ByLawyers News and Updates

Advance care directives – TAS

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Advance care directives made under the laws applicable in some other Australian states will now be recognised in Tasmania.

Section 35ZN of the Guardianship and Administration Act 1995 provides that a validly made interstate advance care directive that has substantially the same effect as instruments under the Act can, by notice published in the Gazette, be recognised in Tasmanian.

The Gazette notice Advance Care Directives Corresponding Laws published on 22 May 2024 provides for the recognition in Tasmania of advance care directives made in the following states and territories:

  • Australian Capital Territory;
  • Queensland;
  • South Australia;
  • Victoria;
  • Western Australia; and
  • Northern Territory.

The By Lawyers Powers of Attorney, Enduring Guardianship, and Advance Care Planning (TAS) guide has been updated accordingly.

New visa – FED

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New visa

The Australian Government has introduced a new permanent residence visa, subclass 192, from 3 June 2024 which permits eligible nationals of participating Pacific Island countries and Timor-Leste to apply if they are first selected in a ballot.

The new visa is intended to deepen connections and improve mobility and migration opportunities within the Pacific region.  It gives priority to countries with limited permanent migration opportunities to Australia, or citizenship rights with New Zealand, France, and the United States.

Three thousand places are allocated for this visa annually.

To be eligible to apply for the visa, an applicant has to be randomly selected in a ballot. The ballots are intended to ensure a fair and transparent process and equal access to the new visa for persons of any skill level, occupation, and gender. A separate annual ballot is held for each country and registration through the Department of Home Affair’s ImmiAccount is required.

Eligibility requirements to take part in the ballot are:

  • aged between 18-45 years at the commencement of the ballot registration period for the particular country
  • hold a valid passport issued by one of the participating countries
  • be born in, or have a parent that was born in, any of the participating countries, or Australia, New Zealand, Samoa, or the Marshall Islands
  • not be a citizen of New Zealand
  • not already be registered in the same ballot
  • pay the registration fee of AUD25.

Registration for the ballot has to occur within the registration period when the ballot is open.

If an applicant is selected, they can submit their visa application within 120 calendar days.

To apply for the permanent visa, selected applicants have to be between 18 and 45 years old, have a formal job offer in Australia, and meet general visa requirements

More details can be found in the full commentary in the By Lawyers Immigration guide.

Employment Law updates – FED

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As employment lawyers would be well aware, employment law updates have been more frequent over the past few years than in any other area of law.

The By Lawyers Employment Law publication has been regularly updated since December 2022 to reflect the staged commencement of various changes under federal legislation including:

  • Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022
  • The Fair Work Legislation Amendment (Closing Loopholes) Act 2023
  • Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024

The Fair Work Commission has also implemented new rules to reflect these legislative changes.

To ensure coherence and consistency following all these employment law updates, the Employment Law matter plans and commentary have recently been reviewed by our author and our in-house legal editorial team.

Topics covered in the commentary that have been amended and reviewed because of the various employment law updates include:

  • The Overview including the objects of the Fair Work Act;
  • Equal remuneration requirements;
  • Prohibitions on pay secrecy;
  • Anti-discrimination and special measures;
  • Prohibiting sexual harassment in connection with work;
  • Flexible work arrangements;
  • Extensions of unpaid parental leave;
  • Small business redundancy;
  • Regulating labour hire arrangements – fixed term contracts and labour hire orders;
  • Added protection against discrimination under the National Employment Standards, especially concerning family violence;
  • The definition of casual employee;
  • Casual conversion; and
  • Unfair contracts.

See the following By Lawyers News and Updates posts for more details of the changes:

The By Lawyers Employment law publication is up to date with all changes.

Legislative amendments impacting various aspects of enterprise agreements are largely beyond the scope of the publication.

Relevant cases have also been added to 101 Employment Law Answers in the Reference Materials folder on the matter plan, including Feldschuh v Strong Room Technology Pty Ltd [2024] FWCFB 254, in which the Full Bench of the Fair Work Commission (FWC) held that a company director was not also an employee.

Parenting – FED

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The significant changes to family law parenting applications have been incorporated into the By Lawyers Family Law – Children guide.

The amendments to the Family Law Act 1975 and to the Court’s procedure arise under two separate pieces of legislation that commenced on 6 May 2024.

Family Law Amendment Act 2023

The amendments to how parenting orders are dealt with under the Family Law Act 1975 (Cth), include:

  • a refined list of factors for the court to consider when determining the best interests of the child, the emphasis now being on safety and the needs of individual children;
  • a new subsection requiring the court to consider the right of an Aboriginal or Torres Strait Islander child to connect with their family, community, culture, country, and language;
  • provisions that allow the court to consider any views expressed by the child to the independent children’s lawyer;
  • the repeal of the presumption of equal shared parental responsibility and the related equal time and substantial and significant time provisions;
  • codification of the rule in Rice & Asplund that requires a court to be satisfied that a significant change in circumstances has occurred before varying final parenting orders; and
  • a mechanism for the court to address repetitive filing of applications by one party to oppress another party.

Family Law Amendment (Information Sharing) Act 2023

  • establishes a new regime for information about domestic violence, children at risk, and firearms licensing to be shared between the relevant State authorities and the Federal Circuit and Family Court of Australia;
  • makes such material admissible in parenting matters, subject to exceptions and safeguards, for example legal professional privilege.

Publication updates

The Family Law – Children publication has been updated accordingly. To assist firms in understanding and transitioning to the changes a heading Changes effective 6 May 2024 has been added under the Overview in the commentary and on the matter plan, with a concise summary of the amendments and a Comparative table detailing the changes to the Family Law Act effective 6 May 2024 has been added as an Appendix to the commentary, with a link on the matter plan.

101 Family Law Answers has also been updated. Summaries and links to Rice & Asplund and related cases remain available.

Our family law authors and our in-house team will continue to monitor developments and update the publications further as the jurisprudence around these amendments develops.

Electronic signing and witnessing

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A new guide to Electronic Signing and Witnessing has been added to the Reference Materials folder on all By Lawyers matter plans.

This helpful resource summarises the various legislation across all Australian jurisdictions for electronic transactions.

Electronic signing and witnessing

In Australia under federal, state, and territory legislation many transactions can be completed electronically.

Electronic signing and witnessing are available for many, but not all, transactions and documents encountered in every day practice. However, the availability of electronic signing and witnessing is considerably different in each jurisdiction.

The new guide summarises the applicable legislation in each jurisdiction, to assist practitioners understand when electronic signing and witnessing is permitted and how it can be done.

Legislation

The Commonwealth took the lead on legislation to enable electronic transactions at the turn of the millennium, and sought the cooperation of the states in enacting consistent laws across all jurisdictions, resulting in the following legislation:

Electronic Transactions Act 2001 (ACT)

Electronic Transactions Act 1999 (CTH)

Electronic Transactions Regulations 2020 (CTH)

Electronic Transactions Act 2000 (NSW)

Electronic Transactions Regulation 2017 (NSW)

Electronic Transactions (Queensland) Act 2001 (QLD)

Electronic Transactions (Northern Territory) Act 2000 (NT)

Electronic Transactions (Northern Territory) Regulations 2001 (NT)

Electronic Communications Act 2000 (SA)

Electronic Communications Regulations 2017 (SA)

Electronic Transactions Act 2000 (TAS)

Electronic Transactions Regulations 2021 (TAS)

Electronic Transactions (Victoria) Act 2000 (VIC)

Electronic Transactions (Victoria) Regulations 2020 (VIC)

Electronic Transactions Act 2011 (WA)

Electronic Transactions Regulations 2012 (WA)

Unfortunately, the approach taken by each state and territory to implementing this legislation differs to various degrees from both the Commonwealth’s and each other’s. Each jurisdiction has exempted certain statutes, transactions, and documents from the operation of their Act or some of its provisions.

This means that, while all jurisdictions have laws providing for electronic transactions and electronic signing, and some have laws for audio visual witnessing, the documents that can be electronically signed and the requirements for execution vary between the jurisdictions.

The new guide brings all of this information together for practitioners to easily reference in any matter they are working on.

New FWC Rules – FED

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The Fair Work Commission (FWC) rules regulate the work of the Fair Work Commission. They include the procedures and requirements for filing and serving applications and responses in the various types of employment disputes under the Fair Work Act 2009 (FWA) and other legislation.

There are new FWC rules from 27 March 2024. The Fair Work Commission Rules 2024 (Cth) have replaced the Fair Work Commission Rules 2013 (Cth).

The new FWC rules remake and update the 2013 version. In addition to updates for some amended legislation and procedure, the rules have been substantially rearranged and renumbered.

There are now separate chapters of the rules for matters under the FWA, matters under other legislation, and for appeals and reviews.

The chapter for FWA matters is divided into separate parts that accord with all the areas of possible applications under the Act:

  1. National Employment Standards;
  2. Modern awards;
  3. Enterprise agreements;
  4. Regulated labour hire arrangement orders;
  5. Transfer of business;
  6. Fixed term contracts;
  7. General protections, unfair dismissal and unlawful termination;
  8. Industrial action;
  9. Right of entry;
  10. Sexual harassment and bullying;
  11. Regulated workers; and
  12. Disputes under dispute procedures in awards, enterprise agreements et cetera.

The requirements for service of applications and responses are now all contained within Schedule 1 to the new rules.

The transitional provisions provide that the new FWC rules apply to new matters and to any step in a matter already on foot, however the FWC can order that the previous rules continue to apply to a matter already on foot.

The By Lawyers Employment Law guide has been updated accordingly.

Conveyancing Answers – VIC

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Some notable recent conveyancing cases have been added to 1001 Conveyancing Answers (VIC) and the information in several sections has been updated.

These enhancements are part of an extensive review of the publication by our author Russell Cocks.

Updates include detailed information on:

  • recent changes to land tax for vacant residential land;
  • the new prohibition against the adjustment of land tax for properties priced under $10,000,000;
  • the new prohibition against the adjustment of windfall gains tax; and
  • new requirements surrounding building manuals under s 15A Sale of Land Act 1962.

New cases added to the publication include:

1001 Conveyancing Answers (VIC) is available in all By Lawyers conveyancing and property publications in Victoria. This comprehensive reference work assists property lawyers and conveyancers to understand more detailed aspects of the conveyancing process and solve problems for their clients.

Standard orders – VIC

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The County Court’s library of standard timetabling and other orders have been added to the relevant By Lawyers litigation matter plans.

The County Court requires practitioners to use the court’s orders that are published in booklets on the Court’s website unless good reason exists to alter those orders, or draft alternate ones. A different booklet of standard orders applies for each of the Common Law and Commercial divisions.

The orders cover all aspects of procedure in the court, including listing, timetabling, extensions of timetables, subpoenas, and costs. There are specific standard orders for each of the court’s various lists, such as the:

  • General List – personal injury,
  • General List – property damage,
  • Serious injury list – TAC proceedings,
  • Defamation list, and
  • Family property list – TFM claims.

The full library of these standard orders has been automated and added to Folder A. Going to Court in By Lawyers County Court – Acting for the plaintiff and County Court – Acting for the defendant guides.

A selection of these orders has also been added to the following By Lawyers guides, as appropriate:

The court forms for the Commercial List Order template and the Common Law Division Minutes of Proposed Consent Orders have also been added to the relevant matter plans. These are the forms into which the various orders are inserted as appropriate.

Additional commentary explaining the requirements and practicalities of using these orders has also been included in the relevant By Lawyers commentaries.

Bail amendments – VIC

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The latest raft of bail amendments have effect from 24 March 2024.

Changes to the Bail Act 1977 under the Bail Amendment Act 2023 and Bail Amendment Regulations 2024 include:

Second bail application now permitted

The amendments allow an accused person to make a second legally-represented bail application before a court without having to establish new facts or circumstances. This addresses the issue of lawyers being reluctant to represent an accused person on a bail application at the first possible opportunity because of the concern it will exclude them from making a better-prepared application a bit later, which has contributed to a high number of short-duration remands.

Changes of terminology and defined terms

These bail amendments include changes in terminology:

  • from surety and persons offering a surety, to bail guarantee and bail guarantors; and
  • from undertaking to bail undertaking, which accords with a slight amendment to the definition of an undertaking in s 3, so that it means a bail undertaking given under s 5(1) to surrender into custody at the time and place specified for the next appearance, rather than undertaking more generally under s 5 or otherwise.

Refinements to the unacceptable risk test

Under the current test, a person can be remanded in custody if there is a perceived risk of even minor reoffending. To address this, the amendments refine the unacceptable risk test so that an accused person cannot be refused bail on specified minor offences unless they have a terrorism record and have previously had their bail for the same offences revoked. The offences to which this provision applies are any under the Summary Offences Act 1966 except those listed in a new Schedule 3 to the Bail Act, relating to violent and sexual offences. Accused persons released on bail for these offences can still be subject to strict bail conditions.

Additional surrounding circumstances

When considering the surrounding circumstances under s 3AAA of the Bail Act in the context of determining bail, the bail decision-maker must take into account, if relevant, several new factors in addition to those already listed in the section, being:

  • whether, if the accused is found guilty, it is likely they would be sentenced to a term of imprisonment and, if so, that the time they would spend on remand if bail is refused would exceed the term of imprisonment;
  • whether the accused was on remand for another offence or was at large awaiting sentence for another offence; and
  • any special vulnerability of the accused, including being an Aboriginal person, being a child, experiencing ill health including mental illness, or having a disability.

Aboriginal people

Section 3A of the Bail Act provides a list of non-exhaustive considerations that must be taken into account when making a bail determination concerning an Aboriginal person. The section has been amended to give greater guidance to bail decision-makers, who will now be required to consider:

  • systemic factors that have resulted, and continue to result in the over-representation of Aboriginal people in the criminal justice system and remand population, and the increased risks of Aboriginal people in custody;
  • personal circumstances that may make an Aboriginal person particularly vulnerable in custody, may be a causal factor for offending behaviour, or may be disrupted by being remanded -such as disability, trauma, family violence, involvement with child protection, housing insecurity, and caring responsibilities;
  • the importance of maintaining protective factors that play a significant role in rehabilitation, such as connection to culture, kinship, family, Elders, country and community; and
  • any other cultural obligations.

Children

These bail amendments update the child-specific considerations in the Act limit the applicability of the step 1 exceptional circumstances test and the step 1 compelling reason test to children charged with a small number of very serious offences, or with a record or risk of terrorist activities. In addition to the current considerations in s 3B of the Bail Act, bail decision-makers will need consider the need to impose on the child the minimum intervention required in the circumstances, with remand of the child being a last resort

Review

A new s 32C of the Bail Act provides that the Attorney-General must conduct a review of the operation of these bail amendments no later than 2 years after their commencement.

Publication updates

The By Lawyers Criminal Magistrates’ Court guide has been updated accordingly.

Costs disclosure – QLD

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Abbreviated costs disclosure is available to Queensland law firms from 1 March 2024.

A new section 307B of the Legal Profession Act 2007 (QLD) provides for a simpler form of disclosure where legal costs in a matter, excluding GST and disbursements, are not likely to exceed the detailed disclosure threshold set out in s 300, which is currently $3,000.

This new form of disclosure is available as an alternative to the detailed disclosure requirements under s 308 of the Act.

Under s 307B, a law practice is required to disclose to the client:

  • in general terms, the legal services that will be provided to the client;
  • the basis on which legal costs will be calculated, including whether a scale of costs applies;
  • an estimate of the total amount of the legal costs;
  • an estimate of the total amount of disbursements; and
  • the client’s right to:
    • negotiate a costs agreement with the law practice;
    • receive a bill from the law practice;
    • request an itemised bill after receiving a lump sum bill; and
    • be notified of any substantial change to the matters disclosed under s 307B.

All By Lawyers Queensland and Federal publications have been updated with a compliant abbreviated costs disclosure precedent.

By Lawyers 101 Costs Answers guide has been updated to include commentary on the new abbreviated costs disclosure requirements.

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