ByLawyers News and Updates

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.

Probate fees – VIC

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Probate fees for applications in the Supreme Court of Victoria have increased with effect from 18 November 2024.

Changes under the Supreme Court (Fees) Amendment Regulations 2024 have the effect of dramatically increasing, in many cases, the fees payable to file an application for probate or letters of administration at the Probate Office.

The changes to include:

  • new estate value brackets and corresponding fees;
  • changes to the advertising and small estate fees;
  • a new fee for re-advertising an application; and
  • a new fee for filing an amended originating motion.

The new estate value brackets and corresponding application fees are:

Gross value of estate for commencement of an application for a grant of representation Filing fee
$0 – $249,999.99 NIL
$250,000 – $499,999.99 $514.40
$500,000 – $999,999.99 $1,028.80
$1,000,000 – $1,999,999.99 $2,400.50
$2,000,000 – $2,999,999.99 $4,801.00
$3,000,000 – $4,999,999.99 $7,185.20
$5,000,000 – $6,999,999.99 $12,002.60
$7,000,000 and over $16,803.60

The full list of fees is available on the Supreme Court’s Probate Office fees webpage.

The By Lawyers Estates (VIC) publication has been updated, including the Retainer Instructions and Costs Agreements precedents, on the Probate and Letters of Administration matter plans.

These amendments come hot on the heels of a change to the way applications for probate, letters of administration, and reseal are advertised. See our recent News and Updates post concerning probate advertising for more information.

Probate advertising – VIC

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There is a new procedure for Probate advertising in Victoria from 11 November 2024.

Applications for probate and letters of administration from that date will be advertised via RedCrest-Probate instead of the Probate Online Advertising System (POAS). The intention of the change is to streamline the process and remove the need for information to be entered twice. Practitioners will only need to use one system to search, advertise, and apply for grants of representation in Victoria.

The POAS ceases to operate on 7 November, and no probate advertising will be possible from that date until Monday, 11 November, when the new system commences.

RedCrest-Probate is the Supreme Court’s existing online filing system for all applications for grants and all documents in relation to grants.

The first step in any application is a Notice of Intention to Apply. This is now lodged and advertised via RedCrest-Probate.

All advertisements previously published on POAS remain valid for three years from their date of publication. POAS advertisements will be searchable on RedCrest-Probate once the new system commences.

The Supreme Court (Administration and Probate) Rules 2023 set out the information that must be included in the Notice of Intention to apply. There are different requirements under the rules depending on whether the application is for probate, letters of administration on intestacy, letters of administration with the will attached, or resealing a grant from another jurisdiction.

The By Lawyers Probate (VIC) and Letters of Administration (VIC) will be updated accordingly for the commencement of the new probate advertising procedure.

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.

Transfer duty concession – VIC

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A new and temporary off the plan land transfer duty concession is available in Victoria.

The concession applies to the purchase of strata dwellings off the plan.

Contracts for apartments and townhouses purchased off the plan that are entered into from 21 October 2024 attract the concession, which is available for 12 months.

The new transfer duty concession will significantly reduce duty payable by eligible purchasers. For example, the duty payable on a $620,000 apartment will be reduced from $32,000 to $4,000.

Eligible purchasers will be able to deduct the construction costs incurred on or after the contract date from the dutiable value of the property. Land transfer duty will then be calculated on this reduced amount. Other concessions may also apply based on this reduced amount.

Eligibility

The concession is available to all purchasers, whether owner occupiers or investors, individuals, companies, and trusts. The purchaser is not required to also be eligible for either the principal place of residence duty concession, or the first home buyer duty exemption or concession.

Eligibility for the new transfer duty concession is assessed at the date the contract of sale is entered into, irrespective of whether settlement occurs before or after the end of the 12-month window during which the concession applies.

Contracts signed before the concession’s commencement date but settled during the 12-month window are not eligible.

How to apply

Applications are made through Duties Online by completing the Digital Duties Form.

For further information, including some useful examples of how the concession is calculated, see the Temporary off-the-plan duty concession page published by the State Revenue Office Victoria.

By Lawyers – Always up to date

The By Lawyers Purchase of Real Property (VIC) guide, including the Full Commentary and the Retainer Instructions precedent, has been updated.

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.

Defamation – VIC

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The long-awaited second stage of the uniform defamation law reform has effect in Victoria from 11 September.

These reforms have already commenced on 1 July in the ACT and NSW. Other states are expected to follow in due course.

The 2024 amendments include:

Exemption from liability in defamation as publishers for digital intermediaries

The legislation 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 in defamation cases 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 under uniform defamation law

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.

 

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