ByLawyers News and Updates

Fair Work Act – FED

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The final tranche of amendments to the Fair Work Act 2009, under the Fair Work Act Amendment (Closing Loopholes) Act 2024 apply from 1 July 2024.

The changes introduce a detailed definition of casual employment, and a limited right to disconnect from work.

Casual employment under the Fair Work Act

Section 15A of the Fair Work Act 2009 sets out a general rule for when an employee is a casual, along with detailed guidance for applying the rule, and some exceptions to it.

The general rule is that an employee will be a casual if:

  • the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
  • the employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee, or the employee is entitled to such a loading or rate of pay under the contract of employment.

Whether the relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work is to be assessed on the basis:

  • of the real substance, practical reality, and true nature of the employment relationship; and
  • that a firm advance commitment can be in the form of the contract of employment or, in addition to it, in the form of a mutual understanding or expectation between the employer and employee.

The section sets out a number of considerations that may indicate the presence of such a commitment, and includes notes about how the commitment might be manifested.

There are also some specific exceptions to the general rule for academic and teaching staff at higher education institutions.

The right to disconnect under the Fair Work Act

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.

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 has been updated accordingly.

Defamation law – FED

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The long-awaited second stage of the uniform defamation law reform has effect in NSW and ACT from 1 July 2024 with all states except South Australia to follow.

The 2024 amendments include:

Exemption from liability as publishers for digital intermediaries

Division 2A of the various state Defamation Acts 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 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

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.

Further updates to this publication for recent defamation cases are also imminent.

 

Coercive control – NSW

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From 1 July 2024 the new offence of coercive control under s 54D(1) of the Crimes Act 1900 is included in the definition of personal violence offence under s 11 of the Crimes (Domestic and Personal Violence) Act 2007, and can therefore be the grounds for a court making an apprehended domestic violence order.

The offence is found in the new Division 6A in Part 3 of the Crimes Act 1900, inserted by the Crimes Legislation Amendment (Coercive Control) Act 2022.

Section 54D(1) creates an offence of abusive behaviour towards a person who is the offender’s current or former intimate partner. It is punishable by a maximum penalty of seven years imprisonment.

The offence requires a course of conduct consisting of abusive behaviour, and the offender must intend that the course of conduct coerce or control the victim.

An intimate partner is someone to whom the offender is or has been married or in a de facto relationship, or with whom they have or have had an intimate personal relationship.

A course of conduct is defined as behaviour that is either repeated, or continuous, or both. There is no minimum number of incidents, they need not be in an unbroken series, nor in immediate succession. Incidents both in and outside of NSW can be included.

Section 54F(2) provides a non-exhaustive list of what can constitute abusive behaviour, including:

  • causing harm to a child if a person fails to comply with demands made of them;
  • causing harm to the person against whom the behaviour is directed, or another adult, if the person fails to comply with demands made of them,
  • economic or financial abuse;
  • shaming, degrading, or humiliating a person;
  • harassing, monitoring, or tracking a person;
  • damaging or destroying property;
  • isolating a person or preventing them from keeping connections with their family, friends, or culture.

The amending Act also inserted a new s 6A into the Crimes (Domestic and Personal Violence) Act 2007 to provide a definition of domestic abuse, being:

…violent or threatening behaviour, behaviour that coerces or controls, or behaviour that causes a person to fear for their or others’ safety and wellbeing.

The new s 6A includes a non-exhaustive list of behaviours that can constitute domestic abuse. This largely mirrors the list in s 54F of the Crimes Act, but includes behaviour that exposes a child to the effects of domestic abuse.

Behaviour may be domestic abuse, and therefore ground an apprehended domestic violence order, even if it doesn’t constitute a criminal offence.

The By Lawyers Apprehended Violence Order (NSW) guide has been updated accordingly.

First home owner – SA

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Property value caps have been removed for both the First Home Owner Grant and the stamp duty relief available to first home owners.

These provisions were announced in the 2024-25 State budget, and apply to contracts entered into on or after 6 June 2024.

Additional measures to tighten the previous home ownership criteria will apply to contracts entered into on or after the Statutes Amendment (Budget Measures) Bill 2024 passes and the Act receives assent.

Stamp duty amendments

The property value caps for stamp duty relief have been removed. For contracts entered into on or after 6 June 2024, full stamp duty relief applies on the purchase of all eligible new homes and vacant land used to build a new home, regardless of price.

The additional amendments to apply from assent of the amending Act will:

  • tighten the previous home ownership criteria so that a first home buyer and their spouse or domestic partner who have previously owned a residential property in Australia will not be eligible for stamp duty relief, including where that property was not occupied, or was occupied for less than 6 months; and
  • remove relief for first home buyers from the foreign ownership surcharge.

 First Home Owner Grant amendments

The property value caps have been removed for contracts entered into on or after 6 June 2024 for first home owners buying or building a new home, regardless of price.

The additional amendments to apply from assent of the amending Act will:

tightens the previous home ownership criteria so that a first home buyer and their spouse or domestic partner who have previously owned a residential property in Australia will not be eligible for a First Home Owner Grant, including where that property was not occupied, or was occupied for less than 6 months.

Publication updates

The by Lawyers  Conveyancing (SA) publication has been updated regarding the removal of the property value caps, including the commentary and the Retainer Instructions – Purchase of Real Property in the Purchase guide. The updates relating to the tightening of the previous home ownership criteria and the removal of relief for first home buyers from the foreign ownership surcharge will be made in due course.

Transfer duty – NSW

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A recent case dealing with transfer duty on real property in deceased estates has been added to the By Lawyers wills and estates publications in New South Wales.

A reassessment of duty almost 5 years after the transaction is a cautionary tale for practitioners to ensure compliance with the Duties Act 1997 and relevant transfer duty rulings.

Section 63 of the Duties Act 1997 provides for concessions when dutiable property is transferred pursuant to a will or the laws of intestacy. The concessions apply when a transfer is made to a beneficiary in conformity with the trusts contained in a will, or arising on an intestacy, or as an appropriation of the deceased’s property towards satisfaction of a beneficiary’s entitlement in the estate.

When a transfer is made to a beneficiary under an agreement, whether or not in writing, to vary the trusts contained in the will or arising on intestacy, the dutiable value of the property is reduced by the value of the beneficiary’s entitlement.

However, under s 63 and NSW Revenue Ruling DUT 046, the transfer duty concessions do not apply to a contract of sale, only to a transfer.

This was confirmed in Cohen v Chief Commissioner of State Revenue [2024] NSWCATAD 136, in this case, Harry Cohen left a property to his three children, Stephen, Peter, and Wendy, in equal shares. The beneficiaries agreed that Stephen could have the property if he paid each of his siblings for their one-third share plus an extra $100,000 each. Rather than a transfer pursuant to a deed of family arrangement, the executors of the estate executed a contract to sell the property to Stephen for the total value.

The contract was submitted to Revenue NSW in 2017, noting that Stephen was beneficially entitled to a one third share of the property from his father’s estate. Duty was assessed and paid on the reduced dutiable value, reflecting Stephen’s one-third interest in the property.

In 2022, the Chief Commissioner issued a Notice of Investigation and ultimately decided that duty had been underpaid. The reassessment stated the dutiable value was the full value of the property as shown on the contract, not two-thirds as initially assessed, resulting in a further duty liability of $29,315.00 plus interest, which was ultimately waived.

The commentary in the By Lawyers Probate (NSW) and Letters of Administration (NSW) guides has been enhanced to cover this situation, and a summary of the case is being added to both 101 Succession Answers (NSW) and 1001 Conveyancing Answers (NSW).

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.

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.

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.

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.

Changes to Family Law- FED

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A summary of the upcoming changes to family law parenting applications has been added to the By Lawyers Family Law – Children guide.

The upcoming changes to family law arise under two separate pieces of legislation, each of which commences on 6 May 2024.

Family Law Amendment Act 2023

Significant amendments to the way 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 v Asplund that requires a court to be satisfied a that significant change in circumstances has occurred before varying 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

This legislation:

  • seeks to establish a 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 (FCFCOA);
  • amends the Family Law Act to make such material admissible in children’s matters, subject to exceptions and safeguards, for example legal professional privilege.

The 2nd reading speeches note that the measures in each Act are complementary and that both Acts will work together to create a family law system that meets the needs of its users, centring the voices and best interests of children, and ensuring their safety and wellbeing is the paramount consideration.

Publication updates

By Lawyers guides are always up to date. When these changes to family law commence, the Family Law – Children publication will be updated accordingly. In the interim, the following content has been added to the guide too assist firms in understanding and transitioning to the changes:

  • an Alert has been added at the top of the matter plan and the top of the full commentary;
  • 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;
  • 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.

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