ByLawyers News and Updates

COVID measures are here to stay – All states

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Many temporary COVID measures introduced across Australia during the pandemic are here to stay.

New South Wales and Queensland have now proposed legislation permanently retaining some COVID measures, such as remote witnessing. Victoria have already legislated to retain some COVID measures. The Commonwealth has extended temporary measures for companies.

With other states and territories expected to follow suit, the long-term legal legacy of COVID-19 looks like being significant.

New South Wales

The Electronic Transactions Amendment (Remote Witnessing) Bill 2021 will permanently allow certain documents to be witnessed in real time over an audio-visual link.

Further, for an additional 12 months from the date of assent, the list of people who can witness NSW statutory declarations will be extended to the expanded list of witnesses set out in Schedule 2 of the Statutory Declarations Regulations 2018.

Queensland

The Justice and Other Legislation Amendment Bill 2021 will make permanent some of Queensland’s  temporary COVID measures including:

  • Remote witnessing and electronic signing of affidavits, statutory declarations and some oaths; however electronic signatures on statutory declarations can only be used for a land or water dealing where electronic conveyancing is used.
  • Powers of attorney for corporations, partnerships and unincorporated associations, but not sole traders, can be signed electronically, in counterpart, by split execution and without a witness; however, if a general power of attorney is used for a land or water dealing it must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Advance health directives can be certified as to capacity by nurses, in addition to doctors.
  • Deeds can be made in the form of an electronic document, electronically signed, made in counterpart and by split execution, generally without a witness. The Bill also removes the requirement for deeds to be sealed, requiring the deed to contain a clear statement that it is executed as a deed. However, deeds lodged or deposited in relation to land and water dealings must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Private applications for temporary protection orders in domestic and family violence matters may be filed electronically, with a hearing date allocated and the application served before the application is verified. Verification can occur later, when the magistrate hears the application. The Magistrates Court may hear any part of family and domestic violence proceedings by audio visual link.

South Australia

The Oaths (Miscellaneous) Amendment Act 2021 commencing on 1 December 2021 amends the Oaths Act 1936 (SA) to:

  • Provide continuity following the expiration of the COVID-19 Emergency Response Act 2020 and its associated regulations through the Oaths Regulations 2021.
  • Introduce a Code of Practice – Affidavits to be followed by deponents and witnesses in the making of affidavits.
  • Introduce a Code of Practice – Statutory Declarations to be followed by declarants, and witnesses to ensure statutory declarations are taken in accordance with the Oaths Act 1936.
  • Expand the persons before whom a statutory declaration may be made as stated in the new Schedule 1 to the Oaths Act 1936.
  • Include additional offences for those falsely representing themselves as authorised witnesses to a statutory declaration or affidavit.

By Lawyers keeps you up to date

All relevant By Lawyers guides, including the dedicated guide Dealing with COVID-19 legal issues – Some practical information which appears at the top of all By Lawyers matter plans, have been or will be updated to reflect these changes as and when they take effect.

Director identification numbers – FED

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Director identification numbers have been introduced in Australia following the commencement of long-awaited amendments to the Corporations Act 2001 (Cth).

Director identification numbers, or Director IDs, are a unique number which attaches to an individual  company director for their life. They retain the director identification number even if they cease to be a director or move from the jurisdiction. It allows directors to be easily identified across multiple companies. It is intended that this identification will assist with compliance and insolvencies.

The 15 digit numbers will start with 036, which is the three-digit country code for Australia under International Standard ISO 3166.

Directors appointed prior to 31 October 2021 must apply for a director identification number between 1 November 2021 and 30 November 2022.

Directors appointed between 1 November 2021 and 4 April 2022 must apply within 28 days of appointment.

Directors appointed after 5 April 2022 must apply prior to being recorded on the ASIC register.

An application for a director identification number is made to Australian Business Registry Services. To make the application directors will need to provide:

  • tax file number;
  • residential address as held by the ATO;
  • two documents to verify identity.

Failure to apply as required, or any misrepresentation as to a director’s number or being the holder of a number, can expose current or prospective company directors to civil and criminal penalties.

The By Lawyers Companies and Joint Ventures guides have been updated accordingly. Commentaries discuss the need to obtain a Director ID. Retainer instructions now prompt for the Director ID.

COVID 19 legal issues

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Dealing with COVID 19 legal issues has been a major challenge for legal practitioners. A great deal of emergency legislation has now been passed in response to the pandemic, both temporary and permanent. While we are beginning to see some of the temporary arrangements introduced by courts, land registries and other authorities ease, there are still many measures in place that continue to affect daily practice.

The By Lawyers publication Dealing with COVID-19 legal issues brings together in one place a collection of up-to-date practical information which is a valuable resource for lawyers. It is available by clicking on the link at the top of the matter plan in every By Lawyers Guide.

The Dealing with COVID-19 legal issues publication continues to be updated and enhanced as the response to the pandemic develops. For instance, the Family Law section of the publication has been recently updated to include information on the updated COVID-19 Hearing Protocol from the Federal Circuit and Family Court of Australia (FCFCOA) to reflect easing restrictions in the ACT, NSW, and VIC.

All By Lawyers publications are updated to reflect permanent changes. By Lawyers will keep practitioners informed of ongoing changes and provide our trademark practical assistance to guide the profession in these difficult times.

Expert evidence – Family law – FED

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A new precedent for use when obtaining expert evidence has been added to the Family Law guides.

When the Federal Circuit and Family Court of Australia (FCFCOA) commenced operation on 1 September 2021, it did so with a new set of rules: the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Family Law Rules 2021). The rules apply in all family law matters across both divisions of the court.

Part 7.1 of the Family Law Rules 2021 makes provision for expert evidence. Rule 7.13 provides that experts must be given a recent copy of Divisions 7.14, 7.15, and 7.16. These rules cover requirements for instructions to experts, information about disclosure by experts, their duties and obligations, as well as clarification of the requirements for a single expert report.

A new enclosure has been created which conveniently includes all of the rules in these divisions. The enclosure can be given to the expert witness when they are instructed, thereby making it easy for practitioners to comply with the requirements under the rules. This enclosure has been added to these Family Law matter plans – Property settlement, Children and Financial agreements, for use when obtaining expert evidence. There are corresponding precedent letters to experts on each matter plan.

For Property settlement matters, the new precedent enclosure is located in the Going to court folder under If required – Valuer. There is also a Letter to the valuer for single expert valuation.

For Children matters, the new precedent enclosure is located in the Going to court folder under If required – Single expert witness report. There is also a Letter to single expert witness.

For Financial agreements matters, the new precedent enclosure is located in the Enforcement folder under If required – Single expert witness report. There is also a Letter to single expert witness.

The By Lawyers Family law publication is up to date with all of the recent changes to the family law system after the merger of the two courts into the FCFCOA.

Purchasing off the plan – All states

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To assist practitioners advising clients who are purchasing off the plan, new precedents have been added to the By Lawyers Purchase of Real Property guides in all states.

The two new precedents for practitioners advising potential purchasers are:

  • Initial letter to proposed off the plan purchaser; and
  • Enclosure – Considerations when purchasing off the plan.

The Enclosure is designed to be provided to clients who are considering buying off the plan. It provides plain language information about:

  • What ‘off the plan’ means.
  • The risks of purchasing off the plan.
  • The advantages of purchasing off the plan.

All the pertinent considerations for a client looking at entering into a contract to buy a property off the plan are covered. Importantly, the potential risks are clearly explained, including:

  • Being locked in until the sunset date.
  • Potential for loss if the market deteriorates between the day of sale and the settlement date.
  • Special conditions that operate in the developer’s favour.
  • Possible dissatisfaction with finished product.
  • Changes to the building.
  • Additional legal costs being involved.

Both new precedents can be found in folder A. Getting the matter underway, on each Purchase of Real Property matter plan.

These helpful new precedents were created in response to a request from a By Lawyers subscriber.

Federal Circuit and Family Court of Australia – FED

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The Federal Circuit and Family Court of Australia (FCFCOA) commences operation on 1 September 2021.

The FCFCOA is an amalgamation of the former Family Court of Australia and Federal Circuit Court of Australia.

The new court has two divisions:

  • Division 1 is a superior court of record that includes the judges from the former Family Court. It deals with the most complex matters and exercises appellate jurisdiction.
  • Division 2 is a court of record that includes the judges from the former Federal Circuit Court, which is the single point of entry for all family law and child support matters.

There is a common set of forms and rules across the two divisions. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Family Law Rules 2021) apply in all family law matters, except in Western Australia where the Family Court Rules 2021 (WA) apply. Western Australia also has its own dedicated portal – the eCourts Portal of Western Australia.

They provide for the practice and procedure in both divisions of the FCFCOA except for a few matters such as transfer from Division 2 to Division 1 as set out in the Family Law Rules 2021.

The new court’s website is available: www.fcfcoa.gov.au.

A practice direction deals with Transitional arrangements.

Division 2 of the new court also has a general federal law jurisdiction, like the former Federal Circuit Court.

All By Lawyers Family law publications – Children, Divorce, Financial Agreements, and Property Settlement – are being updated for the commencement of the new court. This includes a full review of the:

  • commentaries, for the new terminology, procedures and hyperlinks to the new rules;
  • matter plans, with a single Going to court folder reflecting the new process; and
  • precedents, to incorporate all necessary changes.

There is a 90 day grace period for using the old forms in the new court. The new court forms will be added to the By Lawyers matter plans as they become available.

By Lawyers always keep our subscribers up to date!

COVID measures for companies – FED

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COVID measures for companies have been further extended. These temporary measures are currently set to expire on 31 March 2022.

Company execution

The Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (‘the 2021 measures’) commenced on 13 August 2021. They extend and expand on the measures previously introduced in 2020.

A company can execute a document electronically under s 127 of the Corporations Act 2001. Signatories can sign separate counterpart copies.

The method used must:

  • be appropriate in the circumstances,
  • identify the person in the electronic communication, and
  • indicate the person’s intention in respect of the contents of the document.

The measures also allow for alternatives to execution normally requiring a common seal.

Company meetings

The 2021 measures also extend and expand on the previous COVID measures for companies holding meetings. They modify the provisions of the Corporations Act 2001 and the Corporations Regulations 2001, or any equivalent provisions in a company constitution, that require or allow a meeting to be held, or that regulate giving notice of a meeting, or the conduct of a meeting. The provisions include:

  • a meeting can be held using one or more platforms such as Zoom, Skype or Microsoft Teams;
  • all persons participating electronically are taken for all purposes, including quorum requirements, to be ‘present’ at the meeting;
  • a vote taken at the meeting must be taken on a poll, and not on a show of hands, by using technology to give each person entitled to vote the opportunity to participate in the vote in real time or in advance;
  • persons attending the meeting to speak, such as asking questions, can do so using technology;
  • a proxy may be appointed using technology specified in the notice of the meeting; and
  • notice of a meeting may be given by using technologies. For example, a company could send members an email attaching a notice of a meeting and other material, or provide a link to the notice and the other material for viewing or download.

The By Lawyers Dealing with COVID-19 legal issues – Some practical information publication has been updated accordingly. This helpful summary guide to COVID measures in all states is available at the top of all By Lawyers matter plans.

New family law court – FED

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The new family law court, the Federal Circuit and Family Court of Australia (FCFCOA), commences 1 September 2021.

The FCFCOA will have 2 divisions. Essentially Division 1 replaces the existing Family Court and Division 2 replaces the existing family law functions of the Federal Circuit Court. There will be a single point of entry to the new family law court through Division 2.

Summary of the changes

  • There will be harmonised rules, new practice directions, updated forms and one website.
  • The new court’s website will be launched on 1 September 2021 with simplified access and navigation.
  • All forms will be updated. An Application in a Case will become an Application in a Proceeding.
  • Transitional arrangements will allow for the use of new forms, with a 90 day grace period for old forms.
  • Existing matters will generally remain in the existing courts, unless the parties are advised otherwise.
  • Division 2 will have a general federal law jurisdiction similar to that of the Federal Circuit Court currently.
  • Division 1 will have jurisdiction to hear family law appeals and there will be a single national appeals filing registry.
  • A National Contravention List will be introduced and a practice direction will accompany the commencement of the list.
  • The new court will have Senior Judicial Registrars, Judicial Registrars, and Deputy Registrars. While the titles change, their powers and roles will be the same as existing Registrars.
  • Child Disputes Services will be known as the Court Children’s Service. Family Consultants will be known as Court Child Experts.
  • Parties in children’s matters will receive assistance earlier, with a greater emphasis on expert guidance.

Updates for the FCFCOA commencement on 1 September 2021

All By Lawyers Family law guides – Children, Divorce, Financial Agreements, and Property Settlement – will be updated to reflect the commencement of the new court. This will include a full review of the:

  • commentaries for the new procedures and rules;
  • matter plans with a single Going to court section reflecting the new process;
  • forms – with all new forms on the matter plans; and
  • precedents, to incorporate the changes where necessary.

By Lawyers always keep our content – and our subscribers – up to date!

Employment law publication – FED

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The Employment Law publication has been extensively reviewed and enhanced. This work is part of By Lawyers continual commitment to updating and enhancing our publications.

Key components of the Employment Law publication – the matter plan, commentary and 101 Employment Law Answers reference materials – have been re-organised and augmented.

Matter plan

The matter plan has been reordered to:

  • better reflect the distinction between matters relating to employment agreements and employment disputes;
  • separate the content – both commentary and precedents – on employment agreements and non-employment agreements, such as independent contractor agreements;
  • add a new dedicated folder for the important content on workplace bullying.

Commentary

Updates include the following:

  • Getting the matter underway – initial consideration of employment status;
  • Awards –  expanded discussion of applicability and effect of awards;
  • Coverage of The National Employment Standards (NES) and a link to the Fair Work Ombudsman’s new Small Business Employer Advisory Service;
  • The new provisions for casual conversion;
  • Other rights and entitlements – additional commentary on children in the workplace, overtime, vehicles, deductions, access to records and employers in liquidation;
  • Employment agreements – considerations for negotiating and documenting terms, with a link to the Commonwealth Government’s helpful Employment contract tool;
  • Termination of employment, including when it happens during workers compensation claims;
  • Redundancy – entitlement under the NES and the connection to unfair dismissal;
  • Unfair dismissal claims – coverage of all relevant considerations, including who is protected, the small business exception, high-income threshold, what the Fair Work Commission considers, the application and response, the claims procedure, conciliation, hearings and conferences, remedies and costs orders;
  • General protections claims – coverage of adverse action, discrimination, other protections and sham contracts; and
  • Dedicated commentary on unlawful termination claims.

The comprehensive History of legislative changes has been relocated to 101 Employment Law Answers. This will assist when the rights of a client need to be determined as at a certain prior date.

101 Employment Law Answers

This handy reference material has received a comprehensive revamp that is a precursor to a more detailed review. As with all By Lawyers reference materials 101 Employment Law Answers provides relevant and up-to-date case law summaries and links to legislation. It covers such topics as leave entitlements, the multi-indicia test, abandonment, non-solicitation, redundancy entitlement, and unfair dismissal.

Franchising – All states

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Franchising laws across Australia have been amended.

Franchising Code of Conduct

The Franchising Code of Conduct is a mandatory industry code that regulates the conduct of franchising parties across Australia.

Significant amendments to the code introduced by the Competition and Consumer (Industry Codes—Franchising) Amendment (Fairness in Franchising) Regulations 2021 give further protection to franchisees. There are new rights in relation to disclosure, remedies and termination.

Dispute resolution amendments apply to disputes notified on or after 2 June 2021.

The amendments providing franchisees with the right to greater information and remedies apply from 1 July 2021.

Changes to the required disclosure document apply from 1 November 2021.

Some of the key changes include:

  • Franchisors are required to provide a mandatory fact sheet in addition to the disclosure document, and to including additional information in the disclosure document. The disclosure requirements also apply to the transfer of an existing franchise agreement.
  • Franchisors are prohibited, in certain circumstances, from requiring franchisees to undertake significant capital expenditure.
  • New arbitration and conciliation mechanisms are available.
  • Cooling off periods have been extended from 7 to 14 days. They also apply to a broader range of scenarios.
  • Franchisees have the right to request early termination of a franchise agreement.
  • The ability for franchisors to terminate agreements for special circumstances without notice has been restricted.

Updates to By Lawyers publications

The commentary and precedents within the By Lawyers Business and Franchise publications have been updated to reflect these amendments.

See Folder ‘E. IF REQUIRED – FRANCHISES‘ on the matter plans. This includes the Franchise Agreement precedent and Model disclosure document for franchisee or prospective franchisee precedent. Links are available on the mater plan to the new Information statement for prospective franchisees published by the ACCC, and to the new Key facts sheet smart form.

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