ByLawyers News and Updates

Electronic signing and witnessing

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A new guide to Electronic Signing and Witnessing has been added to the Reference Materials folder on all By Lawyers matter plans.

This helpful resource summarises the various legislation across all Australian jurisdictions for electronic transactions.

Electronic signing and witnessing

In Australia under federal, state, and territory legislation many transactions can be completed electronically.

Electronic signing and witnessing are available for many, but not all, transactions and documents encountered in every day practice. However, the availability of electronic signing and witnessing is considerably different in each jurisdiction.

The new guide summarises the applicable legislation in each jurisdiction, to assist practitioners understand when electronic signing and witnessing is permitted and how it can be done.

Legislation

The Commonwealth took the lead on legislation to enable electronic transactions at the turn of the millennium, and sought the cooperation of the states in enacting consistent laws across all jurisdictions, resulting in the following legislation:

Electronic Transactions Act 2001 (ACT)

Electronic Transactions Act 1999 (CTH)

Electronic Transactions Regulations 2020 (CTH)

Electronic Transactions Act 2000 (NSW)

Electronic Transactions Regulation 2017 (NSW)

Electronic Transactions (Queensland) Act 2001 (QLD)

Electronic Transactions (Northern Territory) Act 2000 (NT)

Electronic Transactions (Northern Territory) Regulations 2001 (NT)

Electronic Communications Act 2000 (SA)

Electronic Communications Regulations 2017 (SA)

Electronic Transactions Act 2000 (TAS)

Electronic Transactions Regulations 2021 (TAS)

Electronic Transactions (Victoria) Act 2000 (VIC)

Electronic Transactions (Victoria) Regulations 2020 (VIC)

Electronic Transactions Act 2011 (WA)

Electronic Transactions Regulations 2012 (WA)

Unfortunately, the approach taken by each state and territory to implementing this legislation differs to various degrees from both the Commonwealth’s and each other’s. Each jurisdiction has exempted certain statutes, transactions, and documents from the operation of their Act or some of its provisions.

This means that, while all jurisdictions have laws providing for electronic transactions and electronic signing, and some have laws for audio visual witnessing, the documents that can be electronically signed and the requirements for execution vary between the jurisdictions.

The new guide brings all of this information together for practitioners to easily reference in any matter they are working on.

New FWC Rules – FED

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The Fair Work Commission (FWC) rules regulate the work of the Fair Work Commission. They include the procedures and requirements for filing and serving applications and responses in the various types of employment disputes under the Fair Work Act 2009 (FWA) and other legislation.

There are new FWC rules from 27 March 2024. The Fair Work Commission Rules 2024 (Cth) have replaced the Fair Work Commission Rules 2013 (Cth).

The new FWC rules remake and update the 2013 version. In addition to updates for some amended legislation and procedure, the rules have been substantially rearranged and renumbered.

There are now separate chapters of the rules for matters under the FWA, matters under other legislation, and for appeals and reviews.

The chapter for FWA matters is divided into separate parts that accord with all the areas of possible applications under the Act:

  1. National Employment Standards;
  2. Modern awards;
  3. Enterprise agreements;
  4. Regulated labour hire arrangement orders;
  5. Transfer of business;
  6. Fixed term contracts;
  7. General protections, unfair dismissal and unlawful termination;
  8. Industrial action;
  9. Right of entry;
  10. Sexual harassment and bullying;
  11. Regulated workers; and
  12. Disputes under dispute procedures in awards, enterprise agreements et cetera.

The requirements for service of applications and responses are now all contained within Schedule 1 to the new rules.

The transitional provisions provide that the new FWC rules apply to new matters and to any step in a matter already on foot, however the FWC can order that the previous rules continue to apply to a matter already on foot.

The By Lawyers Employment Law guide has been updated accordingly.

Conveyancing Answers – VIC

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Some notable recent conveyancing cases have been added to 1001 Conveyancing Answers (VIC) and the information in several sections has been updated.

These enhancements are part of an extensive review of the publication by our author Russell Cocks.

Updates include detailed information on:

  • recent changes to land tax for vacant residential land;
  • the new prohibition against the adjustment of land tax for properties priced under $10,000,000;
  • the new prohibition against the adjustment of windfall gains tax; and
  • new requirements surrounding building manuals under s 15A Sale of Land Act 1962.

New cases added to the publication include:

1001 Conveyancing Answers (VIC) is available in all By Lawyers conveyancing and property publications in Victoria. This comprehensive reference work assists property lawyers and conveyancers to understand more detailed aspects of the conveyancing process and solve problems for their clients.

Standard orders – VIC

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The County Court’s library of standard timetabling and other orders have been added to the relevant By Lawyers litigation matter plans.

The County Court requires practitioners to use the court’s orders that are published in booklets on the Court’s website unless good reason exists to alter those orders, or draft alternate ones. A different booklet of standard orders applies for each of the Common Law and Commercial divisions.

The orders cover all aspects of procedure in the court, including listing, timetabling, extensions of timetables, subpoenas, and costs. There are specific standard orders for each of the court’s various lists, such as the:

  • General List – personal injury,
  • General List – property damage,
  • Serious injury list – TAC proceedings,
  • Defamation list, and
  • Family property list – TFM claims.

The full library of these standard orders has been automated and added to Folder A. Going to Court in By Lawyers County Court – Acting for the plaintiff and County Court – Acting for the defendant guides.

A selection of these orders has also been added to the following By Lawyers guides, as appropriate:

The court forms for the Commercial List Order template and the Common Law Division Minutes of Proposed Consent Orders have also been added to the relevant matter plans. These are the forms into which the various orders are inserted as appropriate.

Additional commentary explaining the requirements and practicalities of using these orders has also been included in the relevant By Lawyers commentaries.

Bail amendments – VIC

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The latest raft of bail amendments have effect from 24 March 2024.

Changes to the Bail Act 1977 under the Bail Amendment Act 2023 and Bail Amendment Regulations 2024 include:

Second bail application now permitted

The amendments allow an accused person to make a second legally-represented bail application before a court without having to establish new facts or circumstances. This addresses the issue of lawyers being reluctant to represent an accused person on a bail application at the first possible opportunity because of the concern it will exclude them from making a better-prepared application a bit later, which has contributed to a high number of short-duration remands.

Changes of terminology and defined terms

These bail amendments include changes in terminology:

  • from surety and persons offering a surety, to bail guarantee and bail guarantors; and
  • from undertaking to bail undertaking, which accords with a slight amendment to the definition of an undertaking in s 3, so that it means a bail undertaking given under s 5(1) to surrender into custody at the time and place specified for the next appearance, rather than undertaking more generally under s 5 or otherwise.

Refinements to the unacceptable risk test

Under the current test, a person can be remanded in custody if there is a perceived risk of even minor reoffending. To address this, the amendments refine the unacceptable risk test so that an accused person cannot be refused bail on specified minor offences unless they have a terrorism record and have previously had their bail for the same offences revoked. The offences to which this provision applies are any under the Summary Offences Act 1966 except those listed in a new Schedule 3 to the Bail Act, relating to violent and sexual offences. Accused persons released on bail for these offences can still be subject to strict bail conditions.

Additional surrounding circumstances

When considering the surrounding circumstances under s 3AAA of the Bail Act in the context of determining bail, the bail decision-maker must take into account, if relevant, several new factors in addition to those already listed in the section, being:

  • whether, if the accused is found guilty, it is likely they would be sentenced to a term of imprisonment and, if so, that the time they would spend on remand if bail is refused would exceed the term of imprisonment;
  • whether the accused was on remand for another offence or was at large awaiting sentence for another offence; and
  • any special vulnerability of the accused, including being an Aboriginal person, being a child, experiencing ill health including mental illness, or having a disability.

Aboriginal people

Section 3A of the Bail Act provides a list of non-exhaustive considerations that must be taken into account when making a bail determination concerning an Aboriginal person. The section has been amended to give greater guidance to bail decision-makers, who will now be required to consider:

  • systemic factors that have resulted, and continue to result in the over-representation of Aboriginal people in the criminal justice system and remand population, and the increased risks of Aboriginal people in custody;
  • personal circumstances that may make an Aboriginal person particularly vulnerable in custody, may be a causal factor for offending behaviour, or may be disrupted by being remanded -such as disability, trauma, family violence, involvement with child protection, housing insecurity, and caring responsibilities;
  • the importance of maintaining protective factors that play a significant role in rehabilitation, such as connection to culture, kinship, family, Elders, country and community; and
  • any other cultural obligations.

Children

These bail amendments update the child-specific considerations in the Act limit the applicability of the step 1 exceptional circumstances test and the step 1 compelling reason test to children charged with a small number of very serious offences, or with a record or risk of terrorist activities. In addition to the current considerations in s 3B of the Bail Act, bail decision-makers will need consider the need to impose on the child the minimum intervention required in the circumstances, with remand of the child being a last resort

Review

A new s 32C of the Bail Act provides that the Attorney-General must conduct a review of the operation of these bail amendments no later than 2 years after their commencement.

Publication updates

The By Lawyers Criminal Magistrates’ Court guide has been updated accordingly.

Costs disclosure – QLD

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Abbreviated costs disclosure is available to Queensland law firms from 1 March 2024.

A new section 307B of the Legal Profession Act 2007 (QLD) provides for a simpler form of disclosure where legal costs in a matter, excluding GST and disbursements, are not likely to exceed the detailed disclosure threshold set out in s 300, which is currently $3,000.

This new form of disclosure is available as an alternative to the detailed disclosure requirements under s 308 of the Act.

Under s 307B, a law practice is required to disclose to the client:

  • in general terms, the legal services that will be provided to the client;
  • the basis on which legal costs will be calculated, including whether a scale of costs applies;
  • an estimate of the total amount of the legal costs;
  • an estimate of the total amount of disbursements; and
  • the client’s right to:
    • negotiate a costs agreement with the law practice;
    • receive a bill from the law practice;
    • request an itemised bill after receiving a lump sum bill; and
    • be notified of any substantial change to the matters disclosed under s 307B.

All By Lawyers Queensland and Federal publications have been updated with a compliant abbreviated costs disclosure precedent.

By Lawyers 101 Costs Answers guide has been updated to include commentary on the new abbreviated costs disclosure requirements.

Changes to Family Law- FED

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A summary of the upcoming changes to family law parenting applications has been added to the By Lawyers Family Law – Children guide.

The upcoming changes to family law arise under two separate pieces of legislation, each of which commences on 6 May 2024.

Family Law Amendment Act 2023

Significant amendments to the way parenting orders are dealt with under the Family Law Act 1975 (Cth), include:

  • a refined list of factors for the court to consider when determining the best interests of the child, the emphasis now being on safety and the needs of individual children;
  • a new subsection requiring the court to consider the right of an Aboriginal or Torres Strait Islander child to connect with their family, community, culture, country, and language;
  • provisions that allow the court to consider any views expressed by the child to the independent children’s lawyer;
  • the repeal of the presumption of equal shared parental responsibility and the related equal time and substantial and significant time provisions;
  • codification of the rule in Rice v Asplund that requires a court to be satisfied a that significant change in circumstances has occurred before varying parenting orders; and
  • a mechanism for the court to address repetitive filing of applications by one party to oppress another party.

Family Law Amendment (Information Sharing) Act 2023

This legislation:

  • seeks to establish a regime for information about domestic violence, children at risk, and firearms licensing to be shared between the relevant State authorities and the Federal Circuit and Family Court of Australia (FCFCOA);
  • amends the Family Law Act to make such material admissible in children’s matters, subject to exceptions and safeguards, for example legal professional privilege.

The 2nd reading speeches note that the measures in each Act are complementary and that both Acts will work together to create a family law system that meets the needs of its users, centring the voices and best interests of children, and ensuring their safety and wellbeing is the paramount consideration.

Publication updates

By Lawyers guides are always up to date. When these changes to family law commence, the Family Law – Children publication will be updated accordingly. In the interim, the following content has been added to the guide too assist firms in understanding and transitioning to the changes:

  • an Alert has been added at the top of the matter plan and the top of the full commentary;
  • a heading Changes effective 6 May 2024 has been added under the Overview in the commentary and on the matter plan, with a concise summary of the amendments;
  • a Comparative table detailing the changes to the Family Law Act effective 6 May 2024 has been added as an Appendix to the commentary, with a link on the matter plan.

Intervention orders – VIC

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Following a recent Supreme Court decision, a declaration of truth is not sufficient evidence on which a court can make personal safety intervention orders.

Section 38 of the Personal Safety Intervention Orders Act 2010 provides that an application for an interim order must be supported by oral evidence or an affidavit, unless the orders are by consent or the requirement is waived.

Under s 38(1A) the court may waive the requirement that the application be supported by oral evidence or an affidavit if the applicant is a police officer and the application is made by electronic communication:

  • provided the court has considered whether it is practicable to obtain oral evidence or an affidavit before making the interim order; or
  • the application is made before 9 a.m. or after 5 p.m. on a weekday or on a Saturday, Sunday or a public holiday, and it was certified by the police officer in accordance with s 13(2).

As a COVID-19 response in 2022, the Magistrates’ Court introduced a declaration of truth form as part of the online application process for intervention orders.

In Myers v Satheeskumar & Ors (Judicial Review) [2024] VSC 12 the applicant challenged the validity of an interim intervention order on the basis that it was not supported by oral evidence or an affidavit, there being no consent and no waiver. The Supreme Court agreed with the applicant, finding that a declaration of truth is not the same as an affidavit and cannot ground an application for interim orders. In doing so, the the presiding judge noted:

I have concluded that the interim PSIOs are invalid, in spite of the public inconvenience and safety issues entailed by this conclusion. I am conscious that this conclusion could cast doubt on the validity of other interim PSIOs granted in similar circumstances. It may be a matter of urgent public concern if other interim PSIOs are subject to doubt by reason of any systematic defect in the manner they have been granted. It is unclear to me whether the approach of the Magistrates’ Court to this case is widespread. However that may be, any perceived solution must be left to the legislature, not the Court.

It is likely that the Magistrates’ Court will soon amend their form and online application to require an affidavit to be filed. There may also be a legislative response. However, until that happens, an application for an interim order cannot be supported by a declaration of truth, and unless a waiver applies the applicant will need to either give evidence or file an affidavit before the court can make any interim orders.

The commentary in the By Lawyers Intervention Orders (VIC) publication has been updated accordingly, and will be updated again if there are further developments.

Land tax – NSW

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From 1 February there are changes to land tax exemptions in New South Wales. A new minimum ownership requirement applies to applicants seeking the principal place of residence land tax exemption.

A principal place of residence is generally exempt from land tax. Only one property can be claimed as a principal place of residence, for either an individual or a family. If a principal place of residence is used for non-residential purposes, then there will be a reduction of land tax for the proportion used as a residence.

A principal place of residence exemption can only be claimed by natural persons, not corporations or trusts except for a concessional trust: s 3B of the Land Tax Management Act 1956.

Following the amendments, s 15 of Schedule 1A of the Act now imposes a minimum ownership requirement in order for a property owner, or owners, to access the principal place of residence exemption. There is now no entitlement to the exemption unless all of the people who use and occupy the land as a principal place of residence together hold at least a 25% interest in the land.

Those who currently claim the principal place of residence exemption, but collectively have an interest in the land of less than 25%, can continue to claim the exemption as a transitional measure up to 31 December 2025.

The requirement does not apply to participants in an approved shared equity scheme under s 281 of the Duties Act 1997.

The By Lawyers Conveyancing (NSW) publication has been updated accordingly.

Adjustments and land tax in 2024

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By Russell Cocks, Solicitor

Adjustments

As of 1 January 2024, practitioners need to ensure that the form of contract that they are using for the sale of real estate complies with amendments to the Sale of Land Act 1962, being new s 10G and s 10H. These amendments apply to contracts for a purchase price of LESS THAN $10,000,000 indexed: s 10I.

It is the responsibility of practitioners to ensure that contracts that may be signed after 1 January 2024 are compliant. These changes also need to catch up with any contract that was prepared before 1 January 2024 and may be awaiting execution, especially those provided to estate agents in anticipation of a sale, but which did not occur before 1 January 2024.

Section 10G provides that a condition in a contract is of no effect to the extent that the provision purports to require the purchaser to contribute to the vendor’s Land Tax. Such conditions are virtually universal, so this change will affect 99.9% of contracts for the sale of land. The section only applies to contracts that come into force after 1 January 2024.

Including a condition in breach of the Act in a contract AFTER 1 January 2024 exposes the vendor to a substantial financial penalty.

Land Tax is not a factor in the great bulk of conveyancing transactions that relate to the sale of a Principal Place of Residence or, to a lesser extent, exempt farming properties, as these categories of property do not attract Land Tax, so no adjustment is required. However, it will still be an offence to include reference to Land Tax in the adjustment condition, so it is important to ensure that ALL contracts are reviewed to ensure that Land Tax is REMOVED from the outgoings to be adjusted at settlement.

The change will have the greatest effect in relation to the sale of commercial/industrial properties and where a vendor owns multiple properties. While adjustments may be conducted in the “normal” way if the contract was signed before 1 January 2024, no adjustment can be made in respect of Land Tax for any contract that came into existence after 1 January 2024.

An area where this change will be significant, and perhaps not before time, is where a residential land subdivider includes adjustment conditions that pass on what can be substantial and generally unexpected Land Tax liabilities. In extreme examples, subdividers include conditions that pass on the vendor’s Land Tax, often at the subdivider’s high rate, from the date of the contract rather than the date of settlement. This results in “Mum & Dad” purchasers unwittingly becoming responsible for many thousands of dollars of the subdivider’s Land Tax. It may be this extreme example of consumer abuse that has prompted this “big stick” response of prohibiting Land Tax adjustment at all.

In a similar vein, s 10H prohibits contractual conditions (including in options) that seek to adjust the vendor’s existing Windfall Gains Tax (WGT) liability. WGT commenced on 1 July 2023 (see the Legal Practitioners Liability Committee Windfall gains tax hub for details) so it is not likely that this amendment will affect any or many contracts. WGT MIGHT potentially apply to any land (except GAIC land) that is rezoned with a consequential gain in value. The amendment only prohibits adjusting WGT in respect of an EXISTING WGT liability (assessment). It does not prohibit an adjustment condition in a contract that allows adjustment of a future WGT assessment which arises during the course of the contract. The parties may agree that this will be borne by the vendor, who will receive the assessment, maybe the responsibility of the purchaser at settlement or may be apportioned between the parties according to some agreed formula.

A vendor with an EXISTING WGT liability must take that liability into account when calculating the price for which the vendor is prepared to sell the land. That EXISTING WGT liability CANNOT be passed on, in whole or in part, to the purchaser and will become payable by the vendor in full at settlement.

Land tax

In addition to changing how Land Tax can be adjusted on sale, amendments to the Land Tax Act 2005 change existing Land Tax obligations and create new obligations.

Section 34A presently imposes a vacant residential land tax on taxable land capable of being used for residential purposes within certain municipal districts of Melbourne. That tax is to be extended from 1 January 2025 to apply to all land in Victoria which is taxable vacant residential land. This tax applies to homes, not vacant land, which have been vacant for more than six months in the preceding calendar year, commencing 2024, and attracts land tax at the rate of:

  • 1% Capital Improved Value (CIV) in first year;
  • 2% CIV in second year; and
  • 3% CIV in third year.

Section 34B(2)(b) introduces a new tax from 1 January 2026 on vacant land suitable for residential use within metropolitan Melbourne if the land has been vacant for five years in one ownership. This tax applies to unimproved land.

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