ByLawyers News and Updates

Succession Act – SA

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The Succession Act 2023 (SA) extensively reframes South Australian succession law.

The Act commences on 1 January 2025.

It consolidates and amends existing laws relating to:

  • wills;
  • probate and administration;
  • administration of deceased estates;
  • intestacy; and
  • family provision claims.

The Succession Act contains all legislative provisions, including new provisions, relating to those areas. The new Act repeals three existing Acts:

Revised court rules and practice directions for probate, administration, contested wills, and family provision matters will follow the commencement of the new Act.

Key provisions of the new legislation include:

  • the right of certain classes of person to inspect a will of a deceased person;
  • the power of the Supreme Court to pass over applicants for a grant of probate or administration and appoint another person it considers appropriate;
  • the removal of the need for a grant to administer smaller estates;
  • additional court powers to hold executors and administrators to account;
  • codification of the application of assets to payment of debts and liabilities in solvent estates;
  • the increase to the preferential legacy for a surviving spouse of an intestate;
  • the addition of the children of first cousins of an intestate to the distribution on intestacy;
  • no entitlement of a spouse or domestic partner of an intestate to any part of an intestate’s estate if they are a party to:
    • a binding financial agreement; or
    • orders for distribution of property under the Family Law Act 1975 (Cth);
  • primary consideration of the deceased’s wishes by the court when determining whether to make a family provision order;
  • narrowing eligibility for family provision claims to:
    • exclude former partners and spouses when financial matters have already been settled;
    • require adult stepchildren to demonstrate they:
      • are disabled and vulnerable;
      • were genuinely dependent on the deceased;
      • cared for or maintained the deceased; or
      • contributed to the estate, or their parent substantially contributed to the estate;
    • require grandchildren to satisfy the court that:
      • their parents died before the deceased; or
      • they were wholly or partly maintained by the deceased.

The By Lawyers Wills (SA), Probate (SA), Letters of Administration (SA), and Family Provision Claims (SA) publications have been updated accordingly. Further updates will follow when the new court rules are available.

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.

AI Use Policy – All states

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An AI Use policy has been added to the By Lawyers 101 Staff Handbook.

The policy provides for the responsible use of artificial intelligence within a firm to enhance efficiency and productivity while safeguarding confidentiality, legal integrity, and professional standards.

The AI use policy requires adherence to strict quality assurance measures.

The 101 Staff Handbook is found in the Practice Management guide. This helpful publication provides policies for all aspects of managing a legal practice that firms can either adopt or amend as required.

Trusts – FED

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Update to the definition of foreign person in discretionary trust deeds

The By Lawyers discretionary trust deeds and associated precedents have been updated to clarify the definition of foreign person.

The definition operates in the clauses that prohibit a foreign person from being a beneficiary, to avoid the imposition of surcharge duty and land tax.

See the discretionary trust deeds in the By Lawyers Trusts guide.

Costs – All states

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By Lawyers 101 Costs Answers reference manual has been extensively reviewed and enhanced.

This comprehensive reference manual is available in the Reference materials folder on all By Lawyers matters plans. The 101 Costs Answers guide is also as part of the By Lawyers Practice Management publication.

Commentary enhancement

An important new section of commentary has been included dealing with disclosure before settlement in litigation matters. Barrister Philippe Doyle Gray, who we are delighted to welcome to the ranks of our authors, covers in detail the requirement under the Legal Profession Uniform Law for clients to receive advice about the cost implications of settlement. Philippe has also made his helpful Settlement Computer available via a link in the By Lawyers commentaries. This automated spreadsheet assists practitioners with the sometimes complicated calculations required to properly give disclosure before settlement, taking into account the various possibilities for the resolution of a matter.

The new section of commentary has been added to the By Lawyers litigation and injuries guides in those states where the Legal Profession Uniform Law applies, namely New South Wales, Victoria and Western Australia.

New precedents

Two new precedent letters to the client have been added to provide clients with the necessary disclosure before settlement:

  • Letter to client – Costs disclosure before settlement – NSW, VIC and WA;
  • Letter to client – Costs disclosure before settlement – QLD, SA, TAS, ACT and NT.

There is one precedent letter for Legal Profession Uniform Law states and one for the other jurisdictions where costs disclosure before settlement is not mandatory but is nonetheless best practice.

These new letters are available in the If required – Updating costs disclosure and security for costs folder on all By Lawyers matter plans. They are also available on the relevant litigation and injuries matter plans under Going to court.

Costs agreements

By Lawyers extensive suite of costs agreements that comply with the regulatory requirements in each state are currently under review. Keep an eye out for a future News & Updates post when the revised versions are published.

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.

Trusts guide – All States

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The By Lawyers Trusts guide has been extensively reviewed, resulting in:

  • enhancements to the commentary for readability and ease of navigation; and
  • additional precedents and a new hyperlink on the matter plan including:
    • Initial letter to client enclosing costs agreement – Discretionary trust;
    • Initial letter to client enclosing costs agreement – Unit trust;
    • Scope of work – Trusts;
    • Deed of retirement of trustee;
    • Invoice recital – Trusts; and
    • A hyperlink to assist with applying for charity registration for a charitable trust.

Practitioners are also reminded that a new precedent Trust Deed Review Checklist was added to the Trusts guide recently in response to a request from a practitioner.

The checklist is a useful tool for lawyers when:

  • preparing a new trust deed on a client’s instructions;
  • reviewing an existing trust deed in the course of trust administration;
  • reviewing an existing trust deed when acting for the trustees in a transaction involving trust property;
  • acting for a client in a transaction where the other party is a trustee, or
  • acting for parties in a dispute over a trust, or trust property.

The new Trust Deed Review Checklist is found in folder B. Trusts generally in the By Lawyers Trusts guide.

Trusts is an extensive publication. The commentary deals with all aspects of discretionary trusts, unit trusts, charitable trusts, and special disability trusts. The array of precedents includes deeds and clauses for various iterations of all of those trusts.

At By Lawyers, we love receiving feedback from the law firms using our content, and we are always ready to add helpful new precedents that practitioners need. It’s part of our commitment to practicality and helping lawyers enjoy practice more.

If using our Trusts guide, please don’t hesitate to let us know what you think of the enhancements and additions; you can email us any time at askus@bylawyers.com.au.

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