ByLawyers News and Updates

Franchising Code – FED

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A new Franchising Code of Conduct operates from 1 April 2025.

The new code is set out in Chapter 2 of the Competition and Consumer (Industry Codes-Franchising) Regulation 2024. Sections have been significantly reordered and renumbered from the previous code in Schedule 1 to the Competition and Consumer (Industry Codes-Franchising) Regulation 2014. The new code of conduct generally applies to all franchise agreements entered into, renewed, extended or transferred on or after 1 April 2025. However, some changes apply from later dates under transitional provisions relating to franchise agreements and disclosure requirements.

Amendments

Key changes to franchise agreements and disclosure requirements under the new code include:

Franchise agreements

  • Removal of the requirement for franchisors to create, maintain, or provide a Key Facts Sheet for prospective franchisees. This applies from 1 April 2025.
  • Restrictions on restraint of trade clauses where a franchise agreement contains an option for the franchisee to renew or extend the agreement and the franchisor does not do so. This applies to agreements entered into, transferred, renewed, or extended on or after 1 April 2025.
  • Franchisees must be compensated for early termination in certain circumstances. Agreements are required to specify how compensation is determined. This applies to agreements entered into, transferred, renewed, or extended on or after 1 November 2025.
  • Franchisees must have a reasonable opportunity to make a return on any investment required by the franchisor as part of entering into the agreement. This applies to agreements entered into, transferred, renewed, or extended on or after 1 November 2025.
  • Franchisors may, on certain expanded grounds, terminate a franchise agreement with 7 days’ notice. This applies to agreements entered into, transferred, renewed, or extended on or after 1 April 2025.
  • Franchisees can opt out of both disclosure and the 14-day cooling-off period if a new agreement with the same franchisor is substantially similar to their current agreement. This applies from 1 April 2025.
  • Marketing and cooperative funds are now combined as a specific purpose fund to which franchisees contribute and which must be used for a specified purpose related to the business’s operation. This applies from 1 November 2025. Franchisors are to operate existing marketing and cooperative funds in compliance with the old code until this time.
  • The Australian Small Business and Family Enterprise Ombudsman now has the ability to name and shame franchisors who refuse to engage in or who withdraw from alternative dispute resolution processes. This applies from 1 April 2025.

Disclosure requirements

From 1 November 2025, all disclosure documents must include certain information set out in Schedule 1 of the Regulation.

Additional information to be provided in the new disclosure document includes:

  • telephone number and email address of former franchisees;
  • whether a franchisee could face competition from businesses not associated with the franchisor; and
  • details about whether the franchisee is required to undertake significant capital expenditure during the term of the franchise agreement.

Any materially significant facts that arise between the preparation of a disclosure document and when it is provided to a potential franchisee must also be disclosed.

A franchisor need not include the new requirements for specific purpose funds and significant capital expenditure in its disclosure document until 1 November 2025, but may choose to do so.

From 1 April 2025, the franchisor’s Franchise Disclosure Register profile must also include:

  • any convictions for a serious offence;
  • any relevant judgment in civil proceedings;
  • any relevant bankruptcy or insolvency; and
  • whether its franchise agreement provides for arbitration of disputes.

Publication updates

The By Lawyers precedents Franchise Agreement and Model Disclosure Document for Franchisee or Prospective Franchisee precedents, available on the Sale of Business and Purchase of Business matter plans for each state, and the commentary on Franchises, have all been updated accordingly.

Family Law regulations – FED

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The following changes to various regulations under the Family Law Act apply from 1 April 2025:

The new provisions are substantially the same as the old ones, but they are renumbered and have minor drafting changes to modernise them and support the operation of the Family Law Act after some recent amendments.

Regulation 53 of the 2024 Regulations now contains the prescribed Information Sharing Agencies for the purpose of the Federal Circuit and Family Court of Australia being able to issue Information Sharing Orders.

The superannuation regulations support Parts VIIIB and VIIIC of the Family Law Act 1975 by prescribing:

  • the methods and factors for valuing superannuation interests;
  • the way in which superannuation payment flags and splits are put into effect; and
  • the information that trustees must provide to parties to property proceedings, and to couples negotiating a superannuation agreement.

The Family Dispute Resolution Practitioners Regulations provide for the accreditation, certification, and administration of such practitioners.

By Lawyers Divorce, Children, Financial Agreements and Property Settlement guides have been updated to reflect the new regulations as required.

The following FCFCOA forms have changed to update references to the regulations:

  • Consent order kit;
  • Application for consent orders;
  • Superannuation information kit;
  • s 60I Certificate of Dispute Resolution;
  • Application in arbitration;
  • Form 1 (previously Form 1A) – Request for service abroad of judicial documents and certificate;
  • Form 2 – (previously Form 2A) – Summary of the documents to be served;
  • Form 6 – Application for arbitration;
  • Form 7 – Application relating to relevant property or financial arbitration;
  • Form 8 – Application to register arbitration award;
  • Form 9 – Application to register decree affecting registered arbitration award;
  • Response to an application in an arbitration;
  • Subpoena in arbitration.

The new version of the s 60I certificate must be used after 1 April 2025 but certificates in the old form issued within 12 months will still be accepted.

Foreign purchasers – FED

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Ban on foreign purchasers buying established dwellings

Between 1 April 2025 and 31 March 2027, foreign purchasers are precluded from buying an established residential dwelling in Australia, unless an exemption applies. This includes persons with temporary visas and foreign-owned companies.

A foreign person is defined in s 4 of the Foreign Acquisitions and Takeovers Act 1975. See Guidance Note 2 Key Concepts published by The Treasury for further information. A foreign person can include individuals, corporations, trusts, and other entities.

The ban does not apply to newly constructed or off-the-plan properties. However existing restrictions for foreign purchasers continue to apply.

The ban applies to individuals holding temporary visas, who were previously allowed to purchase existing dwellings if they studied or worked in Australia and were approved by the Foreign Investment Review Board (FIRB). Such applications to the FIRB will no longer be approved.

Where a foreign purchaser has a Foreign Investment Review Board approval or exemption certificate issued before 1 April 2025, they can rely on it.

Exemptions

Exemptions to the ban mean that purchases are permitted:

  • by permanent residents;
  • by New Zealand citizens;
  • by spouses, as joint tenants, if one of them is an Australian citizen, permanent resident, or New Zealand citizen;
  • for investments that significantly increase housing supply or support the availability of housing supply; and
  • for properties intended for accommodation under the Pacific Australia Labour Mobility (PALM) scheme.

Issues to consider

Legal representatives need to be satisfied that foreign purchasers are aware of the consequences of contracting to buy an established dwelling if an exemption does not apply. The ATO will enforce the ban through enhanced screening of foreign investment proposals for residential properties, and penalties apply to breaches. The Government will fund the ATO from 2025-26 financial year to enforce the ban.

Publication updates

By Lawyers Conveyancing publications in all states have been updated, including the commentaries in the Purchase of Real Property guides and 1001 Conveyancing Answers. They include in-depth information on determining who is a foreign person and whether exemptions from the ban apply.

Franchises – FED

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The Franchises commentary in the Purchase and Sale of Business publications in each state has been reviewed and enhanced.

This work is a precursor to the significant remaking of the Franchising Code of Conduct, which will commence on 1 April 2025.

The amendments to the Code, under the Competition and Consumer (Industry Code-Franchising) Regulations 2024, introduce new obligations, stricter rules around restraint of trade, and strengthened protections for franchisees.

The amendments arise out of the Independent Review of the Franchising Code of Conduct Final Report delivered to the Commonwealth Government in December 2023. The Government response to that report has been to…

…take a staged approach, which seeks to implement quicker changes in the short-term whilst undertaking a comprehensive analysis of the legal and regulatory changes to improve fairness and reduce regulatory burden in the longer term. This includes working with the sector to develop best-practice guidance, and simplifying disclosure requirements so that it’s easier for both franchisees and franchisors to understand their roles and obligations. Other measures to improve access to justice include increasing the number of breaches of the Code that attract penalties and publicly naming franchisors that fail to participate meaningfully in alternative dispute resolution.

The key amendments under the 2024 regulations include:

  • a new obligation on franchisors to provide the franchisee with a reasonable opportunity to make a return on investment;
  • changes to termination rights, including compensation to the franchisee for early termination;
  • new franchisee rights to compensation for non-renewal of a franchise agreement;
  • new franchisee rights to opt out of cooling-off and disclosure provisions in some circumstances;
  • consolidation of the franchisor’s pre-contract and annual disclosure obligations;
  • a restriction preventing a franchisor from executing a franchise agreement until the 14-day pre-contract disclosure period has passed; and
  • increased penalties and regulatory investigation powers.

Further statutory amendments are under consideration, including the feasibility of introducing a licensing regime to better regulate most aspects of the franchisee-franchisor relationship.

The enhanced Franchises commentary is found in the If required – Franchises folder on the matter plans for Purchase and Sale of Business in each state, together with relevant franchising precedents.

When the regulatory amendments commence on 1 April, the commentary will be further amended, and the precedents updated as required.

Subpoenas – FED

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A new Practice Direction concerning electronic inspection of material produced under subpoenas has come into force in the Federal Circuit and Family Court of Australia.

It applies to family law proceedings filed in the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) and replaces the Court’s Special Measures Information Notice – COVID-19 Electronic Subpoena Inspection.

The new practice direction is to be read together with the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

When seeking to inspect subpoenaed material, parties and legal practitioners must provide the following information in their request:

  • file number;
  • date and type of court hearing, conference or expert report;
  • specific material that access is being requested to, and whether it is ‘inspection only’ material (see below, as defined in rule 6.37(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021);
  • confirmation that a Notice of Request to Inspect has been filed;
  • whether electronic access to the material is sought;
  • a copy of photo identification or confirmation that they are a lawyer acting on behalf of a party, and the law firm at which they work.

Requests can be made by email. Each registry has a subpoena email address, as listed in the practice direction.

If the material to which access is sought is not inspection only material, and photocopy access is permitted, the registry will provide the material electronically if possible directly to the party or practitioner requesting the material, usually by email.

Inspection only material is:

  • child welfare records, criminal records, medical records and police records, as defined in the Rules; and
  • any other material excluded from photocopy access by order of the court.

Electronic access to inspection only material will not be permitted unless there are exceptional circumstances. Instead, the material needs to be inspected in person at a registry.

The practice direction also makes provision for the tendering of subpoenaed material at a hearing.

The By Lawyers Family Law Property Settlement and Children publications have been updated accordingly, along with the information about subpoenas in family law matters in the 101 Subpoena Answers reference materials.

Cash reporting – FED

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Solicitors no longer have cash reporting obligations under the Financial Transaction Reports Act 1988 (FTR Act). However, changes that commence on 31 March 2026 will place significant new obligations on law firms for initial and ongoing AML/CTF due diligence.

The FTR Act was entirely repealed with effect from 7 January 2025 by Schedule 11 of the Anti-Money Laundering and Counter-Terrorism Financing (Amendment) Act 2024 (the Amending Act).

The Amending Act substantially amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) to place new obligations on lawyers who perform certain work as reporting entities. However, the relevant amendments to the AML/CTF Act do not commence until 31 March 2026.

From 7 January 2025 solicitors are no longer regulated under the FTR Act, and do not need to report significant cash transactions of $10,000 or more, or the equivalent in foreign currency, to AUSTRAC. See AUSTRAC’s webpage Repeal of the Financial Transaction Reports Act 1988 for more information.

In the interim, solicitors still have professional obligations that can in some circumstances require cash reporting. See the The Law Council of Australia’s National Legal Profession Anti-Money Laundering & Counter-Terrorism Financing Guidance Note 2 for more information.

The By Lawyers Practice Management publication has been updated in line with the repeal of the FTR Act.

The changes that commence on 31 March 2026 will be significant for most law firms, with new due diligence and reporting obligations. By Lawyers will be updating our publications with information and guidance about these requirements when they commence.

Professional bodies for lawyers and conveyancers around the country already have substantial information available about these changes on their websites. Practitioners can expect professional legal education providers to focus on the topic in the coming 12 months, and legal software providers such as LEAP to provide efficient application-based solutions.

Family violence visas – FED

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New eligibility criteria for visas under family violence provisions of the Migration Act commenced on 17 December 2024.

The provisions are intended to prevent secondary visa applicants from feeling compelled to remain in a violent relationship with the primary applicant for fear of an adverse visa outcome.

Violent behaviour can include physical abuse, sexual abuse, verbal or emotional abuse, social abuse, and financial abuse.

Eligibility for family violence visas

A secondary applicant must satisfy the primary criteria of being a member of a family unit at the time of being granted a visa.

A member of a family unit is a spouse or de facto partner, or a child or step-child of the primary visa applicant. A person over the age of 18 is deemed to be a child if they have not turned 23, and are dependent on the family head or the spouse or de facto partner of the family head. If they are over 23, they are still a member of the family unit if they are dependent due to a disability. A dependent grandchild or step-grandchild of the primary applicant is also a member of a family unit. 

Without the family violence provisions, a secondary visa applicant whose relationship with the primary visa applicant has broken down would no longer be a member of a family unit and would not satisfy the primary criteria to be granted a visa.

However, a secondary visa applicant who ceases to be a member of a family unit as a result of family violence perpetrated against them by the primary visa applicant can still apply for a visa under the family violence provisions. 

See the Types of domestic and family violence page of the Department of Home Affairs for further details. 

Evidence

A secondary visa applicant who claims family violence must provide evidence to the Department of Home Affairs about the primary applicant’s violent conduct towards them, and their prior relationship status. Evidence of family violence can include medical reports, police statements, court orders, convictions and a statutory declaration for a family violence claim.  See the Family violence provisions – Secondary applicants page of the Department of Home Affairs for further information. 

The family violence provisions have been expanded to include several new visa subclasses previously not covered:

  • Parent (Subclass 103);
  • Remaining Relative (Subclass 115);
  • Carer (Subclass 116);
  • Business Talent (Subclass 132);
  • Contributory Parent (Subclass 143);
  • Pacific Engagement (Subclass 192);
  • Aged Parent (Subclass 804);
  • Remaining Relative (Subclass 835);
  • Carer (Subclass 836);
  • Contributory Aged Parent (Subclass 864); and
  • Business Innovation and Investment (Subclass 888).

Publication updates

The By Lawyers Immigration publication has been updated to include the new visa types. 

Foreign resident capital gains withholding – FED

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The foreign resident capital gains withholding tax regime is changing.

With effect from 1 January 2025:

  • the withholding rate increases from 12.5% to 15%; and
  • the $750,000 threshold is removed.

The foreign resident capital gains withholding regime applies to sales of taxable Australian property, including vacant land, residential property, and commercial property.

Until 1 January 2025, the regime applied only to properties valued at $750,000 or more. From 1 January it applies to all properties.

Buyers must withhold a percentage of the purchase price and pay it to the Australian Taxation Office (ATO) instead of to the seller unless the seller is an Australian resident and provides evidence of that fact by way of a clearance certificate from the ATO. Sellers who are foreign residents can apply to the ATO for a variation notice and potentially reduce the amount required to be withheld.

Without a clearance certificate or a variation notice, all buyers must withhold the required percentage of the purchase price, even if the seller is an Australian resident.

For sales of taxable real property before 1 January 2025, the foreign resident capital gains withholding amount was 12.5%. From 1 January 2025 it is 15%.

The effect of these amendments is that ALL sellers of real property in all states and territories, whether Australian residents or foreign residents, need to apply for a clearance certificate from the ATO and provide it to the buyer before the completion of the sale. If they do not, then the buyer must pay 15% of the purchase price to the Australian Taxation Office on settlement. For those jurisdictions with electronic conveyancing, this may be able to be done via the settlement platform.

All By Lawyers publications that cover foreign resident capital gains withholding have been updated to reflect this change. This includes the Conveyancing and Property and Estates guides in each state and territory, Retirement Villages (NSW), and 1001 Conveyancing Answers (VIC), (NSW), and (QLD).

Family Law Act – FED

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The Family Law Amendment Act 2024 received assent on 10 December 2024. It makes significant changes to the Family Law Act, some of which have already commenced.

Amendments that commenced on 11 December 2024

The following amendments have commenced.

Commonwealth Information Orders

If a child’s whereabouts are unknown the court can issue an order requiring any person or a government department to provide the court with information about the child’s location. Such orders are known as location orders, as defined in s 67J. They include Commonwealth information orders (CIOs) which are directed to government departments or Commonwealth authorities.

A person with rights under a parenting order or otherwise concerned with the child’s care, welfare, and development is entitled to apply to the court for a location order : s 67K of the Family Law Act.

The requirements for, and content of, CIOs have been changed by the amending Act.

A CIO can require one-off or periodic searches for information for a period of up to 12 months.

In addition to location information, orders can require production of information about any violence to children and persons related to or having a connection with a child.

A new s 67NA defines persons related to a child for the purpose of a CIO to include anyone biologically related, and anyone involved with the child under a fostering arrangement.

CIOs override any provision of a Commonwealth or state law that prohibits the communication, disclosure, or publication of information or documents.

As with all orders, the child’s best interests are the court’s paramount consideration: s 67L.

Separation declaration requirements

Section 90XP of the Family Law Act has been amended in relation to the wording that must be included in a separation declaration under that section. These declarations are required to be made by at least one party to a marriage or de facto relationship, where the parties have entered into a superannuation agreement on separation.

There is no longer a requirement for these statements to mention that the parties have lived separately and apart for a continuous period of at least 12 months, and that there is no reasonable likelihood of cohabitation being resumed. The declaration under this section is now only required to state that the parties are married, or have lived in a de facto relationship, but are separated at the time of the declaration. Or, if a spouse is deceased, that they were separated at the date of death.

The sections of the Act referencing the low-rate cap for superannuation balances have been repealed.

Publication updates 

The full commentaries in the By Lawyers Family Law Children and Financial Agreements publications have been updated.

The Children matter plan now includes the following precedents:

  • Commonwealth Information Order – One-off location search;
  • Commonwealth Information Order – One-off location search plus violence information;
  • Commonwealth Information Order – Periodic location search;
  • Commonwealth Information Order – Periodic location search plus violence information.

The following precedents have been amended in the Financial Agreements matter plan:

  • Separation declaration pursuant to s90XP (superannuation split);
  • Superannuation agreement SMSF – After separation; and
  • Superannuation agreement – After separation.

Amendments that commence on 10 June 2025

Most of the changes under the amending Act concern the framework for property orders, the principles for conducting property and other proceedings, and the parties’ duty of disclosure. Those amendments commence 6 months after assent, being 10 June 2025. See Looking to the Future in the Reference Materials folder of all By Lawyers matter plans for more information about those changes.

By Lawyers Family Law publications will be updated when the further amendments commence.

Defaulters List – FED/NSW

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Family Law Defaulters List – Sydney Registry pilot

The Sydney Registry of the Federal Circuit and Family Court of Australia (FCFCOA) is operating a Defaulters’ List, as a pilot project, from October 2024.

The purpose of the list is to ensure compliance with the relevant Family Law Rules, and with any case management orders and directions made by the court in family law or child support proceedings.

The list is governed by the FCFCOA’s Family Law Practice Direction: Defaulters’ List, which:

  • sets out when a party is deemed to be in default;
  • provides that the onus is on the defaulting party to show cause why a sanction or penalty should not be applied; and
  • notes the powers of the court to sanction and penalise parties, including as to costs.

In considering a show cause application the court can consider:

  • the interests of the parties in the proceedings and the administration of justice by the court more generally;
  • whether the application for relief has been made promptly;
  • whether the failure to comply was intentional;
  • whether there is a good explanation for the failure;
  • the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;
  • whether the failure to comply was caused by the party or their legal representative;
  • whether the trial date or the likely trial date can still be met if relief is granted;
  • the effect which the failure to comply had on each party; and the effect which the granting of relief would have on each party;
  • whether all parties consent to the step being taken after the specified time;
  • any other matter that the court consider relevant.

See the By Lawyers Family Law – Children and Family Law – Property Settlement commentaries for more information about dealing with breaches of orders.

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