ByLawyers News and Updates

Administrative Review Tribunal – FED

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The Administrative Review Tribunal (ART) commenced on 14 October 2024. It replaced the Administrative Appeals Tribunal (AAT) and the Immigration Assessment Authority (IAA) which are both abolished.

The new tribunal was set up with the stated objective of providing an independent mechanism for review that:

  • is fair and just;
  • ensures that applications to the tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the tribunal permits;
  • is accessible and responsive to the diverse needs of parties to proceedings;
  • improves the transparency and quality of government decision‑making; and
  • promotes public trust and confidence in the tribunal.

The ART consists of a President and a Deputy President, both of whom must be judges, as well as senior members and general members.

The tribunal’s governing legislation is the Administrative Review Tribunal Act 2024 (the Act) and the Administrative Review Tribunal Regulations 2024 (the Regulations).

Provisions of other legislation can apply in addition to or instead of the Act. The Migration Act 1958 contains several such provisions.

The Minister has rule-making power under the Act, and the President of the ART can make practice directions.

Publication updates – Immigration

The Administrative Review Tribunal deals with matters including reviewable migration decisions and reviewable protection decisions. The By Lawyers Immigration guide has been updated accordingly.

Changes concerning how reviews of visa decisions are dealt with include:

  • The divisions of the previous tribunal have been replaced with eight jurisdictional areas, one of which is migration. Lists within each jurisdictional area led by a Deputy President or Senior Member will focus expertise on particular types of applications.
  • The procedures of the tribunal are harmonised and contained in the Regulations, the Rules and Practice Directions.
  • Fast-track reviews under the provisions of Part 7AA of the Migration Act 1958 in relation to protection visa decisions, previously dealt with by the IAA, are no longer available and the provisions have been repealed.
  • Reviews under Parts 5 and 7 of the Migration Act 1958 are now heard by the Administrative Review Tribunal.
  • Appeals and reference of questions of law can be made from the ART to the Federal Court under Part 7 of the Act.
  • A guidance and appeals panel has been established consisting of senior tribunal members to review tribunal decisions if there is an issue of significance to administrative decision-making, or an error of fact or law materially affecting the tribunal’s decision.
  • The ART is subject to monitoring by the newly established Administrative Review Council with regard to the overall administration of justice, not individual decisions.

Commencement and transitional provisions

The new law applies to all new and existing cases from 14 October 2024. Proceedings commenced in the AAT of IAA under the old statutory regime will automatically be transferred to the ART and dealt with under the new law.

Proceedings for review of a reviewable protection decision previously fast-tracked by the IAA will be continued and finalised by the ART.

New forms will be created, but the old forms can continue to be used for review applications after 14 October 2024.

AML/CTF – All states

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A Bill currently before Federal parliament expands the existing AML/CTF regime under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (the Act) to real estate professionals, dealers in precious metals and precious stones, and professional service providers, including lawyers, conveyancers, accountants, and trust and company service providers. These are all known as reporting entities.

The Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2024 (Cth) will have a substantial impact on law firms and some preparation will be required before its commencement.

Commencement

The Bill’s main provisions commence in March 2026.

Customer due diligence

Requirements for a reporting entity to identify their customer through initial Customer Due Diligence (CDD) include:

  • if the customer is an individual, taking reasonable steps to establish they are who they claim to be, including if they are a politically exposed person;
  • identifying the customer’s ML/TF risk;
  • collecting information about the customer appropriate to ML/TF risk; and
  • verifying the customer information using independent and reliable data that is appropriate to ML/TF risk.

Ongoing CDD requirements require reporting entities to monitor their customers to appropriately identify, assess, manage, and mitigate the ML/TF risks they may reasonably face in providing services. This includes reviewing and updating customer information and monitoring for unusual transactions and behaviours that may give rise to a suspicious matter reporting (SMR) obligation.

Reporting entities may apply simplified CDD, and must apply enhanced CDD, as part of initial and ongoing CDD in certain prescribed circumstances.

Simplified CDD gives reporting entities more discretion, provided the customer’s ML/TF risk is low and other requirements are met, to apply simplified initial and ongoing CDD.

Reporting entities must apply enhanced CDD appropriate to customer risk in certain specified circumstances, or if the customer is high ML/TF risk. In these cases, reporting entities are required to collect and/or verify additional information relevant to mitigating the identified higher risk, and must be reasonably satisfied that they know and understand the identity of their customer.

In enhanced CDD scenarios, ongoing CDD must also be adjusted to ensure it is appropriate to the ML/TF risk of the customer and meets specific requirements to be set out in the AML/CTF Rules.

Policies

Reporting entities must have internal policies for AML/CTF that meet the requirements of the Rules that need to cover:

  • how the reporting entity will inform its governing body of the money laundering, terrorism financing, and proliferation financing risks faced by the reporting entity in its provision of designated services;
  • designating an AML/CTF compliance officer;
  • designating a senior manager responsible for approving any changes to the ML/TF risk assessment or AML/CTF policies;
  • how the reporting entity will undertake due diligence on staff engaged by the reporting entity whose role in the reporting entity may allow them to facilitate serious financial crimes or whose role is relevant to AML/CTF compliance;
  • how a reporting entity will provide risk awareness and management training to staff engaged by the reporting entity;
  • how, and when, to conduct an independent review of its AML/CTF program; and
  • any other matters provided for in the AML/CTF Rules.

Privilege

Section 242 of the Act already provides that it does not affect the law relating to legal professional privilege. The Bill provides stronger protections for the disclosure of information or documents that are subject to legal professional privilege to reflect the fact that lawyers are to be included in the regime.

Offence

The Bill creates a new offence intended to prevent the reporting entity disclosing information to their clients, such as the fact they have made a suspicious matter report, if it could reasonably prejudice an investigation.

Act repealed

The Bill also repeals the Financial Transaction Reports Act 1988 (FTR Act).

Guidance

The Law Council of Australia has issued Guidance for the profession on these changes.

Publication updates

By Lawyers publications will be amended as required to account for these changes. Specific amendments are likely to include First steps in all commentaries, the Conveyancing and Property guides in each jurisdiction, and the Practice Management guide.

In the interim, this overview of the Bill’s impact is being added to the Looking to the Future summary of forthcoming significant amendments in the Reference Materials folder of all By Lawyers publications.

Bail conditions – SA

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New mandatory bail conditions apply for certain applicants in South Australia from 1 October 2024.

The Bail (Conditions) Amendment Act 2024 introduces new sub-section (2ae) into s 11 of the Bail Act 1985 that provides for mandatory conditions to apply if bail is granted for charges that constitute a breach of intervention orders involving physical violence or threats of physical violence.

If bail is granted to a person charged with the relevant offences, it must be subject to conditions that the bailee remains at their residential address except for work, medical, or emergency reasons, and agrees to be fitted with an electronic monitoring device.

The new provisions concerning mandatory conditions only apply to adult offenders.

The transitional provisions in the amending Act provide that the new provisions concerning mandatory conditions only apply to bail applicants taken into custody on a charge for an offence allegedly committed after the commencement of the amending Act on 1 October 2024.

The By Lawyers Magistrates Court Criminal (SA) publication has been updated accordingly. In the course of making these changes, new commentary has also been added including a section concerning second or subsequent applications for bail.

Defamation – VIC

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The long-awaited second stage of the uniform defamation law reform has effect in Victoria from 11 September.

These reforms have already commenced on 1 July in the ACT and NSW. Other states are expected to follow in due course.

The 2024 amendments include:

Exemption from liability in defamation as publishers for digital intermediaries

The legislation now provides an exemption from liability in defamation for digital intermediaries providing caching, conduit, or storage services, provided the intermediary did not:

  1. initiate the steps required to publish the matter;
  2. select any of the recipients of the matter;
  3. encourage the poster of the defamatory material to publish the matter;
  4. edit the content of the matter whether before or after it was published; or
  5. promote the matter whether before or after it was published.

The section applies regardless of whether the digital intermediary knew or ought reasonably to have known the digital material was defamatory.

Exemption from liability under defamation law for search engine providers

Like digital intermediaries, search engine providers are not liable for defamatory material comprising search results if the provider’s role is limited to providing an automated process for the search engine user to generate search results or hyperlinks, provided the search results or hyperlinks are not promoted or prioritised by the search engine provider receiving a payment or another benefit by or on behalf of a third party.

The provision applies regardless of whether the search engine provider knew or ought reasonably to have known the digital matter was defamatory.

Early determination of digital intermediary exemptions

The court must determine whether a defendant has a digital intermediary exemption and whether the exemption is established as soon as practicable before the trial commences unless there are good reasons to postpone the determination. In doing so, the court can make any orders it considers appropriate, including dismissing the proceedings, if satisfied the digital intermediary exemption is established.

Content of offer to make amends

The digital intermediary exemptions from liability as publishers include changes to offers to make amends, in that an offer in the case of digital matter may include an offer to prevent access to the defamatory material, instead of, or in addition to, other offers to make amends.

Orders for preliminary discovery in defamation cases about posters of digital matter

Defamation litigants can take advantage of pre-litigation or preliminary discovery to assist in identifying the poster of defamatory material or the physical or digital address of the poster, to allow concerns notices and court proceedings to be served.

Defence for publications involving digital intermediaries

This new defence is available if a digital intermediary has provided an accessible complaints mechanism for an aggrieved person to use and they use it to make a complaint.

The digital intermediary must have taken reasonable steps to prevent access to the defamatory material, either before the complaint was received, or within seven days of the complaint .

The complaints mechanism must be an easily accessible address, location or other mechanism available for the plaintiff to use to complain to the defendant about the publication of the digital matter concerned.

Defence available to content moderators

The defence of digital intermediary is available to defendants who moderate content by taking steps to detect or identify and remove, block, disable, or otherwise prevent access to content that may be defamatory, or that breaches the terms or conditions of the online service.

Orders against non-party digital intermediaries

If a plaintiff secures judgement, or an injunction, against a defendant in proceedings the court may order a non-party digital intermediary to take access prevention steps, or other steps the court considers necessary to prevent or limit the continued publication or re-publication of the matter complained of.

Such an order may require access prevention steps to be taken in relation to all or only some of the users of an online service.

The new section does not limit other powers of the court to grant injunctions or make other orders for access prevention.

Service of notices and other documents

The amendments expand the existing options for serving notices and documents to include messaging or other electronic communication to an electronic address or location indicated by the recipient.

Extension of the defence of absolute privilege under uniform defamation law

Concerns were raised in the Stage 2 review of the uniform defamation law about liability in defamation for someone reporting a person to the police for suspected wrongdoing, and then being sued by that person in defamation if the police dismiss the complaint for lack of evidence or absence of culpability on the part of the person reported.

These concerns were addressed by amending the absolute defence provisions of the uniform defamation law to provide that defamatory matter published to a police officer while the officer is acting in an official capacity is covered by the defence of absolute privilege.

Publication updates

The By Lawyers Defamation and Protecting Reputation publication has been updated accordingly.

 

Mental impairment – WA

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The Criminal Law (Mental Impairment) Act 2023 replaces the Criminal Law (Mentally Impaired Accused) Act 1996 from 1 September 2024.

The purposes of the new Act are:

  • to make provision in relation to criminal proceedings involving persons with mental impairment;
  • to provide for special criminal proceedings for persons who are unfit to stand trial;
  • to provide for the supervision of persons who, in special criminal proceedings, are found to have committed an offence;
  • to provide for the supervision of persons acquitted on account of mental impairment;
  • to provide for the safe reintegration into the community of persons supervised under this Act;
  • to repeal the Criminal Law (Mentally Impaired Accused) Act 1996 and the Criminal Law (Mentally Impaired Accused) Regulations 1997;
  • for related purposes.

Part 3 of the Criminal Law (Mental Impairment) Act 2023 applies to accused who are unfit to stand trial on criminal charges.

Division 2 of that Part deals with raising and deciding the question of whether an accused is fit to stand trial on criminal charges. There is a presumption of fitness that can be rebutted if the accused is found to be unable to do one or more of the things listed in s 26, which include:

  • understand the nature of the charge;
  • give instructions;
  • understand the requirement to plead, or the effect of a plea;
  • follow the course of a trial; or
  • properly defend the charge.

The question of fitness can be raised at any time before or during a trial.

Under s 29, the court decides the question of fitness to stand trial on the balance of probabilities and may inform itself in any way it considers appropriate, including with medical evidence.

The Mental Health section of the Full Commentary in the By Lawyers Magistrates Court – Criminal (WA) guide has been updated accordingly.

Enduring guardian – TAS

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Changes to appointments of enduring guardian under the Guardianship and Administration Amendment Act 2023 commenced on 1 September 2024.

New sections relating to appointments of enduring guardian

The amending Act inserts the following new sections into the Guardianship and Administration Act 1995 that relate to appointments of enduring guardian:

  • Section 5 defines the meaning of promoting a person’s personal and social well-being.
  • Section 6 inserts a definition of health and medical research.
  • Section 7 updates the Act’s objects to protect and promote the rights and dignity of persons who have impaired decision-making ability by reference to matters such as the Convention on the Rights of Persons with Disabilities, principles and procedures to be observed, and requiring that persons with impaired decision-making and their families are informed of and make use of the Act’s provisions.
  • Section 8 inserts principles to be observed by a guardian, such as a person’s decision-making ability, views, wishes, and preferences, and their personal and social well-being being respected and promoted.
  • Section 9 inserts a decision-making process to which a guardian must have regard in determining whether to make a decision for the appointer, and the matters to be taken into account when making the decision.
  • Section 11 sets out criteria for determining whether a person has decision-making ability, or has impaired decision-making ability. An adult is presumed to have decision-making ability unless a person or body responsible for assessing that ability determines otherwise.
  • Section 27A inserts obligations on the guardian to keep records of dealings and transactions made by the person as guardian. It provides a former guardian may give a copy of the records to a new guardian, the former represented person, to legal representatives, or persons responsible. It provides a penalty provision for circumstances in which this obligation is not met.

Amended sections relating to appointments of enduring guardian

The amending Act amends existing sections of the Guardianship and Administration Act 1995 that relate to appointments of enduring guardian:

  • Section 3 now includes a definition of close family member that includes adults of Aboriginal or Torres Strait Islander descent related to a person by kinship rules.
  • Section 26 now provides that a guardian must:
    • act in accordance with the Act’s principles;
    • promote the personal and social well-being of the represented person;
    • have regard to the Act’s decision-making process;
    • act honestly and in good faith;
    • communicate with the person by means they are best able to understand;
    • keep the represented person informed;
    • regularly consult with any other guardian or administrators of the person;
    • act as an advocate for the represented person where possible;
    • encourage the person to develop their decision-making ability;
    • protect the represented person from violence, abuse, neglect or exploitation.
  • Subsection 26(2) requires a guardian to ascertain whether the represented person has an advance care directive and to obtain a copy if so.
  • Section 27 provides for the right of a guardian to have access to all information to which the represented person is entitled, if the information is required for performing a function as guardian.
  • Section 32 now includes a requirement that the appointor of an enduring guardian to understand the nature and effect of the enduring guardianship instrument. It also sets out the matters the appointor is to understand about the nature and effect of the instrument, updates the witnessing requirements to make them consistent with those for appointment of an enduring power of attorney, and provides for the powers conferred on appointees and the circumstances in which the powers under the instrument are enlivened.
  • Section 32B removes the requirement for the appointor to have a disability and be able to make reasoned judgements as a condition of the enduring guardian having rights to access information and replaces it with a requirement that the appointor has impaired decision-making ability. It further provides for the circumstances in which an enduring guardian has a right to obtain the appointor’s will from another person.

New prescribed form

The prescribed form for an appointment of enduring guardian has been amended.

These amendments have all been incorporated into the commentary in the By Lawyers Powers or Attorney, Enduring Guardianship and Advance Care Planning (TAS) publication, and in the Appointment of Enduring Guardian precedent on the matter plan

Right to disconnect – FED

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The right to disconnect under the Fair Work Act 2009 applies from 26 August 2024 for non-small business employers and from 26 August 2025 for small business employers.

Section 333M of the Act provides that an employee can refuse to monitor, read, or respond to contact, or attempted contact, from their employer or a third party if the contact relates to their work and is outside their working hours, unless the refusal is unreasonable.

Sub-section 333M(3) sets out a non-exclusive list of matters that can be taken into account to determine whether the refusal is unreasonable, including:

  • The reason for the contact;
  • How the contact is made and how disruptive it is to the employee;
  • The extent to which the employee is compensated to be available or to work outside their normal hours;
  • The nature of the employee’s role and their level of responsibility;
  • The employee’s personal circumstances including any family or caring responsibilities.

All modern awards  are required to include a right to disconnect provision. See the Fair Work Commission‘s webpage for more information on variations to awards.

The right to disconnect is a workplace right for the purpose of s 341 of the Act, which means the adverse action protections apply.

The Fair Work Commission can deal with disputes about the right to disconnect, including by making orders to stop an employee refusing contact or an employer requiring it. Contravention of an order is a civil remedy provision under Part 4-1 of the Act for which fines apply.

The commentary and precedents in the By Lawyers Employment Law guide have been updated accordingly.

Power of attorney – NSW

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The prescribed forms for creating both a general and an enduring power of attorney in New South Wales have been slightly amended.

The Powers of Attorney Regulation 2024 commenced when it was published on 23 August 2024.

The regulation repeals and remakes, with minor amendments, the Powers of Attorney Regulation 2016, which would otherwise be automatically repealed on 1 September 2024 by virtue of s 10(2) of the Subordinate Legislation Act 1989.

The 2024 regulation prescribes—

  • the classes of persons who may certify that a document is a true and complete copy of an instrument creating a power of attorney, and
  • the form to create a general power of attorney, and
  • the form to create an enduring power of attorney, and
  • savings and formal matters.

The provisions in the 2024 regulation are substantially the same as the 2016 regulation. The only amendments are to the Important information and the Notes for completion in both the general and enduring powers of attorney forms, simply to update the name and contact details for  NSW Land Registry Services, and where to obtain further information, being: the Office of the Registrar General, and the NSW Trustee and Guardian.

By Lawyers Powers of Attorney (NSW) guide contains six versions of the powers of attorney precedents, general and enduring, catering for various iterations of attorney/s and substitute attorneys. These precedents are automated for LEAP users. They have all been updated to reflect the new prescribed forms, and a link to the new regulation has been included in the commentary.

Guarantees – All states

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A recent case on guarantees and indemnities has been added to the By Lawyers Deeds and Agreements commentary.

Deeds and agreements for general and specific purposes are provided in every By Lawyers matter plan. The commentary provides assistance with drafting these documents.

In Taylor Square TT Pty Ltd v Kinselas Pty Ltd (No 2) [2024] NSWSC 987 the court considered at [20] – [29] the principles of construction for guarantee clauses, and ultimately ordered specific performance against the guarantor.

The court’s analysis sheds helpful light on the interplay between guarantees and indemnities which is covered in the Deeds and Agreements commentary under the heading Indemnities, guarantees, and warranties. The cases cited include Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 309 which is also included in the Deeds and Agreements commentary as authority for the distinction between a guarantee and an indemnity:

Simply stated a guarantee is a binding promise of one person to be answerable for the debt or obligation of another if that other defaults. The distinctive feature of a contract of guarantee is the secondary nature of the obligation which is assumed by the guarantor. There must be another person who is primarily liable.

In contrast, under an indemnity, a person assumes a primary liability. A contract of indemnity is a contract by one party to keep the other harmless against loss and is not dependent on the continuing liability of the principal debtor. An indemnity is an independent obligation to make good a loss.

The Deeds and Agreements commentary is located in the sub-folder of General deeds, agreements, execution clauses, and statutory declarations that appears in folder A. Getting the matter underway on all By Lawyers matter plans.

A link to the Kinselas case has been added to the drafting tips in the commentary.

Bail – NSW

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From 1 July 2024 serious domestic violence offences and coercive control are included as offences to which the show cause requirement applies for bail to be granted in New South Wales courts.

Section 16B of the Bail Act 2013 lists offences for which bail must be refused, unless the accused can show cause why their detention is not justified. These are all serious offences, generally involving violence, including sexual offences, plus drug dealing and firearms offences.

Following proclamation of the Bail and Other Legislation Amendment (Domestic Violence) Act 2024, serious domestic violence offences, and the new offence of coercive control under s 54D of the Crimes Act 1900 are included in s 16B.

Serious domestic violence offences are defined in s 4 of the Crimes Act 1900 as those under Part 3 of the Act, being crimes against the person, that have a maximum penalty of 14 years imprisonment or more if the offence is committed by a person against an intimate partner, or equivalent offences under a law of the Commonwealth or another State or Territory.

Further the amendments require that, if bail is granted for a s 16B offence, it must be subject to a condition for electronic monitoring, unless the bail authority making the grant is satisfied there are sufficient reasons in the interest of justice not to impose such a condition.

The section on bail in the Full Commentary in the By Lawyers Local Court – Criminal (NSW) guide has been updated in accordance with these amendments.

 

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