By Tracy Collins & Morgan Collens

The concept of testamentary freedom in Australia has a rich historical background deeply rooted in English common law traditions. Testamentary freedom refers to an individual’s right to dispose of their property upon death according to their own wishes, as expressed in their Will, without interference from external parties.

Australia inherited its legal system from England, and the principle of testamentary freedom was established early on. During the colonial period, Australian courts primarily followed English common law principles, including those relating to Wills & Estates. Throughout the 19th and early 20th centuries, testamentary freedom was largely unchallenged in Australia. Testators had broad discretion in deciding how to distribute their assets, including the ability to disinherit family members or leave their estate to charitable organizations.

However, over time, societal attitudes towards family obligations and the distribution of wealth began to shift. This led to increasing calls for reforms to the law of succession to ensure fair and adequate provision for family members and dependents, especially in cases where they were left without adequate support.

In response to these concerns, Australian states and territories began to enact legislation to provide for family provision claims, which allowed certain eligible individuals to challenge the terms of a Will if they believed they had not been adequately provided for by the deceased. These laws introduce limitations on testamentary freedom by enabling courts to intervene and make orders for provision from the deceased’s estate to eligible claimants.

Despite these developments, testamentary freedom remains a fundamental principle of Australian succession law. While the law now recognizes the importance of providing for family members and dependents, individuals still generally have significant autonomy in determining how their assets will be distributed upon their death. However, this autonomy is subject to certain legal constraints and the possibility of family provision claims, which aim to strike a balance between testamentary freedom and the protection of vulnerable beneficiaries.

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.

By Morgan Collens

Settlement marks the culmination of your property purchase journey, where the culmination of financial transactions and legal processes brings you one step closer to homeownership. Here is what to anticipate on this pivotal day.

Duration of Settlement

Typically spanning 30 to 90 days, the settlement period is mutually agreed upon by both parties and specified in the contract of sale. This timeframe allows for the fulfillment of financial and contractual obligations and facilitates logistical arrangements for moving.

Key Players

Settlement involves financial representatives (banks or lenders) and legal representatives (conveyancers or solicitors) representing both parties. Conveyancers play a vital role throughout the process, overseeing checks, searches, signings, and certifications essential for a smooth transition.

Property Inspection

Consumer Affairs Victoria stipulates the buyer’s entitlement to inspect the property before settlement. Coordination with the estate agent ensures a final inspection to verify the property’s condition. For new homes, engaging a building inspector is advisable to ensure compliance with building codes.

Financial Transactions

On settlement day, the buyer disburses the balance of the purchase price to the vendor. Conveyancers coordinate with banks to facilitate the transfer, ensuring a seamless financial transaction. Additionally, payment of land transfer duty (stamp duty) and lenders mortgage insurance is settled electronically.

Legal Formalities

Your conveyancer manages the preparation and submission of all legal documents required for property transfer. Once signed by both parties, these documents are sent to the titles office for registration, confirming your ownership. Any outstanding fees are settled to ensure a smooth transition of ownership.

Notification Processes

Following settlement, a Notice of Acquisition is dispatched to relevant authorities, notifying them of the property’s change of ownership. Your conveyancer ensures compliance with legal obligations, including notifying water authorities, local councils, and other pertinent entities.

Settlement Date Adjustments

Any changes to the settlement date require mutual agreement between buyer and seller. While extensions are permissible, penalty interest may be incurred. It’s crucial to adhere to contractual terms to avoid complications.

Additional Considerations

Arrange insurance and utility connections ahead of settlement day to facilitate a seamless transition. Contacting preferred suppliers ensures timely connection of essential services, streamlining your move into the new property.

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.

By Jeffrey Stone & Linnea Cederberg

The Australian Government Migration Review has now determined that the BIIP visa category yields unsatisfactory economic outcomes for Australia. As part of the Migration Strategy, the Australian Government has declared a halt on new allocations for the BIIP visa, while considering a new talent and innovation visa; the National Innovation visa. This is expected to launch by the end of 2024.

Starting from July 2024, the BIIP will be permanently closed, and no further Applications will be accepted. Applications for the BIIP visa still pending will be processed according to Government priorities and Migration Program planning levels.

In addition, the policy guidance for the BIIP will be strengthened in order to ensure that all incoming business migrants have had a successful business background and will bring an economic benefit to Australia. This adjustment aims to prioritize those highly–skilled individuals in the 2024–25 permanent Migration Program to create a more resilient and prosperous economy.

Individuals holding a subclass 188 visa who meet the requirements for the Business Innovation and Investment Program (subclass 888) visa will still be eligible to pursue this pathway after July 2024.

(Received from Department of Home Affairs: Immigration and Citizenship, Migration Program Planning Levels) 

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.

You may be required to submit an investment proposal for review if you plan to acquire the following commercial assets:

Substantial interest in an entity or an Australian business 

• A substantial interest (typically at least 20 percent) in a general Australian business, corporation, or trust—the monetary threshold is: 

• • $310 million for most entity or business investments 
  • $1,339 million for private investors from certain free trade agreement countries 
  • $310 million for private investors from free trade agreement countries investing in sensitive businesses 
  • $0 for foreign government investors. This may exclude certain governments and their business activities. 

Direct interest in an agribusiness 

• A direct interest (generally at least 10 per cent, or a position of control) in an agribusiness —the monetary threshold is: 

• • $0 for foreign government investors 
  • $67 million (cumulative) for private investors. 

Australian media business 

• A direct interest (generally at least 10 per cent, or a position of control) in an Australian media business, regardless of value. 

National security business 

• A direct interest (generally at least 10 per cent, or a position of control) in a national security business, regardless of value. 

Starting an Australian business 

• If you are a foreign government investor, you will also need to notify us if you: 

• • are starting an Australian business (including starting a national security business), or 
  • already carry on an Australian business but the business starts a new and different activity. 

(Received from the Department of The Treasury: Foreign Investment Information, Commercial Acquisitions)  

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication. 

By Meng Cheong & Morgan Collens

Following the introduction of Director Identification Numbers (DIN) in 2021, on 19 March 2024 ASIC made its first prosecution under the new compliance measures.

On this day, a company director, who’s identity remains confidential under a non-publication order, appeared in the Downing Centre Local Court in Sydney and was charged with one count of contravening section 1272C(1) of the Corporations Act 2001 by failing to have a DIN.

Whilst no further details have been released by ASIC at this stage, it is well known that the maximum penalty for an offence of this nature is 60 penalty units, or $13,320.00.

Why did ASIC introduce director ID?

Director Identification Numbers were introduced by ASIC to help:

1. Prevent the use of false or fraudulent director identities.
2. Make it easier for external administrators and regulators to trace directors’ relationships with companies over time.
3. Identify and eliminate director involvement in unlawful activity, such as illegal phoenix activity which is when a company is liquidated, wound up, or abandoned to avoid paying its debts. A new company is then started to continue the same business without the debt.

You need a director ID if you are a director of either a:

• Company.
• Aboriginal or Torres Strait Islander Corporation.
• Corporate Trustee, for example, a Self-Managed Super Fund.
• Charity or Not for Profit Organisation that is a Company or Aboriginal and Torres Strait Islander Corporation.
• Registered Australian Body, for example, an incorporated association that is registered with ASIC and trades outside the state or territory in which it is incorporated.
• Foreign company registered with ASIC and carrying on business in Australia, regardless of where you live.

You do not need a director ID if you are either:

• A company secretary but not a director.
• Acting as an external administrator of a company.
• Running a business as a sole trader or partnership.
• Referred to as a ‘director’ in your job title but have not been appointed as a director under the Corporations Act or the CATSI Act.
• A director of a registered charity with an organisation type that is not registered with ASIC or ORIC to operate throughout Australia.
• An officer of an unincorporated association, cooperative or incorporated association established under state or territory legislation, unless the organisation is also a registered Australian body.
• A director before 31 October 2021, but no longer hold any director roles on or after 1 December 2022.

If you plan to become a director, you must apply for a director ID before you’re appointed.

If you’re already a director and don’t have a director ID, you must apply now.

To avoid becoming another ASIC prosecution headline, you can apply for your director ID here: https://www.abrs.gov.au/director-identification-number/apply-director-identification-number

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.

By Linnea Cederberg

A wonderful opportunity for our Mandarin-speaking clients, who are interested in touring Melbourne during their stay!

You will enjoy a 2-hour long guided tour through Melbourne City, from a local perspective, with an experienced Mandarin-speaking guide. The guide will take you through the historical landmarks of Melbourne, as well as provide you with many fascinating stories of the city’s history. This experience is available for all ages and includes many fun activities for everyone to enjoy.

Some of the landmarks you will visit include: 

• St Paul’s Cathedral 
• The Block Arcade 
• Chinatown 
• Queen Victoria Market
• State Library of Victoria
• And many more! 

The initial meeting spot is at the top of the Swanston Street side stairs of Federation Square, where your guide will be holding up an orange umbrella.  

Get your tickets here 

By Jack Nevile & Anna-Nikol Vladimirova

Tax reforms are usually about as predictable as Melbourne weather. However, in recent years, a few things have become fairly certain – the government is going to tax everything that doesn’t vote, and they’re going to tax where the money is. The big pot of gold in Australia is our national pastime of property, and the non-voters are foreigners and commercial property owners. 

The Commercial and Industrial Property Tax Reform Bill 2024 was introduced to into the Victorian Parliament earlier this month. 

This bill will introduce a new tax system for all commercial and industrial properties sold after 1 July 2024. Once a commercial property has sold and settled after this date, a 10-year countdown begins. This the transition period before the new tax is raised against the property. 

At settlement, the purchaser can choose to pay the stamp duty in one of two ways: 

1. Pay the property’s stamp duty liability as an upfront lump sum.  
2. Make repayments which are equivalent to the upfront stamp duty liability over the next 10 years, plus interest. 

Regardless of which option the purchaser chooses, this will be the final stamp duty payable on the transfer of that particular property. 

Following the initial settlement after 1 July 2024, no stamp duty is payable on future transfers of the commercial or industrial property.  

Time’s Up

After the 10-year transition period for that property has elapsed, the new Commercial and Industrial Property Tax will be levied. This tax will operate like land tax and be set at a flat 1% of that property’s unimproved land value, unless you are a Build-to-Rent developer, in which case your mates in government have given you a sweetheart 0.5% tax rate. 

What if I sell the property within the transitionary period?

If the property is transferred within that 10-year transition period, then no stamp duty is payable on settlement.  

However, if the previous purchaser is repaying the final stamp duty liability in instalments, then all outstanding amounts must be paid prior to the settlement.  

Once settled, the new purchaser resumes the countdown and begins paying the Commercial and Industrial Property Tax once the 10-year transition period has expired. 

But what if…?

We understand that these changes may be confusing. If you would like more information or advice on tax implication tailored to your specific circumstances, please contact our office today. 

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.

By Linnea Cederberg

WICKED The Musical

The Broadway sensation WICKED looks at what happened in the Land of Oz long before Dorothy arrives. It follows the stories of two young women, who manage to turn their initial rivalry into the unlikeliest of friendships. One is rather misunderstood exceedingly fiery, given she was born with green skin; while the other, a bubbly and popular blonde. This is until the world decides to call one “good,” and the other one “wicked.”

Available at the Regent Theater until the 2nd of June! Get your tickets here

Leonardo Da Vinci at The Lume

In a celebration of innovation, art and the timeless genius of Leonardo da Vinci, The Lume Melbourne gives visitors the once-in-a-lifetime opportunity to step inside Leonardo’s world.

Located at The Lume, Melbourne until the 16th of June! Get your tickets here

Titanic: The Artefact Exhibition

One of the most famous tragedies in modern history, the story of the Titanic continues to educate and break hearts more than 110 years since she sank to the bottom of the ocean. This is the only exhibition in Australia to feature more than 200 real artefacts, recovered directly from the wreck site. The exhibition takes visitors on a memorable journey through the events of that fateful night.

Located at the Melbourne Museum until the 21st of April! Get your tickets here

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.

By Jeffrey Stone

Jobs and Skills Australia (JSA) has opened consultation on the new Core Skills Occupation List (CSOL).

There are to be three visa pathways under the Migration Strategy:

• Specialist Skills pathway (salary over $135,000)
• Core Skills pathway
• Skills in Demand pathway (salary under $70,000).

This JSA consultation refers to the Core Skills pathway for occupations being paid a median salary above $70,000 and below $135,000. The draft list is based on labour market analysis of ANZSCO Skill Level 1-3 occupations, so some occupations in the other salary bands may be included in this list. However, it is not yet clear how this will be addressed in the visa regulations.

The JSA reports it has developed the draft lists benchmarked to the 2022 ANZSCO not the 2013 version which will capture new and emerging occupations and has also used the most up to date employment/labour market datasets.

The JSA notes that this is a draft list and further surveys, submissions, bilateral meetings and qualitative analysis will be undertaken on the list with closing date for submissions of 10 May

2024. The consultation information may be accessed on the JSA website where three lists appear:

• occupations JSA is confident will be on the new Core Skills list
• occupations JSA is confident will not be on the Core Skills
• occupations for further targeted consultation

The MIA recommends that members bring this consultation to the attention of industry association contacts and relevant employer clients they may have. It is expected that the JSA, as with previous ‘list creators’, will give most weight to submissions supported by industry or labour market evidence from these stakeholders. Guidelines on the timeline for the release of the final list and for lodging submissions are available on the JSA webpage.

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.

By Tracy Collins & Morgan Collens

In matters of medical care, especially during critical situation where an individual may be unable to communicate their preferences, having clear directives in place is essential. Two common mechanisms exist for this purpose: appointing a medical treatment decision maker and creating an advance care directive. While both serve the purpose of ensuring that person’s wishes regarding medical treatment are upheld, they differ in their scope and legal implications.

Medical Treatment Decision Maker

A Medical Treatment Decision Maker is an individual chosen by you to make medical decisions on your behalf in case you become incapacitated due to illness or injury. This role carries significant responsibility and should be assigned to someone who you trust to respect your values and preferences.

Key Characteristics:

1. Legal Authority: A medical treatment decision maker has the legal authority to make decisions regarding your medical treatment if you are unable to do so yourself.
2. Trust and Understanding: The chosen individual should have a clear understanding of your values, beliefs, and treatment preferences. This ensures that the decisions made align closely with your wishes.
3. Support Person: Additionally, the individual can appoint a support person to assist in making, communicating, and implementing medical treatment decisions. However, unlike the medical treatment decision maker, a support person does not possess legal authority to make decisions on behalf of the individual.

Advance Care Directive

An Advance Care Directive is a legal document that allows you to outline your preferences for medical treatment, ensuring your wishes are known and respected in the event you cannot communicate your decisions. It provides guidance to health professionals and the appointed medical treatment decision maker regarding your treatment preferences.

Key Characteristics:

1. Values Directive: This part of the directive captures your overarching values and preferences regarding medical care. It serves as a guide for your medical treatment decision maker, helping them understand your overall healthcare philosophy.
2. Instructional Directive: This contains legally binding statements dictating specific medical treatments you do or do not consent to in various scenarios. For instance, you may specify preferences regarding life-sustaining treatments or palliative care.

Key Differences

Legal Authority:

The primary distinction between a medical treatment decision maker and an advance care directive lies in legal authority While a medical treatment decision maker can make decisions on your behalf, an advance care directive provides guidelines and instructions for healthcare professionals and the decision maker but does not grant decision-making authority.

Scope of Influence:

A medical treatment decision maker can make real-time decisions based on your current medical condition, whereas an advance care directive primarily focuses on guiding future medical decisions based on predetermined preferences.

Who Creates the Document:

Your lawyer can assist you with creating an Appointment of Medical Treatment Decision Maker when drafting all other documents relating to your overall estate plan, such as your Will or Enduring Power of Attorney. This is then signed by you in front of two adult witnesses and must be accepted by the person you have appointed.

Your doctor can assist you with creating your Advance Care Directive. To make a valid advance care directive you need to sign in front of two witnesses. One must be a registered medical practitioner (a medical doctor). Neither witness can be someone you have appointed as your medical treatment decision maker.

Both appointing a medical treatment decision maker and creating an advance care directive are crucial steps in ensuring that an individual’s wishes regarding medical treatment are honored, especially when they are unable to communicate their preferences. While a medical treatment decision maker holds legal authority to make decisions, an advance care directive serves as a comprehensive guide for healthcare providers and the decision maker. By understanding the difference between these two mechanisms, individuals can take proactive steps to assert control over their medical care, even in challenging circumstances.

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.