ByLawyers News and Updates

Coercive control – NSW

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From 1 July 2024 the new offence of coercive control under s 54D(1) of the Crimes Act 1900 is included in the definition of personal violence offence under s 11 of the Crimes (Domestic and Personal Violence) Act 2007, and can therefore be the grounds for a court making an apprehended domestic violence order.

The offence is found in the new Division 6A in Part 3 of the Crimes Act 1900, inserted by the Crimes Legislation Amendment (Coercive Control) Act 2022.

Section 54D(1) creates an offence of abusive behaviour towards a person who is the offender’s current or former intimate partner. It is punishable by a maximum penalty of seven years imprisonment.

The offence requires a course of conduct consisting of abusive behaviour, and the offender must intend that the course of conduct coerce or control the victim.

An intimate partner is someone to whom the offender is or has been married or in a de facto relationship, or with whom they have or have had an intimate personal relationship.

A course of conduct is defined as behaviour that is either repeated, or continuous, or both. There is no minimum number of incidents, they need not be in an unbroken series, nor in immediate succession. Incidents both in and outside of NSW can be included.

Section 54F(2) provides a non-exhaustive list of what can constitute abusive behaviour, including:

  • causing harm to a child if a person fails to comply with demands made of them;
  • causing harm to the person against whom the behaviour is directed, or another adult, if the person fails to comply with demands made of them,
  • economic or financial abuse;
  • shaming, degrading, or humiliating a person;
  • harassing, monitoring, or tracking a person;
  • damaging or destroying property;
  • isolating a person or preventing them from keeping connections with their family, friends, or culture.

The amending Act also inserted a new s 6A into the Crimes (Domestic and Personal Violence) Act 2007 to provide a definition of domestic abuse, being:

…violent or threatening behaviour, behaviour that coerces or controls, or behaviour that causes a person to fear for their or others’ safety and wellbeing.

The new s 6A includes a non-exhaustive list of behaviours that can constitute domestic abuse. This largely mirrors the list in s 54F of the Crimes Act, but includes behaviour that exposes a child to the effects of domestic abuse.

Behaviour may be domestic abuse, and therefore ground an apprehended domestic violence order, even if it doesn’t constitute a criminal offence.

The By Lawyers Apprehended Violence Order (NSW) guide has been updated accordingly.

Powers – NSW

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Among By Lawyers most frequently used precedents in New South Wales are powers of attorney, appointments of enduring guardian, and the related personal documents associated with lifestyle, health, and estate planning. With an ageing population it is not surprising that lawyers are increasingly called upon to advise their clients on these documents and to prepare one or more of them, often at the same time a client gives instructions for preparation of their will.

As a result of feedback from our subscribers, a number of formatting amendments have been made to the following precedents, with a view to maximising the benefits of document automation, ensuring consistency, and enhancing usability:

  • General powers of attorney;
  • Enduring powers of attorney;
  • Appointments of enduring guardian;
  • Advance care directive;
  • Revocations.

We encourage and value all feedback from subscribers using these and our other precedents; it is one of the ways that we consistently enhance and update our content.

These precedents are found in the Powers of Attorney, Appointment of Enduring Guardian, and Advance Care Planning (NSW) publication.

Until 2003, powers of attorney in NSW were made under the Conveyancing Act 1919 and were used to cover all decisions relating to both the donor’s financial affairs and any health or lifestyle decisions to be made on their behalf. With the introduction of the Powers of Attorney Act 2003 and related amendments to the Guardianship Act 1987 passed at the same time, the parliament created the current regime under which decisions about a donor’s financial affairs are covered by a general power of attorney or, if the donor has lost capacity, an enduring power of attorney, and decisions relating to a donor’s health and lifestyle are covered by their appointment of an enduring guardian. Powers of attorney previously prepared under the Conveyancing Act 1919 remain effective under the Powers of Attorney 2003.

First home owner – SA

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Property value caps have been removed for both the First Home Owner Grant and the stamp duty relief available to first home owners.

These provisions were announced in the 2024-25 State budget, and apply to contracts entered into on or after 6 June 2024.

Additional measures to tighten the previous home ownership criteria will apply to contracts entered into on or after the Statutes Amendment (Budget Measures) Bill 2024 passes and the Act receives assent.

Stamp duty amendments

The property value caps for stamp duty relief have been removed. For contracts entered into on or after 6 June 2024, full stamp duty relief applies on the purchase of all eligible new homes and vacant land used to build a new home, regardless of price.

The additional amendments to apply from assent of the amending Act will:

  • tighten the previous home ownership criteria so that a first home buyer and their spouse or domestic partner who have previously owned a residential property in Australia will not be eligible for stamp duty relief, including where that property was not occupied, or was occupied for less than 6 months; and
  • remove relief for first home buyers from the foreign ownership surcharge.

 First Home Owner Grant amendments

The property value caps have been removed for contracts entered into on or after 6 June 2024 for first home owners buying or building a new home, regardless of price.

The additional amendments to apply from assent of the amending Act will:

tightens the previous home ownership criteria so that a first home buyer and their spouse or domestic partner who have previously owned a residential property in Australia will not be eligible for a First Home Owner Grant, including where that property was not occupied, or was occupied for less than 6 months.

Publication updates

The by Lawyers  Conveyancing (SA) publication has been updated regarding the removal of the property value caps, including the commentary and the Retainer Instructions – Purchase of Real Property in the Purchase guide. The updates relating to the tightening of the previous home ownership criteria and the removal of relief for first home buyers from the foreign ownership surcharge will be made in due course.

Transfer duty – NSW

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A recent case dealing with transfer duty on real property in deceased estates has been added to the By Lawyers wills and estates publications in New South Wales.

A reassessment of duty almost 5 years after the transaction is a cautionary tale for practitioners to ensure compliance with the Duties Act 1997 and relevant transfer duty rulings.

Section 63 of the Duties Act 1997 provides for concessions when dutiable property is transferred pursuant to a will or the laws of intestacy. The concessions apply when a transfer is made to a beneficiary in conformity with the trusts contained in a will, or arising on an intestacy, or as an appropriation of the deceased’s property towards satisfaction of a beneficiary’s entitlement in the estate.

When a transfer is made to a beneficiary under an agreement, whether or not in writing, to vary the trusts contained in the will or arising on intestacy, the dutiable value of the property is reduced by the value of the beneficiary’s entitlement.

However, under s 63 and NSW Revenue Ruling DUT 046, the transfer duty concessions do not apply to a contract of sale, only to a transfer.

This was confirmed in Cohen v Chief Commissioner of State Revenue [2024] NSWCATAD 136, in this case, Harry Cohen left a property to his three children, Stephen, Peter, and Wendy, in equal shares. The beneficiaries agreed that Stephen could have the property if he paid each of his siblings for their one-third share plus an extra $100,000 each. Rather than a transfer pursuant to a deed of family arrangement, the executors of the estate executed a contract to sell the property to Stephen for the total value.

The contract was submitted to Revenue NSW in 2017, noting that Stephen was beneficially entitled to a one third share of the property from his father’s estate. Duty was assessed and paid on the reduced dutiable value, reflecting Stephen’s one-third interest in the property.

In 2022, the Chief Commissioner issued a Notice of Investigation and ultimately decided that duty had been underpaid. The reassessment stated the dutiable value was the full value of the property as shown on the contract, not two-thirds as initially assessed, resulting in a further duty liability of $29,315.00 plus interest, which was ultimately waived.

The commentary in the By Lawyers Probate (NSW) and Letters of Administration (NSW) guides has been enhanced to cover this situation, and a summary of the case is being added to both 101 Succession Answers (NSW) and 1001 Conveyancing Answers (NSW).

Pathway – NSW

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The launch of the NSW Personal Injury Commission’s Pathway portal for workers compensation claims brings the process for workers compensation disputes into line with that used for motor accident claims since June 2023.

Workers compensation claims go first to the insurer, then to internal review by the insurer, and then to the Personal Injury Commission (PIC), then if necessary to court.

From 12 June 2024 all applications to the Personal Injury Commission must be lodged via Pathway.

The Pathway portal will digitise the claims process, enabling practitioners to view documents electronically.

Service will also occur via the Pathway portal. Service of applications by the applicant on the respondent will no longer be necessary. Applications will be served by the Commission sending an email to the respondent, with an invitation for them to view the claim online. Respondents will receive a reply request in the same way.

The By Lawyers Workers Compensation (NSW) guide has been updated to reflect this new process.

The Personal Injury Commission website provides a link to Pathway and information for practitioners.

The Pathway portal is used to lodge workers compensation disputes involving:

  • weekly benefits, if the period is more than 12 weeks;
  • medical expenses;
  • domestic assistance;
  • compensation for property damage;
  • lump sum compensation when liability is disputed;
  • suitable duties following a work injury;
  • compensation for the death of a worker;
  • lump sum compensation when the degree of permanent impairment is disputed;
  • threshold for work injury damages when the degree of whole person impairment is disputed.

All relevant information and documents on which the applicant intends to rely need to be included and noted as attachments to the application.

 

Advance care directives – TAS

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Advance care directives made under the laws applicable in some other Australian states will now be recognised in Tasmania.

Section 35ZN of the Guardianship and Administration Act 1995 provides that a validly made interstate advance care directive that has substantially the same effect as instruments under the Act can, by notice published in the Gazette, be recognised in Tasmanian.

The Gazette notice Advance Care Directives Corresponding Laws published on 22 May 2024 provides for the recognition in Tasmania of advance care directives made in the following states and territories:

  • Australian Capital Territory;
  • Queensland;
  • South Australia;
  • Victoria;
  • Western Australia; and
  • Northern Territory.

The By Lawyers Powers of Attorney, Enduring Guardianship, and Advance Care Planning (TAS) guide has been updated accordingly.

New visa – FED

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New visa

The Australian Government has introduced a new permanent residence visa, subclass 192, from 3 June 2024 which permits eligible nationals of participating Pacific Island countries and Timor-Leste to apply if they are first selected in a ballot.

The new visa is intended to deepen connections and improve mobility and migration opportunities within the Pacific region.  It gives priority to countries with limited permanent migration opportunities to Australia, or citizenship rights with New Zealand, France, and the United States.

Three thousand places are allocated for this visa annually.

To be eligible to apply for the visa, an applicant has to be randomly selected in a ballot. The ballots are intended to ensure a fair and transparent process and equal access to the new visa for persons of any skill level, occupation, and gender. A separate annual ballot is held for each country and registration through the Department of Home Affair’s ImmiAccount is required.

Eligibility requirements to take part in the ballot are:

  • aged between 18-45 years at the commencement of the ballot registration period for the particular country
  • hold a valid passport issued by one of the participating countries
  • be born in, or have a parent that was born in, any of the participating countries, or Australia, New Zealand, Samoa, or the Marshall Islands
  • not be a citizen of New Zealand
  • not already be registered in the same ballot
  • pay the registration fee of AUD25.

Registration for the ballot has to occur within the registration period when the ballot is open.

If an applicant is selected, they can submit their visa application within 120 calendar days.

To apply for the permanent visa, selected applicants have to be between 18 and 45 years old, have a formal job offer in Australia, and meet general visa requirements

More details can be found in the full commentary in the By Lawyers Immigration guide.

Employment Law updates – FED

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As employment lawyers would be well aware, employment law updates have been more frequent over the past few years than in any other area of law.

The By Lawyers Employment Law publication has been regularly updated since December 2022 to reflect the staged commencement of various changes under federal legislation including:

  • Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022
  • The Fair Work Legislation Amendment (Closing Loopholes) Act 2023
  • Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024

The Fair Work Commission has also implemented new rules to reflect these legislative changes.

To ensure coherence and consistency following all these employment law updates, the Employment Law matter plans and commentary have recently been reviewed by our author and our in-house legal editorial team.

Topics covered in the commentary that have been amended and reviewed because of the various employment law updates include:

  • The Overview including the objects of the Fair Work Act;
  • Equal remuneration requirements;
  • Prohibitions on pay secrecy;
  • Anti-discrimination and special measures;
  • Prohibiting sexual harassment in connection with work;
  • Flexible work arrangements;
  • Extensions of unpaid parental leave;
  • Small business redundancy;
  • Regulating labour hire arrangements – fixed term contracts and labour hire orders;
  • Added protection against discrimination under the National Employment Standards, especially concerning family violence;
  • The definition of casual employee;
  • Casual conversion; and
  • Unfair contracts.

See the following By Lawyers News and Updates posts for more details of the changes:

The By Lawyers Employment law publication is up to date with all changes.

Legislative amendments impacting various aspects of enterprise agreements are largely beyond the scope of the publication.

Relevant cases have also been added to 101 Employment Law Answers in the Reference Materials folder on the matter plan, including Feldschuh v Strong Room Technology Pty Ltd [2024] FWCFB 254, in which the Full Bench of the Fair Work Commission (FWC) held that a company director was not also an employee.

Parenting – FED

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The significant changes to family law parenting applications have been incorporated into the By Lawyers Family Law – Children guide.

The amendments to the Family Law Act 1975 and to the Court’s procedure arise under two separate pieces of legislation that commenced on 6 May 2024.

Family Law Amendment Act 2023

The amendments to how 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 & Asplund that requires a court to be satisfied that a significant change in circumstances has occurred before varying final 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

  • establishes a new 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;
  • makes such material admissible in parenting matters, subject to exceptions and safeguards, for example legal professional privilege.

Publication updates

The Family Law – Children publication has been updated accordingly. To assist firms in understanding and transitioning to the changes 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 and 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.

101 Family Law Answers has also been updated. Summaries and links to Rice & Asplund and related cases remain available.

Our family law authors and our in-house team will continue to monitor developments and update the publications further as the jurisprudence around these amendments develops.

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.

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