ByLawyers News and Updates

Bail conditions – SA

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New mandatory bail conditions apply for certain applicants in South Australia from 1 October 2024.

The Bail (Conditions) Amendment Act 2024 introduces new sub-section (2ae) into s 11 of the Bail Act 1985 that provides for mandatory conditions to apply if bail is granted for charges that constitute a breach of intervention orders involving physical violence or threats of physical violence.

If bail is granted to a person charged with the relevant offences, it must be subject to conditions that the bailee remains at their residential address except for work, medical, or emergency reasons, and agrees to be fitted with an electronic monitoring device.

The new provisions concerning mandatory conditions only apply to adult offenders.

The transitional provisions in the amending Act provide that the new provisions concerning mandatory conditions only apply to bail applicants taken into custody on a charge for an offence allegedly committed after the commencement of the amending Act on 1 October 2024.

The By Lawyers Magistrates Court Criminal (SA) publication has been updated accordingly. In the course of making these changes, new commentary has also been added including a section concerning second or subsequent applications for bail.

First home buyer – WA

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A first home buyer purchasing an established or newly built home, or building a new home, can apply to be assessed at a new first home buyer threshold and rate of duty.

The first home buyer duty concessions apply as follows:

  • If the unencumbered value of a first home is up to $450,000 then no duty is payable. Previously the threshold was $430,000.
  • If the property’s unencumbered value is between $450,001 and $600,000, then duty is payable at a rate of $15.01 for every $100 above $450,000. Previously, this threshold was $430,001 to $530,000, and the rate of duty was $19.19 for every $100 over $430,000.
  • If the unencumbered value of the property is over $600,000, then the buyer is liable for the full amount of duty, and no reduced rate applies. The top threshold was previously $530,000.

For vacant land, transfer duty exemptions are available on land valued at $300,000 or less, and concessions are available on land valued at $400,000 or less.

The new thresholds and rate applies to agreements entered into after 9 May 2024. Agreements entered into before 9 May 2024 are not entitled to the benefit of the new thresholds and rate even if settlement occurs after that date.

Any agreements entered into on or after 9 May 2024 assessed using the previous thresholds or rate can be re-assessed taking into account the new thresholds and rate.

The duty concession is in addition to the First Home Owner Grant, which provides a $10,000 lump sum payment to first home buyers constructing a new residential property.

The By Lawyers Conveyancing (WA) publication has been updated accordingly, including the Purchase of Real Property commentary and the Retainer Instructions – Purchase of Real Property precedent.

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.

 

Care planning – VIC

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Two new By Lawyers advance care planning precedents provide for an advance care directive and an appointment of medical decision-maker to be signed at the direction of the principal.

The Medical Treatment Planning and Decisions Act 2016 (the Act) gives statutory recognition to advance care directives and provides a mechanism of medical treatment decision-making for people without decision-making capacity. The legislative framework has three components:

  • Advance care directive – allows for specific instruction on the treatment that a person consents to, or refuses, and a statement of their preferences and values.
  • Medical treatment decision maker – allows a medical treatment decision-maker to make decisions on behalf of a person who no longer has decision-making capacity.
  • Support person appointment – allows for the appointment of a support person to assist someone to make decisions for themselves, by collecting and interpreting information, or by assisting the person in communicating their decisions.

There is no requirement under the Act to make an advance care directive at the same time as an appointment of a medical treatment decision-maker, but if making an advance care directive before or at the same time as the appointment of a medical treatment decision maker, the appointee has to confirm they have read and understood it.

As with any instrument, the principal can execute an advance care directive or an appointment of a medical decision-maker by directing someone to sign on their behalf. Given the nature of these documents, execution by direction is not uncommon. Precedents for this purpose have been added to the matter plan, with witness certifications drafted to take into account the change in the process if the appointment is signed by someone else at the direction of the person making the appointment.

These new advance care planning precedents Advance care directive – Signing by direction and Appointment of medical treatment decision maker – Signing by direction can be found in folder D. Advance care directive, medical treatment decision maker and support person appointment on the Powers of Attorney and Advance Care Directives (VIC) matter plan.

Duty concession – TAS

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A duty concession of 50% is now available to eligible buyers of newly built medium-density housing in Tasmania.

The new measure is intended to encourage the construction of new apartments and units.

The concession applies to certain apartments and off-the-plan or under-construction units, with a dutiable value of up to $750,000.

The 50% duty concession is available for agreements for sale entered into between 1 July 2024 and 30 June 2026 inclusive. The transfer must occur before 30 June 2031.

The duty concession is available to all Tasmanians who meet the eligibility criteria, not just first-home buyers. To be eligible, transferees must be natural persons, not a company or trust, and be over 18 years of age. At least one transferee must be an Australian citizen or a permanent resident at the date of the dutiable transaction. If a first home buyer grant has been made for the same transaction, the 50% duty concession is not available.

An eligible dwelling comprises a lot in a strata scheme or a dwelling conjoined with one or more other dwellings and must not have had an occupancy permit granted when the agreement for sale was executed.

For more details on eligibility criteria and how to apply, see the Property Transfer Duty page on the State Revenue Office of Tasmania website.

Eligible transferees who have already paid full transfer duty on an eligible property can apply for a 50% refund.

The By Lawyers Conveyancing (TAS) publication has been updated accordingly, including the Purchase of Real Property commentary and the Retainer Instructions – Purchase of Real Property precedent.

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.

Mental impairment – WA

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The Criminal Law (Mental Impairment) Act 2023 replaces the Criminal Law (Mentally Impaired Accused) Act 1996 from 1 September 2024.

The purposes of the new Act are:

  • to make provision in relation to criminal proceedings involving persons with mental impairment;
  • to provide for special criminal proceedings for persons who are unfit to stand trial;
  • to provide for the supervision of persons who, in special criminal proceedings, are found to have committed an offence;
  • to provide for the supervision of persons acquitted on account of mental impairment;
  • to provide for the safe reintegration into the community of persons supervised under this Act;
  • to repeal the Criminal Law (Mentally Impaired Accused) Act 1996 and the Criminal Law (Mentally Impaired Accused) Regulations 1997;
  • for related purposes.

Part 3 of the Criminal Law (Mental Impairment) Act 2023 applies to accused who are unfit to stand trial on criminal charges.

Division 2 of that Part deals with raising and deciding the question of whether an accused is fit to stand trial on criminal charges. There is a presumption of fitness that can be rebutted if the accused is found to be unable to do one or more of the things listed in s 26, which include:

  • understand the nature of the charge;
  • give instructions;
  • understand the requirement to plead, or the effect of a plea;
  • follow the course of a trial; or
  • properly defend the charge.

The question of fitness can be raised at any time before or during a trial.

Under s 29, the court decides the question of fitness to stand trial on the balance of probabilities and may inform itself in any way it considers appropriate, including with medical evidence.

The Mental Health section of the Full Commentary in the By Lawyers Magistrates Court – Criminal (WA) 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.

Power of attorney – NSW

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The prescribed forms for creating both a general and an enduring power of attorney in New South Wales have been slightly amended.

The Powers of Attorney Regulation 2024 commenced when it was published on 23 August 2024.

The regulation repeals and remakes, with minor amendments, the Powers of Attorney Regulation 2016, which would otherwise be automatically repealed on 1 September 2024 by virtue of s 10(2) of the Subordinate Legislation Act 1989.

The 2024 regulation prescribes—

  • the classes of persons who may certify that a document is a true and complete copy of an instrument creating a power of attorney, and
  • the form to create a general power of attorney, and
  • the form to create an enduring power of attorney, and
  • savings and formal matters.

The provisions in the 2024 regulation are substantially the same as the 2016 regulation. The only amendments are to the Important information and the Notes for completion in both the general and enduring powers of attorney forms, simply to update the name and contact details for  NSW Land Registry Services, and where to obtain further information, being: the Office of the Registrar General, and the NSW Trustee and Guardian.

By Lawyers Powers of Attorney (NSW) guide contains six versions of the powers of attorney precedents, general and enduring, catering for various iterations of attorney/s and substitute attorneys. These precedents are automated for LEAP users. They have all been updated to reflect the new prescribed forms, and a link to the new regulation has been included in the commentary.

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