ByLawyers News and Updates

General Protections List – FED

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A National General Protections List operates in the Federal Court of Australia from 1 September 2024. The list will run as a pilot project for an initial period of eight months.

The adoption of the National General Protections List follows the successful conduct of the Adverse Action List before registrars in the Victorian registry of the Federal Court since 2019.

The Fair Work Act’s general protections provisions in Part 3-1 of Chapter 3 cover:

The purpose of the new list is to allow registrars to conduct initial case management of proceedings filed under the general protections provisions in Part 3-1 of Chapter 3 of the Fair Work Act 2009 (Cth) with the intention of:

  • promoting consistency and efficiency in the case management of general protections proceedings;
  • ensuring that general protections proceedings are heard in the appropriate court, having regard to any points of principle and the quantum of claims;
  • ensuring that the resources of the court in relation to mediation are targeted towards the most appropriate proceedings; and
  • ensuring early and appropriate case management and timetabling of any interlocutory or procedural matters before the proceeding is allocated to a Docket Judge.

The first list will take place on 4 October 2024. It will be conducted virtually.

A registrar will conduct the list every Friday, with staggered start times to accommodate time differences between various states and territories. After initial case management or after mediation with a registrar, cases will be allocated to a Docket Judge.

On filing, the registry will list new general protections proceedings for a first case management hearing within 4-6 weeks of the application being accepted for filing. In advance of each list, parties will receive correspondence from the court with relevant listing information.

The commentary on General protections claims in the By Lawyers Employment Law guide has been updated accordingly.

Enduring guardian – TAS

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

New sections relating to appointments of enduring guardian

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

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

Amended sections relating to appointments of enduring guardian

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

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

New prescribed form

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

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

Right to disconnect – FED

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

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

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

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

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

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

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

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

Guarantees – All states

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

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

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

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

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

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

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

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

Publication reviews – All states

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Publication reviews are part of By Lawyers’ commitment to quality and keeping our subscribers up to date with changes in practice and procedure.

Our publication reviews target commentaries, or precedents, or both. The purpose of the reviews is to update and ensure consistency in styles, formatting, hyperlinks, naming protocols and, if necessary, the substantive content.

The results of a review can include new, amended, or deleted commentary, commentary headings, and precedents.

Sometimes the title or location of a precedent will be altered.

Occasionally there are amendments to the sequence of folders, commentary headings, precedents, and hyperlinks on the matter plan.

Any changes applied will be reflected in an amended matter plan.

Practitioners using our guides will not always realise when a publication review has been conducted. However, sometimes the resulting changes will be apparent, and amendments or enhancements might take a moment to get used to.

Lately, our in-house team, in conjunction with our authors in the various jurisdictions around Australia, have been focussed on reviewing the Full Commentaries in the following publications:

Some of these are still a work in progress, so keep an eye out for any changes.

We love to help our subscribers, and we love feedback. If you have any questions or concerns about changes arising from a publication review, do not hesitate to let us know. We are always happy to discuss any change we have made, or consider others. If you can’t find a section of commentary or a precedent, send us an email and we will point you in the right direction.

And, if you like the changes we have made, please take a moment to let us know so we can continue helping you to enjoy practice more.

Our email is: askus@bylawyers.com.au

Trusts – All states

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For the assistance of practitioners acting in trusts matters, a new precedent Trust Deed Review Checklist has been added to the matter plan in the By Lawyers Trusts publication. The new precedent was developed 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.

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

1 July – All states

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1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts, and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year and they impact many different areas of law, and therefore numerous By Lawyers publications.

The 1 July updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, the cap on damages in defamation claims, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and apply these changes for our subscribers. Each year we ensure our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

Quite separately, there is also new and amending legislation from both Commonwealth and state parliaments that commences on 1 July. Substantive amendments have been made to a number of By Lawyers publications to account for the commencement of such legislation. Please see the various other By Lawyers News & Updates posts dealing with those updates.

By Lawyers is always up to date!

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.

 

Advance care directives – TAS

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Advance care directives made under the laws applicable in some other Australian states will now be recognised in Tasmania.

Section 35ZN of the Guardianship and Administration Act 1995 provides that a validly made interstate advance care directive that has substantially the same effect as instruments under the Act can, by notice published in the Gazette, be recognised in Tasmanian.

The Gazette notice Advance Care Directives Corresponding Laws published on 22 May 2024 provides for the recognition in Tasmania of advance care directives made in the following states and territories:

  • Australian Capital Territory;
  • Queensland;
  • South Australia;
  • Victoria;
  • Western Australia; and
  • Northern Territory.

The By Lawyers Powers of Attorney, Enduring Guardianship, and Advance Care Planning (TAS) guide has been updated accordingly.

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