News

The new Charitable Trusts Act 2022 (WA) promises greater transparency for charitable trusts in Western Australia in a long overdue reform.

What does the Act apply to?

The Act affects all charitable trusts or other property held for charitable purposes in Western Australia. The Act will repeal and replace entirely the existing Charitable Trusts Act 1962 (WA), apart from some savings provisions related to certain actions which are ongoing under the 1962 Act when the new Act comes into force.

What are main differences between the 1962 Act and the new Act?

The new Act changes the law with respect to charitable trusts in WA in a number of ways including:

1. Aligning the Act with processes and definitions contained in the Commonwealth Charities Act 2013 and recognising the effect of decisions taken by other regulators by:
   • integrating charitable purposes defined in the Charities Act as relevant charitable purposes
   • recognising circumstances of disqualification and investigation by the ACNC, ORIC, ASIC and the courts, among others, in an effort to reduce duplication and ensure findings by courts and other regulators can be used to seek appropriate orders from the Supreme Court in relation to persons administering trusts
   • recognising the ability of charitable trusts in Western Australia to make tax deductible gifts to eligible recipients following the introduction of the Charities Act.
2. Expanding investigative powers and mechanisms, including by:
   • establishing a new statutory body, the WA Charitable Trusts Commission, which will have powers equivalent to a Royal Commission to investigate trusts and require evidence and information to be produced
   • enabling the investigator to issue a report to the Attorney General and directions for corrective action to the trustee, whereby if any directions are not complied with, the Attorney General can seek to have the trustee removed
   • penalising those who fail to respond to or mislead an investigator, with penalties applying of up to $50,000
   • preventing persons from claiming confidentiality, legal professional privilege or the privilege against self-incrimination as grounds for refusing to produce information to an investigator
   • protecting those who disclose information to investigators from enforcement and disciplinary action arising from the disclosure (e.g. breach of codes of ethics, confidentiality obligations, etc.)
   • enabling investigation costs to be recovered against the property of the trust, against a trustee or, where a complaint is vexatious, against a complainant
3. Increasing the capacity to receive and deal with complaints by:
   • ensuring both the Attorney General and the Commission can receive and deal with complaints
   • ensuring complaints can cover conduct dating prior to the commencement of the Act and charitable trusts established prior to the commencement of the Act
   • ensuring complaints can be dismissed where an investigator considers they are vexatious, frivolous, unjustifiable, unnecessary, otherwise dealt with by another regulator, or the subject of insufficient evidence
   • ensuring the rights to seek orders from the courts are available to ‘any person’ albeit this is likely to be constrained to those with an interest in the trust (e.g. a potential beneficiary) or a regulator (e.g. the ACNC), where orders are not otherwise sought the Attorney General.
4. Expanding the Supreme Court’s powers to make orders in relation to trusts and the persons involved in their administration by:
   • providing for orders to be made in respect of the property of a trust
   • expanding powers to make orders in relation to persons involved in administering the trust (includes any person ‘employed, engaged or otherwise concerned (including as trustee) in the administration of the charitable trust or property’) including orders to prevent a person from being involved in administering a trust. The grounds for such orders include prior misconduct/mismanagement of a trust, the need to protect current and future trust property, a person not being a fit and proper person to administer a trust, and a person failing to comply with the Act or comply with a request that triggers the right to seek their removal (e.g. failure to respond to a request to produce documents, or failure to take corrective action arising out of an investigation)
   • automatically excluding certain persons from being involved in the administration of a trust (e.g. those who are disqualified under other laws, those who are convicted of offences of dishonesty).
5. Significantly increasing penalties:
   • Contravention of certain provisions of the Act constitutes an offence, particularly those provisions which involve a failure to act in accordance with an investigatory process or court order
   • In most cases, penalties are increased to a maximum of $50,000 per offence, however where the contravention involves the breach of a court order, this can also include a maximum term of imprisonment of 1 year.
6. Clarifying provisions relating to schemes to deal with trust property to ensure that trust property does not languish or erode over time, trustees act promptly in proposing, seeking approval of and administering schemes, and circumstances which might frustrate the application or administration of trust funds can be overcome.
   • Note that a trustee’s failure to act as soon as ‘reasonably practical’ in seeking the approval of a scheme where one is warranted or to notify the Attorney General of circumstances that may have frustrated the original charitable purpose can be grounds for removal of a trustee.

When does it apply?

Part 1 of the Act received Royal Assent on 1 November 2022. The remainder of the Act will come into force on a date fixed by proclamation, particularly given the likely need to establish regulations and a new Western Australian Charitable Trusts Commission.

Want to know more?

To find out more about how these changes may affect you, whether you are a potential beneficiary of a charitable trust or involved in administering one, contact us today.

 

Lamattina Legal: our new name

4 May 2022

Beginning on 9 May 2022, Perth Commercial Lawyers will become Lamattina Legal. Our new name and new logo reflect the growth and success of our practice since opening in 2017, and our renewed commitment to our values of service, collaboration, integrity, innovation and access to justice.

Under the leadership of our Principal, Maria Lamattina, we are confident that we can continue to negotiate agreements and strengthen governance so that commercial and social enterprises can reach their goals and make an impact.

We have also relaunched our website and social media pages so that you can continue to access the latest information on legal issues and reforms that affect you.

We take this opportunity to thank our clients, colleagues and peers for their support and look forward to working with you in the future.

Please contact Maria Lamattina with any queries.

 

Aboriginal Cultural Heritage Bill 2021 passes WA Parliament

31 December 2021

The Aboriginal Cultural Heritage Bill 2021 was passed by the WA State Parliament on 14 December 2021, and received Royal Assent on 22 December 2021 as Act No. 27 of 2021. The Act provides for the ultimate repeal of the Aboriginal Heritage Act 1972 (AHA) and the Aboriginal Heritage (Marandoo) Act 1992 (AHMA), among other changes.

This is despite:

• sustained opposition to the law from Aboriginal communities, Aboriginal corporations and peak bodies, native title representative bodies, and legal, anthropological and archaeological experts, among others
• the final report of the Federal Joint Standing Committee on Northern Australia concerning the destruction of Juukan Gorge only having been released on 18 October 2021 and calling for free, prior and informed consent, minimum standards for State and Territory legislation and a strengthened Federal legislative regime for Aboriginal cultural heritage
• the United Nations Committee on the Elimination of Racial Discrimination expressing its concerns about the law.

The Aboriginal Cultural Heritage Act 2021 will come into effect in stages to allow for new mechanisms contemplated by the Act to be established, regulations to be enacted and ongoing applications under the AHA to be processed and finalised. This is summarised below:

• On 23 December 2021:
  • Part 1 concerning the commencement of the Act, definitions and objects and interaction with other legislation
  • Part 15 (except division 3) concerning the amendment of the AHA to adopt a ‘transition period’ during which section 18 applications can continue to be made, subject to a 5-year maximum for consents and notification of any new information about Aboriginal cultural heritage that relates to the area after consent is given.
• On a day to be fixed (‘transition day’):
  • Part 15 Division 3 which allows the AHA to continue for a further 6 months from transition day for the sole purpose of resolving ongoing applications or reviews initiated prior to the transition day
  • Part 14 division 1 (except clauses 310 and 311), concerning the repeal of the AHMA.
• Six months after transition day (‘repeal day’):
  • Sections 310 and 311 by which the entirety of the AHA and associated regulations are repealed.
• On a further day to be fixed (this would depend, for example, on when they were capable of being operational, which is likely to be some time after repeal day):
  • All other provisions of the Act including in relation to:
    • the new Aboriginal Cultural Heritage Council (Part 2, division 2)
    • the new local Aboriginal cultural heritage services (Part 2, division 3)
    • rights and duties in relation to Aboriginal cultural heritage (Part 3)
    • the protection of areas of outstanding significance (Part 4)
    • offences, penalties and compensation for harm (Part 5)
    • the management of activities which harm Aboriginal cultural heritage (Part 6)
    • Ministerial powers to give stop activity orders, prohibition orders and remediation orders (Part 7)
    • Aboriginal cultural heritage agreements (Part 8)
    • establishing, maintaining and accessing information about Aboriginal cultural heritage (Part 9)
    • compliance measures including inspection, entry and seizure (Part 10)
    • State Administrative Tribunal review powers (Part 12)
    • making regulations and guidelines (Part 13 division 3)
    • amendments to other laws (Part 16).

Given the scale of the reforms, the significant transition period allowed for, the funding, consultation and recruitment processes to be undertaken, and the regulations to be prepared, it is expected to take some time before the full Act will be in effect. However, the content of Act, and the parallel process being undertaken by the Federal Minister for Indigenous Australians, the Federal Minister for Environment and the First Nations Heritage Protection Alliance to strengthen Federal Aboriginal heritage protections, are likely to influence practices and agreement making well before all aspects of the the Act come into effect.

Aboriginal communities and organisations as well as proponents are encouraged to start the process now of reviewing existing arrangements and resetting processes and expectations around heritage protection to align with the new regime and anticipate the evolving changes that could occur federally.

For more information about how these changes may affect you, contact Maria Lamattina.

 

Director IDs are good for transparency but may have unintended consequences

5 November 2021

 

WA Security of Payments law passed

 

Aboriginal Heritage Act review

May 2018

A consultation paper has been released for public comment on ways to improve the Aboriginal Heritage Act 1972 (WA). Submissions are due by 1 June 2018.

Public consultations across the State will be undertaken throughout May 2018, and draft legislation will be released for comment thereafter. The WA government hopes to pass amending legislation by 2020.

In the paper, the Minister for Aboriginal Affairs, Ben Wyatt MLA states:

“It is time for the Act to be modernised in a way that is respectful of Aboriginal people and their heritage, and to ensure that our Aboriginal heritage is recognised, protected and celebrated by all Western Australians today and for generations to come.”

The paper includes questions on:

• whether the framing of the Act in the long title is appropriate
• what the best way would be to consult with the right Aboriginal people about the existence, protection and impacts of activities on Aboriginal heritage
• the role and effectiveness of honorary wardens
• the role and functions of the Aboriginal Cultural Material Committee, the Registrar and the Minister, and whether these serve the purposes of the Act
• whether the definitions of places, sites and objects capture all Aboriginal heritage warranting protection under the Act
• the efficacy of declaring protected areas for the protection of areas of outstanding importance
• whether the Act should cover Aboriginal remains
• what types of activities should require consent or authorisation under the Act
• who should provide consent or authorisation for activities that affect sites
• how to determine an impact on a site, including the non-physical aspects of a site
• how the section 18 process for seeking consent in relation to impacts on sites can be improved
• the adequacy of enforcement measures under the Act and how they can be improved
• whether the disclosure of sites should not be required where it is against customary protocols
• what the criteria for assessing the significance of a site should be
• what the procedures for changing register details, including to add or remove sites, should be
• whether any other changes to the Act are required (by including or excluding provisions).

You can read the announcement here and read the consultation paper here.

If you would like assistance in preparing a submission, or in understanding the potential implications of any proposed reforms, contact Maria Lamattina.

 

High Court confirms limited scope to overturn adjudicator’s findings; finds certain retention clauses prohibited

17 February 2018

The High Court of Australia has found that an adjudicator’s award under security of payments legislation in New South Wales and South Australia cannot be challenged unless an adjudicator acts beyond power.

In two decisions handed down in February 2018, Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5 and Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4, the court held that:

“the [court]… may grant relief (whether in the nature of certiorari or otherwise) for jurisdictional error by an adjudicator appointed under the Security of Payment Act; but the provisions of the Security of Payment Act, like the provisions of the New South Wales Act, oust the Supreme Court’s jurisdiction to make an order in the nature of certiorari to quash an adjudicator’s determination for error of law on the face of the record that is not a jurisdictional error.” Maxcon at [5]. The court emphasised that an adjudication did not finally determine the rights of the parties under a construction contract and that it was open to seek relief by commencing separate court proceedings, rather than seeking to challenge the adjudication itself.

The effect of these decisions is that even when an adjudicator misinterprets the law or a construction contract, the court cannot quash the decision unless it can be shown that the adjudicator has acted beyond their jurisdiction or beyond power. This is consistent with findings of the WA Supreme Court in O’Donnell Griffith Pty Ltd v John Holland Pty Ltd [2009] WASC 19 concerning adjudicators appointed under the WA Construction Contracts Act 2004. It highlights the importance of choosing adjudicators wisely.

Additionally, the court in Maxcon found that a retention provision, enabling a head contractor to deduct monies from an amount owing to a subcontractor, pending the release of a certificate of occupancy in respect of the works, which in turn would depend on completion being achieved under the head contract with the owner, constituted a ‘pay when paid’ provision, and was thus ineffective. The court found that a ‘pay when paid’ provision under the South Australian legislation:

“asks whether, on its proper construction, the provision “makes the liability to pay money owing, or the due date for payment of money owing, contingent or dependent on the operation of another contract”. Here,the retention provisions did just that: they made the due dates for payment contingent or dependent on “CFO”. And for “CFO” to be achieved, there had to
be issued a certificate of occupancy and “any other Approval(s) required under Building Legislation which [were] required to enable the Works lawfully to be used for their respective purposes in accordance with [Maxcon’s] Project Requirements”. Those Project Requirements were to be ascertained from the head contract. “CFO” required satisfactory completion of the head contract before the dates for the release of the retention sum could be calculated, let alone for the retention sum to be released. Accordingly, there was no error of law on the part of the adjudicator.” 

In view of the above, contracts containing retention provisions ought to be reviewed to ascertain whether they may be construed as ‘pay when paid’ provisions, and thus be inoperative under the relevant legislation in your State.

In WA, the comparable provision (section 9 of the Construction Contracts Act 2004) prohibits provisions that render payment to one person contingent on payment being received from another. In that way, it does not refer more generally to the ‘operation of another contract’ as was the case in Maxcon and may be distinguishable to that extent, but care should still be taken that the drafting of any retention provisions do not ‘indirectly’ rely on payment from another party.

Contact Maria Lamattina for advice on the implications of the above decisions for your construction contracts.

 

Native Title Reforms: Options Paper

29 November 2017

An options paper has been released for public comment on broad ranging reforms to the Native Title Act 1993 (Cth), which can be viewed here.

The options for reform relate to:

• validating past section 31 native title agreements and changing the requirements concerning applicants being party to and executing these agreements
• changing the manner in which applicants are authorised and clarifying their functions and duties
• establishing alternative native title agreement making processes that do not require broader group consultation
• enabling registered Indigenous Land Use Agreements (ILUAs) to have minor changes made that do not require re-authorisation and registration
• making minor changes to native title processes to streamline decision-making and future acts (e.g. removing the State as a compulsory party to agreements, removing the requirement for prescribed bodies corporate (PBCs) to consult with land councils, removing compensation requirements from ILUAs)
• enabling native title parties to choose decision-making processes rather than being compelled to use traditional decision-making
• securing regulatory oversight of PBCs by ORIC for compliance with PBC regulations and the management and use of native title compensation monies, including through external trusts
• establishing dispute resolution processes through the National Native Title Tribunal and limiting the hearing of matters under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) to the Federal Court of Australia.

Submissions on the options paper are due on 25 January 2018 by emailing them to native.title@ag.gov.au.

Public consultations will also occur through targeted discussions with native title stakeholders and the engagement of an expert advisory panel to formulate amendment proposals.

An exposure draft amendment bill will be released for comment in around March 2018.

If you would like assistance with preparing a submission or advice on the implications of the reforms for your organisation, please contact Maria Lamattina.

 

High Court Throws Doubt on Validity of WA Mining Leases

17 August 2017

The High Court of Australia has thrown doubt on the validity of mining leases granted in WA by finding that the lodgement of a mineralisation report is a condition precedent to progressing an application through to a grant. Read more here.

 

High Court Rules Manus Regional Processing Valid

17 August 2017

The High Court of Australia has ruled that the regional processing arrangements for asylum seekers on Manus Island are valid despite their invalidity under PNG law. Read more here.

 

Perth Commercial Lawyers Opens its Doors

1 August 2017

Perth Commercial Lawyers is pleased to announce the opening of its new legal practice, under the leadership of its Principal, Maria Lamattina. Maria Lamattina brings to the firm over 13 years of local and international experience in advising a broad range of clients, from individuals and small business, through to government, not-for-profit organisations, Aboriginal corporations and large corporations.  Maria’s expertise in commercial, corporate, native title, resources, administrative and regulatory law is well established and will form a strong foundation for the firm’s future practice. Contact Maria Lamattina today to find out how we can help you.