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.

County Court – VIC

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Common Law Division Practice Note PNCLD 1-2025 takes effect in the County Court from 25 March 2025 and replaces 21 existing practice notes.

The new practice note, which stretches to 159 pages and includes a dictionary setting out key definitions, covers all the practices and case management expectations for all proceedings in the Common Law Division, including for the various specialist lists, and Appeals.

The new Common Law Division practice note supersedes the following practice notes:

  • PNCLD 1-2023 Common Law Division practice note
  • PNCLD 2-2023 Serious injury applications practice note
  • PNCLD 3-2022 WorkCover List practice note
  • PNCLD 4-2023 Family Property List practice note
  • PNCLD 5-2023 Medical List practice note
  • PNCLD 6-2023 Confiscation List practice note
  • PNCLD 7-2023 Defamation List practice note
  • PNCLD 8-2023 Adoptions, Surrogacy and Name Change List practice note
  • PNCLD 12-2023 Applications for approval of compromise practice note
  • PNCLD 13-2022 Applications by a solicitor for costs in work injury damages claims practice note
  • PNCLD 14-2023 Applications to file a notice of ceasing to act practice note
  • PNCLD 15-2023 Applications to take evidence by deposition practice note
  • PNCLD 16-2023 Information Technology (IT) practice note
  • PNCLD 17-2023 Judicial mediation practice note
  • PNCLD 18-2023 Subpoenas practice note
  • PNCLD 19-2023 Institutional Liability List practice note
  • PNCLD SP-2-2022 Suppression, pseudonym (and like) order applications practice note
  • PNCLD SA 2-2022 Applications for compensation under s85B of the Sentencing Act 1991 practice note
  • PNCLD SO 2-2022 Applications for supervision orders under the Serious Offenders Act 2018 practice note
  • PNCLD FV 2-2024 Family Violence and Personal Safety Intervention Order appeals practice note
  • PNCI 9-2021 eCase: electronic subpoenas practice note.

The specialist lists dealt with by the practice note are:

  • The Civil Claims lists: Serious Injury List; WorkCover List; Medical List; Institutional Liability List; Defamation List; Family Property List; and the General List.
  • Adoptions, Surrogacy and Name Changes List.
  • Confiscation List.
  • Appeals and Post Sentence Application List.

Commentary links for both Acting for the Plaintiff and Acting for the Defendant in the By Lawyers County Court (VIC) publication have been updated accordingly.

AI prompts – ALL states

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AI prompts are transforming legal document drafting. Technical precision in prompting artificial intelligence can significantly improve the utility and credibility of its output, especially when the AI draws exclusively from data contained in client matters and not from outside sources.

A well-drafted AI prompt acts like a clear direction from a senior lawyer to a junior about how to prepare a document. It sets precise parameters for the task, identifies the required information and where it must be drawn from, specifies the document’s form and any legal or procedural rules with which it must comply, and forbids the use of external or unauthorised sources, including invention – or in AI’s case, hallucination.

The outcome of using an AI prompt in a matter that contains sufficient reliable data should be a competent first draft of a document that the lawyer can then refine and perfect, either with or without further input from AI.

Even if sufficient data is not available in the matter to satisfy the prompt’s requirements for the document, the AI will identify the missing data the lawyer needs to obtain via instructions or other means.

By Lawyers is pleased to introduce AI prompts to our publications, helping our subscribers harness the power of LEAP’s Matter AI.

Initially, prompts for letters, affidavits, statutory declarations, and briefs to counsel are being added to the following guides:

  • Sale and Purchase of Real Estate – All states;
  • Mortgages – NSW;
  • Family Provision Claims – QLD;
  • Family Provision Claims – VIC;
  • Probate and Letters of Administration – VIC;
  • Family Law – Divorce, Children, and Property Settlement – FED;
  • Personal Injury – VIC; and
  • Transport Accident Commission Claims – VIC.

By Lawyers will continue adding AI prompts to our publications as part of our regular and ongoing commitment to enhancing our content and helping our subscribers enjoy practice more.

Like all By Lawyers precedents, AI prompts will be updated as required for any changes in the law and practice.

We welcome feedback and suggestions from our subscribers about AI prompts.

Conveyancing cases – VIC

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A selection of recent conveyancing cases has been added to By Lawyers 1001 Conveyancing Answers (VIC) as part of a review by our property author Russell Cocks.

The following conveyancing cases are among those that have been added:

Additional information has also been added about:

  • Deposit or option fee – A preliminary payment pursuant to a contract may be a deposit that is potentially refundable to the purchaser if the contract does not proceed, or an option fee that is not refundable even if the contract does not proceed.
  • Lessee’s right to quiet enjoyment – A lessor’s failure to repair defective premises may constitute a breach of the lessee’s right to quiet enjoyment.

The extensive 1001 Conveyancing Answers (VIC) publication is available in the Reference materials folder on the By Lawyers Conveyancing (VIC), Mortgages (VIC), and Leases (VIC) matter plans to assist property lawyers and conveyancers in understanding more detailed aspects of the conveyancing process and addressing clients’ issues quickly.

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.

Magistrates’ Court – VIC

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Two important new practice directions apply in the Magistrates’ Court of Victoria from 10 February 2025.

  1. Practice Direction No. 1 of 2025 governs practice and modes of appearance, in person or online, in proceedings across the criminal and family violence divisions of the Magistrates’ Court. It revokes Practice Direction No. 6 of 2022.
  2. Practice Direction No. 2 of 2025 governs practices in the civil division of the Magistrates’ Court. It revokes 51 previous practice directions.

The following are the key points of each.

Magistrates’ Court criminal and family violence jurisdiction

Practice Direction No. 1 of 2025 sets out the procedure for all appearances, online or in person, except a first remand hearing which is covered by Practice Direction 1 of 2024.

In general, online appearances by clients and practitioners are available, encouraged, and in many cases required. However, physical appearances are also possible, mainly by request, and in some cases required.

The practice direction sets out detailed arrangements for all types of appearances, including:

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • contest mention hearings, committal mentions, special mentions, and applications, and matters in Judicial Registrar lists;
  • contested hearings and committal hearings;
  • specialist courts and programs;
  • intervention orders – applications and hearings; and
  • filing materials with the court.

Represented accused and their lawyers are to appear in person or online as provided for in the practice direction, unless the court directs otherwise.

If a represented accused appears in person, their lawyer must also appear in person, unless otherwise directed by the court.

If a practitioner seeks to appear in a mode contrary to that set out in the practice direction, they must apply to do so by contacting the relevant court registry at least 7 days before the date.

When appearing online, it is the practitioner’s responsibility to ensure they and their client have audio-visual capability from an appropriate private location, and their online appearance must not cause delay or interrupt the court.

Magistrates’ Court civil jurisdiction

Practice Direction No. 2 of 2025 applies to all civil proceedings including the WorkCover Division, Industrial Division, and Federal Jurisdiction matters. It excludes matters arising under the Family Violence Protection Act 2008, the Personal Safety Intervention Orders Act 2010, and Industrial Division criminal proceedings.

The practice note covers the following for general civil matters:

  • overview and purpose;
  • definitions;
  • jurisdiction;
  • self-represented litigants;
  • issuing proceedings, filing documents and corresponding with the court;
  • attending the court;
  • consent orders;
  • appropriate dispute resolution;
  • applications in open court and directions hearings;
  • call overs for contested matters and open court applications;
  • contested hearings; and
  • inspecting subpoenaed documents.

Specific directions in the WorkCover Division include:

  • medical panel referrals;
  • inspection of medical and other records;
  • subpoenas relating to confidential communications; and
  • dependents’ compensation.

Specific directions in the Industrial Division include:

  • support for self-represented litigants;
  • filing documents;
  • pre-hearing conferences; and
  • contested matters.

Specific directions in the Federal jurisdiction concern the commencement of proceedings.

Appendix A to the practice direction lists the 51 previous Magistrates’ Court practice directions that are revoked.

Publication updates

The commentary and hyperlinks in the following By Lawyers Magistrates’ Court (VIC) guides have been updated accordingly:

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.

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