Trust Structures Every Professional Should Know

“I’ve worked hard for decades in mining and resources. Now I want to make sure my family is looked after – and ensure the wealth I’ve built doesn’t get eaten up unnecessarily by tax or disputes.”

If that sounds familiar, you’re not alone. Many professionals across a range of industries can be in a unique position: high income, substantial superannuation, and often complex shareholdings through Executive Share Schemes (ESS). But when it comes to estate planning, too many leave it to chance.

This article explores how Testamentary Trusts, Super Proceeds Trusts, and Family Trusts can help protect your wealth and ensure your family’s inheritance is passed on in a way that’s tax-effective, secure, and aligned with your wishes. We’ll also touch on how ESS shares fit into the picture and why they deserve special attention.

The Power of Testamentary Trusts

A Testamentary Trust is created through your Will and only comes into effect upon your death, meaning you won’t incur accounting and legal fees while you’re alive. It allows your assets to be held, and the income produced from those assets is managed by a trustee for the benefit of your chosen beneficiaries. This structure offers flexibility, protection, and significant tax advantages.

One of its standout features is the ability to distribute income to minors at adult tax rates. In contrast, discretionary family trusts operating outside a Will often attract punitive tax rates for minors. Testamentary Trusts also provide a layer of protection against creditors, ex-partners, and poor financial decisions by beneficiaries. Trustees can tailor distributions based on individual needs, which is especially helpful when beneficiaries are young, vulnerable, or financially inexperienced.

Superannuation: Don’t Leave It to Chance

Your superannuation may be one of your largest assets, but without proper planning, it can be taxed heavily or distributed in ways you didn’t intend. A Super Proceeds Trust is a specialised form of Testamentary Trust designed to receive superannuation death benefits. It ensures those benefits go to the right people and with minimal tax.

This structure is particularly relevant for professionals with substantial super balances and complex family arrangements. Superannuation doesn’t automatically form part of your estate, so without a clear plan, your loved ones may not receive what you intended. A Super Proceeds Trust provides certainty and control, helping you protect your family’s future.

Family Trusts: Managing Wealth While You’re Alive
Unlike Testamentary Trusts, Family Trusts – also known as discretionary trusts – are established during your lifetime. They’re commonly used for asset protection, income distribution, and tax planning. These trusts offer high flexibility in managing investments, businesses, or property portfolios.

Family Trusts allow you to distribute income to family members, support ageing parents, or fund children’s education. However, they don’t offer the same tax advantages for minors, are subject to strict rules as to income generated and are subject to different rules when it comes to estate planning. They’re best suited for professionals who want to manage wealth proactively and adjust strategies as circumstances change.

Comparing Trust Structures: What’s the Real Difference?
While both Family and Testamentary Trusts aim to protect and manage assets, they differ significantly in how and when they’re created and in the level of control they offer.

A Family Trust is governed by a trust deed and is active while you’re alive. You can implement asset protection strategies immediately, manage tax outcomes, and adjust the trust terms as needed. This flexibility makes Family Trusts ideal for managing current wealth.

In contrast, a Testamentary Trust is created through your Will and only comes into effect upon death. Its terms are locked in once you die and the Will is operating. These trusts also offer strong protections and tax advantages that make it a powerful tool for legacy planning.

Below we’ve outlined some of the key aspects and differences of Discretionary Family Trusts compared to Testamentary Trusts.

Aspect	Discretionary Family Trusts	Testamentary Trusts
Formation	Established during your lifetime.	Established upon your death via your Will.
Purpose and Usage	Used for estate planning, managing assets, taxes, and providing for beneficiaries.	Primarily designed to address asset and income distribution after the Will maker’s death. Used to protect vulnerable beneficiaries such as children or disabled persons.
Flexibility	Offers flexibility and control over asset and/or income distribution each year.	Provides control over asset and/or income distribution after death, with conditions set in the Will. Can have a mechanism that the Trust be wound up once a person reaches a certain age over 18.
Tax Advantages	Subject to strict laws can be used to distribute capital or income tax effectively. Limited tax advantages for minors.	Significant tax advantages, especially for minors who are taxed at adult rates.
Protection	Offers protections against creditors.	Offers protection against creditors, ex-partners (to a point) and poor financial decisions.
Administration	Governed by a trust deed and legislation and ATO rules.	Governed by the Will and probate laws and legislation.
Beneficiaries	Usually discretionary and beneficiaries can be designated and instructions for asset management outlined.	Beneficiaries are protected, especially minors or those financially irresponsible or under a disability.
Legal Implications	Subject to the terms of the trust deed and legislation and ATO rules.	Usually requires probate and can be subject to the Will maker’s personal estate.

Many professionals choose to implement both: using a Family Trust to manage wealth during their lifetime and a Testamentary Trust to safeguard their estate and to ensure that certain beneficiaries are protected.

Why Professionals Need a Tailored Approach

Professionals often accumulate wealth through ESS shares, bonuses, and long-term incentives. This means estate planning isn’t just about writing a Will, it’s about understanding what you have and structuring your legacy.

Your estate plan should reflect the complexity of your wealth, not just the simplicity of your intentions. Trust structures help minimise tax, protect assets from legal claims or disputes, and give you control over how and when your wealth is distributed.

Consider a scenario where you have $2 million in superannuation, $500,000 in ESS shares, and a property portfolio. Without a trust, your estate could be exposed to tax, legal claims, or mismanagement. Testamentary and

Super Proceeds Trusts can ensure your assets and the income those assets produce are distributed according to your wishes and assist your beneficiaries, while Family Trusts can help you manage and grow your wealth during your lifetime.

Let’s consider a scenario where a couple has two children under the age of 18. One member of the couple passes away, and the surviving spouse continues to earn an income of $100,000 per annum. Here’s how a testamentary trust can provide tax savings for this family:

Scenario:

• Surviving Spouse’s Income: $100,000 per annum
• Children: Two, both under 18 years old
• Deceased Spouse’s Estate: $1,000,000 (to be distributed through a testamentary trust)

Without a Testamentary Trust:
If the $1,000,000 estate is directly inherited by the surviving spouse and received a return of 5% per annum, the income would be $50,000 per year. This income would be added to the surviving spouse’s income, resulting in a total taxable income of $150,000.

• Surviving Spouse’s Income: $100,000
• Interest Income: $50,000
• Total Taxable Income: $150,000

Based on the Australian tax rates for the 2025-2026 financial year, the tax payable on $150,000 would be approximately $39,838 (including Medicare levy).  The tax payable on the survivor’s salary of $100,000 alone, would be $22,788, which means the additional tax on the earnings from the $1,000,000 inheritance would result in additional tax payable of $17,050.

With a Testamentary Trust:
If the $1,000,000 estate is placed into a testamentary trust, the trustee can distribute the interest income to the children, who are taxed at adult rates. This means the $50,000 interest income can be split between the two children, each receiving $25,000.

• Child 1’s Income: $25,000
• Child 2’s Income: $25,000

Based on the Australian tax rates for the 2025-2026 financial year, the tax payable on $25,000 for each child would be approximately $1,292 (including Medicare levy).

• Tax for Child 1: $1,588
• Tax for Child 2: $1,588
• Total Tax for Children: $3,176

Comparison:

• Without Testamentary Trust: $17,050 (including Medicare levy)
• With Testamentary Trust: $3,176 (including Medicare levy)

Tax Savings:

By using a testamentary trust, the family can save approximately $13,874 in taxes annually.
This example demonstrates how a testamentary trust can provide significant tax savings by distributing income to minors at adult tax rates, thereby reducing the overall tax burden on the family.

ESS Shares: A Legacy Worth Protecting

Executive Share Schemes (ESS) are common in mining and resources, but they’re often misunderstood in estate planning.

Can your ESS shares be passed on to your children? What happens if they haven’t vested yet? Will your executor know what to do?

These are critical questions. The answers depend on your scheme’s rules and your estate plan. Some ESS shares vest immediately upon death, while others may be forfeited. It’s vital to understand your scheme’s terms and ensure your Will and trust structures accommodate them.

Executors must navigate legal and tax obligations, and a trust can simplify this process. ESS shares can be placed into a Testamentary or Family Trust to manage tax and control. This is especially important if your shares form a significant part of your wealth.

ESS shares aren’t just a reward – they’re a legacy. Treat them like one.

Real-Life Examples: Trusts in Action

Michael, a mining engineer, had $2.5 million in super and a portfolio of ESS shares. He used a Testamentary Trust to ensure his children received income from his estate without paying penalty tax. His trustee managed distributions based on each child’s needs, providing financial support without overwhelming them.

Jane, a geologist, set up a Family Trust to manage her property investments and distribute income to her retired parents. It gave her flexibility and protected her assets from potential legal claims. She also used the trust to support her children’s education and future home purchases.

Allan, an executive adviser, structured his ESS shares to flow into a Testamentary Trust on his death. This ensured his spouse received the full value without unnecessary tax and avoided disputes with other family members.

These examples show how trust structures can make a real difference in protecting and managing wealth.

What Should You Do Next?

If you’re a professional, start by reviewing your Will. Does it include Testamentary or Super Proceeds Trusts? If not, it might be time to update it.

Next, take a close look at your ESS scheme rules. What happens to your shares if you pass away? Can they be transferred, or will they be forfeited?
Consider setting up a Family Trust for ongoing wealth management. It’s a flexible tool that can help you manage investments, support family members, and protect assets.

Most importantly, speak with a legal adviser who can tailor a solution that fits your life and legacy. Estate planning isn’t one-size-fits-all, and the right advice can make all the difference.

Your Wealth Deserves a Plan

Estate planning isn’t just about ticking boxes. It’s about protecting what you’ve built and ensuring it benefits the people you care about most.

Whether you’re just starting to think about estate planning or already have a Will, it’s worth exploring how trust structures and ESS planning can protect your legacy.

Need help navigating trust structures and ESS planning? Our legal team is here to guide you. Call us on (07) 3220 1144 to discuss your needs.

_{Disclaimer: This information is general in nature and does not take into account an individual’s personal situation. Each person’s situation is unique and each person needs to consider whether the information is appropriate to their needs, and where appropriate, seek professional advice from us, an accountant and a financial adviser. Taxation, legal and other matters referred to herein are of a general nature only and are based on Hillhouse Legal Partners’ interpretation of laws existing at the time (July 2019) and should not be relied upon in place of appropriate professional advice. Those laws may change from time to time. Although every effort has been made to verify the accuracy of the information contained, its officers, employees and agents disclaim all liability (except for any liability which by law cannot be excluded), for any error, inaccuracy in, or omission from the information contained herein or any loss or damage suffered by any person directly or indirectly through relying on this information.}

Federal Court Tightens Rules on Salary Set-Offs Under Awards

Overview

The recent decision of the Federal Court of Australia in Fair Work Ombudsman v Woolworths; Fair Work Ombudsman v Coles; Baker; Pabalan [2025] FCA 1092 has significant implications for employers, particularly those with salaried employees covered by a modern Award. This landmark ruling clarifies how contractual salary arrangements interact with Award obligations and reinforces that employers cannot use broad set-off clauses. Key changes and considerations for employers are discussed below.

Background

The judgment involved four connected proceedings brought by the Fair Work Ombudsman (FWO) and affected employees against Woolworths and Coles, alleging systemic underpayment of employees.

Both Woolworths and Coles paid certain managers annual salaries intended to compensate for all entitlements under the General Retail Industry Award 2010 (Retail Award), including overtime, penalty rates, and public holiday loadings.

The FWO and employee class actions alleged that these salary arrangements resulted in substantial underpayments in circumstances where the salaries did not cover Award entitlements in the pay period in which the entitlement/s were accrued.

The Court examined how key provisions of the Retail Award and the Fair Work Act 2009 (Cth) (FWA), including those dealing with ordinary hours, overtime, and penalty rates, should properly be interpreted to determine whether the employees had been underpaid as alleged.

Set-off Clauses and Annualised Wages

One of the most significant aspects of the decision is the Court’s confirmation that entitlements under the Retail Award accrued in a pay period must be discharged within that same pay period.

The FWA requires that employees are paid in money, in full, and at least monthly. Under the Retail Award, employers are required to pay employees on a weekly or fortnightly basis. The Court found that proper interpretation of these requirements indicates that clauses in employment contracts that purport to “set-off” Award entitlements by payment of a salary must operate only within a single pay period - payments or entitlements cannot be averaged or carried over.

This means under the Retail Award and similar awards:

1. entitlements cannot be pooled and paid across multiple pay periods;

2. set-off cannot be averaged across multiple pay periods;

3. salary payments must be sufficient to meet Award entitlements for that specific period; and

4. entitlements including payment for overtime and penalties must be calculated and discharged each pay period.

Depending on the industry in which they operate, employers may be able to utilise an annualised salary provision within a modern Award, an individual flexibility agreement, or a guarantee of annual earnings. However, as this case demonstrates it is subject to strict requirements and you do not want to make a mistake. We strongly recommend that legal advice is sought beforehand.

Record-Keeping Obligations

Another significant aspect of the decision was the Court’s emphasis on the importance of accurate record-keeping.

Employers are required by the Fair Work Regulations to maintain detailed records of employee entitlements, including:

• loadings;
• penalty rates; and
• overtime hours.

The Court found that set-off clauses do not relieve employers of these obligations. Accordingly, both Woolworths and Coles were found to be in breach of the Regulations and the Award.

Actions for Employers

In light of this decision, employers should:

1. Review employment contracts and awards. Ensure that set-off clauses are legally compliant and do not contravene the Award.

2. Review record-keeping practices. Employers must maintain detailed records of all employee entitlements and ensure compliance with Awards and the FWA. This includes keeping records of hours worked, rosters, and any variations to them.

3. Review accounting processes. Ensure accounting processes best support compliance and keep in mind that annualised salaries are not ’set and forget.’ Consider whether hourly pay rates may be easier for ensuring compliance. Regular audits and updates are essential.

4. Proactively rectify non-compliance. Where underpayments or other non-compliance is identified, act swiftly to remediate and communicate transparently with affected employees.

5. Seek legal advice. The decision highlights the complexities of Australia’s industrial laws. If you are unsure of your obligations please contact Robert Lamb or John Davies on (07) 3220 1144.

Disclaimer – Legal Advice
Liability is limited by a scheme approved under professional standards legislation. The information in this article is general guidance only, correct at the time of publication, and does not constitute legal advice. You should consult your lawyer for advice specific to your circumstances.

Capacity – Don’t Leave It Too Late to Make Your Will

Urgent Wills

As Wills and Estates lawyers, we’re often approached by individuals - or their loved ones - needing an urgent Will.

This usually happens after a recent diagnosis, a serious illness, or even a terminal condition.

In these situations, we may need to ask more probing questions than usual or require additional steps to ensure the Will is valid.

Why Capacity Matters

Before a Will is signed, we have a professional duty to ensure that the person making it:

• is acting voluntarily,
• understands what they are doing, and
• can give proper and lawful instructions.

If a Court later decides the person did not have capacity, the Will can be set aside. That could mean an earlier Will takes effect - or worse, that the strict laws of intestacy apply. Either outcome could lead to results that the Will maker never intended.

What Happens if Capacity Is in Question

Normally, a lawyer will assume that a person making their Will knows what they’re doing. But if there are warning signs, we may need to take extra precautions. Warning signs include if the Will maker:

• is under significant stress,
• appears disoriented or confused,
• misses scheduled appointments,
• changes or contradicts their instructions,
• struggles to recall key assets or important details, or
• has a medical condition or is on medication that affects decision-making.

In those circumstances, as part of our duty to the client and the law, we may:

• interview the Will maker alone,
• ask open-ended questions and allow enough time to ensure they understand their estate plan,
• request a medical certificate regarding capacity (while not conclusive, it can be helpful), or
• in rare cases, apply to the Court or QCAT for a formal declaration of capacity.

Making Time Now Saves Stress Later

Don’t leave your Will until the last minute. While sometimes there’s no choice, too often a health crisis forces people to act urgently—and by then, it may be too late.

Next Steps

Creating a clear, up-to-date Will is one of the most important steps in estate planning. If you already have a Will, it’s essential to review it regularly. Good times to revisit your Will include:

• after major life events (marriage, divorce, birth of a child, new assets), or
• every five years, to ensure it still reflects your wishes.

We’re Here to Help

Preparing a Will is one of the most powerful ways you can protect your family and your legacy. Our experienced Wills and Estates team will guide you through the process, ensuring your wishes are properly documented and legally sound.

Action:  Don’t leave your estate to chance. Contact us today for tailored advice and help with drafting or updating your Will.

Why You Should Have a Will and What Happens If You Don’t

Whether your financial affairs are simple or complex and if you are over 18, having an up-to-date Will is essential. A Will provides clarity on how your estate will be distributed and can significantly reduce the emotional and financial stress on your loved ones after your passing.

Here’s 5 key reasons why you should have a Will and what happens if you don’t.

1. Ensure Certainty for Your Assets

A Will allows you to specify how your assets—including cash, property, vehicles and shares - are distributed. Without a Will, your estate will be managed according to the rigid intestacy rules, which may not reflect your personal wishes.

If you die without a Will your assets will be distributed to your living next of kin in a set order and in certain proportions.

If no next of kin can be found, your estate will be transferred to the Crown.

By creating a Will, you ensure your estate is distributed exactly as you choose, avoiding this default position.

2. Guardians Appointed for Your Children

If you have children under 18, through your Will you can nominate someone you trust to be the legal guardian of your children. Guardians are responsible for making important decisions regarding your children’s upbringing, including education and healthcare.

Without a Will, the surviving parent typically assumes sole guardianship. However, if both parents are deceased, anyone can apply to the Family Court for guardianship. This process can be costly, time-consuming, emotionally draining and conflict inducing, particularly if multiple family members believe they should be your children’s guardian.

By appointing a guardian in your Will, you ensure your children’s care is entrusted to someone you trust.

3. An Executor is Appointed

When drafting your Will, you designate an Executor to manage your estate after your passing. The Executor’s responsibilities include:

• Coordinating the funeral with your family
• Locating and notifying beneficiaries
• Identifying and securing estate assets
• Applying for a Grant of Probate (if required)
• Collecting and distributing assets according to your Will
• Paying debts and liabilities
• Filing tax returns and obtaining tax clearances
• Resolving disputes between beneficiaries

Choosing a trusted person as your Executor - often a family member or close friend - ensures your wishes are respected. Business or financial experience can be helpful, but professional advice from lawyers or accountants can assist with complex tasks.

Without a Will, someone must apply to the Supreme Court to act as Executor, which takes time and places financial and emotional stress on loved ones at a sensitive time.

4. Avoid Unnecessary Costs

A well-prepared Will minimises administrative costs. Without a Will, your family will need to apply to the Supreme Court, so that someone is legally recognised to be able to deal with your assets and affairs. This often increases legal expenses and reducing the overall value of your estate. If no-one is appropriate or willing to act, the Court may appoint the Public Trustee, who will charge fees to administer your estate - reducing the amount left for your beneficiaries.

5. Reduce the Risk of Conflict

Estate disputes are common, especially when there is no Will or when a Will is unclear or poorly drafted. Disputes can lead to lengthy legal battles, higher costs, and significant delays in distributing the estate.

A clear, professionally drafted Will helps:

• Minimise misunderstandings and disagreements
• Speed up the estate administration process
• Provide peace of mind for you and your loved ones

Next Steps

Creating a comprehensive and up-to-date Will is a critical step in estate planning. If you already have a Will, reviewing (and if required, updating) your Will is necessary to ensure that it still meets your wishes. A good time to review your Will is after significant life events, such as marriage, divorce, the birth of a child, acquiring significant asset, or simply every 5 years to ensure it still meets your wishes.

We’re Here to Help

Preparing a Will is one of the most important actions you can take to protect your family and your legacy. Our experienced Wills and Estates team can guide you through the process, ensuring your wishes are clearly documented and legally sound.

Don’t leave your estate to chance. Contact us today for personalised advice and assistance with drafting or updating your Will.

Patient Confidentiality: Legal Obligations and Practical Actions for Doctors and Practices

In today’s digitised healthcare environment, managing patient confidentiality goes far beyond professional courtesy—it’s a legal requirement. For Queensland doctors and practice managers, privacy compliance is central to both protecting patients and safeguarding practices from significant legal and reputational risks.

This article breaks down key obligations under the Privacy Act and Australian Privacy Principles (APPs), while also providing practical steps you can take to strengthen compliance in your practice.

Who Owns Patient Records?

There is no universal rule on who owns patient records. Ownership usually rests with either the practice or the individual doctor, with the other party licensed to access them.

The safest approach is to make ownership clear in practice agreements from the outset. This avoids disputes, especially when a doctor departs and patients follow. Without clarity, both legal and financial risks can quickly escalate.

Collecting and Using Information

Health information is among the most sensitive personal data. Under the Privacy Act and APPs, patient details must be:

• Collected fairly and lawfully
• Obtained with informed consent (particularly sensitive health data)
• Used only for the purpose it was collected

Practices must also take reasonable steps to protect patient information from misuse, unauthorised access, or disclosure. Training staff, restricting access, and maintaining strong cybersecurity protocols are essential safeguards.

When Disclosure is Permitted

Doctors and practices may disclose patient information only if:

• It is directly related to the purpose of collection
• The patient has consented
• It is legally required
• The patient would reasonably expect it

Extra caution is required when responding to requests from spouses, parents, or insurers. For overseas disclosures, patients must consent, or the receiving organisation must comply with Australian privacy standards.

Retention, Destruction, and Data Breaches

Patient records must be kept for:

• Adults: At least seven years from the last consultation
• Children: Until the patient turns 25

Once records are no longer needed, they must be securely destroyed or de-identified, with the process documented.

Healthcare is also the most frequently reported sector for data breaches in Australia, commonly caused by phishing, ransomware, or human error. Every practice should have a breach response plan that includes:

• Containing the breach
• Notifying affected patients
• Assessing whether to notify the OAIC under the Notifiable Data Breach scheme

Third Parties, Consent, and AI

Confidentiality extends beyond doctors to reception staff, nurses, IT providers, and contractors. Practices should regularly review contracts with third-party providers, especially if data is stored offshore.

Informed consent remains central. Privacy policies must explain what data is collected, how it is used, whether it is stored overseas, and patients’ rights to access or correct information.

With AI tools increasingly used for transcription, scheduling, and diagnostics, new challenges arise. Practices should ensure AI systems comply with privacy obligations, disclose their use to patients, and update privacy policies accordingly. From 10 December 2026, practices must also disclose if automated decision-making is used via AI.

What to Do Now

To strengthen confidentiality compliance, practices should:

• Review privacy policies and consent forms
• Confirm patient record ownership in contracts
• Audit third-party service providers
• Train staff in privacy and cyber-awareness
• Have a breach response plan in place
• Review AI systems in use

Final Word

Confidentiality is at the heart of patient trust—and compliance is the legal foundation that supports it. By reviewing agreements, policies, and systems now, Queensland doctors and practices can protect their patients, avoid risk, and operate with confidence.

Need tailored advice? Hillhouse Legal Partners can assist with patient record ownership, privacy compliance, and AI use in your practice.

Redundancy: High Court Reinforces Obligation to Consider Redeployment

A recent High Court decision has reinforced the need for employers to approach redundancies with great care. Where a business is considering making employees redundant, it must assess its operations as a whole and consider whether redeployment is possible – not only within its own business but also across associated entities.

If the dismissal is not a ‘genuine redundancy,’ it may amount to an unfair dismissal. Employers often rely on ‘genuine redundancy’ as a defence, but it is then open to the employee to argue otherwise.

The Law: Section 389 Fair Work Act

Under section 389 of the Fair Work Act, a dismissal will only be a ’genuine redundancy’ if:

1. the employer no longer requires the person's job to be performed by anyone due to changes in the operational requirements of the employer’s enterprise;
2. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy; and
3. it would not have been reasonable, in all the circumstances for the person, to redeploy the employee within:
4. the employer's enterprise; or
5. the enterprise of an associated entity of the employer.

The Case: Helensburg Coal Pty Ltd

In 2020 during the COVID-19 pandemic, Helensburg Coal responded to falling demand by reducing coal production and retrenching 90 employees and reducing in the number of contractors engaged by approximately 40%.

It was not in dispute that the employer no longer required the jobs of each employee to be performed because of changes of the operational requirements of the mine and that there was no vacant role in employer’s enterprises to which any of the redundant employees could be redeployed.

However, labour hire workers were engaged to perform work that the retrenched employees could have done. The High Court found that, in these circumstances, redeployments were available to the employees who were made redundant, and these should have been considered.

The employer argued that the Fair Work Commission was not entitled to consider whether the employer could have made changes to its business to create redeployment opportunities. The Court rejected this, confirming that the Commission can look broadly at all the circumstances.

‘All the Circumstances’

The phrase 'in all the circumstances' under section 389(2) is intentionally broad. The High Court found that factors the Commission may consider include:

• the skills, training, and experience and other relevant attributes of the redundant employee;
• the attributes of the employer's enterprise that concern its workforce, such as: its policies, including appetite for risk; plans; processes; procedures; business choices, such as a decision to terminate a contract in the future and a decision to persist with using contractors
• decisions regarding the nature of its workforce, such as whether it has a blended workforce of both employees and contractors;
• contract terms, such as contracts on an "as needs" basis;
• whether the contractors are on daily work orders or on some long-term fixed commitment; practical concerns, such as whether redeployment would require the employee to undergo further training; and
• anticipated changes, such as another employee going on parental leave or retiring, a contract expiring, or a position being performed by a contractor while waiting for an employee to be hired.

Employers must therefore consider all the relevant circumstances, not just existing vacancies, but whether work being done by contractors or labour hire workers could reasonably be offered to the employees who are at risk of redundancy.

What Employers Should Do

The High Court’s decision reinforces the need for a careful, well-documented process when considering redundancies and to consider consulting with HR and/or legal experts. Employers must take into account a broad range of circumstances – particularly where contractors or labour hire are used – and ask the critical question:

"Can this employee be deployed within our business or an associated business - even if this requires adjustment of roles or creation of a new role?”

Before making any redundancy decision, employers should, at a minimum:

1. review redeployment options across the business and associated entities;
2. consider employees’ skills and experience and whether training could make redeployment possible;
3. examine ongoing and upcoming contractor and labour hire arrangements and whether these roles could be offered to employees;
4. look at upcoming workforce changes (e.g., retirements, parental leave, contract expiries) that may create opportunities; and
5. seek HR and legal advice to confirm compliance and minimise the risk of claims.

If you would like assistance with navigating your employment responsibilities, please contact our Employment Law team on 07 3220 1144.

Payroll Tax and What It Means for Queensland Doctors

Payroll tax has become one of the most talked-about legal and financial issues facing medical, dental, and allied health professionals in recent years. With increased scrutiny from state revenue authorities and changes in legal interpretation, doctors—whether early in their careers or well-established—need to understand how these developments could affect their practice models and income arrangements.

In this article, we focus on the evolving payroll tax landscape in Queensland and what it means for health practitioners across the state.

Why Is Payroll Tax an Issue?

Traditionally, where doctors operated under service agreements through medical centres or clinics, these arrangements were not subject to payroll tax. However, recent court decisions and updated guidance from the Queensland Revenue Office (QRO) have broadened how payroll tax laws are applied. In many cases, payments to contracted doctors are now treated as taxable “wages” under the extended “relevant contract” provisions.

This shift has raised alarm bells for practices and practitioners alike, prompting legal reviews of structures, agreements, and compliance strategies.

The Queensland Position

In Queensland, payroll tax is levied at 4.75% if a business’s annual taxable wages exceed $1.3 million.

On 22 December 2022, the QRO issued a Public Ruling (updated in February 2024), which clarified that agreements with contracted doctors—such as service agreements—may fall within the scope of taxable “relevant contracts” for payroll tax. This meant that many practices faced potential tax liabilities for payments made to independent GPs and other practitioners.

However, in a significant development, the Queensland Government passed the Revenue Legislation Amendment Bill 2024, confirming that from 1 December 2024, payments made by GP practices to general practitioners will be exempt from payroll tax—bringing welcome certainty for GPs and clinics alike.

Who Qualifies for the GP Exemption?

The exemption applies to:

• Doctors registered under the Health Practitioner Regulation National Law to practice in the specialty of general practice;
• Practitioners listed in the federal Health Insurance (General Medical Services Table) Regulations 2021 (Cwlth), schedule 1, part 1, clause 1.1.3;
• Prescribed medical practitioners who predominantly provide GP-style services.

It’s important to note that this exemption does not extend to medical specialists or allied health practitioners, who must still assess their potential payroll tax obligations.

What Doctors and Practices Should Do

While the GP exemption offers relief, compliance obligations remain complex and vary depending on your practice model, specialty, and financial thresholds.

Here’s what you and your practice should consider:

• Know the law: Understand current legislation and QRO rulings relevant to your specialty and business structure;
• Assess your threshold: Determine whether your practice is approaching or exceeding the payroll tax threshold;
• Review contracts: Revisit any service or independent contractor agreements with legal and accounting advisers;
• Check eligibility: See if you or your practice qualifies for any exemptions or amnesties—and whether disclosure is required;
• Seek advice: Don’t delay in obtaining expert legal and tax advice tailored to your specific situation.

Looking Ahead

While Queensland GPs now have greater clarity, specialists and allied health practitioners may still face uncertainty. It’s likely that further updates will emerge as state revenue offices continue to scrutinise practitioner arrangements.

Practices and individuals alike should take a proactive approach to ensure they’re not caught off guard.

Need Help?

Hillhouse Legal Partners can assist with reviewing or drafting agreements, assessing your payroll tax position, and preparing for any future audits. We also provide advice to individual practitioners seeking to understand their personal exposure or contractual risks.

For tailored advice, contact Craig Hong or Zach Sudiro, in our Corporate and Commercial Team, on (07) 3220 1144 or via email at craig@hillhouse.com.au or zach@hillhouse.com.au.

Statutory Tort for Serious Invasion of Privacy Now in Force

A tort is a civil wrong wherein one party causes loss or harm to another. A cause of action in tort allows the affected party to sue the wrongdoer for damages or other relief.  Whether an action in tort for invasion of privacy exists in Australia has been a topic of contention since the early 2000s.

A new suite of privacy law reforms, contained in the Privacy and Other Legislation Amendment Act 2024 (Cth) (the Act) is being rolled out across the year and brings an end to this uncertainty. On 10 June 2025 a new statutory tort for serious invasions of privacy came into effect.

The Act states that the purpose of these provisions is to:

• establish a cause of action for serious invasions of privacy;
• provide for defences, remedies and exemptions;
• recognise that the protection of privacy is a public interest to be balanced with other public interests; and
• implement Australia’s international obligations in relation to privacy, specifically under the International Covenant on Civil and Political Rights.

Cause of Action

Under the Act, an individual now has a cause of action in tort against another person where:

(a)        their privacy has been invaded by:
          (i) an intrusion into their seclusion; or
          (ii) the misuse of information relating to them; and

(b)        a person in their position would reasonably have expected privacy in all the circumstances; and
(c)        the invasion of privacy was intentional or reckless; and
(d)        the invasion of privacy was serious; and
(e)        the public interest in the individual’s privacy outweighed any countervailing public interest.

It is not necessary to prove damage for an invasion of privacy to be actionable.

Defences

Some defences include:

Remedies

If it finds that a serious invasion of privacy has occurred, a court may grant one or more of the following remedies:

Exemptions

Notably, an exemption is provided for journalists and other related parties if the invasion of privacy occurs in the collection, preparation for publication or publication of journalistic material.

Application in Other Jurisdictions

Similar torts of privacy have been recognised to varying degrees in the USA, UK and New Zealand, and provide insight into the types of claims that may arise under this new statutory tort. ALRC Report 123 –Serious Invasions of Privacy in the Digital Era, published 15 July 2014 (Report), discusses several cases where plaintiffs have successfully sued for invasion of privacy in those jurisdictions.  

In the New Zealand case of C v Holland [2012] 3 NZLR 672, the courts first recognised the existence of a tort of invasion of privacy in New Zealand.  The case involved a man who secretly installed a video camera and recorded his flatmate while she was showering.

According to the Report, intrusion upon seclusion has been found to include not only entry into physical spaces but also ‘watching, listening to, or recording someone’s private activities or private affairs.’ Specific examples include ‘taking a photo of someone in a change room, reading their bank statements, tapping their phone calls, or hacking into their computer.’

The Report notes that, in the USA intrusion upon seclusion cases have typically focused on how private information is obtained, rather than the publication of that information.

Examples of misuse of information, as identified in the Report, include ‘publishing a person’s medical records in a newspaper or posting sexually explicit photographs of someone on the internet, without their permission.’

Conclusion

This new statutory cause of action ends longstanding uncertainty about the existence of a tort for serious invasion of privacy in Australia. It will be important to watch how the case law develops, and we will continue to provide updates as it does.

If you are unsure about your obligations under the new privacy reforms – or your privacy obligations broadly – please contact Craig Hong or John Davies on 07 3220 1144 or craig@hillhouse.com.au.

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2025–2026 Minimum Wage Increase Announced

On 3 June 2025, the Fair Work Commission handed down its Annual Wage Review 2025–2026 decision, confirming a 3.5% increase to minimum wage rates under all Modern Awards, effective from 1 July 2025.

This increase, which applies from the first full pay period on or after 1 July 2025, will impact a wide range of employees across all industries. Employers should now review pay rates, adjust payroll systems, and assess how this affects both award-based and salaried staff.

As part of its legal obligation to maintain minimum wage standards in Australia, the Fair Work Commission conducts this review annually, taking into account a range of economic factors including cost of living, inflation, productivity, and broader economic conditions.

What’s Changed?

• All Modern Award minimum wages will increase by 3.5%.
• The National Minimum Wage (NMW) will also rise, though it applies only to a small number of employees not covered by awards or enterprise agreements.
• Award allowances are yet to be updated and are expected to be released on 1 July 2025.

This annual review ensures minimum wages reflect current economic conditions, inflation, and the cost of living.

What Employers Should Do

• Review and adjust wages for award-covered employees before 1 July 2025.
• Ensure employees on salaries remain better off overall than they would be if they were on hourly rates, taking into account penalties, overtime, and allowances.
• All employers with employees covered by an annualised salary clause in an Award should ensure that they comply with their obligations under that clause.
• Update payroll systems and employment contracts accordingly.
• Be prepared to implement further changes once allowance updates are released.

Failure to comply with minimum wage requirements can result in significant penalties and legal exposure.

Superannuation Guarantee Contribution (SGC) Rate Increase

From 1 July 2025, the Superannuation Guarantee Contribution (SGC) rate will also increase from 11.5% to 12%. Employers must ensure this increased contribution is applied to all eligible employee earnings from that date. This change should be implemented alongside wage increases to ensure full compliance with employer obligations.

Need Assistance?

If you're unsure how these changes affect your business or want to ensure your payroll and employment practices are fully compliant, our team is here to help.

Contact Robert Lamb or John Davies at Hillhouse Legal Partners on 07 3220 1144, or via john@hillhouse.com.au or robert@hillhouse.com.au.

New Seller Disclosure Obligations Commence 1 August 2025 – What You Need to Know

From 1 August 2025, Queensland will introduce a new statutory seller disclosure regime that significantly reshapes the landscape for residential property sales across the state. Under the new laws, sellers will be required to provide prospective buyers with a Seller’s Disclosure Statement before the buyer signs the contract of sale.

What is the Seller’s Disclosure Statement?

The Seller’s Disclosure Statement is a formal, legally mandated document that outlines key information about the property being sold. It is designed to provide buyers with a clear and accurate picture of the property prior to entering a contract —reducing the risk of hidden issues and shifting the burden away from the buyer to conduct extensive investigations.

The Statement must be signed by the buyer before they sign the contract and must be accompanied by a prescribed list of certificates and searches. These include (but are not limited to):

• Current title search
• Registered plan
• Details of registered and unregistered encumbrances
• Details of unregistered leases or private agreements (written or verbal)
• Contaminated land search (where applicable)
• Pool safety certificate (if relevant)
• Local authority road searches
• QCAT proceedings search
• Heritage listing information
• Tenancy agreements
• Current rates and water notice amounts
• Body corporate information, including Community Management Statement (CMS), if applicable

Put simply, the Seller’s Disclosure Statement must be comprehensive, accurate, up-to-date, and complete.

Why Is This Change Being Introduced?

Historically, Queensland has followed a ’buyer beware’ approach—placing the onus on the buyer to uncover issues by conducting searches before or after signing the contract. That approact will no longer suffice under the new laws.

The new disclosure regime reverses this position, placing a statutory obligation on sellers to proactively disclose relevant information. Failure to comply carries serious consequences.

What Happens If Sellers Get It Wrong?

If a seller fails to provide a valid and complete Seller’s Disclosure Statement before the contract is signed, the buyer has the right to:

• Terminate the contract at any time before settlement
• Receive a full refund of the deposit and other monies paid
• Potentially claim compensation for losses caused by the non-disclosure

Importantly, there is no ability to contract out of the requirement. Even if a buyer agrees to waive their right to receive the Statement, such provisions are void and unenforceable.

While limited exemptions apply (such as transfers between related parties), most residential property transactions will be subject to the new regime and must comply.

What Does This Mean for Agents?

Agents play a pivotal role under the new regime. A seller may authorise their agent to prepare and provide the Disclosure Statement on their behalf—but timing, accuracy, and completeness are critical.

• No Disclosure Statement = No valid contract
• Incorrect Statement = Risk of termination and legal consequences
• Outdated Statement = Delays, disputes, or grounds for termination

This change highlights the importance of early preparation and collaboration between sellers, agents, and legal representatives.

How Can We Help?

We understand that the new disclosure regime is extensive and introduces increased responsibilities for both sellers and agents. Our experienced property law team is here to help you navigate the process—from preparing compliant Seller’s Disclosure Statements to ensuring all necessary certificates and searches are in order from the outset.

Avoid unnecessary risk and delays—Let us help safeguard your property transaction.

If you need further information or support preparing a compliant Disclosure Statement, reach out to our experienced property legal team today.  We’re here to guide you through the changes with confidence.