The Victorian government has passed new laws1 to expand the scope of hate speech laws. The new laws amend the Crimes Act 1958 (Vic) and Equal Opportunity Act 2010 (Vic) to expand protection from vilification to people based on disability, gender identity, sex, sex characteristics or sexual orientation in addition to race and religious belief or activity. These new laws will replace the Racial and Religious Tolerance Act 2001 (Vic), with commencement of criminal and civil provisions coming into operation on 20 September 2025 and 18 September 2027 respectively, unless proclaimed earlier.
These laws introduce offences for serious vilification and inciting hatred and threatening physical harm or property damage on the basis of a person’s disability, gender identity, race, religious belief or activity sex, sex characteristics, sexual orientation, or personal association with a person with any of these attributes. Serious vilification includes a broad range of seriously hateful conduct. Prohibiting serious vilification is intended to protect the dignity and health of all people and promote full and equal participation in all social, political, economic and cultural aspects of public life.
The offence of inciting hatred carries a maximum penalty of three years imprisonment whereas the offence of threatening physical harm or property damage carries a maximum penalty of five years imprisonment.
Body corporates can be liable for offences under the new laws, and an officer of a body corporate can be guilty of an offence if they authorised or permitted the conduct or they were knowingly concerned in any way in the commission of the offence.
Additionally, there is a pathway for people to make a complaint about vilification to the Victorian Equal Opportunity and Human Rights Commission. There are exceptions that can apply, such as where conduct was engaged in reasonably and in good faith and:
Bans on conversion and suppression laws have come into effect in South Australia and New South Wales this month.
South Australia
As of 1 April 2025, it is a criminal offence in South Australia to engage in a practice directed to changing or suppressing the sexual orientation or gender identity of another person that causes serious harm.2 The maximum penalty is imprisonment for five years.
What is allowed?
The Conversion Practices Prohibition Act 2024 (SA) (SA Act) contains qualifications and exceptions which significantly narrow the scope of the offence. Specifically, the SA Act states that a conversion practice does not include:
The legislation appears to have been drafted to reduce or limit the impact on religious teachings, prayer, sermons and general discussions of religious beliefs relevant to gender identity and sexual orientation. However, it remains possible that a sermon or discussion about religious belief could contravene the new law if it is found to be directed at an individual and to have a purpose of changing or suppressing the person’s sexual orientation or gender identity.
The SA Act provides the following examples of what does not constitute a ‘conversion practice’:
New South Wales
As of 3 April 2025 in NSW, it is unlawful to engage in a ‘conversion practice’ directed to changing or suppressing an individual’s sexual orientation or gender identity and causes mental or physical harm that endangers their life or is substantial. The Conversion Practices Ban Act 2024 (NSW) (NSW Act) makes conversion practices, which can include ‘conversion therapy’ and suppression practices, a crime punishable by up to five years’ imprisonment.
The NSW Act contains the substantially similar exceptions and qualifications about what is and is not a change and suppression practice as the SA Act.
It is an offence for a person to provide or deliver a conversion practice to an individual with the intention of changing or suppressing the individual’s sexual orientation or gender identity and the practice causes mental or physical harm to the individual that endangers the individual’s life or is substantial. This can include psychological or medical interventions, counselling, or subtle and repeated messages that LGBTQ+ people can change or suppress their sexual orientation or gender identity with faith or effort.The maximum penalty is imprisonment of five years.
It also creates a scheme allowing civil complaints about conversion practices to be made to Anti-Discrimination NSW and complaints can be referred to the NSW Civil and Administrative Tribunal (Tribunal). The Tribunal can order up to $100,000 compensation to a person affected.
Importantly, principals and employers may be liable for the conduct of an employee or agent unless they took all reasonable steps to prevent the contravention.
Both jurisdictions also have offences for taking a person outside of their state with the intention to deliver a conversion practice.
There are several lessons for organisations affected by the reforms:
Our Safeguarding team can provide more information about these reforms or the potential impact on your organisation.
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.
A recent article by ABC News highlights the importance of asset protection where second relationships are concerned.
Millie was aware that she was in a de facto relationship but thought her home was protected because her partner, Paul never paid any bills associated with the property and was not listed on the mortgage. This was not the case.
Millie had previously been in a 10 year marriage and shared a son with her ex-husband. Mille and Paul dated on and off before they commenced a de facto relationship in 2012 when Paul moved into her home. Paul entered the de facto relationship with a tax debt. He also owned a home which he sold during the relationship and applied some of the proceeds of sale toward the family’s living expenses for the benefit of Millie and her son. He built a carport at Millie’s home. Millie maintained that his contribution toward these expenses and labour were in lieu of him paying rent or board. In 2018 Millie and Paul separated.
Millie did not realise that under Family Law, Paul’s tax debt could be considered a joint liability despite being in his name only. The first step in reaching a financial settlement in Family Law is to determine the property pool (assets and resources) available for distribution between the parties. This involves identifying all assets including superannuation and liabilities and financial resources. All assets may be taken into account including those owned jointly, individually, or by a family trust or company. What is ultimately taken into account is at the Family Court’s discretion.
Paul, a sole trader, had not been filing his tax returns. Following the separation, he filed over a decade of returns and in total owed $300,000 to the Australian Taxation Office (ATO). Prior to the commencement of the de facto relationship, Millie helped Paul write a letter to the ATO to be put on a payment plan for a $50,000 tax debt. She maintained that she never thought of it again and did not realise Paul had such a significant tax debt.
Ultimately the Family Court found that Paul’s tax debt was a joint liability which formed part of the property pool available for distribution between the parties, on the basis that Millie was aware of it or at least his reluctance to file tax returns. Millie benefited from expenses paid by Paul. His non-payment of tax enabled him to have more income to meet these expenses. Millie did however receive a 15 per cent adjustment of the net property pool in her favour in recognition of Paul accumulating an ‘unnecessary’ tax debt. Millie was ordered to pay Paul the sum of $500,000. She could not afford to do so, so her home of 27 years was sold to pay Paul out.
It is becoming more common for people in second relationships to enter into a Financial Agreement (also known as a ‘Pre-nup’ or ‘Continuing relationship’ agreements) to protect assets accumulated prior to the relationship.
A Financial Agreement is a private contract entered into by a couple that governs the financial relationship between them. They address how the parties’ property and financial resources are dealt with at separation. Importantly, Financial Agreements remove the power of the Family Court to make orders in relation to all financial matters to which the agreement applies. The common misconception that Financial Agreements ‘are not worth the paper they are written on’ is not the case when drafted correctly and carefully.
If Millie and Paul had agreed to enter into a Financial Agreement, the outcome may have been very different.
A new bill concerning the Victorian education system passed in February 2025 and made amendments to the Education and Training Reform Act 2006 (Act).1
The Act aims to strengthen compliance and enforcement powers of the Victorian Registration and Qualifications Authority (VRQA). It seeks to make it more difficult for unregistered or non-compliant schools to escape scrutiny or consequences of non-compliance.
The changes demonstrate that the VRQA wants to have the ability to keep other bodies including the Commission for Children and Young People (CCYP), the Victorian Institute of Teaching (VIT) and the Fair Work Ombudsman (FWO) informed of developments, including in relation to to staff conduct.
In March this year, the VRQA released a statement about its regulatory focus for 2025, namely that:
A further announcement outlined an agreement with the FWO called an ‘Exchange of Letters’ whereby each body will inform the other of compliance investigations to increase their regulatory oversight.
Key Takeaway: Coupled with the increased powers in the Act, schools and other education providers can be in no doubt that the VRQA will be focussed on child safety, health and wellbeing as its top priority, from Board line of sight to the day-to-day operations. This includes a focus in relation to employee investigations.
Some of the reforms were enacted on the passing of the bill in February and therefore it is important to be mindful of these now. The following two reforms have already been enacted:
In practical effect, this will remove the show cause process involved in the cancellation of the registration of education providers that have ceased to operate. It will also allow the VRQA to share information with a prescribed person or body such as the VIT, CCYP or FWO without receiving express written request from education providers to do so.
This may occur in the process of assessing whether prescribed minimum standards have been met.
Along with the changes already enacted, the Act will implement changes that provide the VRQA with more investigative powers that will come into effect on 1 October 2025. These powers relate to:
In effect, this will allow the VRQA to issue a notice for an education provider to provide any documents that it believes are reasonably necessary.
The changes will grant the VRQA greater authority to proactively disclose information to relevant bodies such as the CCYP without awaiting a written request. It may also request information from such bodies to assist in compliance assessment.
They will also empower the VRQA to issues notices to comply to schools it believes are operating without registration. Non-compliance with these notices can lead to civil penalties outlined below.
It will increase the maximum penalty units for operating an unregistered school or school boarding premises from 10 penalty units to 120 penalty units for an individual and 600 units for a body corporate.
The new reform Act applies to schools and school boarding premises that the VRQA has reasonable cause to believe are required to be regulated from operating without registration or approval. From October 1, the VRQA will have the capacity to require such providers to produce information or documents that are relevant to the health, safety and wellbeing of students. This aligns with the specified regulatory focus of compliance with Ministerial Order 1359.
The Act has been introduced to provide the VRQA with more streamlined methods to assess whether education providers are meeting minimum required standards. The Act provides the VRQA with the power to require education providers to supply relevant documents.
It will allow the VRQA to:
Schools and Education providers may consider doing the following to prepare for the upcoming legislative changes in October.
Contact our Education and Training team for tailored advice on how the Reform Act may impact to your organisation. We can also help to review and develop policies as well as review third party arrangement contracts.
Interdependency relationships play a crucial role in determining eligibility for superannuation death benefits. Many parents assume their children will automatically receive these benefits tax-free after death. However, this isn’t the case. Understanding how these benefits are taxed is essential for estate planning, as tax rates can vary from 0 – 30%.
Children under 18 years are automatically dependants and will receive the money tax free. But for adult children (18 or older), it’s much more complex as the ATO has specific criteria for determining whether an adult child qualifies as a “death benefits dependant” of their deceased parent.
Under the Income Tax Assessment Act 1997 (“Tax Act”), adult children and parents are typically not classified as “dependants” unless they are financially dependent or in an interdependency relationship.
Under Tax Law, key factors in assessing an interdependency relationship include:
In our previous article, we referenced earlier private ATO rulings where in a number of cases, the definition of an “interdependent relationship” was satisfied. However, all but 1 private ATO rulings since January 2024 (to date) failed to demonstrate that a ‘close relationship’ existed between the parent and adult child – a key factor considered in establishing interdependence.
In a publishing of private rulings (PBR) from April 2024, a parent was considered independent with their deceased adult child who suffered from a range of medical conditions and substance abuse. These issues left them with physical and intellectual limitations. Prior to their death, the child was reliant on their parent for personal and domestic care, comprising menial day-to-day and financial support including general living and medical expenses, while paying minimal rent. Furthermore, there were several documentations evidencing the nature of their relationship, including a letter from the deceased’s daughter and their doctor, confirming that the two had lived together for some years before the deceased passed.
In the other examples of PBR’s we reviewed since 2024, where adult children were claiming an interdependent relationship with their deceased parent, all failed. There were a variety of reasons but contributing factors included not living together for long period and unable to show a mutual commitment to a shared life, and in other cases no documentary evidence of financial support being provided.
The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and can assist you in preparing your Will and Enduring Powers of Attorney to ensure that your assets are not only looked after in the event of your death, but in the event of your incapacity to make decisions.
Is your not-for-profit (NFP) contemplating a merger? This is part four of a five-part article series that will offer some practical guidance to your board or merger advisory committee. Subscribe to receive the remaining articles in the series.
Due diligence is the process of obtaining and reviewing information in order to critically evaluate a potential merger partner. The primary purpose of due diligence is to assist the board to identify potential risks and issues that could impact a merger, ensuring that the board can make an informed decision regarding whether or not to proceed with the merger. Due diligence also assists to inform the choice of merger type (discussed in article 2) and identify issues that may need to be prioritised and addressed as soon as practicable following any merger.
The due diligence process should include:
The culmination of the due diligence process is a report that is provided to the board in order to inform and support its decision regarding whether or not to proceed with a merger agreement.
Some of the key considerations that should be taken into account in the due diligence review include:
A detailed analysis of the financial health of the prospective partner should be carried out to determine its ongoing financial viability. A review of donor and grant history as well as projected grant income will help inform the analysis. This work is often carried out as a discrete component of the due diligence process by a financial advisor who is experienced in working with not-for-profit organisations.
A complete list of assets (tangible assets and intangible assets – intellectual property and goodwill) and liabilities (security interests registered on the Personal Property Securities Register and mortgages recorded on any certificates of title) should be reviewed, including conducting appropriate searches.
These are the liabilities that will be transferred from the one entity to another (usually the acquiring NFP or the new merged NFP). Historical liabilities can create significant risks for NFPs in a merger. This is because child abuse liabilities in particular: do not have a limitation period; may be uninsured; and depending on the merger type and jurisdiction, may transfer between entities in a merger. It is important to assess the risk of historical liabilities – this will include reviewing the claims history of the organisation and enquiring about known historical issues. Part five of our article series will address historical liabilities in more detail.
If a merger will result in one or more NFPs closing, it will be necessary to provide for the transition of employees to the acquiring NFP (and for the redundancy of any employees who will not be retained). Ideally terms of employment will be substantially the same as or better than the employee’s current terms of employment. A substantial difference in the employee benefits between the two merging organisations may result in unanticipated costs if parity requires an increase for a number of employees. The acquiring NFP will also need to confirm the current status of leave entitlements, fringe benefits tax exempt benefits (relevant for Public Benevolent Institutions and Health Promotion Charities) and superannuation guarantee contributions. Other employment risks that should be considered in the due diligence process. These include (without limitation) the possibility of a wage underpayment (liability for which may be able to be traced to any parent entity) and any unresolved workplace disputes.
A comprehensive contracts register that tracks key information (including the name of the contract, whole-of-life costs, the supplier, the contract manager, the commencement and termination date and performance and payment milestones) should be prepared. A review of all contracts should be carried out to identify material risks and ascertain whether the contract can be novated or assigned (if appropriate).
Insurance documents will need to be reviewed to confirm that the prospective merger partner is appropriately insured.
The prospective merger partner’s privacy policy should be reviewed to confirm it allows for any disclosure of personal information, health information or sensitive information that is anticipated as part of the merger process. Any risk of significant non-compliance with privacy obligations should be also identified and assessed.
The anticipated efficiencies of a merger may be significantly impacted by an inability to integrate systems and data. An expert IT consultant can assist to review technology systems and data sets to determine how different technology systems might interact post-merger and give a considered assessment of the potential cost and complexity of systems integration.
Once the due diligence report has been prepared and submitted to the board, the acquiring NFP will need to determine whether or not to proceed with a merger agreement. This involves returning to any non-negotiables and merger principles established up front (discussed in article 3) as well as assessing identified risks in the context of the organisation’s risk appetite. It may also involve a review of cultural alignment – have any cultural red flags been identified in terms of the merger partner’s transparency and conduct during the due diligence process? Depending on the nature of the risks identified, it may be possible to choose a merger type and/or include conditions in the merger agreement that will assist to mitigate the risks.
Depending on the complexity of the merger, the due diligence process can be daunting and time-consuming. The Charity and Not-for-profit Law team at Moores can help with developing a fit-for-purpose due diligence strategy or assisting with the due diligence process.
The Workplace Relations landscape is ever changing. In this article we summarise three cases regarding redundancy and employee transfers between entities that were decided in 2024 that employers need to know about.
In Helensburgh Coal Pty Ltd v Bartley & Ors1, a Full Court of the Federal Court of Australia found the termination of 22 employees by way of redundancy was not a genuine redundancy because Helensburgh Coal (HC) could have redeployed those employees to perform work performed by independent contractors.
HC operates a mine extracting coking coal. In 2018 and 2019, it engaged two companies to supply workers to perform a range of services. Early in the COVID-19 pandemic, demand for coking coal fell significantly and HC told its employees that it had decided to implement changes to its operations which would result in a reduction to its workforce.
During consultation, the employees requested HC to mitigate against its decision by decreasing its reliance on contractors. While HC did reduce its contractor workforce by 40%, it proceeded to terminate 47 employees by way of forced redundancy. Twenty two of those employees brought unfair dismissal claims in the Fair Work Commission, claiming the dismissals were not ‘genuine redundancies’. Commissioner Riordan found in two decisions that the dismissals were not a ‘genuine redundancy’ because it was reasonable for HC to reduce the work available to contractors and redeploy the affected employees to perform that work. HC unsuccessfully appealed both those decisions to a Full Bench of the Fair Work Commission and then sought judicial review in the Federal Court.
Under the Fair Work Act, a redundancy will not be ‘genuine’ if it ‘would have been reasonable in all the circumstances for the person to be redeployed within its enterprise’. The Federal Court dismissed HC’s application, finding:
Key takeaways
Employers must therefore consider all redeployment opportunities, including to positions that may not technically be ‘available’ at the time of consideration, or risk a redundancy being found to be not ‘genuine’. This includes those held by independent contractors or a labour hire employee. It would be prudent to consider whether any of those positions will become available in the future.
At the time of writing this article, Helensburgh Coal has received special leave to appeal the judgment to the High Court of Australia.
In Westpac Banking Corporation T/A Westpac2, Westpac successfully applied to the Fair Work Commission to vary the redundancy pay payable to an employee, Ms Dibden, from 7 weeks’ pay to zero.
Westpac’s application was made on the basis that it obtained ‘other acceptable employment’ for Ms Dibden, who was employed as a Senior Customer Service Specialist at a St George Bank branch in Cairns.
Following Westpac’s decision to close the branch Ms Dibden worked in, it offered her what it said was a ‘directly comparable’ position of Personal Banking Specialist (PBS) at a Westpac branch in Cairns. Ms Dibden advised she was not interested in a branch-based position and preferred another position. She asserted the PBS position was different to her customer service position. Westpac’s position was that the duties and responsibilities were the same. In late July 2024, Ms Dibden’s employment was terminated on the basis that she rejected the PBS position.
Under the FW Act, an employer may apply to the Fair Work Commission for a determination reducing the redundancy pay payable to an employee to a specified amount, which could be zero, in the following circumstances:
In the Fair Work Commission, Ms Dibden submitted that a Westpac branch had a ‘different culture and working environment’ than a St George one. Ms Dibden’s main contention, somewhat unusually, was that the positions were not acceptable because working in a St George branch ‘felt different’ than working for Westpac. In coming to the decision to exercise her discretion to reduce the redundancy pay to zero, Commissioner Hunt noted:
This case is a timely reminder to employers that:
In Dupre v Excell Protective Group Pty Ltd3, the Fair Work Commission found Mr Dupre was dismissed by Excell and that the dismissal was harsh, unjust and unreasonable. Excell was ordered to pay Mr Dupre $42,552.06.
Mr Dupre began employment with Excell in 2015 pursuant to a contract of employment. Due to issues with licensing of Excell’s business, it did not trade between June 2015 and July 2017. During that time Mr Dupre was paid by a different entity, SPS Security Service PL. SPS Security was not an associated entity of Excell. Excell began paying Mr Dupre in July 2017.
In March 2024, it was announced that Excell’s management team would be transferred to another company, Zipd. Mr Dupre received a new employment contract, position description and non-disclosure agreement for the transfer to Zipd. Mr Dupre raised a number of concerns about the proposed contract. The next day he was invited to a formal performance review meeting despite having not had any performance issues to date.
Approximately three weeks later, Mr Dupre attended a meeting with a number of his colleagues in which they were advised that if they did not sign the new employment contracts, this would be treated as a resignation, bringing their employment to an end. He did not sign the contract. On 11 April 2024 Mr Dupre attended a further meeting with management and advised he would not sign the contract without amendments and he would not resign. By the end of the meeting, he understood he had been dismissed by Excell.
On 17 April 2024 he received an email from Excell advising its position that he had resigned on 11 April 2024. On 19 April 2024 Mr Dupre responded clarifying he had not resigned and that he wanted to remain employed under his initial contract of employment. He requested Excell confirm that he would do so by 22 April 2024. After he did not receive a response, Mr Dupre confirmed in writing on 23 April 2024 that Excell had repudiated the contract and the employment relationship, and as a result he had been dismissed by Excell.
Deputy President Masson ultimately found Mr Dupre had been dismissed by Excell and he did not resign, there was no valid reason for the dismissal and the dismissal was procedurally unfair.
Employers should:
Who could forget the suite of changes that came into effect in 2024 under the Closing Loopholes reforms? Read our articles below to get up to date on those reforms:
Our Workplace Relations team can provide employers with practical advice and guidance on how to manage redundancies having regard to Helensburgh Coal and where other acceptable employment has been obtained for the employee. The team is well placed to advise on proposed terminations so employers can mitigate the risk of successful claims and compensation orders.
A recent Supreme Court of Victoria decision has changed the game for retail tenancies.
In ALDI Foods Pty Ltd v Northcote Shopping Centre Pty Ltd [2024], the Court held that rent review caps in retail leases are not prohibited under the Retail Leases Act 2003 (Vic), effectively overturning a long history of VCAT decisions indicating that such caps were void. This decision supports tenants, and will provide them with increased financial security when leasing a retail space.
This case concerned a retail lease agreement between ALDI Foods (tenant) and Northcote Shopping Centre (landlord). The main issue was whether the lease agreement permitted a cap on the rent review process.
In retail leases, rent is typically reviewed periodically to adjust for inflation or market conditions. The standard review mechanisms are:
The inclusion of caps or limits on how much rent can increase during these reviews however, has often been a contentious issue in retail leasing due to section 35(2) of the Act, which states that for leases covered by the Act, “The basis or formula on which a rent review is to be made must be one of the following” [emphasis added], and then lists five defined options, including the methods identified above.
The inclusion of the word “one” in section 35(2) has generally been interpreted as having the effect of prohibiting caps on rent reviews, because the cap constitutes a second method of review.
In this case, the lease included a provision that placed a 6% cap on CPI reviews. Northcote Shopping Centre argued that this provision was void, on the basis that the cap was not permitted under section 35(2) of the Act. Northcote Shopping Centre sought to rely on previous VCAT decisions to support their arguments.
ALDI’s position was that the cap was valid, since the Act does not expressly prohibit rental caps. In support of this, ALDI argued that since section 35(3) of the Act expressly prohibits ratchet clauses (i.e. clauses that prevent rent from decreasing during a market rent review), this would indicate that the legislators intended for caps or limits to be permitted.
The court ruled in favour of ALDI, holding that the rent review cap included in the lease was enforceable and a valid clause. The court took the view that rental caps were consistent with retail leasing legislation, going against previous VCAT decisions.
Retail tenants have an opportunity for increased financial certainty following this ruling, being in a strong legal position when and if they decide to negotiate capped increases on their rent. With business expenses rising in many industries, the decision presents an opportunity for retail tenants to better plan for the future.
Landlords should consider how this case may impact future negotiations around rent review processes. Landlords can expect caps to become a regular request from retail tenants, and will need to make a commercial decision in each case whether to agree to the inclusion of a cap to attract and retain long-term tenants.
Moores’ Commercial Real Estate team is ready to assist with all your retail and commercial leasing needs, including expert advice on your rights around rent reviews, lease renewals, and other key leasing matters. Please contact a member of our leasing team if you would like guidance or support in this area, from strategic advice through to preparation of lease documentation.
Sam Kerr, captain of the Australian Women’s Soccer team, has been found not guilty of racially aggravated harassment of a London Metropolitan police officer after calling him “stupid” and “white”. Despite the acquittal, this case has drawn significant attention to whether seemingly unfavourable treatment towards white people can constitute racism and how similar incidents would be handled in Australia.
On 30 January 2023, Sam Kerr and her partner hailed a taxi to take them home after a night out. Both women were allegedly drunk and during that cab ride, Ms Kerr was sick in the taxi. The driver then locked the doors and windows and drove them to the nearest police station on advice of police but without informing the women. Ms Kerr and her partner told the court they feared they were being taken hostage, and shortly before arriving Ms Kerr’s partner smashed one of the taxi windows in an attempt to escape.
Police body camera footage showed police requesting the pair to pay for the damaged window and fare and cleaning fee. During the recorded conversation, Ms Kerr called the officers “f***ing stupid and white”.
The prosecution argued that Ms Kerr’s comments were a deliberate attempt to harm the police officer, were racially motivated and that the police officer felt “humiliated”, “shocked” and “belittled”.
Ms Kerr did not deny calling the police officer “stupid’ or “white”, but told the court she was trying to make a comment about “power” and “privilege” and believed that the officers were treating her differently because of her skin colour on the night of the incident. Ms Kerr is of Indian descent.
The jury unanimously found Ms Kerr not guilty of the charge.
While Ms Kerr has been found not guilty of racially aggravated harassment rather than discrimination, her case has prompted widespread conversation about the myth or existence of “reverse racism”, and whether racism or racial discrimination against white people is permissible under legislation or more socially acceptable.
“Reverse racism” is sometimes used to describe situations where white people believe they are discriminated against or negatively stereotyped because of their whiteness or treated less favourably than people of colour. It is an idea focused on prejudiced attitudes towards a certain racial group or groups, or unequal treatment – namely, discrimination. But it overlooks that power is one of racism’s central indicators.
The Oxford English Dictionary defines racism as “prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one’s own race is superior.” According to Mario Peucker, Associate Professor and Principal Research Fellow at Victoria University, the concept of “reverse racism” doesn’t work because racism is more than just prejudice. Prejudice and discrimination are inextricably linked with historically entrenched and institutionalised forms of systemic racism and racial hierarchies, injustices and power imbalance1.
State and federal anti-discrimination laws prohibit discrimination and harassment on the grounds of certain protected attributes in certain areas of public life, and in public with respect to vilification. The Racial Discrimination Act 1975 (Cth) (RDA) broadly prohibits discrimination on the basis of race, colour, descent, national or ethnic origin, as well as acts of racial hatred. Acts of racial hatred include public acts that are reasonably likely to offend, insult, humiliate or intimidate a person or group because of their race, colour, or national or ethnic origin. Similar protections exist under state and territory anti-discrimination laws. In Victoria, reforms have been proposed to strengthen anti-vilification laws, which are currently limited to protection from “behaviour that incites hatred, serious contempt, revulsion or severe ridicule for a person or group of people, because of their race or religion”.
White people can be called derogatory names that reference their whiteness. Given this, whiteness may technically be protected from anti-discrimination and anti-vilification laws, and it may be possible for a white person to face discrimination or vilification by people of colour on the basis of their whiteness.
However, while white people may be covered by protections against racial hatred or vilification, there is still a requirement to establish that the alleged conduct was reasonably likely to offend, insult, humiliate or intimidate the complainant. In circumstances where whiteness has existed as the dominant race in Australia and positions of leadership and authority continue to be dominated by white people, this aspect of the legislation is likely to be extremely difficult to substantiate.
Further, there are exceptions under the RDA and state anti-discrimination laws that make otherwise discriminatory conduct lawful, in particular, special measures. Special measures are lawful discriminatory acts aimed at reducing historically entrenched, intergenerational and systemic inequalities. Affirmative action programs are direct responses to structural inequality and an attempt to level the playing field. Positive racial discrimination is based on amelioration, not racial superiority. According to Peucker, regardless of whether positive or affirmative action is lawful or not, the term racism or “reverse racism” would not apply.
While the limits of protection from racial harassment, discrimination and vilification have not been comprehensively tested in Australia’s current social climate, Ms Kerr’s case demonstrates that such claims need to be considered in the context of social, cultural and historical factors that shape individual experiences and responses, not just the letter of the law.
In Ms Kerr’s case, the words were said in the context of:
In both the UK and Australia, legal claims do not exist within a vacuum and as shown in Ms Kerr’s case, these sociopolitical factors can be pivotal in determining the outcome of the case.
Our Safeguarding and Discrimination Team has extensive experience supporting organisations to create safe and inclusive environments for all individuals, as well as navigating complaints and disputes if they arise. We can assist with tailored advice on your discrimination and safeguarding obligations to diverse groups, as well as development and delivery of policies and training to proactively address these issues.
Many of us understand the importance of having a Will in place to distribute our assets when we die.
But what happens if we lose the ability to make our own decisions for financial, personal and medical matters?
A Will only comes into effect when you die, so it is equally important to also have documents in place authorising a person or persons to make decisions for you if you are unable to make them for yourself during your lifetime. This is where Enduring Powers of Attorney and Appointments of Medical Treatment Decision Makers fill that gap.
In Victoria, there are three types of powers of attorney which you can put in place.
Enduring Power of Attorney (Financial)
In this document, you can appoint one or more people to deal with your financial matters on your behalf. Financial matters can include dealing with banks and investment companies, buying and selling assets, paying bills and buying and selling property. You can choose when your attorney’s power commences to provide greater flexibility for yourself and your attorneys. For example, if you are overseas, you can instruct your attorney to act on your behalf while you are out of the country.
Enduring Power of Attorney (Personal)
In this document, you can appoint one or more people to deal with personal matters on your behalf. Personal matters can include deciding where you live (i.e. whether you move into aged care), how you dress, what you eat, when you get a haircut and who you associate with. Given these matters are very personal in nature, your attorney’s power generally only commences if you were to lose capacity, as evidenced by a letter from a medical practitioner.
Appointment of Medical Treatment Decision Makers
Although medical decisions are also personal in nature, this document differs from the Enduring Power of Attorney (Personal) because it only deals with consenting or withholding consent to medical decisions.
In this document, you can only appoint one person at a time (not jointly) to make medical decisions on your behalf. Your medical decision maker, by law, is required to make decisions that they would reasonably believe is a decision that you would have made if you had capacity.
To ensure that your medical decision makers know your preferences, you can complete a document called an Advanced Care Directive. This assists your chosen medical decision makers to make a medical decision for you based on your beliefs and values. You can elevate it from a values directive to a binding directive in which you specify what medical procedures you consent to or what you withhold consent to. Binding directives require witnessing by a doctor.
For financial and personal matters, this is not the case.
Although it may seem practical that, for example, your spouse, or your adult child can automatically sign off on financial and personal decisions for you (as long as they provide medical evidence of your lack of capacity), the law in Victoria prevents next of kin from making those decisions without being validly appointed.
However, for medical matters, yes, the law in Victoria does allow next of kin to make medical decisions for you.
There is a set hierarchy of people in your life who have legal final say on your medical treatment, if you cannot give the doctor your decision yourself. This set hierarchy is only applicable if you do not have a valid Appointment of Medical Treatment Decision Maker document in place.
The Medical Treatment Planning and Decisions Act 2016 (Vic) at section 55 (3) provides the following order of medical treatment decision makers:
Although the law states that the people listed above are to be in a close and continuous relationship with you, in some cases, the prescribed hierarchy of medical decision makers may not be suitable in your circumstances. This is a strong reason for you to consider putting in place your own hierarchy via an Appointment of Medical Treatment Decision Maker document.
If you lose capacity without Enduring Powers of Attorney for financial and personal matters in place, a person may make an application to the Victorian Civil and Administrative Tribunal (VCAT) to become an administrator (who deals with financial matters) and/or a guardian (who deals with personal matters).
Under the Guardianship & Administration Act 2019 (Vic) section 32, VCAT can appoint an administrator or guardian who is:
When considering whether someone is a suitable person to act for you, VCAT must take into consideration the following:
If VCAT deems that there is nobody appropriate in your life to fulfil the role of guardian or administrator, they can appoint the Office of the Public Advocate as your guardian, and State Trustees Limited or a private trustee company as your administrator.
The process a family member or friend is required to go through in order to be appointed as your guardian or administrator can be time consuming, stressful and even costly, and ultimately, VCAT has the final say on who is appointed. This is why it is important to have Enduring Powers of Attorney in place while you have capacity, so you have peace of mind knowing that you have made the decision as to who looks after your affairs, yourself.
Marriage and divorce are significant life events that can have important implications for estate planning.
Fundamentally, a Will remains in force until it is revoked. This is most often done by the execution of a new Will to replace a pre-existing one.
But did you know, marriage or divorce can also affect the validity of a Will?
In Victoria, any Will created before the marriage will be automatically revoked when a person marries. Certain clauses of the Will which may continue to have effect notwithstanding – for example, gifts for a spouse or appoints a spouse to certain roles such as executor. However, the rest of the Will including any provisions made to other people will generally cease to have effect, leaving them out of the estate distribution altogether.
The incorporation of a “contemplation of marriage” clause can help avoid this automatic revocation issue. The contemplation is generally understood to mean that the Willmaker expects or intends to marry. The effect of this clause is to ensure that the Will continues to have operative effect even after the solemnisation of the marriage.
If a person marries without preparing a new Will or there is no contemplation of marriage clause contained in the pre-existing Will and they then pass away, the deceased’s estate will be distributed according to the laws of intestacy in Victoria.
Additionally, a person entering into de facto relationships should note that these relationships do not automatically revoke a will. However, a de facto partner in Victoria may still have legal claims to the estate under family provision laws.
Divorce also affects Wills in Victoria, but it does not revoke them in the same way as a marriage.
Under Section 14 of the Wills Act 1997 (Vic):
In other words, if a person has a pre-existing Will that leaves assets to their spouse and later gets divorced, the provisions benefitting the former spouse are automatically revoked but the rest of the Will remains in effect.
However, if that is not the Willmaker’s intention, then careful drafting of the Will is required to ensure that the former spouse is not inadvertently excluded from benefiting from the deceased’s estate.
Importantly, legal separation does not have the same effect on the Will. Until a divorce is legally finalised, the Will remains valid, meaning that a separated spouse may still inherit under a Will. This highlights the importance of updating a Will immediately after separation to reflect new intentions.
Marriage and divorce have significant legal consequences on Wills. Marriage generally revokes a Will unless it was made in contemplation of marriage, while divorce revokes specific provisions benefiting the former spouse but does not invalidate the entire Will.
Given these automatic legal effects, individuals should review and update their estate planning whenever their marital status changes. Failing to do so can lead to unintended outcomes and the potential for disputes among surviving family members.
The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and can assist you in preparing your Will to ensure that your assets do not end up somewhere unexpected.