far better than you had before. The developer keeps building above you and sells the rest of the building into the market (as apartments, office, etc). A profit share arrangement should be on the table in this discussion. The sky’s the limit – subject to council approval.
     
  8. Make your property for a different charitable use.

    Sometimes the cause should trump the financial returns. After all, charities are primarily about mission, not profit. Consider using the unoccupied manse for affordable housing. Give a 99 year ground lease to a charity and allow them to build on your site. Make some space available for crisis shelter during the winter. Stay open to the possibility of being a partner with another suitable charity.

If your Church or Charity would like to discuss a potential opportunity, please do not hesitate to contact us.

Masking racism as “banter” won’t cut it anymore says the Fair Work Commission | Moores

In this update, we look at whether racist comments in the workplace can constitute serious misconduct warranting dismissal.

Background

StarTrack Express Pty Limited (StarTrack), Australia’s largest parcel delivery service provider, successfully defended an unfair dismissal claim in the Fair Work Commission (FWC) because it was able to prove that the dismissal of an employee was not harsh, unjust or unreasonable.

StarTrack’s position

StarTrack submitted that it had found that, Mr Michael Taylor (employee of StarTrack for 17 years), had used the following racial slurs in the workplace:

  • “towel head”;
  • “coconuts”;
  • “gooks”;
  • “put the pallet over there you black c***”
  • “go back where you came from you black c***”
  • “fuck off to where you came from”; and
  • “row your canoe back home you fucking c***”.

After making the above finding, StarTrack provided an opportunity for Mr Taylor to respond, and then proceeded to terminate his employment on the grounds of serious misconduct.

In light of the findings around Mr Taylor’s conduct, and the process it undertook during the investigation, StarTrack submitted that the dismissal was not harsh, unjust or unreasonable.

In the alternative, the Transport Workers’ Union of Australia (TWU), on behalf of Mr Taylor, argued that Mr Taylor engaged in “well-meaning workplace banter which was not intended to offend but rather to entertain” and argued that no individual had actually complained about his comments. Furthermore, the TWU argued that the termination was excessive because casual swearing and racial slurs were common place in this workplace, and that this language was enjoyed by others.

FWC says the actions did not constitute an unfair dismissal

Ultimately, the FWC held that the dismissal was not unfair, harsh and unreasonable because:

  • “a line is crossed when race or ethnicity is included in any communication with co-workers”;
  • the argument that the comments were well-intentioned “does not provide a defence or justification for conduct that is fundamentally unacceptable”; and
  • the employee had “failed to comprehend or even remotely understand the fundamental malfeasance of his conduct”.

Furthermore, Commissioner Cambridge was very critical of the TWU’s arguments in favour of Mr Taylor. On this point, Commissioner Cambridge stated:

The attempt to defend or otherwise justify the applicant’s use of racially offensive language on the basis that the applicant didn’t believe that it was harmful, and that no one had complained, is an approach that has regrettable and disturbing parallels with the recent exposure of incidents of sexual harassment in the employment context, and which has created what is referred to as the “#MeToo movement.”

Such an attempted defence or justification of abhorrent behaviour is an approach that disregards the fundamental wrongdoing, and it fails to appreciate that the victims of the wrongdoing do not complain because they feel powerless to prevent the conduct.

Further to the above, Commissioner Cambridge referred to the email signature on TWU’s emails that contained a statement that “I swear never to commit, excuse or remain silent about violence against women”, and suggested that in the circumstances of this case “such a mantra should be expanded to include: “I swear never to excuse racism’”.

Accordingly Commissioner Cambridge found that the dismissal was not harsh, unjust or unreasonable, and dismissed the case.

Lessons for employers

Racism and bullying can have a significant and detrimental impact of people – personally and professionally. Left unaddressed, racism in the workplace can lead to absenteeism, staff turnover, a culture of bullying, and discrimination, bullying and worker’s compensation claims.

In light of the above, we recommend that employers:

  • review their Code of Conduct and Equal Opportunity policies to ensure that inappropriate language (including racial slurs) are specifically listed as being inappropriate in the workplace (and the consequences of breaching this);
  • train their employees on the above policies to ensure that they understand what is and isn’t appropriate workplace communication (and the consequences of breaching this); and
  • consider whether your board, committee or management should make a public statement to all employees, volunteers and contractors, stating that the organisation has a zero tolerance to racism and violence, and where survivors can find support.

These steps can help to create safe and inclusive environment for all staff, but will also help to ensure that you can respond swiftly and effectively when employees behave in an inappropriate and unlawful manner

How we can help

If you’d like further information about what you can do to create a safe and inclusive work environment or for assistance responding to a complaint of inappropriate behaviour, please do not hesitate to contact us.