ByLawyers News and Updates

Remote execution of wills – VIC

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Victoria has introduced a permanent procedure for remote execution of wills.

The procedure arises from the temporary COVID-19 related remote execution and witnessing laws, that are now repealed.

The remote execution of wills requires:

  1. A special witness, who can be an Australian legal practitioner or justice of the peace;
  2. All steps of the procedure to be completed on the same day and within Victoria;
  3. The testator to sign the will – or to direct someone to sign the will on their behalf, with that direction being heard by the witnesses – with all witnesses seeing the signature by audio visual link, or a combination of physical presence and audio visual link;
  4. The special witness to be the last person to witness the will;
  5. The will to be emailed to any witness attending by audio visual link, who must:
    • be reasonably satisfied that the will is the same document they witnessed the testator sign;
    • ensure that there is a statement on the will noting that the witness witnessed the will being signed by audio visual link in accordance with the procedure;
    • sign the will, with the testator clearly seeing them do so by audio visual link; and
    • in the case of the special witness, check to ensure the will complies with the remote execution procedure and also ensure there is a statement on the will noting that the will was witnessed in accordance with the procedure and that they are a special witness and note whether there is a recording of the remote execution process.

The procedure for remote execution of wills also applies to revoking or altering an existing will.

The By Lawyers Wills (Vic) guide has been updated accordingly. This includes the addition of two new jurat clause precedents to the matter plan: Remote execution procedure – Witness and Remote execution procedure – Special witness.

Small business clients – FED

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A folder of new precedents for clients who are commencing or operating small businesses has been added to all Purchase of Business, Companies and Partnerships guides.

The new library of precedents provides a suite of documents which practitioners can provide to their clients who own and operate small businesses, to assist them with the day-to-day running of their businesses. These documents can be provided to clients both when they are setting up or purchasing a new business and when required for existing businesses. The documents are general in nature so they can be customised and amended as required for the needs of different clients. The precedents are designed to apply across various sectors, whether traditional storefront retail or online and whether supplying products or services.

The helpful new precedents available in the folder include:

  • Website terms of use – multiple precedents catering for different types of small business;
  • Example tax invoice;
  • Credit application form;
  • Liability waiver and consent form; and
  • Returns and refunds policy.

Subscribers will find the new ‘If Required – Library of precedents for small business clients’ folder located in:

  • Purchase of Business matter plan for each state – in the Reference materials folder;
  • Companies matter plan – in folder D. Running a company; and
  • Partnerships matter plan – in folder B. Establishing a partnership.

This practical material was added to these existing By Lawyers publications in response to requests and suggestions from By Lawyers subscribers. The precedents provide practitioners with additional tools so they can better assist their clients with all aspects of their businesses.

Casual employment – FED

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Recent amendments to the Fair Work Act

There is a new statutory definition of ‘casual employee’ from 27 March 2021. There is also an expanded statutory pathway for regular casual employees to convert their employment status to full time. Employers now have an obligation to offer permanent employment in certain circumstances.

Some relief has been granted to employers for underpayment claims from employees incorrectly classified as casual. This addresses instances of ‘double dipping’.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 has introduced significant amendments to the Fair Work Act 2009 including:

Statutory definition

Section 15A provides that a person is a casual employee if they have been offered and have accepted employment on the basis that the employer gave ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern…’.

Conversion to permanent employment

Additionally, for casual employees who fall outside the modern award framework there is a statutory obligation for employers to offer conversion to full or part-time employment, unless there are reasonable business grounds not to do so. This does not apply to small business employers.

Casual Employment Information Statement

Employers must provide casual employees with a Casual Employment Information Statement, before, or as soon as practicable after, they start their employment. This is additional to the Fair Work Information Statement.

Off-setting casual loading to prevent ‘double-dipping’

Employers are provided with relief for underpayment claims from employees incorrectly classified as casual.

Regular casual employee

The previous definition of ‘long term casual’ is replaced with ‘regular casual employee’. The definition relates to the element of employment on a regular and systematic basis, but without any specific time requirement.

By Lawyers keeps you up to date

For further details see the By Lawyers Employment Law publication which has been updated accordingly.

Apprehended violence legislation – NSW

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Apprehended violence legislation in NSW has been further amended.

Amending legislation

Further provisions of the Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 commenced on 27 March 2021.

Duration of ADVOs

Where a defendant is sentenced to a term of imprisonment which is to be served in a correctional centre, the apprehended violence legislation now requires the court to specify that any related apprehended violence order (ADVO) will be in force for a period of two years longer than the sentence imposed. That does not apply if the court otherwise orders, or if the offender is under 18 years of age.  The term of imprisonment refers to the full sentence imposed by the court, including non-parole and parole periods. The additional two years is calculated with reference to the total sentence imposed by the court at the time that the ADVO is made.

Harming animals

The apprehended violence legislation has also been amended in relation to harming, or threatening to harm, animals belonging to or in the possession of a protected person.

Conduct that causes a reasonable apprehension of harm to animals belonging to or in the possession of the protected person is now within the definition of ‘intimidation’.

A person who engages in that conduct is guilty of an offence that carries a maximum penalty of five years imprisonment or 50 penalty units or both.

The change to the definition of ‘intimidation’ means that harm to animals belonging to or in the possession of the protected person is now included in the mandatory prohibition in every AVO which prohibits damage or destroying property. This amendment was based on evidence that threatening, injuring or killing family pets is a tactic used to control and coerce partners or other family members in the context of domestic violence.

New standard order

There is a consequential amendment under the Crimes (Domestic and Personal Violence) Amendment (Standard Orders) Regulation 2021, which also commenced on 27 March 2021. This amends the Crimes (Domestic and Personal Violence) Regulation 2019 to include in the standard orders a prohibition on harming any animals owned by or in the possession of the person in need of protection under an order.

By Lawyers Apprehended violence orders (NSW) publication has been updated accordingly.

Contracts subject to finance – Conveyancing – NSW

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New commentary and precedents for Contracts subject to finance have been added to the By Lawyers New South Wales Conveyancing Purchase of Real Property publication.

As a result of a suggestion from a By Lawyers user, we have updated the Purchase of Real Property (NSW) Guide with a new section of commentary and a folder of precedent letters.

The commentary now includes a section titled Contracts subject to finance, which discusses the increasingly common situation where a purchaser has not secured unconditional finance approval before exchange. Practical information is included on:

  • negotiating the inclusion into the contract of a special condition making completion subject to finance;
  • the effect of unsuccessful finance applications;
  • seeking an extension of time from the vendor where necessary;
  • serving written notice where finance falls through;
  • the requirement of the purchaser to not otherwise be in default when ending a contract;
  • continuing without unconditional approval;
  • forfeiture of deposit and damages – including negotiating a reduced amount.

The following new precedents to assist with contracts subject to finance have been added to Folder C. NEGOTIATIONS & EXCHANGE > IF REQUIRED – CONDITIONAL CONTRACTS:

  • Letter to vendor’s solicitor confirming contract unconditional;
  • Letter to vendor’s solicitor requesting extension of time; and
  • Letter to vendor ending contract.

At By Lawyers we pride ourselves on the cooperative and collegiate relationship we have with the many firms using our commentary and precedents daily. We value the feedback that we receive as it helps us continue to improve our publications, as in this instance. We love to hear from you!

Wills guide review – TAS

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen a Tasmanian Wills guide review completed.

Subscribers using this publication will find a re-ordered and extended matter plan, plus a revised and updated commentary.

The commentary revisions and enhancements arising from this Wills guide review include:

  • The Overview has been expanded and re-ordered;
  • Additional practical guidance added under the new heading ‘Taking instructions for wills’;
  • New commentary on testamentary capacity and the test set out in the leading case of Banks v Goodfellow (1870) LR 5 QB 549 at 565;
  • Enhanced commentary and links to legislative provisions regarding the formal requirements for a valid will;
  • Newly consolidated commentary under  new heading: Revocation, marriage, divorce and revival;
  • Expanded commentary on Informal wills, with links to cases;
  • Re-ordered section on the rules of succession on intestacy, with relevant links to the Intestacy Act 2010 and the Relationships Act 2003;
  • Expanded commentary on executors and trustees, including solicitors as executors;
  • New commentary section focusing on the requirements for valid execution of a will, including issues such as blind witnesses, gifts to witnesses, and solicitors as witnesses;
  • Extensive discussion of the law on challenges to the validity of a will;
  • A new section called Finalising the matter which emphasises the importance of terminating the retainer.

A new To Do List precedent has also been added to the matter plan, under Folder A. Getting the matter underway. The new precedent provides a checklist of all usual and necessary steps in the preparation of a will for a client. The To Do list will assist practitioners and their support teams with both workflow and risk-management.

Mental health provisions – NSW

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Mental health provisions in the criminal courts have had their first substantive overhaul in 30 years. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 commenced on 27 March 2021. Division 2, Part 2 of the new Act applies to criminal offences in the Local Court.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 replaces the Mental Health (Forensic Provisions) Act 1990, including what were previously known as ‘section 32 applications’. This re-set of mental health provisions in the criminal context provides a diversionary scheme for people with mental health and cognitive impairment issues who are charged with offences that may be dealt with summarily.

Under s 12 of the Act, if it appears to a magistrate that a defendant has, or had at the time of the commission of the offence, a mental health impairment or a cognitive impairment, or both, then the magistrate can make an order under s 14 to dismiss the charge either conditionally or unconditionally. The magistrate may also adjourn the proceedings under s 13 for assessment or diagnosis, preparation of a treatment plan or to identify a responsible person for the purpose of making an order.

The main changes from the existing law – apart from the new section numbers – are:

  • ‘mental health impairment’ is now defined’;
  • the existing definition of ‘cognitive impairment’ is slightly amended;
  • the new Act sets out what the magistrate can consider when deciding whether to make an order, although the court retains ultimate discretion; and
  • magistrates can now re-call people who are discharged on conditions under the Act, which they fail to comply with, for a period of 12 rather than 6 months.

These changes should see more people with mental health or cognitive impairments successfully diverted from the criminal justice system.

The By Lawyers Criminal Law publication has been updated accordingly. The existing commentary on section 32 applications has been moved to an Appendix at the end of the commentary, as the previous legislation continues to apply to matters which were already on foot before 27 March 2021.

 

Lawyers doing immigration work – FED

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Removal of dual registration requirement

Barriers to lawyers doing immigration work have finally been lifted. From 22 March 2021 amendments to the Migration Act 1958 (Cth) remove the requirement for lawyers to also be registered as migration agents before doing immigration work for their clients.

Amendments to the Migration Act

Australian legal practitioners who hold an unrestricted practising certificate, as defined in the Migration Act, can now conduct immigration matters as part of their usual practice, with no requirement to register as migration agents under the Act.

Amendments to the Act by the Migration Amendment (Regulation of Migration Agents) Act 2020 effectively define an ‘unrestricted’ Australian legal practitioner as one who has completed their compulsory period of supervised practice after first being admitted. Those who hold an ‘unrestricted’ practising certificate are permitted to give immigration assistance in connection with legal practice without being registered as migration agents. They will no longer be able to be registered migration agents: s 276 of the Act.

Newly admitted Australian legal practitioners still within their supervision period may still become registered migration agents. In fact those practitioners may not provide immigration assistance to their clients unless they are registered migration agents. Their dual registration may continue for up to 4 years. This is intended to facilitate such lawyers doing immigration work while completing their supervision period.

The definition of Australian legal practitioner in s 275 of the Act, as amended, excludes lawyers who are admitted but who do not hold a practising certificate. It also excludes lawyers who are eligible to practice under the law of a country other than Australia or New Zealand. Those practitioners will need to register as a migration agent to be able to give immigration assistance in Australia.

Regulation

‘Unrestricted’ Australian legal practitioners are not subject to regulation by the Office of the Migration Agents Registration Authority (OMARA), whereas registered migration agents – including those who are ‘restricted’ Australian legal practitioners – are.

To be registered as a migration agent, an eligible ‘restricted’ Australian legal practitioner must satisfy the requirements of s 289A of the Act.

A registered migration agent must notify OMARA in writing within 28 days of becoming a legal practitioner, with a penalty of 100 penalty units for failure to do so: see s 312 of the Act. They will then be de-registered by OMARA.

Forms

From 22 March 2021 a legal practitioner who wishes to commence providing immigration assistance and has never been issued a Migration Agent Registration Number (MARN), will
need to complete the Australian Legal Practitioner Number (LPN) form from the Department of Home Affairs website. Al link to this form is available on the Immigration matter plan.

Appointment of a Registered Migration Agent, Legal Practitioner or Exempt Person, form 956 allows the holder of an Australian Legal Practising Certificate to advise the Department of Home Affairs that they have been appointed by a client to provide immigration assistance under the Migration Act 1958 and, if applicable, to receive documents on their behalf.

The By Lawyers Immigration Guide has been updated accordingly. This publication is available to assist lawyers doing immigration work for their clients.

Domestic violence – QLD

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The By Lawyers Domestic Violence (QLD) publication has been reviewed. The matter plan has been revised and re-ordered for better workflow and searchability.

New or enhanced sections of commentary include:

  • Police applications for temporary protection orders and Police protection notices;
  • Interaction with family law orders;
  • Negotiating orders;
  • First return date;
  • Consent orders;
  • Subpoenas;
  • Withdrawing an application;
  • Variation of orders;
  • Breaches;
  • The National Domestic Violence orders Scheme; and
  • Appeals.

Additional links to relevant sections of the Domestic and Family Violence Protection Act 2012 have been inserted in the commentary. There are also links to the rules and to other relevant legislative instruments, such as the Acts Interpretation Act 1954 (Qld) which defines ‘spouse’ to include both a de facto partner and a registered partner.

This review is part of By Lawyers’ ongoing commitment to updating and enhancing our publications.

Children – Family Law – FED

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The By Lawyers Family Law Children publication has been reviewed. Resulting updates and enhancements to the commentary and precedents include:

  • Parenting Orders commentary re-ordered and streamlined, with consequent amendments to the matter plan and new section on applications by ‘Other persons’.
  • Transfer of less frequently used forms and precedents into ‘If required’ folders, for example, subpoenas.
  • A new top-level folder on the matter plan dedicated to the final hearing.
  • New commentary on Undertakings.
  • Restructure of the enforcement/contravention section of the matter plan into Dealing with breaches of orders with detailed commentary on both applications.
  • Updated case summaries in 101 Family Law Answers for binding child support agreements, applications by grandparents, and the variation of parenting orders.

This review is part of our current preparation for the commencement of the new court structure. Practitioners will be aware that the Commonwealth parliament has passed the Federal Circuit and Family Court of Australia Act 2021 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021, commencing 1 September at the latest. The new Acts create an amalgamated Federal Circuit and Family Court of Australia (FCFCA) with two divisions. The FCFCA will be the single point of entry for family law and child support cases.

The new court will continue to have a statutory obligation to protect the rights of children, promote their welfare, and protect them from family violence.

All four of the By Lawyers Family Law publications – Children, Property Settlement, Financial Agreements, and Divorce – will be revised and updated as required when the new court commences. Going forward, relevant decisions of the FCFCA will also be added to 101 Family Law Answers as they are published.

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