ByLawyers News and Updates

Remote execution of wills – VIC

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Victoria has introduced a permanent procedure for remote execution of wills.

The procedure arises from the temporary COVID-19 related remote execution and witnessing laws, that are now repealed.

The remote execution of wills requires:

  1. A special witness, who can be an Australian legal practitioner or justice of the peace;
  2. All steps of the procedure to be completed on the same day and within Victoria;
  3. The testator to sign the will – or to direct someone to sign the will on their behalf, with that direction being heard by the witnesses – with all witnesses seeing the signature by audio visual link, or a combination of physical presence and audio visual link;
  4. The special witness to be the last person to witness the will;
  5. The will to be emailed to any witness attending by audio visual link, who must:
    • be reasonably satisfied that the will is the same document they witnessed the testator sign;
    • ensure that there is a statement on the will noting that the witness witnessed the will being signed by audio visual link in accordance with the procedure;
    • sign the will, with the testator clearly seeing them do so by audio visual link; and
    • in the case of the special witness, check to ensure the will complies with the remote execution procedure and also ensure there is a statement on the will noting that the will was witnessed in accordance with the procedure and that they are a special witness and note whether there is a recording of the remote execution process.

The procedure for remote execution of wills also applies to revoking or altering an existing will.

The By Lawyers Wills (Vic) guide has been updated accordingly. This includes the addition of two new jurat clause precedents to the matter plan: Remote execution procedure – Witness and Remote execution procedure – Special witness.

Casual employment – FED

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Recent amendments to the Fair Work Act

There is a new statutory definition of ‘casual employee’ from 27 March 2021. There is also an expanded statutory pathway for regular casual employees to convert their employment status to full time. Employers now have an obligation to offer permanent employment in certain circumstances.

Some relief has been granted to employers for underpayment claims from employees incorrectly classified as casual. This addresses instances of ‘double dipping’.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 has introduced significant amendments to the Fair Work Act 2009 including:

Statutory definition

Section 15A provides that a person is a casual employee if they have been offered and have accepted employment on the basis that the employer gave ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern…’.

Conversion to permanent employment

Additionally, for casual employees who fall outside the modern award framework there is a statutory obligation for employers to offer conversion to full or part-time employment, unless there are reasonable business grounds not to do so. This does not apply to small business employers.

Casual Employment Information Statement

Employers must provide casual employees with a Casual Employment Information Statement, before, or as soon as practicable after, they start their employment. This is additional to the Fair Work Information Statement.

Off-setting casual loading to prevent ‘double-dipping’

Employers are provided with relief for underpayment claims from employees incorrectly classified as casual.

Regular casual employee

The previous definition of ‘long term casual’ is replaced with ‘regular casual employee’. The definition relates to the element of employment on a regular and systematic basis, but without any specific time requirement.

By Lawyers keeps you up to date

For further details see the By Lawyers Employment Law publication which has been updated accordingly.

Apprehended violence legislation – NSW

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Apprehended violence legislation in NSW has been further amended.

Amending legislation

Further provisions of the Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 commenced on 27 March 2021.

Duration of ADVOs

Where a defendant is sentenced to a term of imprisonment which is to be served in a correctional centre, the apprehended violence legislation now requires the court to specify that any related apprehended violence order (ADVO) will be in force for a period of two years longer than the sentence imposed. That does not apply if the court otherwise orders, or if the offender is under 18 years of age.  The term of imprisonment refers to the full sentence imposed by the court, including non-parole and parole periods. The additional two years is calculated with reference to the total sentence imposed by the court at the time that the ADVO is made.

Harming animals

The apprehended violence legislation has also been amended in relation to harming, or threatening to harm, animals belonging to or in the possession of a protected person.

Conduct that causes a reasonable apprehension of harm to animals belonging to or in the possession of the protected person is now within the definition of ‘intimidation’.

A person who engages in that conduct is guilty of an offence that carries a maximum penalty of five years imprisonment or 50 penalty units or both.

The change to the definition of ‘intimidation’ means that harm to animals belonging to or in the possession of the protected person is now included in the mandatory prohibition in every AVO which prohibits damage or destroying property. This amendment was based on evidence that threatening, injuring or killing family pets is a tactic used to control and coerce partners or other family members in the context of domestic violence.

New standard order

There is a consequential amendment under the Crimes (Domestic and Personal Violence) Amendment (Standard Orders) Regulation 2021, which also commenced on 27 March 2021. This amends the Crimes (Domestic and Personal Violence) Regulation 2019 to include in the standard orders a prohibition on harming any animals owned by or in the possession of the person in need of protection under an order.

By Lawyers Apprehended violence orders (NSW) publication has been updated accordingly.

Mental health provisions – NSW

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Mental health provisions in the criminal courts have had their first substantive overhaul in 30 years. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 commenced on 27 March 2021. Division 2, Part 2 of the new Act applies to criminal offences in the Local Court.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 replaces the Mental Health (Forensic Provisions) Act 1990, including what were previously known as ‘section 32 applications’. This re-set of mental health provisions in the criminal context provides a diversionary scheme for people with mental health and cognitive impairment issues who are charged with offences that may be dealt with summarily.

Under s 12 of the Act, if it appears to a magistrate that a defendant has, or had at the time of the commission of the offence, a mental health impairment or a cognitive impairment, or both, then the magistrate can make an order under s 14 to dismiss the charge either conditionally or unconditionally. The magistrate may also adjourn the proceedings under s 13 for assessment or diagnosis, preparation of a treatment plan or to identify a responsible person for the purpose of making an order.

The main changes from the existing law – apart from the new section numbers – are:

  • ‘mental health impairment’ is now defined’;
  • the existing definition of ‘cognitive impairment’ is slightly amended;
  • the new Act sets out what the magistrate can consider when deciding whether to make an order, although the court retains ultimate discretion; and
  • magistrates can now re-call people who are discharged on conditions under the Act, which they fail to comply with, for a period of 12 rather than 6 months.

These changes should see more people with mental health or cognitive impairments successfully diverted from the criminal justice system.

The By Lawyers Criminal Law publication has been updated accordingly. The existing commentary on section 32 applications has been moved to an Appendix at the end of the commentary, as the previous legislation continues to apply to matters which were already on foot before 27 March 2021.

 

Lawyers doing immigration work – FED

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Removal of dual registration requirement

Barriers to lawyers doing immigration work have finally been lifted. From 22 March 2021 amendments to the Migration Act 1958 (Cth) remove the requirement for lawyers to also be registered as migration agents before doing immigration work for their clients.

Amendments to the Migration Act

Australian legal practitioners who hold an unrestricted practising certificate, as defined in the Migration Act, can now conduct immigration matters as part of their usual practice, with no requirement to register as migration agents under the Act.

Amendments to the Act by the Migration Amendment (Regulation of Migration Agents) Act 2020 effectively define an ‘unrestricted’ Australian legal practitioner as one who has completed their compulsory period of supervised practice after first being admitted. Those who hold an ‘unrestricted’ practising certificate are permitted to give immigration assistance in connection with legal practice without being registered as migration agents. They will no longer be able to be registered migration agents: s 276 of the Act.

Newly admitted Australian legal practitioners still within their supervision period may still become registered migration agents. In fact those practitioners may not provide immigration assistance to their clients unless they are registered migration agents. Their dual registration may continue for up to 4 years. This is intended to facilitate such lawyers doing immigration work while completing their supervision period.

The definition of Australian legal practitioner in s 275 of the Act, as amended, excludes lawyers who are admitted but who do not hold a practising certificate. It also excludes lawyers who are eligible to practice under the law of a country other than Australia or New Zealand. Those practitioners will need to register as a migration agent to be able to give immigration assistance in Australia.

Regulation

‘Unrestricted’ Australian legal practitioners are not subject to regulation by the Office of the Migration Agents Registration Authority (OMARA), whereas registered migration agents – including those who are ‘restricted’ Australian legal practitioners – are.

To be registered as a migration agent, an eligible ‘restricted’ Australian legal practitioner must satisfy the requirements of s 289A of the Act.

A registered migration agent must notify OMARA in writing within 28 days of becoming a legal practitioner, with a penalty of 100 penalty units for failure to do so: see s 312 of the Act. They will then be de-registered by OMARA.

Forms

From 22 March 2021 a legal practitioner who wishes to commence providing immigration assistance and has never been issued a Migration Agent Registration Number (MARN), will
need to complete the Australian Legal Practitioner Number (LPN) form from the Department of Home Affairs website. Al link to this form is available on the Immigration matter plan.

Appointment of a Registered Migration Agent, Legal Practitioner or Exempt Person, form 956 allows the holder of an Australian Legal Practising Certificate to advise the Department of Home Affairs that they have been appointed by a client to provide immigration assistance under the Migration Act 1958 and, if applicable, to receive documents on their behalf.

The By Lawyers Immigration Guide has been updated accordingly. This publication is available to assist lawyers doing immigration work for their clients.

Family law cases – FED

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A number of recent family law cases have been added to 101 Family Law Answers.

These new family law cases are located in the following sections of this helpful reference manual:

Costs orders

For a discussion of interim lump sum payments see Russo and Russo & Ors [2020] FCWA 182 at [61]-[66].

Settlement offers

In Paradin & Paradin [2020] FamCAFC 245 an order that the husband pay the wife’s costs was set aside. The husband had rejected the wife’s Calderbank offer because it was ambiguous and was not specific as to breakdown of payments. Strickland J stated at [57]:

… I am reminded … of what the Full Court said in Pennisi, namely, it is critical to consider the context in which an offer is made … And, as was said by the Full Court in Cross & Beaumont [2008] FamCAFC 68 … at [51] that context can be that ‘[i]f the recipient of the offer is demonstrably unable to comply with his or her obligations under the proposed settlement, it is difficult to see how the offer could be relied upon in support of an application for costs’.

Contributions – Conduct and family violence

Benson & Drury [2020] FamCAFC 303 saw the Full Court dismiss an appeal by the de facto husband against a 5% adjustment in the de facto wife’s favour. The adjustment had been made due to the impact of family violence upon her contributions, based on the arguments raised in Kennon. However, the Full Court stated that the primary judge was in error for not considering the Kennon argument in a holistic way. At [35] they stated:

…The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.

101 Family Law Answers is available as a related guide and also in the reference materials folder in all By Lawyers Family Law publications. It provides more detailed information and relevant family law cases. It is separated into the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers general procedural issues and the enforcement of orders.

Apprehended violence – NSW

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Apprehended violence legislation in NSW has been amended.

Amending legislation

The Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 commenced on 5 March 2021. The amendments affect a number of legislative provisions relating to apprehended violence orders, applications and proceedings.

Amendments

The By Lawyers Apprehended Violence Orders guide has been updated accordingly with all relevant amendments. These include:

  • the definition of ‘intimidation’ in the Crimes (Domestic and Personal Violence) Act 2007 now includes, in certain circumstances, actual or threatened harm to an animal;
  • a police officer may now issue a provisional AVO where there is a comparable interim or final order already in place and any such provisional order automatically becomes an application for a final order;
  • an apprehended violence order imposed by the court on offenders who are also sentenced to imprisonment for domestic violence offences continues for two years after the term of imprisonment is completed, unless another period is specified by the court;
  • a court may grant leave to make an application to vary or revoke an apprehended violence order which has an indefinite duration, if it is in the interests of justice to do so;
  • certain parts of AVO proceedings in which a complainant gives evidence must be held in closed court, unless a court otherwise directs;
  • domestic violence complainants now have the entitlement to give evidence using alternative arrangements to personal attendance, such as audiovisual link, in certain proceedings.

New standard order

There is also a consequential amendment arising from the Crimes (Domestic and Personal Violence) Amendment (Standard Orders) Regulation 2021 which commences on 27 March 2021. This amends the Crimes (Domestic and Personal Violence) Regulation 2019 to include in the standard orders a prohibition on harming any animals owned by, or in the possession of, the person in need of protection under an apprehended violence order.

Publication updates

In the course of making these amendments the AVO publication has also been reviewed by our author, with some minor enhancements made to the matter plan and commentary.

By Lawyers keeps you up to date!

Retirement villages – NSW

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Following recent changes to the Act, the Retirement Villages Amendment (Asset Management Plans) Regulation 2021 and the Retirement Villages Amendment (Exit Entitlement) Regulation 2021 have now commenced.

Asset management plans

The regulations require operators to maintain an asset management plan for each village they manage or operate. They must have a copy available for inspection at all reasonable times by a resident, prospective resident or a person acting on their behalf.

Operators must also prepare a 3-year report for capital maintenance, extracted from the asset management plan, to inform expenditure for major items of capital in the annual budget.

Exit entitlements, recurrent charges and right of entry

The regulations also affect exit entitlements and recurrent charges. They provide that an operator may enter premises in certain circumstances to facilitate the sale of the premises.

By Lawyers keeps you up to date

The By Lawyers Retirement Villages (NSW) guide has been updated accordingly. The effect of the new regulations is detailed in the commentary. There is also a new precedent ‘Letter to client providing advice on village contract’ which has been added to Folder B on the matter plan. The Retirement Villages (NSW) guide is included in our Conveyancing (NSW) publication.

See our related Obiter post Retirement Villages (NSW) – Amendments concerning the recent amendments to the Act.

Personal Injury Commission – NSW

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Overview

From 1 March 2021 the Personal Injury Commission (PIC) became the ‘one-stop shop’ for dispute resolution for workers compensation and motor accident claims in NSW.

The PIC has two divisions with a single point of entry via an online portal. The PIC takes over from the Workers Compensation Commission, which has been abolished. The PIC also takes over most of the dispute resolution functions from the State Insurance Regulatory Authority (SIRA) regarding motor accident claims.

The idea of the consolidation is to gain efficiencies via a single entity, especially with medical assessments and medical dispute determination. Medical assessors for both workers compensation and motor accidents claims, along with merit reviewers for motor accident matters and mediators for workers compensation matters, are appointed by the President of the PIC and operate under the PIC legislation.

The substantive law does not change.

The By Lawyers Workers Compensation and Motor Accidents publications – both Prior to 1 December 2017 and From 1 December 2017 – have all been be amended.

Legislation

Personal Injury Commission Act 2020;

Personal Injury Commission Regulation 2020; and

Personal Injury Commission Rules 2021.

What the PIC does

The PIC is not a court but is headed by a President, who is a judge of a court of record. The PIC will publish its decisions.

The two divisions, Motor Accidents and Workers Compensation, have a common registry, and common practice and procedure wherever possible.

The PIC replaces the Workers Compensation Commission and determines all disputes under the Workplace Injury Management and Workers Compensation Act 1998 and the Workers Compensation Act 1987.

Disputes in relation to claims under the Motor Accidents Injuries Act 2017 (MAIA) and the Motor Accidents Compensation Act 1999 (MACA) previously managed and resolved by SIRA are now dealt with by the Personal Injury Commission. The PIC also takes over from the Motor Accidents Claims Assessment and Resolution Service (CARS) and the Medical Assessment Service (MAS).

The Act requires the PIC to deal with proceedings justly, quickly, cost-effectively and with as little formality as possible.

The rules of evidence do not apply and proceedings must be as informal as possible, including telephone conferences instead of formal hearings.

What the PIC does not do

Disputed common law damages claims still go to the District or Supreme Court. However, the PIC must mediate the dispute first and/or provide a certificate before proceedings can be commenced.

As it is not a court, the PIC cannot determine matters that involve federal jurisdiction. The PIC Act provides a mechanism to send proceedings that involve federal jurisdiction to the District Court.

The Workers Compensation Independent Review Office (WIRO) is now known as the Independent Review Office (IRO). It continues to manage disputes regarding insurers previously managed by WIRO, with the addition of CTP insurers for motor accident claims. IRO also continues WIRO’s previous responsibility for the funding of workers compensation claims via the existing ILARS grants.

No change to the substantive law

The establishment of the PIC and the transfer to it of dispute resolution functions does not affect the underlying substantive law.

There is no change to the entitlements of injured persons to damages, benefits and entitlements under either workers compensation or motor accidents legislation.

Transitional provisions

Transitional provisions are set out in the Personal Injury Commission Regulation 2020.

For existing matters – that is, claims lodged before the commencement of the PIC on 1 March 2021 – the PIC deals with disputes and medical assessments. However it does so under the previous legislative framework – so the Workers Compensation Commission Rules 2011 and the existing provisions of the motor accidents legislation. That includes appeals, so for any arbitrated decision that was heard before 1 March 2021, but which is appealed after 1 March 2021, the appeal proceeds on the basis of the pre-existing legislation.

By Lawyers keeps you up to date!

All relevant By Lawyers publications have been updated in line with the commencement of the Personal Injury Commission. Commentary and precedents have been amended, replaced or added wherever required in our Workers Compensation, Motor Accidents and District Court publications.

Certificates of title – NSW

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The NSW Government has approved the cancellation of all remaining paper certificates of title as part of the implementation of electronic conveyancing. All remaining paper certificates of title are expected to be cancelled in April 2021. Certificates of title will then no longer be evidence of indefeasible title. The By Lawyers Conveyancing and Property guides will be amended accordingly at that point.

Implications

  • For solicitors and conveyancers any lien held over a certificate of title as a form of security for payment of costs will become ineffective.
  • Equitable mortgagees holding certificates of title as security will need to make alternative security arrangements.

Alternative security for professional costs 

  • A solicitor’s lien over all client documents created or obtained in the matter.
  • Creating a charge for the repayment of costs over the client’s real property which entitles the firm to lodge a caveat on title until all costs are paid.
  • Authority to pay professional fees and disbursements from client funds held in the trust account.
  • Guarantee clause for the performance of the agreement by a guarantor, and creating a charge over the guarantor’s real property.

All By Lawyers Costs Agreements provide for these methods of security.

Alternative protection for lenders 

  • Lien over other documents or assets held by the borrower to secure the repayment of the loan.
  • Ensuring that loan agreements contain a right to register a mortgage.
  • Lodging a caveat.

The By Lawyers Mortgages (NSW) Guide contain a ‘Mortgage Linked Loan Agreement’ that is linked to the mortgage and incorporates the provisions found in the By Lawyers ‘Registered Memorandum AJ843928’. A copy of the memorandum of common provisions is recorded at NSW Land Registry Services and can be used at no additional cost by our users.

The By Lawyers Mortgages (NSW) Guide also covers caveats and contains an ‘Acknowledgement of debt – Caveatable Interest’ that creates an interest in the borrower’s real property entitling the lender to register a caveat on the property to secure repayments.

Cancellation of ALL certificates of title

Keep an eye out for the upcoming cancellation of ALL certificates of title, paper and electronic, in NSW. This will see the removal of the requirement to lodge consents and changes to the requirements relating to verification of identity, right to deal and retention of proper evidence.

There will be another Obiter post from By Lawyers when our guides are updated for these developments.

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