Suppose a parent calls your office and requests their child’s counselling records? Or a court order lands on your desk seeking access to counselling notes? Or perhaps, your school counsellor raises concerns about a student’s wellbeing and wants to discuss information shared in a counselling session? When can you disclose a student’s counselling records and when should you not? This is a question that is becoming increasingly problematic for schools. The answer lies in balancing the duty of care with confidentiality and privacy requirements. This article will set out your legal obligations and answer some common questions in this space.

Your legal obligations:

Schools owe a duty of care to their students and all children under common law and state-based legislation. The duty is generally to take reasonable care to protect students from harm which is reasonably foreseeable. Several states including New South Wales, Victoria, South Australia and Queensland have reversed this onus in relation to child abuse caused by an individual associated with the organisation.

To help facilitate student wellbeing, most schools have a counsellor, psychologist or pastoral care available to students. In these sessions, personal information will be collected by the school including medical information, relationship status, familial issues, disclosure of bullying or mental health concerns and other sensitive information. 

Schools are required to handle this information in accordance Privacy Act 1988 (Cth) (Privacy Act), the Australian Privacy Principles (APPs) and state-based legislation. For example, the information collected can only be used for the primary purpose (in this case being the provision of counselling services) unless a permissible secondary purpose exists. Permissible secondary purposes include those related to the primary purpose, where consent is provided, the disclosure is authorised under Australian law or a court order or a permitted health situation exists. The Australian Psychological Society takes the position that a psychologist is obliged to release information when “required by law”, which includes the law which imposes a duty of care on schools.

Key questions answered:

Do I need the student’s consent to disclose their counselling records to their parents?

It will depend on the age of the student. The Office of the Australian Information Commissioner (OAIC) recognises that a child’s capacity to consent to the handling of personal information needs to be determined on a case by case basis depending on the maturity and ability to sufficiently understand what is being proposed. As a general rule, schools can presume that students aged 15 and over have capacity to consent. While the Privacy Act doesn’t currently specify a specific age, predicted amendments may define a child as 15 or 18. For Victorian schools, the Victorian Privacy and Data Protection Act 2014 (Vic) defines a child as someone under 18 years of age, but does not specify the age when individuals can make their own privacy decisions.

Many secondary schools state in their policies or counselling intake or permission forms that all students from year 7 will be required to give consent for the release of their counselling records (unless an exception applies). We recommend that schools decide what their policy will be and embed this into their documents to ensure there is clarity amongst students and parents.

What if one parent is requesting the information but the other parent or student does not agree?

Schools can be caught in a tricky situation where parents disagree on the disclosure of counselling records, especially if the parents are separated or in the process of separating. First and foremost, if the student is able to consent, the school should seek the student’s consent. This rings true with other child safety obligations for the empowerment of children. If the student does not, or is unable to, consent, schools should seek consent from both parents before disclosing any records. This is particularly where the records contain sensitive information.  If the parents cannot agree on the disclosure, the school should request a court order before disclosing any records.

What about requests from third parties?

Schools should be careful about releasing counselling records or information to third parties without the proper consent from the student or their parents. Schools should always require any such request to be in writing. If the student or their parents do not consent, it may be that the school requires further advice on whether or not they are required to provide the records. Most states (Victoria, NSW, Queensland, South Australia) have introduced information sharing schemes, as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse, which permit the sharing of confidential information to organisations in limited circumstances for the purpose of safeguarding children. We explain the Victorian Child Information Sharing Scheme here. In the absence of an applicable information sharing scheme or court order permitting a disclosure to a third party, refer to APP 6.

What about requests from former students about their own records?

We have received queries from schools concerned about providing former students with their own counselling records, especially where the former student may be considering a historical child abuse claim or other claim against the school. APP 12 requires organisations give individuals access to their own information on request. While there are some exceptions to this, they are limited. One such exception is if the record includes personal information belonging to other individuals and the sharing of that information would have an unreasonable impact of those other individuals. If an exception applies, the school may have grounds to refuse or redact information. More information about handling information access requests is here.

The counsellor, psychologist, wellbeing officer or chaplain is concerned about a student – what should we do with this information?

Where a staff member is concerned about a student’s wellbeing, that staff member can share that information within the school with other limited and appropriate staff for the purpose of the student’s safety or the discharge of the duty of care. Always share information in accordance with your policies and procedures. While the privacy obligations under the Privacy Act apply to the school not the individual, internal sharing of the information should be on a need to know basis. At the same time, the school needs to ensure that it is fulfilling its duty of care. Where concern for a student’s wellbeing rises to the level of needing to make a report to an external organisation such as Child Protection, this should be done and is an exception to obligations under the Privacy Act (see below).

When do I have to provide counselling records?

There will be situations when the school is required to disclose the information held in counselling records. This includes:

• Court order – if a school receives a court order to provide the information, it must comply with the order. 
• Reporting requirements – there are extensive reporting requirements that apply to schools in relation to child abuse and concerns for a child’s safety and wellbeing.  These are set out in state based legislation.
• Health and safety concerns – where a school has genuine health and safety concerns for a student or another individual, information may need to be disclosed. An example would be where the information needs to be disclosed to lessen or prevent a serious threat to health, life or safety.  These are difficult situations and schools should seek legal advice if such a situation arises.
• Responding to the student’s own request to access their personal information – individuals have an access right under APP 12.

The above situations (amongst others) are exceptions under the Privacy Act and the disclosure of information without consent is permitted.

Recommendations and next steps:

Managing requests and disclosures of counselling records is a difficult topic and often requires decisions to be made in short timeframes. Where records are incorrectly disclosed, schools could find themselves at risk of various claims including breach of privacy (with increased significant maximum penalties) or negligence. To mitigate these risks, we recommend that schools:

1. Ensure they have the requisite policies and procedures – having clear policies on when counselling records will be released and the consent procedure will ensure there is no confusion between the school, students and parents. It will also be something the school can rely on when making its decisions and should be embedded into the parent code of conduct.
2. Train your school counsellor / chaplain – your staff should be trained on your policies and procedures, as well as how to manage counselling records in accordance with privacy law and your obligations.
3. Provide a collection notice – students who access your school’s counselling service should be made aware of the information that is being collected, how it will be used and stored and the situations where disclosure may happen. This is a requirement under privacy law.
4. Disclose carefully – once information is disclosed, it cannot be retrieved.  Schools should proceed carefully when disclosing information, particular sensitive counselling records. Where there is uncertainty, we recommend that schools seek further advice.

How we can help

At Moores we have a specialised team that supports the education sector on a variety of areas including privacy and data security. This makes us well placed to assist schools in the careful balance of duty of care with confidentiality and privacy requirements.

We are more than happy to guide you through the process of determining your obligations in disclosing a student’s counselling or pastoral care records.

Contact us

Please contact us for more detailed and tailored help.

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This article was originally published November 2019. Updated June 2024.

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.

Acting as an attorney can be complex, risky and a thankless job. Attorneys take on significant responsibility, and often don’t seek advice about their responsibilities when they sign-on to accept the role. Making impactful decisions on behalf of another person can be daunting and can give rise to personal liability if things go wrong or if there is a dispute among interested parties.

Back to basics

The person who appoints an attorney to act on their behalf via an Enduring Power of Attorney (‘EPA’) is known as ‘the principal’.

Before acting as a principal’s attorney, the EPA document should be carefully reviewed. It will identify who is appointed as attorney, set out the circumstances when they may act, and may impose conditions or limitations on the actions that can be taken.

Attorneys are regularly required to account for their conduct and the transactions they have entered on behalf of the principal. Accordingly, it is strongly recommended that attorneys obtain their own advice and ensure they keep detailed records and accounts of what they do in that capacity.

Can I act while my principal has capacity?

If the principal has decision-making capacity, an attorney cannot act on their behalf unless the EPA document expressly states that the appointment commences immediately.

Often appointments that commence immediately are done for reasons of convenience rather than necessity. But, even if a principal with decision-making capacity gives an attorney an express direction to perform a task or transaction on their behalf, an attorney is still bound to act in accordance with their legal responsibilities and duties enshrined in law.

It is important to remember that, whilst a principal may have capacity at the time, disputes often arise after the principal has lost capacity or passed away and they cannot then ‘vouch’ for the decisions made. There can also be disputes about when decision-making capacity was lost for relevant decisions and when the attorney assumed responsibilities under the document.

Acting when the principal has lost their decision-making capacity

An Enduring Power of Attorney will authorise the attorney/s to act when the principal no longer has decision-making capacity – that is the enduring nature of the power.

Decision-making capacity is a legal definition; it is decision specific and is a fluid construct. Detailed evidence of the loss of decision-making capacity should be obtained from appropriate medical practitioners and attorneys should seek legal advice when this occurs. It is important to clarify what decisions the principal has lost decision-making capacity to make and what decisions they can continue to make, either autonomously, or with support.

I have evidence that my principal has lost capacity and I am an attorney – am I the correct person to use the principal’s powers?

If the principal has appointed a single attorney, that attorney will usually be the proper person to act. Commonly, a principal will appoint multiple attorneys, who may be authorised to act jointly only, jointly and severally, and/or as alternative attorney/s where the primary attorney is unable or unwilling to act.

Joint attorneys must act together; meaning they must agree on each decision and all sign any relevant documents. If there are joint and several attorneys, any one of them may make a decision or sign a document. Where a person is appointed as an alternative attorney, they will only be authorised to act if the superiorly appointed attorneys are unable, unwilling, or no longer authorised to act.

Can I sell the family home?

Selling a family home may attract scrutiny and, even if done at the direction of the principal, should not be done without advice.

If there are no conditions or limitations in the EPA that affect the sale of the principal’s property, an attorney must then consider whether the sale accords with their responsibilities and duties as an attorney under the document and under the Powers of Attorney Act (Vic) 2014.

An attorney must:

• Give all practicable and appropriate support to the principal’s wishes.
• Encourage the principal to participate in decision-making, even if they lack decision—making capacity.
• Act in a way that promotes the principal’s personal and social wellbeing; inclusive of recognising their inherent dignity, their existing relationships and values, and respecting their confidential information.
• In some circumstances, have regard for the principal’s dependants and the terms of the principal’s Will.

Any attorney in this position should ask themselves (and other knowledgeable persons and advisors):

• What are the principal’s wishes?
• Will the sale promote the principal’s personal and social wellbeing (including financial wellbeing)?
• Do I have any personal interest in the sale that conflicts with my obligations as attorney?
• What other professional advice should I obtain (e.g. financial advice or tax advice)?
• Does anyone else have any potential legal and/or equitable interest in the property?
• Would selling the property alter the outcome of the principal’s Will?
• Is it necessary to sell the property to achieve the desired outcome for the principal, or are there any other solutions?
• How can I protect myself from claims ‘down the track’ arising out of my conduct as an attorney?

When considering whether to take any significant action, obtaining legal advice will always be prudent. Where there is doubt about what the right decision is, an attorney can also seek advice from the VCAT about what to do, which can protect them from liability if the decision is disputed.

How we can help

Our team at Moores have specialist knowledge in the areas of Powers of Attorney, guardianship and administration, and applications in the VCAT and the Supreme Court of Victoria, including in relation to issues of elder financial abuse. We would be pleased to discuss any proposed or concerning actions taken by any person in their capacity as an attorney.

Contact us

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.

Moores Practice Leader, Rebecca Lambert-Smith and Associate Yoni Ungar, sit down in a Moores Q&A to discuss the new reforms to the Australian government’s Deductible Gift Recipient (DGR) registers.

These new reforms will ease the administrative burdens for cultural, environmental, harm prevention and overseas aid charities, however most organisations will not benefit from these reforms until they make key changes to their governing documents. If your organisation may be able to take advantage of the flexibility these new reforms provide, we have detailed some of the key information you need to know.

Vacant Residential Land Tax (VRLT) has been a hot topic over the last 12 months, with a number of changes introduced to impose further land tax on vacant properties in Victoria. Our recent articles set out the history of these recent changes:

• Proposed Changes to Vacant Residential Land Tax
• Changes to the Vacant Residential Land Tax: How it will affect owners of holidays homes
• Moores Q & A | What are the changes to the Vacant Residential Land Tax in Victoria

On 14 May 2024, the State Taxation Amendment Bill 2024 was introduced in Victoria which proposed to address one of the current limitations of the VRLT legalisation – the land tax treatment of holiday homes owned in discretionary trusts or companies. The changes proposed have not yet been enacted.

The proposed changes purport to extend the exemption from VRLT for holiday homes held in a family trust (and some companies and unit trusts), but with some strict eligibility requirements. 

At present, the holiday home exemption will usually only apply to personally-owned properties – that is, where the registered proprietor is an individual. The exemption currently operates such that if the property is used by the ‘owner’ or their ‘relatives’ for a total of four weeks of the 2024 year, VRLT will not apply. As it stands, properties owned by trustees of discretionary trusts or companies (as the ‘owner’) cannot qualify for this exemption.

Proposed eligibility requirements

The proposed amendment will address this restriction for existing trust- or company-owned holiday homes, extending the exemption so that it is available in the following circumstances:

• The property has been continuously owned by the trustee of the trust or the company since 28 November 2023 (or was purchased under a contract of sale entered into prior to that date).
• No changes have been made to the specified beneficiaries of the trust (or in the case of a company, the shares owned by relatives) since 28 November 2023, save for adding or removing a person who is a relative of another specified beneficiary.
• A natural person specified beneficiary of the trust or their relative (or in the case of a company, a natural person shareholder with at least 50% of the issued shares) used and occupied the property as a holiday home for at least four weeks of the preceding year.
• That person used and occupied other land in Australia as their principal place of residence.
• The Commissioner of State Revenue is satisfied that the land was used and occupied as a holiday home (having regard to the location, distance between the holiday home and the principal place of residence of the user, and the nature and frequency of the use of the land.

New acquisitions & inherited holiday homes

Importantly, these changes do not include holiday homes acquired via discretionary trust structures or companies after 28 November 2023, and would also seem to exclude holiday homes being inherited via a testamentary trust structure under a deceased owner’s Will, where the owner died after 28 November 2023.

Work test exemption

The amendments also do not extend the alternative “work test” exemption to VRLT to trustees or companies. That means if the property is used by a person to stay there for work purposes, the property still needs to be held in the personal name of that individual in order to qualify for exemption.

Companies and unit trusts

In cases where holiday homes are owned via companies or unit trust structures, at least 50% of the shares or units in such structures will need to be held by natural persons who hold a principal place of residence elsewhere in Victoria or the other Australian states. This requirement is going to be restrictive, as it is typical for shares in companies and units in unit trusts to be held via alternative structures, such as discretionary trusts.  

Are the headlines too good to be true?

While the proposed changes to this law go some way to provide comfort to those who already own their homes via family trust or company structures, these anticipated provisions seek to ‘grandfather’ the changes only to existing ownership structures, and do not extend to acquisitions since 28 November 2023 or beyond (including for inherited holiday homes via testamentary trusts). 

How we can help

The technical and strict eligibility requirements for the holiday home VRLT exemption require careful consideration of the use of the relevant property and the terms of the relevant trust deed to verify whether the proposed exemption can apply.

Our Wills, Estate Planning and Structuring Team and our Residential Property Team are across the complex issues raised by the ever-changing VRLT, land tax and structuring areas and would be glad to help you or your clients to navigate the new and proposed rules. 

Contact us

Please contact us for more detailed and tailored help

Subscribe to our email updates and receive our articles directly in your inbox.

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.

Diener v Rooty Hill and District Racing Pigeon Club Inc

Most charities and not-for-profits are required to maintain a register of members. However, over time, some organisations lose track of who their members are and fail to maintain a member register. Others fail to follow the process prescribed by their rules when adding and removing members. The recent decision in Diener v Rooty Hill and District Racing Pigeon Club Inc¹(Diener) serves as a timely reminder to ensure that your register of members is accurate and members are properly added and removed.

Obligation to maintain a register of members

Companies are required to maintain a register of members.² A company’s register of members must include the following information:

• the name, address and date of entry on the register for each current member;³ and
• the name, address and date of ceasing to be a member for each individual that ceased to be a member within the last seven years.⁴

Similarly, most incorporated associations are required to maintain a register of members in accordance with the state or territory legislation under which they are incorporated.⁵ For example, in Victoria, an incorporated association’s register of members must include the following information:

• the name, membership class, address and date of entry on the register for each current member;⁶ and
• the name and date of ceasing to be a member for each former member.⁷

The model rules in many jurisdictions and most organisations’ governing documents (such as their constitution or rules) also typically provide for the obligation to maintain a register of members, including by adding and removing details as and when people become or cease to be members.

Benefits of maintaining a register of members

Maintaining a register of members is essential not only for compliance with an organisation’s statutory obligations and governing document, but for identifying who an organisation’s members are at any given time. This can assist an organisation to determine:

• who must be given notice of general meetings (and how they can be contacted);
• who can attend and participate in general meetings (including by voting), making key decisions for the organisation;
• who is liable to any membership fees imposed by the organisation;
• who is liable to contribute towards the payment of any debts and liabilities of the organisation; and
• who can enforce the organisation’s governing document against it.⁸

Failing to maintain a register of members may be in breach of an organisation’s statutory obligations and governing document. It may also undermine the legitimacy of decisions made in general meeting, including the election of the governing body and changes to the governing document. If this is not resolved, the organisation may become mired in a protracted dispute concerning membership, which can be highly disruptive and lead to costly court proceedings (as was the case in Diener).

Diener

In Diener, 17 purported members of the Rooty Hill and District Racing Pigeon Club Inc (Association) commenced proceedings against the Association in the Supreme Court of New South Wales, claiming that they were members and entitled to be given notice of general meetings (among other matters). The purported members sought to challenge decisions made in two separate meetings in 2017 at which the Association elected a new committee and approved a new constitution.

The Association adopted the model rules prescribed for New South Wales associations upon incorporation on 25 February 1991. However, in practice the Association did not comply with the model rules but operated informally according to unwritten rules as understood by its members. Additionally, the Association did not maintain a register of members. Instead, the Association informally recognised “members” as those who attended annual general meetings over time, participated in the Association’s pigeon racing activities and paid annual membership fees.

Most of the purported members were informally “members” of the Association at some point in time, but had long since stopped participating in the Association’s affairs. They never formally applied for (or were admitted to) membership in accordance with the model rules. They also never formally resigned from membership in accordance with the model rules. Relevantly, to resign under rule 6 of the model rules, a member was required to pay any outstanding membership fees to the Association and notify the secretary of their intention to resign.

The Court’s decision

The main issue considered by the Court was whether the purported members had “resigned” from membership by conduct even though they had not paid any outstanding membership fees or given written notice of their intention to resign. In considering this issue, the Court observed that:

• generally, a member can unilaterally resign, if there are no adverse consequences for the Association;
• if there is a condition for the Association’s benefit (such as payment of outstanding fees), members cannot unilaterally resign unless they comply with that condition;
• compliance with a condition for the Association’s benefit can be waived by the Association, in which case a member may resign in other ways;
• members may resign by conduct, in addition to by words;
• “conduct” may include lack of involvement, failure to participate in affairs and/or voluntary disregard of the obligations of membership over a continuous period of years; and
• mere inactivity for a period that is not consequential is different to conduct that manifests an intention to no longer be a member.

The Court found that all but two of the purported members had resigned from membership, due to their lack of participation in the Association’s affairs for a prolonged period of time. Accordingly, they were not recognised as members of the Association and thereby not entitled to be given notice of meetings of the Association. The Court also said in obiter that, even if the purported members had been properly admitted to membership (which it was not required to determine), it would not have exercised its discretionary power to correct the register to reinstate their membership due to their long delay and failure to clearly explain the reason for seeking reinstatement.

The Court’s decision decision confirms that there are circumstances in which an organisation may be entitled to remove individuals from its member register even if those individuals have not formally resigned. It also highlights the importance of compliance with processes under a governing document for the admission and removal of members and maintaining an accurate member register. This will ensure that an organisation has certainty regarding the identity of members, who are responsible for making key decisions (including, for most organisations, electing board or committee members, amending governing documents and winding up). As Justice Robb concluded, “if anything is established by these proceedings it is that it is fundamentally in the interests of [organisations and their] members to ensure that records are properly kept so that the membership [can] clearly be established from time to time”.

Further reading

The decision in Diener is available on the NSW Caselaw website.

The Australian Centre for Philanthropy and Nonprofit Studies (ACPNS) has published a Case Note on the decision in Diener.

How we can help

Our For Purpose team helps charities from the ground up, from establishing a legal entity to applying for charity registration with the ACNC. If you have any issues concerning your organisation’s membership (including reinstating a compliant register following a period of operating outside your organisations governing document), our team can assist you to navigate them swiftly and compliantly.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.

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¹ [2024] NSWSC 27.

²Corporations Act 2001 (Cth) s 168(1)(a).

³Corporations Act 2001 (Cth) s 169(1).

⁴Corporations Act 2001 (Cth) s 169(7).

⁵Associations Incorporation Act 1991 (ACT) s 67; Associations Act 2003 (NT) s 34; Associations Incorporation Reform Act 2012 (Vic) s 56; Associations Incorporation Act 2015 (WA) s 53. In New South Wales and South Australia, an association’s governing document must address its register of members: Associations Incorporation Act 2009 (NSW) sch 1 cl 2; Associations Incorporation Act 1985 (SA) s 23A(1)(c)(i). In Queensland and Tasmania, each jurisdiction’s model rules include a framework for setting up and maintaining a register of members.

⁶Associations Incorporation Reform Act 2012 (Vic) s 56(2).

⁷Associations Incorporation Reform Act 2012 (Vic) ss 56(3)-(4).

⁸In most jurisdictions, an incorporated organisation’s governing document has effect as a contract between the organisation and each of its members: Corporations Act 2001 (Cth) s 140(1); Associations Incorporation Act 2009 (NSW) s 26(1); Associations Incorporation Act 1981 (Qld) s 71(1); Associations Incorporation Act 1985 (SA) s 23(1); Associations Incorporation Reform Act 2012 (Vic) s 46; Associations Incorporation Act 2015 (WA) s 21.

Under work health and safety (WHS) laws, employers must eliminate or reduce psychological hazards or psychological harm.

This is particularly relevant for schools because there are many unique features of school environments which present psychosocial hazards. For example, safeguarding obligations, which have increased dramatically in the last decade, create an increased risk that staff will be exposed to child abuse and experience vicarious trauma. In this article we address how schools can ensure they are taking due care of staff to meet workplace health and safety obligations when the school environment and legal obligations require staff to regularly engage with difficult topics such as child abuse.

Workplace health and safety regulators are increasingly turning their attention to how employers are managing psychosocial health in the workplace.

Two recent cases concerning psychosocial health have attracted significant attention and demonstrate the increasing importance of this topic. In Kozarov v Victoria, the High Court of Australia found the employer had breached its duty to take reasonable steps to mitigate the risk of psychiatric injury inherent to Ms Kozarov’s position. Ms Kozarov was a prosecutions lawyer working on cases involving sexual offences. The High Court accepted there are some roles where the nature of the work performed is inherently and obviously dangerous to the psychiatric health of the person holding the role, such as Ms Kozarov’s. The High Court clarified that in these cases, an employer must proactively take steps to reduce the risk of psychological injury. In October 2023, Court Services Victoria (CSV) was fined $379,157 after it admitted it had failed to conduct any adequate process to identify risks and undertake an adequate risk assessment of the risks to the psychological health of employees. During the period December 2015 to September 2018, workers had been at risk from a number of hazards including high workloads and work demands, poor relationships in the workplace, inappropriate behaviour and exposure to traumatic materials.

Proactively considering and addressing psychosocial hazards will stand schools in good stead, and therefore the Kozarov and CSV decisions should not be viewed with alarm. In Bersee v State of Victoria, a secondary school was found not to have breached its duty of care to a teacher because it took appropriate steps to address the risk of harm. As with any duty to students or staff, the law requires schools to take reasonable steps, not all steps sought or every possible step.

With new regulations expected soon in Victoria, now is the time to act.

What are psychosocial hazards?

Psychosocial hazards may cause psychological and physical harm. Broadly, they can arise from or in relation to:

1. job characteristics, including the work environment, equipment, and job design and management; and
2. harmful behaviours, including bullying, violence and aggression, harassment (including sexual harassment and/or gender-based harassment) and conflict or poor relationships and interactions.

Psychosocial hazards are hazards that arise from workplace interactions, behaviours or culture that cause a stress response. When the hazard is frequent, prolonged and/or severe this can result in psychological and/or physical harm. Particularly relevant examples for schools are:

• repeated exposure to traumatic events or material through staff requirements related to mandatory reporting and other safeguarding regimes;
• being the subject or a participant in a safeguarding investigation;
• exposure to challenging interactions with parents (from which safety orders may be implemented); and
• dealing with difficult student behaviour where staff safety may be at risk.

Understanding the stressors for school staff is important to be able to address those which might amount to psychological hazards. The Australian Principal Occupational Health, Safety and Wellbeing Survey 2022 reports that the top two stressors for school leaders are:

1. quantity of work; and
2. lack of time to focus on teaching and learning.

In 2022, the highest percentage of school leaders reported being subject to physical violence (44%) since the survey began in 2011. This is 11.3 times more prevalent than the general population. Over 40% of that violence was by students. The full survey report is here.

What are the obligations on employers?

Employer obligations regarding psychosocial hazards vary across states and territories in Australia. We set out the general legislative landscape for WHS in our article about Directors’ Duties. In summary, all jurisdictions except Victoria have enacted workplace health and safety legislation that mirrors the provisions of the Work Health and Safety Act 2011 (Cth). Most jurisdictions in Australia have implemented state-based regulations requiring employers to identify and manage psychosocial hazards.

Identifying a psychosocial hazard means turning your mind to parts of your employees’ roles which could cause psychological harm, such as continued exposure to child abuse by virtue of mandatory reporting obligations or dealing with violence and aggression towards staff by students and/or parents.

Safe Work Australia recommends the following four-stage approach to manage psychosocial risks:

At each stage of the process, employers must consult with workers who are, or likely to be, directly affected by a work health and safety matter, and any workplace Health and Safety Representatives.

To determine control measures for psychosocial hazards related to psychosocial hazards, consider:

• the duration, frequency and severity of exposure to hazards (for example, child abuse, work related violence);
• how psychosocial hazards may interact or combine (i.e., exposure to child abuse, and other work pressures); and 
• the systems of work, including how work is managed, organised and supported (i.e., reporting processes and interaction with EAP);
• workplace interactions or behaviours; and
• the information, training, instruction and supervision provided to workers.

It is important schools turn their attention to if and how they are meeting their obligations relating to psychosocial hazards. Regulators are placing an increasing focus on enforcing employers’ legal obligations and responding to reports about potential non-compliance.

The unique Victorian position

In Victoria, the principal legislation governing workplace health and safety is the Occupational Health and Safety Act 2004 (Vic) (OH&S Act). There are no specific psychosocial safety regulations in place. However, the definition of ‘health’ in the OH&S Act includes ‘psychological health’ meaning Victorian employers are still required to identify and manage psychosocial hazards.

Victoria has proposed the Occupational Health and Safety Amendment (Psychological Health) Regulations. If passed, those Regulations will require employers to identify and eliminate psychosocial risks and, where that is not practicable, reduce the risk so far as is reasonably practicable. In a diversion from the national status quo, the proposed Victorian reforms will introduce a reporting requirement: employers with more than 50 employees would be required to provide to WorkSafe Victoria half yearly reports on ‘reportable psychosocial complaints including bullying and sexual harassment’.

What employers can do

Employers must take reasonable steps to manage psychosocial health risks inherent to an employee’s job, regardless of whether an employee has shown warning signs of mental illness. We recommend employers:

• have a framework in place to identify and assess psychosocial risks, implement control measures and systems to assess those control measures;
• consult with employees who are, or who are likely to be directly affected by a work health and safety matter, as well as any Health and Safety Representatives;
• have policies and procedures dealing with inappropriate workplace behaviours in place;
• establish clear channels for employees to report psychosocial hazards, and assess the effectiveness of those channels regularly;
• pay attention to the data they may be receiving about psychosocial hazards, such as complaints and grievances, and consider whether their framework for dealing with hazards needs to be updated; and
• provide training to all staff in workplace psychosocial hazards and policies and procedures.

How we can help

With technical and practical knowledge of workplace, safeguarding and education law, Moores has a unique strength to be able to bring together these legal topics to provide tailored legal advice about setting up frameworks to identify, assess and control psychosocial risks tailored to the school environment. We can also assess your current frameworks against best practice and to ensure compliance. Our child safeguarding experience means we have a deep understanding of the psychosocial hazards staff working in schools can experience. With cross-industry professionals we can support you to best support your staff, meet regulatory requirements and create a health culture of safety in your workplace for staff as well as students.

Contact us

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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.

The Family Law Act 1975 has recently been amended with effect from 6 May 2024.

The amendments place additional emphasis on safety as well as simplifying and converting to “plain English” the framework in which the court allocates parental responsibility and determines what is in a child’s best interests.

This article discusses what the key amendments mean for schools, focusing on the amendments to parental responsibility and the assessment of the “best interests” of the child.

*Whilst this article refers to “parents” for sake of simplicity, it is noted that by court order a non-parent (including grandparents and other non-parent carers) can be allocated parental responsibility and/or an order made in their favour for a child to live with, spend time with, or communicate with them.  

Background

Schools regularly have to navigate complex and separated family arrangements. This can involve the school needing to interpret court orders, parenting plans and letters from the parents’ lawyers.

Not infrequently, the court orders are ambiguous and the school may be confronted with parents arguing about what the orders mean.

All too often, each parent adopts a self-interested interpretation, and, in the absence of a further court ruling, the school is often left in the invidious position of having to make sense of the orders in the context of its legal duties to the student, its contractual arrangements with the parents, and its responsibilities under education regulations. At Moores we regularly advise schools navigating such issues.  

The changes to the law resulting from the recent amendments are significant, and we expect that schools will be impacted by matters such as changes in terminology in orders, changes to the content of new orders, and parents misunderstanding the effect of the new laws.

Importantly, at the outset we note that existing court orders will not be affected by the amendments. The amendments will only apply to orders made in cases (including Application for Consent Orders) that are determined by the Court on or after 6 May 2024.  

Parental responsibility

Before diving into the key amendments, we will take a moment to provide a refresher on the concept of parental responsibility.

Parental responsibility primarily relates to long-term decision making. It is a separate concept to where the child lives, who the child spends time with, and who the child communicates with.

For example, court orders can provide for a child to live in a shared care arrangement but with one parent having sole parental responsibility. Conversely, the orders can provide for the child to spend limited time with one parent yet still provide for equal shared parental responsibility.

Specifically, parental responsibility is concerned with the making of decisions about “major long-term issues”, which is defined in the Act as meaning:

“…issues about the care, welfare and development of the child of a long – term nature and includes (but is not limited to) issues of that nature about:

(a) the child’s education (both current and future); and

(b) the child’s religious and cultural upbringing; and

(c)  the child’s health; and

(d)  the child’s name; and

(e)  changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

Examples of major long-term decisions that are relevant to schools include:

• the student moving schools;
• their participation in non-compulsory religious ceremonies or religious studies;
• decisions around the student’s medication and healthcare, and the student’s name (both formally recorded and how the child is known informally); and
• the student joining an interstate or overseas trip (please note however that specific legislation also applies to international travel).

Examples of non-major long-term decisions (for simplicity, we will refer to these as “day-to-day decisions”, although that terminology is not used in the Act) include:

• consent for local excursions;
• starting music lessons;
• what the child wears on free dress days; and
• ordering from the canteen.

However, the line is not always clear-cut. For example, consider a student ordering food from the canteen, which is ordinarily a day-to-day decision. However, it is not difficult to imagine major long-term issues arising, for example, if the student suffered from allergies, or had received medical advice to adhere to a certain diet due to serious health issues, or if the student’s religion mandated certain dietary requirements.

Types of parental responsibility

If there is no court order in place allocating parental responsibility, the Act provides that by default each parent has parental responsibility for their child, and this can be exercised either jointly (together) or severally (individually). This has not been changed by the removal of the “presumption” of equal shared parental responsibility (explained further below) which only affects cases where a court is making parenting orders. 

The family law courts have power to make orders allocating parental responsibility. Most commonly, this will be dealt with in the first order in a suite of parental orders.

Broadly speaking, there are three main ways parental responsibility can be allocated by court orders:

1. Equal shared parental responsibility

In line with the wording of the new amendments, we expect this will likely be referred to as “joint decision-making” in orders made after 6 May 2024**.

Parents who have equal shared parental responsibility are required to consult each other about decisions relating to major long-term issues (see further above) and make a genuine effort to come to a joint decision about such issues.

There is no obligation to consult for day-to-day decisions.

Importantly, the obligation to consult is an obligation between the parents, and any failure by a parent comply with that obligation does not make their unilateral instructions ineffective or unauthorised. This is confirmed by section 61DAA(2), which states:   

“To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.”

Notwithstanding that, when parents are separated and have equal shared parental responsibility, it may still be prudent for schools to endeavour to obtain joint instructions from parents about major long-term issues, depending on the circumstances. Issues also arise when parents who both have parental responsibility give conflicting instructions.

Increasingly, schools are needing to take a more nuanced approach to such issues, particularly where there is also a Family Violence Intervention Order (FVIO) or other form of state-based protection order in place. Whilst it is beyond the scope of this article to discuss such cases, we note that there is a complex interaction between FVIOs and family law orders, and which order prevails requires a case-specific analysis. In addition, the school has an independent duty of care to it students and staff – and a duty to protect health and safety so far as is reasonably practicable under OHS laws – which also need to be taken into account in addition to considering what is provided for by the orders.

This can and does mean that schools need to exercise an independent assessment of risk and make a decision. Seeking to ignore court orders, or taking no action, may not be sufficient to discharge the duty. And taking no action because there are no court orders may also be insufficient, as the exercise of the duty of care requires independent judgment. It is also not acceptable to expect parents in the context of family violence to “sort it out”, particularly as encouraging contact might be a breach of the order and could endanger family members.

2. Sole parental responsibility

In line with the wording of the new amendments, we expect will likely be referred to as “sole decision-making” in orders made after 6 May 2024**.

When the court orders allocate sole parental responsibility to one parent, it has the effect of making that parent solely responsible for making major long-term decisions. The other parent is however still able to make day-to-day decisions for the child whilst in their care.

Some orders specify that a parent with sole parental responsibility must still inform the other parent of their decision. This is an obligation between the parents and does not create an obligation on schools to inform the other parent of the relevant decision.

3. Hybrid parental responsibility

A hybrid order allocates sole parental responsibility to one parent in relation to defined matters, with all other matters being subject to equal shared parental responsibility.

**Pending any emerging case law, we presume that the difference between the terminology “decision-making” and “parental responsibility” is largely semantic and in line with the policy of the new amendments to adopt a plain English approach, particular in court orders. The concept of “parental responsibility” still remains in the Act as amended, however we expect to see the terminology “decision-making” used more commonly in court orders.

Removal of the presumption of equal shared parental responsibility

Perhaps the most important change brought in by the new amendments is the removal of the presumption of equal shared parental responsibility. 

The presumption meant that when making a decision about parental responsibility, the court’s default position was to order equal shared parental responsibility unless a specified reason applied. Whilst family violence, child abuse, and the best interests of the child were all reasons by which the court could not apply the presumption, in practice sole parental responsibility was the exception rather than the rule. 

The new law now means that the court will make a decision about parental responsibility based on the child’s best interests alone, with no “default” position. We expect that this will have two main consequences:

1. More contested cases in which the court allocates sole parental responsibility or makes a hybrid order – although we are awaiting emerging case law on the topic;
2. More cases where parents who apply for Consent Parenting Orders (whether arising from out-of-court negotiations or in resolution of court proceedings) agree to sole parental responsibility or hybrid orders; and
3. Overall, an increase in the proportion of cases where hybrid orders are made, including cases where “education” is specified as a matter about which one parents exercises sole decision-making. This could be a boon to schools currently facing conflicting parent decisions!

Again, we note that in a situation where there are no court orders in place in relation to parental responsibility, the law remains the same that both parents have parental responsibility, which can be exercised by them either jointly or individually.

Changes to consideration of time arrangements

As part of the amendments, sections of the Act have been also repealed that provided that when the Court made orders for equal shared parental responsibility, that it had to consider whether an order for “equal time” or “substantial and significant time” was in the child’s best interests and reasonably practicable.

These provisions had been misunderstood by many members of the community as creating a right for parents to spend equal time with their children, which was never the intention.

It is now abundantly clear that parenting arrangements are determined by a court having regards to the “best interests” of the child as the most important consideration, and that there are not any other starting points or presumptions.

We expect that this will have the consequence that there is likely to be a greater diversity in the content of the orders made after 6 May 2024.

In particular, for the past nearly two decades, a very common type of arrangement outside of shared care arrangements was for the non-residential parent (more commonly, though not always, the father) to spend time with the child on alternate weekends with perhaps another night in the off-week, along with half of school holidays and special occasions. This reflected the concept of “substantial and significant time” in the Act.

This concept sometimes worked in favour of the “spend time” parent, for example there was often a good argument that “substantial and significant time” was the “baseline” when parents lived in proximity and there were no significant risk issues. At the same time, in many cases, the “spend time” parents found it difficult to negotiate more time once the residential parent offered the bare minimum that met the definition of “substantial and significant time”. 

However, with the concept and terminology of “substantial and significant time” now completely removed from the Act, this dynamic is likely to change.  

In contested proceedings, the court is required to tailor the arrangements for the children in a “bespoke” fashion, having regards to their best interests without any pre-conceived notions about what that may look like. Likewise, in negotiated matters, parents can no longer use “substantial and significant time” as a legislative “baseline”. Hopefully, this will lead to parents taking a more child-focused and case-specific approach to considering what arrangements are appropriate rather than with reference to arbitrary standards.

Schools can expect to see orders in the future taking a more nuanced and less “boilerplate” approach to parenting arrangements. 

Best interests

Another key change brought in by the new amendments is the simplification of how the court assesses what is in the best interest of a child.

The previous law set out in section 60CC contained two “primary” considerations and 14 “additional” considerations (many containing sub-provisions) that had to be taken into account by the court. These provisions, some of which substantially overlapped, were often criticised as being cumbersome and inconvenient to address in submissions and judgments.     

The amendments have simplified the section 60CC considerations to six matters, as follows:

• what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
  • the child; and
  • each person who has care of the child (whether or not a person has parental responsibility for the child);
• any views expressed by the child;
• the developmental, psychological, emotional and cultural needs of the child;
• the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
• the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
• anything else that is relevant to the particular circumstances of the child.

It is beyond the scope of this article to dive into what the considerations that were removed and whether this rewording has a substantive impact with an added focus on safety, or whether the new section is better thought of as simplifying and consolidating the previous considerations. We are aware of family lawyers with views both ways and will need to await emerging information to clarify the issue.

We do note however that “safety” is the key theme of the new amendments, and we expect to see orders following 6 May 2024, particularly those made in contested proceedings, paying even more attention to this aspect.  

What the amendments are not

There are many people online and on social media making a variety of claims about the effect of the amendments.

In closing, here is a list of four claims about the amendments that are NOT correct:

1. “The other parent cannot make decisions about the child, because there is no longer a presumption of equal shared parental responsibility”.

The removal of the presumption is a matter only effecting the process by which the court makes a determination about parental responsibility in cases before it on or after 6 May 2024. As discussed above, when no court orders are in place, each parent still has parental responsibility by law and this can only be altered by a family law court order (and/or restrained by the effect of a Family Violence Intervention Order). When family law court orders are in place, the orders will almost always set out how parental responsibility is allocated.

2. “My orders are invalid because they were based on the old law”.

The amendments will not disrupt any existing orders. They will only effect cases (including Application for Consent Orders) determined by the court on or after 6 May 2024.

3. “This is the end of shared care”.

There was never any presumption of shared care in the law and it was not even the starting point. However, shared care is no longer a mandatory consideration if the court orders equal shared parental responsibility. Instead, the court is simply required to consider what arrangements are in the best interests of the child, which may or may not be shared care, depending on the circumstances of the case.  

4. “This is about removing fathers from their children’s lives.”

On balance, we consider that the emphasis on safety in the new amendments and removal of the concept of “substantial and significant time” may result in some cases where the non-residential parent’s time is limited further than would have been under the previous law. However, the “best interests” of the child remains the test for what is appropriate, with gender not being a relevant consideration in the court’s assessment. We expect that cases where “no time”, “supervised time”, or very restricted time arrangements are ordered will remain where the child is assessed as being at an unacceptable risk in the care of the relevant parent. 

How we can help

Get in touch with the Education Team at Moores if you would like support with interpreting court orders or navigating complex parenting arrangements for your school.

You may also like to consider whether any upcoming staff PD days should contain a refresher and update on family law as it applies to schools.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.

Exclusionary discipline is under the spotlight as being too punitive an intervention, particularly for certain student cohorts. As well as exclusionary discipline being criticised by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royalty Commission), significant changes are occurring in Queensland.

In March 2024, parents and students in Queensland have recently ‘won’ the right to be able to successfully appeal against suspensions and have be reinstated to attend school, as the Queensland government is moved to introduce an appeal right for suspensions in public schools. The Bill to amend the Education (General Provisions) Act 2006 aims to:

• improve the suspension and disciplinary process;
• create supports to First Nations students, students with disability and prep students and their families; and
• provide all parents and students with appeal rights for short-term suspensions.

Behaviour management frameworks are critical

School behaviour management frameworks are critical to how Schools prevent and respond to behaviours of concern without inadvertently creating other breaches, issues or liabilities. Our recent work with clients underscores the ongoing fraught tension which Schools are grappling with. For example, often we are called to assist clients with student discipline matters, only to find behaviour management frameworks are inadequate. Sometimes the behaviour management frameworks have been updated but not implemented through fatal flaws in the process.

Many Schools continue to be challenged by balancing behaviour concerns that can put the school community at risk and ensuring its disciplinary process does not expose it to discriminatory practices or fall short of its duty of care obligation to students.

In this article, we explore the trends and tensions in a dynamic landscape and how Schools should be prepared to respond to the challenges of rethinking exclusionary disciplinary practices. 

Definition: Exclusionary discipline refers to the actions by an educational authority or institution that result in students’ withdrawal of education or training, including suspensions and expulsion.

The problem in context

The Organisation for Economic Co-operation and Development (OECD) has revealed that Australian “learning environments are comparatively less favourable in terms of disciplinary climate, intimidation or bullying, and student truancy” than other OECD countries.¹ We also now know that extended social disruption such as the Melbourne lockdowns sowed the seeds for ongoing challenges schools are experiencing in today’s learning environment.

Research into the impacts of exclusionary discipline conducted by the Centre for Inclusive Education and the Queensland University of Technology advocates that exclusionary discipline “should only ever be used as a last resort” because it is:

• an ineffective and contributing factor to a range of immediate and longer-term impacts, and
• disproportionality used on vulnerable student groups.²

The Disability Royalty Commission also made findings that schools inappropriately use exclusionary discipline against students with disabilities, recommending a review of all regulations and other instruments regulating exclusionary discipline.³ We explore this in more detail in our article: ‘What schools should know about the recommendations of the Disability Royal Commission’, which lists a range of mechanisms schools can adopt without waiting for regulatory intervention in their state.

Trends in regulation

Queensland is the latest to introduce legislation that essentially provides for greater checks and balances on school practices and requires the use of supportive interventions. The Education (General Provisions) and Other Legislation Amendment Bill 2024 (Bill) introduces an appeal right for suspensions that are:

• for a period of more than 10 school days;
• based on a charge-related ground; or
• in circumstances where the student has received one or more previous short suspensions where the total suspended period is at least 11 school days in the school year.

The Bill also formalises requirements for schools to implement student support plans for students that have been suspended or are at risk of being excluded. These student support plans must include:

1. the behaviour that resulted in the student being suspended, or could result in the student being excluded, including a summary of relevant incidents;
2. the needs of the student, and other circumstances, that may be contributing to the student’s behaviour; and
3. strategies and support designed to:
   • improve the behaviour mentioned in paragraph (a); and
   • protect the safety and wellbeing of members of the school community. 

The Queensland Government is taking submissions regarding these proposed amendments until 25 March 2024. More information about the consultation process is here.

What about human rights, such as the right to education?

Assessing the use of exclusionary discipline through a human rights lens raises the bar on what appropriate use looks like. There is increasingly greater willingness, through research and the Disability Royal Commission, to point to human rights concerns related to the practice of exclusionary discipline.

Schools are often faced with needing to balance multiple obligations, such as ensuring exclusionary discipline is not unlawful or discriminatory, with obligations to address health and safety risks in the school community. We are noticing a trend whereby this balancing exercise alone may soon no longer be enough to justify exclusionary discipline as a type of behaviour management response. In fact, it is possible that exclusionary discipline as a type of behaviour management response may become discriminatory: the Disability Royal Commission proposed the exemption to unlawful discrimination (i.e., the allowance for lawful discrimination) on the grounds of health and safety under equal opportunity law in Victoria be repealed.

In an evolving landscape of policy making and legislative change, the misalignment between exclusionary discipline and human rights remains a question for policy makers. As stated in the Victorian Charter of Human Rights and Responsibilities Act 2006: “Every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child.”⁴. With the expansion of the school environment, how this looks in practice for schools is relevant.

What can schools do?

As mentioned earlier, we consider school behaviour management frameworks are critical to how schools prevent and respond to behaviours of concern without inadvertently creating other breaches, issues or liabilities.

Schools should look at their behaviour management frameworks holistically and what is in their toolkit when it comes to disciplining students. Codes of conduct, disciplinary management and response policies and procedures, mechanisms for assessing reasonable adjustments, handling complaints and grievances all fall within the framework, complemented by the enrolment agreement and other tools available to Principals. There is no one size fits all approach to student behaviour management and, as we recently explored at our Moores Schools Legal Agenda on 27 February 2024, how to implement disciplinary responses that are acceptable within the school community and balance school’s legal requirements is an ongoing area of focus.

We recommend schools look at:

• clearly defining the reach of the school environment when setting standards of behaviour in codes of conduct;
• reviewing policies and processes for exclusionary discipline including mechanisms that enable procedural fairness (as required by the Minimums Standards) and rights of review;  
• ensuring the use of longer suspensions do not fall short of duty of care and anti-discrimination obligations; and,
• adopting behaviour management or support plans as standard practice.

How we can help

Get in touch with the Education Team to discuss how we can help you with your school’s behaviour management framework review needs, and support you to respond to challenging disciplinary matters. We support schools both proactively and reactively in this space: implementing procedures and training for staff to respond to serious breaches of student codes of conduct and navigating the disciplinary (and possible expulsion) process with families, students and schools.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.

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1 Organisation for Economic Co-operation and Development, Education Policy Outlook In Australia (10 April 2023).

2 Queensland University of Technology, What does exclusionary discipline do and why should it only ever be used as a last resort? (12 March 2024) https://research.qut.edu.au/c4ie/2020/10/15/what-does-exclusionary-discipline-do-and-why-should-it-only-ever-be-used-as-a-last-resort/.

3 Final Report – Volume 7: Inclusive education, employment and housing, p13

4 Charter of Human Rights and Responsibilities Act 2006 (Vic) s17 (Protection of Children and Families).

Structuring of Wills can include many forms of trusts, from an optional testamentary trust which provides flexibility as to income and capital for beneficiaries, to restricted trusts which provide a beneficiary with access to income but limited or no access to capital.

What is a life interest?

A life interest (or capital protected trust) is a trust in a Will in which there are restrictions imposed on a particular beneficiary’s access to capital of the trust – typically called “the life tenant”. The beneficiaries entitled to the capital of the trust at the end of the life interest, generally on the death of the life tenant, are called “the remainder beneficiaries”.

Typical scenarios where life interests might be incorporated in a Will include:

• The Willmaker is part of a blended family and wishes to ensure that their second spouse is looked after for their lifetime but that there is certainty that most (if not all) of the capital is preserved for the benefit of their own children; and
• Parents wishing to preserve capital for their grandchildren because they may be concerned about spendthrift children wasting their inheritance.

Assets which form part of the life interest remain as part of the estate of the deceased (and held by the trustees of the life interest – often the executors of the estate). At the end of the life interest, the remaining capital continues to be dealt with as part of the initial Willmaker’s estate for the benefit of the remainder beneficiaries, rather than forming part of the life tenant’s estate.

The inclusion of a life interest or capital protected trust in a Will needs to be carefully considered. Whilst they essentially allow a Willmaker to “rule from the grave”, they can be problematic and complex to administer, and advice should be sought on their use and the drafting of the terms of the trust. 

Should I incorporate a life interest in my Will?

Below are some of the advantages and disadvantages of incorporating a life interest in a Will.

Advantages	Disadvantages
Provides a level of certainty that estate assets will pass for the benefit of the remainder beneficiaries.	The Will is generally more complex than a Will which provides direct gifts to a beneficiary. A life tenant may seek to challenge the life interest or capital restrictions in favour of a more flexible or outright benefit.
The Willmaker can direct specific assets or their entire estate to a life interest trust.	Life interests can only apply to certain types of arrangements. Joint assets intended to form part of the life interest must be changed to tenants in common if a Willmaker intends for their “share” to form part of a life interest. Superannuation benefits paid into a life interest for a spouse or other tax dependant as the life tenant lose their concessional tax status as the ATO will generally apply the “look through” approach for tax purposes. Vacant residential land tax (VRLT) is likely to be payable for a holiday home held in a life interest trust, even though it may be used and occupied by the life tenant as their holiday home (under current law). Consideration should be given as to how costs associated with the assets of the life interest are to be funded. Is the estate or the life tenant to be responsible for expenses such as rates, land tax (including VRLT under the current law) and insurance premiums on property, and/or costs of repair and improvements to trust assets?
The life tenant has access to income generated by the assets of the life interest.	The assets of the life interest may not necessarily be income producing assets, eg, the life interest comprises solely of a property in which the life tenant is living in as their principal place of residence.
A life interest can provide tax effective income splitting opportunities if the terms of the trust permit income to be distributed to a broader class of beneficiaries, eg, with the consent of the life tenant.	If the life interest holds shares, it is likely to be necessary to make a family trust election in order to claim franking credits. In a second relationship, where there are no mutual children, it may not be possible to choose a test individual which includes the second spouse and the children of the deceased person.
The Willmaker can direct to what extent, if any, capital can be accessed for the life tenant.	Capital restrictions leave the life tenant vulnerable if unexpected or unforeseen costs arise during their lifetime, with little or no other resources of their own to meet those costs.
The trustee can have broad powers of investment over assets forming part of the life interest.	Property held or acquired in a life interest attracts a surcharge rate of stamp duty and land tax if the beneficiaries of the trust include foreign beneficiaries (unless an exemption applies). In Victoria, provided the terms of the life interest include an amendment power, the terms can be amended to exclude foreign beneficiaries. This is not the case in NSW.
The life tenant has the use of the assets for their lifetime	If the life tenant has to move into aged care, this is unlikely to be able to be held via a life interest and it may be necessary to loan funds to the life tenant to allow them to acquire their aged care placement.

How we can help

Life interests or capital protected trusts are effective structures for preserving wealth for future generations. They can, however, be complex and costly to administer and require careful consideration of the terms and the assets intended to form part of the trust. To learn more about how Moores can help you decide if a life interest or capital protected trust is right for you, get in touch with our Wills, Estate Planning and Structuring team.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.

As part of the stronger regulatory approach of the Office of the Australian Information Commissioner (OAIC), there is a renewed focus by the national privacy regulator on organisations reporting more than 30 days after a data breach. This comes with a clarification that the clock starts ticking (the 30-day reporting obligation) from the moment “a reasonable person would conclude that the access or disclosure would be likely to result in serious harm to any of the individuals to whom the information relates”, and not when an investigation is completed. This means, if, at any time during a cyber incident investigation, the organisation has enough information to reasonably conclude that the data breach would be likely to result in serious harm to any of the individuals to whom the information relates – the clock has started.

The OAIC demonstrated its stronger regulatory approach to the Notifiable Data Breach (NDB) Scheme in 2023 by making two determinations against organisations who reported under the NDB Scheme but did not meet the 30 day reporting requirement: 

• Pacific Lutheran College (Privacy) [2023] AICmr 98 (24 October 2023)
• Datateks Pty Ltd (Privacy) [2023] AICmr 97 (24 October 2023)

Specifically, the OAIC determined that both Pacific Lutheran and Datateks failed to:

• undertake an assessment of the data breach in an expeditious manner; and
• take all reasonable steps to complete the assessment within 30 days.

What caused the data breach?

In both Pacific Lutheran and Datateks, the data breach was caused by an email address of a staff member of the organisations being subject to unauthorised access by a third party who then used that email account to send phishing emails to other staff in the organisation and external contacts. More information about cybercrime statistics is here. The unauthorised access to the email accounts was identified within one day and both organisations swiftly commenced investigations.

This swift identification of the data breach and commencement of an investigation was not sufficient to demonstrate all reasonable steps had been taken to complete the assessment of the data breach within 30 days.

The Privacy and Data Security Team at Moores also publish summaries of the NDB statistics reported by the OAIC each year: 2022 NDB statistics and 2023 NDB statistics. 

What needs to happen within 30 days?

The OAIC clarified that the reporting obligation arises when an eligible data breach is identified and not:

• when the investigation into the data breach is concluded;
• when the organisation receives a report from the IT provider they have engaged.

Critically, the OAIC determined that organisations cannot wait for the investigation to be concluded to make the determination as to the requirement to report and cannot “pause” the 30 day period by appointing an IT company to conduct an investigation into the breach.

When does a data breach become an eligible data breach? 

An eligible data breach includes unauthorised access to information that a reasonable person would conclude would be likely to result in serious harm to any of the individuals to whom the information relates. This means if, any at point during a data breach investigation, the organisation receives information that means there is a reasonable belief the unauthorised access is likely to result in serious harm to an individual to which the affected information relates – the 30 days starts.

A key factor is that the organisation does not need to know that serious harm has or will result from the unauthorised access – it is enough that serious harm is likely.

How we can help

We can help you through the process of managing data breaches: from preventative security audits and training, to implementing a data breach response plan, to making the assessment as to your reporting obligations and implementing learnings from the breach and privacy-by-design. Get in touch with our Privacy and Data Security Team to arrange a time to meet.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.