ByLawyers News and Updates

Retirement village meetings – NSW

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New arrangements for retirement village meetings and voting procedures have been legislated as part of the ongoing process of COVID-19 provisions being made permanent in various areas of law.

The Retirement Villages Act 1999 has been amended to allow operators to hold meetings of residents and annual management meetings using electronic means.

The amendments also expand the existing voting procedures under the Act to allow for ballot voting by residents to be conducted by electronic means in addition to voting in person.

For all retirement village meetings and voting ballots the operator or the convener of the meeting is required to take reasonable steps to ensure each and every resident is able to participate and vote at the meeting using electronic means.

The commentary in the By Lawyers Retirement Villages (NSW) publication has been updated accordingly. It summarises the meeting and voting procedures and contains links to the new legislative provisions.

The By Lawyers Retirement Villages guide is part of the NSW Conveyancing publication. The matter plan contains many helpful precedents, including the standard retirement village contract, general inquiry document, disclosure statement, lease agreement, and the Model Rules. The full commentary assists practitioners to understand, and to advise their clients about, the standard contract, the mandatory documents, and the legislative requirements.

Statutory legacy – WA

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The statutory legacy for intestacy in Western Australia has increased significantly.

Intestacy occurs when a will does not distribute a deceased estate effectively. The statutory legacy is the amount the deceased’s surviving relatives are entitled to on intestacy under the Administration Act 1903. However, since it was last amended in 1982, Western Australia had the lowest statutory legacy in Australia with the deceased’s surviving partner entitled to:

  • the deceased’s household chattels;
  • the first $50,000 of the intestate estate; and
  • an additional one-third of the balance of the intestate estate.

Where the deceased had children, they were entitled to an equal share of the remaining two-thirds of the balance of the intestate estate.

Where the deceased left a surviving partner but no children, the partner was entitled to $75,000.

If real property was not transferred to the deceased’s partner via survivorship, the statutory legacy could be insufficient for their maintenance.  This often led to a negotiated financial arrangement with their children or proceedings under the Family Provision Act 1972.

From 29 March 2022, with the commencement of the Administration Amendment Bill 2021 (WA), the surviving partner is entitled to:

  • the deceased’s household chattels;
  • the first $435,000 of the intestate estate; and
  • an additional one-third of the balance of the intestate estate.

The deceased’s children are still entitled to an equal share of the remaining two-thirds of the balance of the intestate estate.

Where the deceased left a surviving partner but no children, the partner is now entitled to $705,000

Under the existing scheme, the parental statutory legacy where the deceased is survived by parents, siblings, and nieces and nephews but is not survived by a partner or children, was $6,000. It has been increased to $56,500.

A formula has been added to the Act requiring the amount of these statutory legacies be reviewed every two years.

The commentary in the By Lawyers WA Letters of administration publication has been updated accordingly.

COVID Recovery – VIC

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Practice Direction No. 3 of 2022 – COVID recovery currently applies to all types of matters in the Magistrates’ Court of Victoria. It overrides any other directions to the extent of any inconsistency.

In general, remote appearances by clients and practitioners are available, encouraged, and in some cases required. However, physical appearances are also possible, mainly by request, and in some cases required.

The practice direction sets out detailed special arrangements for all types of appearances, including:

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • criminal mentions and applications;
  • Specialist courts and programs;
  • intervention orders – applications and hearings;
  • civil hearings including oral examinations;
  • counter services.

In some instances it is necessary for practitioners to email the court and request permission to make a physical appearance in a matter.

The By Lawyers commentaries in all publications involving the Magistrates’ Court have been updated with a link to the practice direction.

  • Magistrates’ Court – Criminal
  • Intervention Orders
  • Traffic Offences
  • Magistrates’ Court Civil – Act for the plaintiff
  • Magistrates’ Court Civil – Act for the defendant
  • Enforcement

These COVID recovery arrangements under the practice direction continue indefinitely at this stage.

Employee or independent contractor – FED

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A new section Employee or independent contractor has been added to 101 Employment Law Answers summarising and providing links to these important recent cases:

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; and

ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2

These appeals from the full Court of the Federal Court both turned on the question of determining the workers’ status as employee or independent contractor and were heard together. The High Court held that where parties have comprehensively committed the terms of their relationship to a written contract, which is not challenged as a sham or otherwise ineffective under general law, the characterisation of the relationship as one of employment, or otherwise must proceed by reference to the rights and obligations of the parties under that contract.

Only where there is no written agreement, or the agreement is ineffective, will the traditional multi-factorial test be required to determine the nature and conditions of the parties relationship.

Whether a worker is an employee or independent contractor is important for a number reasons including:

  • vicarious liability – which generally extends to employees but not independent contractors;
  • workers compensation insurance – who is covered and who is responsible for obtaining it;
  • superannuation guarantee payments – whether they apply;
  • unfair dismissal claims – whether a worker has recourse;
  • taxation responsibilities – including whether PAYG tax is required to be deducted from worker payments;
  • long service leave and other leave entitlements – whether they apply;
  • availability of remedies for workers; and
  • the jurisdiction of tribunals.

See 101 Employment Law Answers in the Reference materials folder on the Employment Law matter plan, and the Employment Law commentary for more information.

County Court lists – VIC

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New County Court lists commence in the Commercial Division from 1 March 2022.

The County Court (Chapter I Miscellaneous Amendments) Rules 2021 provide for the Expedited Cases List to become the Complex Cases List from that date. The amending rules provide that the Complex Cases List shall consist of any proceeding that is appropriate for more intensive case management. Transitional provisions in the amending rules provide that proceedings in the Expedited Cases List immediately before 1 March 2022 are, on that day, taken to be entered in the Complex Cases List.

There is also a newly established Arbitration List, for all matters under the Commercial Arbitration Act 2011.

The commentaries in the By Lawyers County Court – Act for the Plaintiff and County Court – Act for the Defendant publications have been updated to include these new County Court lists.

This is the final tranche of changes under these rules amendments. Other changes that have already commenced relate to the preparation and filing of affidavits and exhibits in the County Court, and mediation by the registrar. See our previous News & Updates posts in that regard.

Criminal procedure – VIC

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Criminal procedure amendments enacted by the Justice Legislation Amendment (Criminal Procedure and Other Matters) Act 2022 have commenced. Further amendments are pending.

Amendments include:

Prosecution disclosure obligations

Section 41 Criminal Procedure Act 2009 sets out what must be provided in a full brief.  This includes any information, document, or thing on which the prosecution intends to rely at the hearing. The section has been amended to require the prosecution to now include in the brief any information relevant to the credibility of a prosecution witness, including their criminal record if any.

The informant, usually a police officer, also has an ongoing duty of disclosure to the Director of Public Prosecutions where that office is conducting the prosecution. The informant must provide to the DPP any information, document, or thing that is in the possession of, or known by, the informant that is relevant to the alleged offence, subject to any claims for statutory privilege or public interest immunity.

An amendment yet to commence requires detailed disclosure certificates to be prepared by the prosecution to ensure compliance with these disclosure requirements. There are associated tweaks to the pre-trial procedure to accommodate them. These amendments are awaiting proclamation, but have a default commencement date of 1 October 2022.

Remote evidence

The criminal procedure amendments introduce an obligation on the court to direct that the evidence of a witness be given remotely if the witness is a complainant in a proceeding that relates to an offence that constitutes family violence within the meaning of the Family Violence Protection Act 2008. This applies if closed-circuit television or other facilities that enable communication between the courtroom and another place are available and it is practicable to do so.

Appeals

Where the Magistrates’ Court in any given matter is constituted by the Chief Magistrate who is a dual commission holder, meaning also a Supreme Court judge, appeals are now to the Court of Appeal.

Intervention Orders

Declarations of truth are now available for applicants commencing applications for personal safety intervention orders. This is in addition to oaths, affirmations, and affidavits. Declarations of truth were already available for family violence applications.

Under both Acts, special rules apply for the cross-examination of affected family members and children. The amendments have effectively made remote evidence the default position for protected witnesses, which includes children and close family members of the accused. See s 69 (1A) of the Family Violence Protection Act 2008 and ss 49 and 52 of the Personal Safety Intervention Orders Act 2010.

Publication updates

These changes have been reflected as required in the By Lawyers Magistrates’ Court – Criminal publication. When the additional amendments commence our publications will be further updated.

County Court rules – VIC

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A second tranche of amendments to the County Court rules commence on 31 January 2022. These relate to mediation.

A new rule 50.07.2 provides for the court to order that matters be referred to a registrar for mediation, at any stage of the proceedings. This new rule is in addition to the existing rule which allows the court to refer matters to mediation by a judicial registrar.

Other amendments to the County Court Civil Procedure Rules 2018 under the County Court (Chapter I Miscellaneous Amendments) Rules 2021 have already commenced. These concern the way affidavits and exhibits are prepared and filed. See Affidavits, Annexures and Exhibits on both the Acting for the plaintiff and Acting for the defendant matter plans in the By Lawyers County Court (VIC) publication for more information.

A third tranche of amendments to the rules will commence on 1 March 2022. These deal with the titles and nature of the lists in the Commercial Division. By Lawyers County Court publication will be further amended to reflect these changes in due course.

Spent convictions – VIC

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The Spent Convictions Act 2021 (Vic), along with the Spent Convictions Regulations 2021 (Vic), establishes a legislative scheme for criminal convictions to lapse after a set period automatically.

The commencement of this legislation on 1 December 2021, brought Victoria into line with the other states which already have such a scheme.

Employees and job candidates have rights under the Act, relating to an employer’s access to their criminal records. When particular criminal convictions lapse they may not be used as a basis for making decisions about a person’s employment. This generally applies to less serious offences.

Convictions which have lapsed under the legislation will not appear on a police record check unless the check is for certain types of employment, such as working with children. Specific provisions under some legislation, for example an application for a firearms licence, will still require full criminal histories to be disclosed.

Convictions for offences which are not deemed serious are eligible to be spent automatically after a 10-year crime-free period, for offences committed as an adult. The period is 5 years for offences committed as a minor.

The Spent convictions commentary has been updated in the By Lawyers Employment Law and Magistrates’ Court – Criminal (Vic) guides.

Sexual harassment – FED

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New provisions for the prevention of sexual harassment and bullying in the workplace have commenced.

Part 6-4B of the Fair Work Act 2009 (Cth) now provides that workers can apply to the Fair Work Commission for orders to stop sexual harassment as well as workplace bullying. To be eligible to make an application a worker must be employed in a constitutionally-covered business.

There is no time limit for making an application for an order to stop bullying or sexual harassment at work. Section 789FF of the Fair Work Act 2009 provides that for the Fair Work Commission to be able to make an order there needs to be a risk that the applicant will continue to be bullied or sexually harassed at work. If the worker no longer has a connection to the workplace, an order cannot be made as there is no future risk of the relevant behaviour occurring.

‘Sexually harass’, for these purposes, has the same meaning as in s 28A of the Sex Discrimination Act 1984 (Cth).

Examples of sexual harassment include:

  • inappropriate behaviour including staring, leering, loitering or unwelcome touching;
  • suggestive comments, jokes or gestures based on sex or a person’s private life or body;
  • communicating sexually explicit material in person or electronically.

The objectionable conduct must occur at work, which is not defined but is tied to work activities wherever they occur and is not limited to the confines of a physical workplace. It includes entering, moving about and leaving a workplace.

The application needs to be lodged with the Fair Work Commission using the prescribed form: Application for an order to stop bullying or sexual harassment (or both).

The employer needs to respond within 7 days of being served using the prescribed form: Response from an employer or principal to an application for an order to stop bullying or sexual harassment (or both).

The alleged perpetrator will receive a copy of the application and be invited to respond within 7 days using the prescribed form: Response from a person named as having engaged in bullying or sexual harassment (or both).

All the prescribed forms are available in the Workplace bullying and sexual harassment folder on the matter plan in the By Lawyers Employment Law publication. The commentary has also been updated accordingly.

COVID measures are here to stay – All states

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Many temporary COVID measures introduced across Australia during the pandemic are here to stay.

New South Wales and Queensland have now proposed legislation permanently retaining some COVID measures, such as remote witnessing. Victoria have already legislated to retain some COVID measures. The Commonwealth has extended temporary measures for companies.

With other states and territories expected to follow suit, the long-term legal legacy of COVID-19 looks like being significant.

New South Wales

The Electronic Transactions Amendment (Remote Witnessing) Bill 2021 will permanently allow certain documents to be witnessed in real time over an audio-visual link.

Further, for an additional 12 months from the date of assent, the list of people who can witness NSW statutory declarations will be extended to the expanded list of witnesses set out in Schedule 2 of the Statutory Declarations Regulations 2018.

Queensland

The Justice and Other Legislation Amendment Bill 2021 will make permanent some of Queensland’s  temporary COVID measures including:

  • Remote witnessing and electronic signing of affidavits, statutory declarations and some oaths; however electronic signatures on statutory declarations can only be used for a land or water dealing where electronic conveyancing is used.
  • Powers of attorney for corporations, partnerships and unincorporated associations, but not sole traders, can be signed electronically, in counterpart, by split execution and without a witness; however, if a general power of attorney is used for a land or water dealing it must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Advance health directives can be certified as to capacity by nurses, in addition to doctors.
  • Deeds can be made in the form of an electronic document, electronically signed, made in counterpart and by split execution, generally without a witness. The Bill also removes the requirement for deeds to be sealed, requiring the deed to contain a clear statement that it is executed as a deed. However, deeds lodged or deposited in relation to land and water dealings must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Private applications for temporary protection orders in domestic and family violence matters may be filed electronically, with a hearing date allocated and the application served before the application is verified. Verification can occur later, when the magistrate hears the application. The Magistrates Court may hear any part of family and domestic violence proceedings by audio visual link.

South Australia

The Oaths (Miscellaneous) Amendment Act 2021 commencing on 1 December 2021 amends the Oaths Act 1936 (SA) to:

  • Provide continuity following the expiration of the COVID-19 Emergency Response Act 2020 and its associated regulations through the Oaths Regulations 2021.
  • Introduce a Code of Practice – Affidavits to be followed by deponents and witnesses in the making of affidavits.
  • Introduce a Code of Practice – Statutory Declarations to be followed by declarants, and witnesses to ensure statutory declarations are taken in accordance with the Oaths Act 1936.
  • Expand the persons before whom a statutory declaration may be made as stated in the new Schedule 1 to the Oaths Act 1936.
  • Include additional offences for those falsely representing themselves as authorised witnesses to a statutory declaration or affidavit.

By Lawyers keeps you up to date

All relevant By Lawyers guides, including the dedicated guide Dealing with COVID-19 legal issues – Some practical information which appears at the top of all By Lawyers matter plans, have been or will be updated to reflect these changes as and when they take effect.

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