The Aged Care Act 2024 (Cth) (Act) will commence on 1 November 2025, heralding a new era for aged care in Australia and adopting a rights-based focus recommended by the Royal Commission into Aged Care Quality and Safety (Royal Commission). This legislative overhaul aims to enhance transparency, accountability, and the overall quality and safety of care by empowering older people and those who advocate for them.
A key element of the new Act is strengthened whistleblower protections. These protections aim to create an environment where residents, families, staff, and others feel secure in raising concerns about potential breaches of the law. This is seen as crucial for driving accountability and improving care standards by ensuring issues are brought to light safely and addressed effectively.
This article examines the key whistleblower obligations for registered aged care providers under the Act, compares them with the existing Corporations Act 2001 (Cth) (Corporations Act) regime, and outlines essential steps for providers.
A qualifying disclosure arises when an individual (discloser) has reasonable grounds to suspect that information indicates a potential contravention of any provision of the Act by any entity. The disclosure, which can be anonymous, must be made to an eligible recipient. These include:
Disclosers receive significant protections, including immunity from civil, criminal, or administrative liability for making the disclosure, as well as protection against contractual remedies (like termination) being enforced because of the disclosure. This immunity does not cover the discloser’s own misconduct.
Strict confidentiality rules apply: Recipients must take reasonable steps to preserve anonymity if requested. Revealing the discloser’s identity or information likely to lead to it is a contravention unless specifically authorised (authorised disclosure may include disclosure to regulators or legal advisors, disclosure with consent, or disclosure to prevent serious threat). Disclosure of information (other than identity) is permitted if reasonably necessary for investigating the contravention, provided steps are taken to reduce identification risk.
Victimisation is prohibited: Causing detriment (e.g., dismissal, discrimination, harassment) or threatening detriment due to a disclosure attracts a significant civil penalty (500 penalty units or $165,000). Courts can issue remedies including injunctions, compensation, reinstatement and exemplary damages.
Registered provider obligations: Providers must ensure (as far as reasonably practicable) compliance with confidentiality and anti-victimisation rules for staff making disclosures. They must also take reasonable steps regarding staff who receive disclosures. Critically, providers must implement and maintain a compliant whistleblower system and policy as a condition of registration.
The Act creates a sector-specific regime. While sharing the fundamental aims of the Corporations Act’s whistleblower protections, there are key differences relevant to aged care providers:
The focus on contraventions of the Act, the tailored list of eligible recipients within the aged care ecosystem, and the explicit linking of a whistleblower policy to the conditions of registration for aged care providers are significant points of difference.
Given the mandatory nature of these requirements, providers should act now to prepare for the 1 July 2025 commencement:
Given the overlapping concepts between the Aged Care Act and Corporations Act regimes and the likelihood that many organisations will be covered by both, there is a real risk that confusion between the two regimes could result in a loss of protection for a whistleblower or cause organisations to inadvertently fail to comply with their obligations.
Accordingly, it is essential to ensure that:
The whistleblower protections under the Act are more than just a compliance exercise; they are fundamental to the legislative and Royal Commission’s intent of creating a safer, more transparent, and rights-focused aged care sector. By embedding these requirements into organisational culture and practice, providers can not only meet their regulatory obligations but can ensure that issues are brought to light and addressed safely, effectively and promptly.
Moores Charity and not-for-profit team can assist with a review of your whistleblower policies and processes, as well as internal training to ensure stakeholders understand their obligations.
Please contact us for more detailed and tailored help.
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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.
Privacy Awareness Week 2025 is an opportunity to reflect on emerging issues schools are facing with respect to AI use and its integration in the school environment. AI is becoming increasingly relied on in schools and its use for student learning and student assessment is expected to become commonplace.
Generative Artificial Intelligence (the AI in vogue at present) refers to computer- based learning models which include large language or multimodal learning models.
Since the inception of ChatGPT in 2022 there have been several pivots from governments to move to address and in some cases welcome the use of generative AI in different contexts. Schools deploying AI tools to drive efficiency and enhanced learning are already turning their minds to the risks that comes with adopting new technologies. This article explores some of the data privacy and security implications of using generative AI tools. To read about managing the overall risk of AI in schools please refer to our previous article here.
Generative AI is intelligent and has the capacity to learn from the information that is input; it becomes part of the training model, particularly in open-source AI tools. Some of the key risks schools face when using or seeking to deploy AI-powered tools include:
There is no argument that the AI landscape is changing rapidly and as more developments occur, the accessibility and ease of its use will only grow.
Whist AI can assist schools streamline their administrative processes and support student learning outcomes, when considering generative AI tools, schools must deploy and use these technologies consistent with existing privacy laws.
Developing an AI framework can also assist to set ground rules for how schools approach implementation of AI-powered applications. The framework should ensure visible of what AI is being used or intended to be used, the intended purpose of use and data that will be fed into the tool, and considering the capabilities of each tool, and the terms and conditions of the service providers. Once this is mapped, schools can then make informed decisions about what safeguards are required to integrate those tools into regular practice and school operations with a level of confidence.
In previous articles we have emphasised the importance of privacy-by-design in combatting systems changes and reducing the risk of data breaches or non-conformance with privacy laws. When considering generative AI, the principles of privacy by design should be applied.
Key recommendations
Our Education team is in demand for up-to-date, informative and practical staff Professional Development on privacy matters including AI. Our team can assist with reviewing and updating these policies to ensure your organisation continues to mitigate privacy and data security risks posed by new technologies. We can also provide tailored advice and support on your commercial arrangements with technology service providers and data privacy impact assessments.
I want to thank you for participating in our seminar. We are extremely appreciative of your significant contribution. Overall, the feedback received from the seminar has been excellent and we are pleased with the outcome. Thanks very much for your presentation this morning. Directors commented very favourably afterwards and your advice was very useful also. Great discussion, as well. Will see you at the next breakfast session. Thanks so much Cecelia, the presentation and discussion today was fantastic.
I want to thank you for participating in our seminar. We are extremely appreciative of your significant contribution. Overall, the feedback received from the seminar has been excellent and we are pleased with the outcome.
Thanks very much for your presentation this morning. Directors commented very favourably afterwards and your advice was very useful also. Great discussion, as well. Will see you at the next breakfast session.
Thanks so much Cecelia, the presentation and discussion today was fantastic.
Learn more about our Professional Development sessions.
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.
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.
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.