Law Handbook Example

47.5 mm

Your Practical Guide to the Law in New South Wales

‘The Law Handbook … draws on the contributions of lawyers working in a range of specialties and provides a wealth of practical legal information … It is a well-organised, easy-to-use book, which equips people to understand their rights and obligations under the law.’ The Hon. Virginia Bell, Justice of the High Court of Australia

THE

The Law Handbook is the plain English guide to the law in New South Wales, providing access to law that affects people in their everyday lives. It contains 45 chapters written by over 90 lawyers and legal experts with the most up-to-date information possible about the law in New South Wales. This fully revised 11th edition includes the recent fundamental changes to law affecting Aboriginal people, children and same-sex couples and their families, disability law and estate law; as well as brand new sections on legal research, and water and energy consumption law. Every chapter contains a comprehensive list of the organisations and websites you need for further information or help. The Law Handbook is an indispensable resource for every household and workplace in New South Wales.

What people said about previous editions of The Law Handbook: ‘The Law Handbook … puts the law into the context of people’s lives. It provides updated information on an ever-wider range of legal areas.’ The Hon. JJ Spigelman, Chief Justice of New South Wales on the 10th edition

LAW

HANDBOOK 11th EDITION

THE LAW

HANDBOOK

11th EDITION

‘The Law Handbook … provides a readily accessible opportunity for ordinary people to obtain a basic knowledge that every citizen should have.’ Sir William Deane, 22nd Governor-General of Australia on the 9th edition ‘The Law Handbook is an essential link in the chain that binds law and justice.’ Marie Bashir, Governor of New South Wales, on the 8th edition

© 2009 Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668

For further information visit: www.thomsonreuters.com.au Proudly Printed in Australia

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F o r e wo r d

I was one of many contributors to the predecessor to The Law Handbook, which was launched in 1978. It was then called by the less alluring title The Legal Resources Book. It was a rather unwieldy, looseleaf book packaged in a ring-binder made out of the material used to make Globite school-cases. We adopted the looseleaf format so that the book could be updated to reflect changes in the law. While this was good in theory it did not make for a very convenient book. So, over time, The Legal Resources Book was transformed into the snappier The Law Handbook, a comprehensive guide to the law in a single paperback volume. The Law Handbook has been regularly revised and released in new editions ensuring that it remains up-to-date and relevant. It has come a long way over the past 30 years. The Law Handbook is designed to make the law accessible to anyone with an interest in finding out about it. It draws on the contributions of lawyers working in a range of specialties and provides a wealth of practical legal information. The scope of the topics and the depth of coverage has expanded over the years. This is evident in the detailed treatment of the ways in which the law deals with publication on the internet, downloading, copying and sharing digital content and the application of consumer protection laws to e-commerce. It is a well organised, easy-to-use book, which equips people to understand their rights and obligations under the law. It may not always serve as a substitute for professional legal services but it will make the reader a better informed consumer of those services. More than this, it is a valuable source of legal information on topics, including the environment, the regulation of the media, immigration and criminal justice, that are of general interest to many members of the community. All of the contributors are to be congratulated for the quality of their plain English exposition of the law. I commend Redfern Legal Centre Publishing for the quality of the 11th edition of this valuable and tested work.

The Hon. Virginia Bell Justice of the High Court of Australia

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Contents

About The Law Handbook

x

Redfern Legal Centre Publishing xi Contributors to past editions

xii

1

About the legal system 1 Lynda Muston, Office of the Legal Services Commissioner Simon Rice, Australian National University, Canberra Jill Quin, Legal Information Access Centre, State Library of New South Wales

2

Aboriginal people and the law Donna Hensen, Women’s Legal Services NSW Tony McAvoy, Barrister The Arts Law Centre of Australia

3

Accidents and compensation 65 John Cahill, Workers Compensation Commission Andrew McSpedden, Lawyer

4

Arrest, interrogation and bail Andrew Haesler, Public Defender’s Office

5

Assistance with legal problems 119 Sally McAtee, Legal Aid NSW Lynda Muston, Office of the Legal Services Commissioner Lalitha Raman, Legal Aid NSW Ludmilla Robinson, Barrister

35

99

6 Banking 139 Tim Gough, Australian Securities & Investments Commission 7 Bankruptcy 145 Robert Cruickshanks, Insolvency & Trustee Service Australia 8

Children and young people 161 Deborah De Fina, Legal Aid NSW Jane Sanders, Shopfront Youth Legal Centre Julieanne Mahony, Department of Community Services

9

Community organisations Graham Wheeler, Solicitor

10

Complaints 251 Rodney Fisher, University of Technology, Sydney

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Contents

vii

Jo Flanagan, Office of the NSW Ombudsman Lynda Muston, Office of the Legal Services Commissioner 11

Consumers 283 Guy Di Carlo, Office of Fair Trading Peter Dodd, Public Interest Advocacy Service Health Care Complaints Commission Mark Ludbrooke, Public Interest Advocacy Service Lynda Muston, Office of the Legal Services Commissioner

12

Contracts 339 Carolyn Penfold, UNSW, Sydney

13

Copyright 351 Ian McDonald, Australian Copyright Council

14

Court 363 Andrew Haesler, Public Defender’s Office

15

Credit 387 Lillian Chan, Legal Aid NSW Alex Grosart, Legal Aid NSW Pip Martin, Legal Aid NSW John Moratelli, Legal Aid NSW Katherine Pranic, Legal Aid NSW Kai Wu, Legal Aid NSW

16

Criminal law 411 Andrew Haesler, Public Defender’s Office Andrew Miles

17 Debt 427 Lillian Chan, Legal Aid NSW Alex Grosart, Legal Aid NSW Pip Martin, Legal Aid NSW John Moratelli, Legal Aid NSW Katherine Pranic, Legal Aid NSW Kai Wu, Legal Aid NSW 18 Disability law 451 Esther Cho, Guardianship Tribunal Ben Fogarty, Intellectual Disability Rights Service 19 Discrimination 503 Jennifer Whelan, Solicitor 20 Dispute resolution without going to court 515 Robyn Claremont and Louise Davies, Workplace Wordsmiths

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viii

T he L a w H a n d b o o k

21 Domestic violence 527 Women’s Legal Services NSW 22 Driving and traffic law 551 Phillip Gibson, Lawyer 23 Drug offences 567 Steve Bolt, Northern Rivers Community Legal Centre 24 Employment 585 Joanne Moffitt, NSW Nurses Association 25 Environment and planning 613 Graeme Wiffen, Macquarie University, Sydney Ian Ratcliff, Environmental Defender’s Office (NSW) Northern Rivers 26

Family law 655 Ruth Pilkinton, Legal Aid NSW Women’s Legal Services NSW

27

Freedom of information 709 Anina Johnson, NSW Crown Solicitor’s Office

28 Health law 715 Indraveer Chatterjee, HIV/AIDS Legal Centre Marlene Keese, Therapeutic Goods Administration Renee Trentini, National Health & Medical Research Council Robert Wheeler, Legal Aid Commission of NSW Melissa Woodroffe, HIV/AIDS Legal Centre 29 Housing 745 Grant Arbuthnot, Tenants’ Union of NSW Sean Ferns, Park and Village Service Adam Heydon, Office of Fair Trading Alex Irving, Solicitor Chris Martin, Tenants’ Union of NSW Robert Mowbray, Older Persons Tenants Service Rita Wilkinson, Southern Sydney Tenants Advice and Advocacy Service 30 Immigration 805 Jennifer Burn, University of Technology, Sydney 31 Insurance 833 Marion Hass, University of Technology, Sydney Michael Sadaat, Australian Securities & Investments Commission Nicole Tschaut, University of Technology, Sydney Rosalie Viney, University of Technology, Sydney 32 Internet law 851 James Arnott, Victoria University, Melbourne

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Contents

ix

Michael Fraser, Communications Law Centre, Sydney Ben Strong, Victoria University, Melbourne 33 Media law 867 Roy Baker, Macquarie University, Sydney Sarah Harmelink, Australian Communications & Media Authority 34 Neighbours 889 Anthony Hudson, Solicitor 35

Prisoners 907 Will Hutchins, Prisoners Legal Service, Legal Aid NSW

36

Privacy 927 Philippa O’Dowd, Privacy NSW Andrew Solomon, Office of the Federal Privacy Commissioner

37 Refugees 945 Christian Carney, Refugee Advice & Casework Service 38 Same-sex couples and their families 957 Ghassan Kassisieh, Solicitor Jenni Millbank, University of Technology, Sydney 39 Sexual offences 993 Women’s Legal Services NSW 40 Social security entitlements 1011 John Stannard, Caxton Legal Centre 41 Superannuation 1029 John Berrill, Solicitor 42 Taxation 1053 Philip Burgess, UNSW, Sydney 43 Veterans’ entitlements 1077 Anastasia Toliopoulos, Veteran’s Advocacy Service 44 Victims’ compensation 1083 John McAteer, Victims Compensation Tribunal 45 Wills, estates and funerals 1095 Trudy Coffey, Director of Social Work, Liverpool Hospital Rosemary Long, Solicitor



Glossary

Index

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22

driving and traffic law

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Driving offences Major offences Other driving and traffic offences

552 552

Driving licences Types of licence Cancellation and suspension of licences

559 559

Parking Parking offences Common parking problems

563 563 564

558

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552 The Law Handbook

Driving offences Criminal sanctions to enforce the safe use of motor vehicles are available under: • the Crimes Act 1900 • the Road Transport (General) Act 2005 • the Road Transport (Drivers Licensing) Act 1998 • the Road Transport (Safety and Traffic Management) Act 1999 • the Road Transport (Vehicle Registration) Act 1997

• the regulations associated with each of the Road Transport Acts • the Australian Road Rules 1999. The more serious offences under these Acts are classified as major offences, breaches of which are generally dealt with by the courts (Road Transport (General) Act s.25). Other offences are generally dealt with by the imposition of fines and demerit points.

Major offences Major driving offences include: • any crime or offence where death or grievous bodily harm is caused (Crimes Act ss.33, 52A, 53, 54; Road Transport (Safety and Traffic Management) Act s.42) • driving furiously or recklessly (Road Transport (Safety and Traffic Management) Act s.42) • driving in a manner or at a speed dangerous to the public (Road Transport (Safety and Traffic Management) Act s.42(2)) • menacing driving (Road Transport (Safety and Traffic Management) Act s.43AA) • predatory driving (Crimes Act s.51A) • driving with the prescribed concentration of alcohol (Road Transport (Safety and Traffic Management) Act s.90) • driving under the influence of a drug or alcohol (Road Transport (Safety and Traffic Management) Act s.12) • refusing to undergo breath analysis or a drug test (Road Transport (Safety and Traffic Management) Act ss.15(4), 16, 29) • refusing to stop and render assistance (Road Transport (Safety and Traffic Management) Act s.70; Australian Road Rules) • aiding, abetting, counselling, procuring the commission of or being an accessory before the fact to any of these crimes or offences.

Penalties for second and subsequent offences While the penalties for these offences are severe, as a further deterrent penalties for second and further offences within five years are automatically higher (See Habitual traffic offenders on page 557). A third offence within that time can lead to the motorist being declared a habitual traffic offender under s.199 of the Road Transport (General) Act.

Offences causing death and serious injury A driver who causes the death of or seriously injures another person may face various charges. Offences under the Crimes Act include: • murder (s.18) • manslaughter (s.24) • aggravated dangerous driving occasioning death (s.52A) • aggravated dangerous driving occasioning grievous bodily harm (s.52A) • dangerous driving occasioning death (s.52A) • dangerous driving occasioning grievous bodily harm (s.52A). Offences under the Road Transport (Safety and Traffic Management) Act include: • negligent driving occasioning death • negligent driving occasioning grievous bodily harm (s.42).

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Murder A person who drives a motor vehicle with the intention of causing death or grievous bodily harm (that is, very serious injury) which actually results in someone’s death may be guilty of murder. The maximum penalty is life imprisonment. What is grievous bodily harm? There is no clear definition of grievous bodily harm, but courts treat it as a question of degree as to the seriousness of the injury, including any permanent or serious disfiguring.

Manslaughter A person who drives a motor vehicle in a criminally negligent way and causes the death of someone else is liable to be charged with manslaughter. What must be proved For the court to decide that criminal negligence is involved, it has to find a very high degree of carelessness (much higher than the normal degree of negligence in civil matters) showing a disregard for the life and safety of others. Manslaughter is an offence that must be tried before a jury, and the punishment may be imprisonment up to a maximum of 25 years. However, juries seem to be reluctant to convict drivers of manslaughter, so a driver in this situation is more likely to face one or more of the lesser charges. How offences involving death are dealt with A person charged with a driving offence involving death (other than the negligent driving offences – see below) first faces a committal hearing in the Local Court. If the magistrate decides there is enough evidence against the driver to prove the charge, the case is referred to the District Court for trial.

Dangerous driving offences Dangerous driving offences may be committed by the driver of a vehicle (including a horse-drawn vehicle) who was, when the death or grievous bodily harm occurred: • under the influence of alcohol or a drug, or • driving in a manner or at a speed dangerous to another person. The offence may occur on private or public land. Who may be affected by dangerous driving? Under the Crimes Act, the crime of dangerous driving may apply where the injured person:

• was a passenger in the vehicle being dangerously driven • was struck by the vehicle or something that was attached to it or fell from it • was struck by an object that had first been struck by the vehicle. Defences It is a defence against a dangerous driving charge to show that death or injury was not the driver’s fault; for example, that a pedestrian ran onto the road suddenly and without warning, giving the driver no chance to avoid them. Aggravated dangerous driving Aggravated dangerous driving is a dangerous driving offence that involves: • driving with a blood alcohol concentration in the high range • exceeding the speed limit by more than 45 kilometres per hour • attempting to escape a police pursuit. Negligent driving Negligent driving is an offence in which the driver fails to exercise the degree of care expected of a careful driver in the circumstances. The court will look at factors such as the type, use and condition of the road, and the actual and potential traffic on the road. Negligent driving charges can also be dealt with summarily in the Local Court (see below). How offences involving serious injury are dealt with A person charged with a driving offence involving serious injury may be dealt with in either the Local or District Court. Either the defendant or prosecution can elect to have the matter dealt with in the District Court. If the matter is dealt with in the District Court the procedure is the same as for offences involving death. If the matter is to be dealt with in the Local Court the person will be sentenced following a plea of guilty or the court will hold a hearing to determine the person’s guilt following a plea of not guilty.

Driving in a manner or at a speed dangerous to the public Driving in a manner dangerous to the public In determining whether someone is driving in a manner dangerous to the public, the court must make an objective assessment of a driver’s care and control of a vehicle (Road Transport (Safety and Traffic Management) Act s.42). The driver’s

Contact points and internet resources for this chapter begin on page 565

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554 The Law Handbook intention, or awareness of their manner of driving, is irrelevant. The test, which the prosecution must prove beyond reasonable doubt, is whether the driving created a danger to anyone present or likely to be present, even if the danger was only potential. What does manner mean? The word ‘manner’ covers all aspects of driving, including speeding, although a person may be charged separately with driving at a dangerous speed.

Driving at a speed dangerous to the public A charge of driving at a dangerous speed must also be proved beyond reasonable doubt. Whether danger exists will depend on all the circumstances of the case, including the condition of the road surface, the condition of the driver’s car, observance of traffic signals and so on.

• menacing driving (Road Transport (Safety and Traffic Management) Act s.43), which carries a penalty of up to two years’ imprisonment. All these offences also carry mandatory minimum periods of licence disqualification (see page 561). Predatory driving Predatory driving is engaging in conduct while in pursuit of or travelling near another vehicle that: • causes or threatens an impact involving the other vehicle, and • is intended to cause someone in the other vehicle actual bodily harm.

Driving over the speed limit

Menacing driving A person driving on a public street in a manner that menaces or is intended to menace another person with the threat of personal injury or damage to property may be convicted of the offence of menacing driving. The person being menaced need not be on a public street.

Exceeding the speed limit is not classified as a major offence, unless the driving is at a speed dangerous to the public. However, the Road Transport (Safety and Traffic Management) (Road Rules) Regulation includes special penalties for exceeding the speed limit by more than 30 kph and more than 45 kph (see the table on page 561). A safe speed is determined by the circumstances. Driving at the speed limit is not necessarily driving at a safe speed. Driving at the speed limit at night, or in rain or fog, for example, may not be safe.

Penalties In addition to the terms of imprisonment referred to above, a driver convicted of any of the offences under the Crimes Act is also liable to the same penalties as a motorist convicted of a high range alcohol offence (Road Transport (Safety and Traffic Management) Act s.9(4); Road Transport (General) Act s.188).

Menacing driving, predatory driving and similar offences These offences are found in both the Crimes Act and the Road Transport (Safety and Traffic Management) Act, and include: • maliciously causing grievous bodily harm (Crimes Act s.33), which carries a penalty of up to 25 years’ imprisonment • predatory driving (Crimes Act s.51A), which carries a penalty of up to five years’ imprisonment • driving wantonly, furiously or with wilful neglect causing harm (Crimes Act s.53), which carries a penalty of up to two years’ imprisonment • causing grievous bodily harm by any unlawful or negligent act (Crimes Act s.54), which carries a penalty of up to two years’ imprisonment

Conviction for a lesser offence A motorist who is charged but then acquitted of one of the major offences may nevertheless be found guilty of a less serious offence. For example, a person may be acquitted of a charge of aggravated dangerous driving occasioning death but be found guilty of either dangerous driving occasioning death or negligent driving occasioning death.

Prescribed concentration of alcohol offences It is an offence for a person to drive or try to drive a motor vehicle if the concentration of alcohol in their blood is more than the prescribed limit. What is the limit? The general prescribed limit is 0.05 grams of alcohol per 100 mL of blood. A special limit of 0.02 grams per 100 mL applies to drivers of: • public vehicles such as buses and taxis

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• vehicles carrying dangerous goods • vehicles over 13.9 tonnes. The limit for learner drivers and drivers holding provisional licences is zero.

Unless the driver can show, on the balance of probabilities, that the reading is incorrect, the court will accept a section 33 certificate as proof of the driver’s blood alcohol concentration.

Drinking while driving It is also an offence to consume alcohol while driving a motor vehicle.

Refusing a test It is an offence to refuse to undergo a breath analysis. Failure to provide a sufficient sample is regarded as a refusal and is therefore an offence. The police usually allow a driver two or three attempts to give a sample before charging them.

Ranges of alcohol concentration Blood alcohol concentrations are described as special, low, medium and high, with each range carrying a higher penalty than the one below (see page 561). How much alcohol? On average, men can drink three middies (275 mL glasses) of beer or the equivalent in one hour before exceeding the limit. Women, on average, can only drink the equivalent of two middies. The special range could be exceeded after only one middy. After the first hour, the level is maintained by drinking one middy an hour, or less. These figures can vary significantly from one individual to another.

Breath tests Police have the power to require anyone driving or attempting to drive a vehicle to undergo a breath test (Road Transport (Safety and Traffic Management) Act s.13). The test normally involves the police taking a sample of the driver’s breath using a device known as a Lyons Alcolmeter SD2. When a breath analysis is required If the breath test shows a reading of 0.05 (or 0.02 for special range drivers) or higher, the person is arrested and taken to a nearby police station or mobile van for a breath analysis. If the analysis confirms that the driver has exceeded the limit, a court attendance notice is issued showing the amount by which the driver exceeded the limit at the time of the offence. Altering the reading It is an offence for anyone to alter their blood alcohol reading after being breath-tested and before undergoing breath analysis. The section 33 certificate The breath analysis is recorded on what is called a section 33 certificate. The certificate can be tendered in court and, if the analysis was done within two hours of the driver last having driven or attempted to drive, the court will consider it to be the reading at the time of either of those events.

When police cannot administer a breath test or analysis There are some restrictions on the powers of the police in relation to breath tests and analyses. They may not ask a person to undergo a breath test or breath analysis if: • the person is seriously injured and the test may be dangerous • the person is at home • it is two hours or more since the person last drove or attempted to drive. In these circumstances the police may still charge the person with driving under the influence of a drug or alcohol (see below), but not with a prescribed concentration of alcohol offence. Blood tests In most circumstances a person over 15 who is admitted to hospital after an accident is required to undergo a blood test to determine their blood alcohol level (s.20).

Offences involving drugs other than alcohol It is an offence for a person to drive or attempt to drive a motor vehicle while any prescribed illicit drug is present in their oral fluid, blood or urine (Road Transport (Safety and Traffic Management) Act s.11B). Oral fluid tests Police can require anybody driving or attempting to drive a motor vehicle to undergo one or more oral fluid tests (s.18B). When a sample must be provided If an oral fluid test shows that there may be one or more prescribed illicit drug in the person’s oral fluid, they are arrested and taken to a nearby police station or other place decided by the officer to supply an oral fluid sample (s.18D). The oral fluid sample is placed in a container, fastened, sealed, marked and labelled. A certificate

Contact points and internet resources for this chapter begin on page 565

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556 The Law Handbook is then given to the person providing the sample to enable the sample to be identified. The sample is then sent to a laboratory prescribed by the regulations for testing. Altering the reading It is an offence for any person to alter the amount of a prescribed illicit drug in a person’s oral fluid before an oral fluid test, or after an oral fluid test and before supplying an oral fluid sample (s.18G). The section 33B certificate The drug analysis is recorded on a section 33B certificate. The certificate can be tendered in court and, if the oral fluid sample was taken within two hours of the event that entitled the officer to request it, the court will accept it as proof of the reading at the time of that event. Refusing an oral fluid test It is an offence to refuse to undergo an oral fluid test. Failure to provide an oral sample is regarded as a refusal and is therefore an offence (s.18D). When police cannot administer an oral fluid test There are some restrictions on the power of police in relation to oral fluid tests and oral fluid samples. Police may not ask a person to take an oral fluid test or provide a sample if: • the person is admitted to hospital for medical treatment, unless the medical practitioner in immediate charge of the treatment is notified and does not object • the person is severely injured, and the procedure may be dangerous • it has been two hours or more since the incident that allowed the police to test • the person is at home. Blood and urine tests Police may require a person who has attempted to provide an oral fluid sample but been unable to do so to provide a blood or urine sample (s.18E). Blood or urine samples must be taken within four hours of the relevant event.

Driving under the influence of a drug or alcohol It is an offence for a person to drive or attempt to drive while under the influence of a drug or alcohol (Road Transport (Safety and Traffic Management) Act s.12). Under the Act, drug means a prohibited drug within the meaning of the Drug Misuse and

Trafficking Act 1985, and any other substance prescribed as a drug. Common drugs included in these categories are amphetamines, Indian hemp (including cannabis), barbiturates, heroin and most sedatives (Serapax, Valium and so on). How much is too much? When a person is charged with driving under the influence of a drug or alcohol, the quantity taken is not the issue. What is relevant is the extent to which the drug or alcohol has affected the person’s ability to drive. How police judge The police assess the person for signs of being affected such as slurred speech, unsteadiness on their feet, glazing of the eyes and their general manner and demeanour. Assessment after a negative breath test Even if a breath test has proved negative, a person can be required to undergo a further assessment of their condition under some circumstances. Further assessment can be carried out if: • the police officer has a reasonable belief that the person is under the influence of a drug because of how they drove or attempted to drive, and • the assessment is carried out by a police officer at or near the place where the person took the breath test (Road Transport (Safety and Traffic Management) Act s.25). Taking samples The police may take a person to a medical practitioner to obtain a blood or urine sample (subject to the same restrictions as when they require a person to undergo a breath test or analysis – see When police cannot administer a breath test or analysis on page 555). Any blood or urine sample taken is divided into two parts. One is given to the driver, who has the right to have it independently tested. Insurance and alcohol-related convictions Most insurance policies covering damage to motor vehicles contain an exemption stating that the insurer is not liable to pay for damage if the driver was under the influence of a drug or alcohol at the time of the accident, whether this contributed to the accident or not (see chapter 31, Insurance). However, the fact that a person has submitted to a breath test or breath analysis or has been

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convicted of a prescribed concentration of alcohol offence cannot by itself be used by the insurer to exclude liability (s.37). Any prescribed concentration of alcohol conviction must be notified to the insurance company, which may use it as a reason to refuse to cover the driver or to raise the premium. The effect of alcohol-related convictions on insurance is discussed in more detail in chapter 31, Insurance.

Failing to stop and give assistance If someone is injured in an accident, the driver must stop and give assistance. It is an offence not to do so, and the driver may be liable to the same penalties as those applying to a high range prescribed concentration of alcohol offence (Road Transport (Safety and Traffic Management) Act s.70). A driver involved in an accident must stop and, if requested, give their name and address to any other person involved. They must also report the accident to the police within 24 hours if someone has been injured or a vehicle is towed away.

for three years will not commence their five-year disqualification as a habitual offender until the prescribed concentration of alcohol penalty has been served. The person is effectively disqualified for eight years. Offences that were proved but dismissed For the purposes of determining whether a third offence has occurred within five years, an offence that was proved but dismissed under s.10 of the Crimes (Sentencing Procedure) Act 1999 is counted as a conviction. The court’s discretion The court has certain discretions, and may quash the declaration if it determines that the disqualification imposed is a disproportionate and unjust consequence, having regard to the total driving record of the person and the special circumstances of the case. It also has discretion to: • reduce the disqualification period, but not below two years • increase the period to a lifetime disqualification. Driver education programs

For more about the driver’s obligations at the scene of an accident, see chapter 3, Accidents and compensation.

There are a number of driver education programs that can be completed before sentencing or as part of a sentence for serious driving matters.

Traffic Offenders Program

Habitual traffic offenders Someone may be declared a habitual traffic offender if they have been convicted of three relevant offences in five years (Road Transport (General) Act ss.198–203), including: • any major offence • driving in excess of 45 kph over the designated speed limit • driving for the second time without ever having been licensed • driving while disqualified • having been convicted of similar offences in another state. Penalties Anyone declared a habitual traffic offender is automatically disqualified from driving for five years. Accumulated periods of disqualification The automatic period of disqualification is in addition to any other period of disqualification. For example, a person whose third serious offence in five years is a mid-range prescribed concentration of alcohol offence for which they are disqualified

People are referred to this program by the court before being sentenced. Completion of the program is most beneficial for first-time offenders, who may thus avoid a conviction, and multiple offenders who are facing custodial sentences.

Sober Drivers Program This program is for adult offenders convicted of a second drink driving offence in a five-year period. It is a nineweek educational program delivered by the Probation and Parole Service. Attendance is usually a condition of a good behaviour bond imposed by the court.

Alcohol Interlock Program People convicted of drink driving offences (except first time low range and special range offences) can ask to participate in this program. An electronic device, which is wired to the ignition, prevents the car from being started unless the driver passes a breath test. People on the program have to serve at least half the minimum disqualification period for their offence and then a further minimum period of one to four years (depending on the offence) on the program. The device records all failed attempts to start the car, and the data is monitored regularly. Repeat failed attempts may result in alcohol counselling or cancellation of the program.

Contact points and internet resources for this chapter begin on page 565

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558 The Law Handbook

Information that must be given to police on request A person normally has the right to remain silent when questioned by police; however, a driver must produce their licence and state their name and address if requested to do so by a police officer (Road Transport (General) Act s.125).

Where the owner is not the driver A person who allows their vehicle to be driven by someone else is expected to know who used the vehicle and when it was used.

If a driver is suspected of having committed a driving offence, the owner of the vehicle may be requested to identify the driver and, if unable to do so, may be found guilty of an offence even if the driver is later found to be innocent (s.173). The owner will not be liable if for some reason the driver’s identity is not known; for example, if the vehicle has been used without the owner’s knowledge and consent.

Other driving and traffic offences Less serious offences usually involve a breach of the traffic regulations, or road rules. The road rules Rules dealing with the control and right of way of motor vehicles in various situations likely to be met on the road are set out in the Regulations to the Road Transport (Safety and Traffic Management) Act, the Road Transport (General) Act and the Australian Road Rules. Details of these rules can be obtained from the Roads and Traffic Authority (RTA). Penalties for breaching the traffic regulations may include loss of licence points (see Suspension and cancellation by the RTA – the points system on page 560) as well as fines.

All traffic offences apart from the major offences discussed above are dealt with by the issue of either: • a court attendance notice, or • a traffic infringement notice.

Court attendance notices If a person is issued with a court attendance notice for a driving offence, they must appear before a Local Court. The notice must be issued within six months of the alleged offence.

Traffic infringement notices If the penalty for the offence does not involve a term of imprisonment, the police may issue the driver with a traffic infringement notice. The driver then has the option of:

• paying the fine specified in the notice • challenging the infringement notice, if the driver believes they are not guilty of the offence. Challenging an infringement notice A person who wishes to challenge an infringement notice should request that the matter be either: • reviewed by the Director of the Infringement Processing Bureau, or • referred to the Local Court. Requesting a review A review must be requested before the time for payment has expired. The request for the review should set out: • the reasons for the request • details of the person’s driving record. The reasons should consist of facts that demonstrate either: • innocence, or • extenuating circumstances that may be sufficient excuse for committing the offence. The review usually takes about six weeks. Referral to the Local Court If the matter is heard in the Local Court and the driver is unsuccessful, the court may impose a fine higher than that in the traffic infringement notice. Failure to respond to an infringement notice If the person does not pay the fine or refer the matter to court, the State Debt Recovery Office, in cooperation with the RTA, may move to first suspend and then cancel the person’s driver’s licence or car registration, and will not permit their reissue until the fine has been paid (Fines Act 1996).

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Street and illegal drag racing A person who operates a motor vehicle on a public street in such a manner as to cause sustained loss of traction of the wheels or for a speed competition may be fined up to five penalty units. If some flammable liquid is used under the tyres, the penalty may be as high as seven penalty units.

A person who participates in a street race may be fined 20 penalty units. Under s.218 of the Road Transport (General) Act, police have the power to impound the vehicle. A court may, at its discretion where there is good reason to do so, reduce these penalties (Road Transport (Safety and Traffic Management) Act s.41).

Driving licences Types of licence The Roads and Traffic Authority (RTA) issues coloured driver’s licences with a photograph of the licence holder. The colour of a licence indicates its status, as follows: • learner’s licence – green • provisional licence – green and red • probationary licence – black • unrestricted licence – silver • unrestricted license held by a driver with a five-year good driving record – gold. Provisional licences A novice driver is issued with a two stage provisional licence consisting of a P1 and a P2 licence (Road Transport (Driver Licensing) Regulation cll.15, 15A). Either class of probationary licence may be cancelled if the driver incurs four or more demerit points (see Suspension and cancellation by the RTA – the points system on page 560).

The P1 licence A P1 is issued for a period of 18 months, during which time the holder must display a red P plate on the front and rear of the vehicle. Under cl.38(5) of the Road Transport (Safety and Traffic Management) Regulation, the holder must not drive at a speed in excess of 90 kph. The P2 licence A driver who has satisfied the conditions of the P1 can apply for a P2. The P2 licence is issued for 30 months, during which the holder must display a green P plate on the front and rear of the vehicle. The maximum speed at which the holder can drive is 100 kph (cl.38(6)). Probationary licences A probationary licence is issued to a person when they renew their licence after a period of disqualification. It is issued on the condition that the driver does not incur two or more demerit points over a 12-month period.

Cancellation and suspension of licences A driver’s licence may be cancelled: • by a court, when it disqualifies a driver from driving, or • by the RTA, when it decides that a person is temporarily unfit to hold a licence because of

their health or medical condition or in the interests of public safety (see Suspension and cancellation by the RTA – the points system on page 560), or

Contact points and internet resources for this chapter begin on page 565

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560 The Law Handbook • by the RTA, for the non-payment of fines (see Failure to respond to an infringement notice on page 558). If a person’s licence is cancelled A person must immediately surrender a cancelled licence, and may be charged if they do not. Driving while unlicensed It is an offence for a person to drive without a licence or while their licence is suspended or cancelled. The penalties are severe. A driver remains a cancelled driver, and subject to the penalties for cancelled drivers, after the disqualification period has expired and until their licence is renewed. Suspension by police The police may also suspend a licence in certain circumstances (Road Transport (General) Act ss.204, 205). The licence can be suspended for up to 14 days if the driver is: • in the opinion of police, incompetent, reckless or careless, or • found to be under the influence of liquor. Police may recommend to the RTA that the period be increased. The person must surrender their licence to the police if it has been suspended by them. If the person has been charged with certain alcohol-related offences Under s.205 of the Road Transport (General) Act, the police may, pending the hearing and determination or withdrawal of the charge, suspend the licence of anyone charged with: • a mid-range or high-range prescribed concentration of alcohol offence, or • wilfully altering or obstructing the taking of a blood test. Effect on any period of disqualification The suspension may count towards any period of disqualification that the court may later impose, including any minimum period. Review and appeal The person may apply to the Administrative Decisions Tribunal to review the suspension. Lodging the appeal does not stay the suspension. The tribunal may not lift the suspension unless it is satisfied that there are exceptional circumstances justifying it (s.241).

Appeal against cancellation If a person’s licence has been cancelled or suspended by RTA administrative action, they have 28 days to appeal to the Local Court. Suspension and cancellation by the RTA – the points system The RTA may cancel a person’s licence for any period it thinks is appropriate in the public interest.

What the RTA takes into account Before cancelling a person’s licence, the RTA considers their driving record, using the points system as an administrative guide.

The points system The penalty, or part of the penalty, for many driving offences involves demerit points. Under the Road Transport (Drivers Licensing) Regulation cl.36 and Sch.1, an offender is given a fixed number of demerit points for each of the offences listed on page 562. The points are doubled over a long weekend when either Friday or Monday, or both, are declared public holidays. The number of demerit points that may be received before further action is automatically taken, or considered, depends on the type of licence.

When a licence will be suspended If a person incurs from 12 to 15 demerit points within a period of three years, their licence will be suspended for three months. If a person incurs from 16 to 19 points within a period of three years, the suspension period is four months. If a person incurs from 17 to 20 points within a period of three years, the suspension period is five months.

If the licence has not been cancelled before If the person’s licence has not been cancelled before, the RTA may offer them a probationary licence instead.

If further demerit points are incurred If the driver incurs two or more demerit points while on a probationary licence, the RTA will suspend it for a period that is twice the original suspension period and then issue another probationary licence.

Accumulated periods of suspension Any periods of suspension that result from incurring demerit points are added on to the automatic suspension period, if there is one, for the offence that brought the demerit point total over the suspension threshold. For example, under the points system, a driver incurs six points for exceeding the speed limit by more than 45 kph. If that brings the driver’s total demerit points to 12, the RTA may take action to suspend the licence for three months. This three-month period is added to the automatic period prescribed by the legislation for the offence (three months), and the person’s licence is suspended for a total period of six months.

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22 Driving and traffic law 561

Maximum penalties and disqualifications under the road transport legislation for offences committed after 1 October 1998 Section

Offence

First offence

Second or subsequent offence

Road Transport (Safety and Traffic Management) Act 42(1)(a)

negligent driving occasioning death

30 penalty units and/or 18 months’ jail; disqualification for 3 years (min. 1 year)

50 penalty units and/or 2 years’ jail; disqualification for 5 years (min. 2 years)

42(1)(b)

negligent driving occasioning grievous bodily harm

20 penalty units and/or 9 months’ jail; disqualification for 3 years (min. 1 year)

30 penalty units and/or 1 year’s jail; disqualification for 5 years (min. 2 years)

42(1)(c)

negligent driving

10 penalty units

42(2)

driving furiously, recklessly or at a speed or in a 20 penalty units and/or 9 months’ jail; manner dangerous to the public disqualification for 3 years (min. 1 year)

30 penalty units and/or 1 year’s jail; disqualification for 5 years (min. 2 years)

43(1)

intent to menace

30 penalty units and/or 18 months’ jail; disqualification for 3 years (min. 1 year)

50 penalty units and/or 2 years’ jail; disqualification for 5 years (min. 2 years)

43(2)

possibility of menace

20 penalty units and/or 12 months’ jail; disqualification for 3 years (min. 1 year)

30 penalty units and/or 18 months’ jail; disqualification for 5 years (min. 2 years)

9(1)

driving with a special range concentration of 10 penalty units; disqualification for alcohol 6 months (min. 3 months)

20 penalty units; disqualification for 1 year (min. 6 months)

9(2)

driving with a low range concentration of alcohol

20 penalty units; disqualification for 1 year (min. 6 months)

9(3)

driving with a middle range concentration of 20 penalty units and/or 9 months’ jail; alcohol disqualification for 1 year (min. 6 months)

30 penalty units and/or 1 year’s jail; disqualification for 3 years (min. 1 year)

9(4)

driving with a high range concentration of alcohol

30 penalty units and/or 18 months’ jail; disqualification for 3 years (min. 1 year)

50 penalty units and/or 2 years’ jail; disqualification for 5 years (min. 2 years)

11B

driving with certain drugs (other than alcohol) in oral fluid, blood or urine

10 penalty units; disqualification for 6 months (min. 3 months)

20 penalty units; disqualification for 12 months (min. 6 months)

18D(2)

refusing to submit an oral fluid sample

30 penalty units; disqualification for 3 years 50 penalty units and/or 18 months’ jail; (min. 6 months) disqualification for 5 years (min. 12 months)

18G(2)

wilfully altering a prescribed illicit drug in a 30 penalty units; disqualification for 3 years 50 penalty units; disqualification for person’s oral fluid (min. 6 months) 5 years (min. 12 months)

13

refusing to submit to a breath test

10 penalty units; disqualification for 6 months (min. 3 months)

20 penalty units

15(4), 16 refusing to submit to a breath analysis or 30 penalty units and/or 18 months’ jail; wilfully altering the concentration of alcohol disqualification for 3 years (min. 1 year)

50 penalty units and/or 2 years’ jail; disqualification for 5 years (min. 2 years)

22(1)

obstructing a medical practitioner or nurse trying to take a blood sample

20 penalty units

22(2)

preventing a medical practitioner or nurse 30 penalty units and/or 18 months’ jail; taking a blood sample or wilfully altering the disqualification for 3 years (min. 1 year) sample

12(1)

driving under the influence of alcohol or a drug

20 penalty units and/or 9 months’ jail; disqualification for 1 year (min. 6 months)

disqualification for 3 years (min. 1 year)

29

refusing to submit to a blood or urine test or 30 penalty units and/or 18 months’ jail; wilfully altering tests disqualification for 1 year (min. 6 months)

disqualification for 3 years (min. 1 year)

70

failing to stop and render assistance

50 penalty units and/or 2 years’ jail; disqualification for 5 years (min. 2 years)

30 penalty units and/or 18 months’ jail; disqualification for 3 years (min. 1 year)

Road Transport (Safety and Traffic Management) (Road Rules) Regulation r.154(5)

exceeding speed limit

r.154(3)

exceeding speed limit by more than 45 kph 20 penalty units (30 for heavy vehicles); disqualification for 3 months or such longer period as the court orders

20 penalty units

r.154(4)

exceeding speed limit by more than 30 kph 20 penalty units; disqualification for 1 month but less than 45 kph or such longer period as the court orders

Road Transport (Drivers Licensing) Act 25(1)

driving while unlicensed

20 penalty units

25(2)

driving while never having been licensed

20 penalty units

30 penalty units and/or 18 months’ jail

Contact points and internet resources for this chapter begin on page 565

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562 The Law Handbook

Section

Offence

First offence

Second or subsequent offence

25A

driving while disqualified, cancelled or suspended (but not fine default suspension)

30 penalty units and/or 18 months’ jail; disqualification for 1 year commencing when current disqualification, cancellation or suspension ends

50 penalty units and/or 2 years’ jail; disqualification for 2 years commencing when current disqualification, cancellation or suspension ends

25A

driving whilst suspended – fine default

30 penalty units and/or 18 months’ jail; disqualification for 3 months commencing when suspension ends

50 penalty units and/or 2 years’ jail; disqualification for 2 years commencing when current suspension ends

List of demerit points: Road Transport (Drivers Licensing) Regulation Schedule 1 Part 1 • • • • • • • • • •

• • • • • • • • • • • •

exceeding speed limit by over 45kph – 6 exceeding speed limit by over 30kph – 4 exceeding speed limit by over 15kph – 3 exceeding speed limit by under 15 kph – 2 disobeying traffic light – 3 disobeying stop or give way sign or line or police directing traffic – 3 failing to give way – 3 failing to stop or give way to pedestrian, children’s, or level crossing – 3 driving with unrestrained passengers under 16 – 3 using vehicle contrary to defect notice: – in the case of a major defect – 3 – in the case of a minor defect – 1 driving on wrong side of dividing lines – 3 driver not wearing seat belt – 3 motorcycle rider not wearing approved motorcycle helmet – 3 unlawfully driving past safety zone or tram or failing to give way to pedestrian crossing near stopped tram – 3 negligent driving – 3 improper passing or overtaking – 2 changing direction or stopping without signalling – 2 turning improperly – 2 failing to keep left – 2 failing to dip headlights – 1 following too closely – 1 driving at night/dark without headlights on – 1

Part 2 • conduct associated with street racing – 3 • not stopping and supplying particulars at scene of accident – 3 • disobey give way sign on bridge/narrow road – 3 • driving vehicle towing excess weight – 2 • riding motorcycle or motor trike towing other vehicle – 2 • not complying with conditions of licence – 2 • use vehicle when child is in child restraint in front seat with air bag fitted – 3 • drive vehicle with 1 unrestrained passenger – 3 • drive vehicle with 2 or more unrestrained passengers – 6 • drive vehicle not wearing seat belt and with one unrestrained passenger – 6 • drive vehicle not wearing seat belt and with 2 or more unrestrained passengers – 9 • ride motorcycle with one passenger not wearing helmet – 3 • ride motorcycle with two or more passengers not wearing helmet – 6

• ride motorcycle without helmet and passenger not wearing helmet – 6 • ride motorcycle without helmet and 2 or more passengers not wearing helmet – 9 • disobeying ‘Trucks and buses low gear’ sign – 3 • driving contrary to roundabout road rules – 3 • failing to drive in bus lane or in truck lane where required – 3 • drive in bus lane – 3 • drive in T-way lane – 3 • drive in truck lane – 3 • disobeying overhead lane control device – 3 • crossing continuous line separating marked lanes – 3 • not driving within single marked lane or line of traffic – 3 • overtaking or passing stationary vehicle at pedestrian or children’s crossing – 3 • increase speed while being overtaken – 3 • long vehicle following other long vehicle too closely – 3 • making unlawful U turn – 2 • not giving proper signal when pulling out from side of road – 3 • not having proper control of vehicle – 3 • unauthorised carriage of pillion passenger on motorcycle or motor trike – 2 • passing bus at speed over 40 kph: – where speed exceeds 85 kph – 6 – where speed exceeds 70 kph – 4 – where speed exceeds 55 kph – 3 – where speed exceeds 40 kph – 1 • drive on/over continuous white line – 4 • approach pedestrian crossing too quickly – 3 • start or drive vehicle with undue noise/smoke – 2 • use hand held mobile phone while driving – 3 • drive motor vehicle with sound system that emits offensive noise – 2 • enter level crossing when warning bells/lights operating – 3 • enter level crossing when gate, boom or barrier is closed, opening or closing – 3 • enter level crossing when train or tram is on or entering the crossing – 3 • enter a level crossing when a train or tram is approaching the crossing –3 • enter a level crossing when crossing or road beyond is blocked – 3 • fail to leave level crossing – 3 • learner or P1 or P2 driver drive unrestrained – 3 • learner or P1 or P2 driver drive with unrestrained passenger – 3 • drive with person in the boot – 3 • consume alcohol while driving – 3

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Parking Parking offences Parking restrictions are imposed or created by both traffic regulations and parking signs.

Parking restrictions Restriction by traffic regulations Traffic regulations restrict parking in some places; for example: • on an intersection, or within six metres of the property line of an intersection • within 18 metres on the approach side and nine metres of the departure side of a bus stop • within nine metres of the approach side of a pedestrian crossing • on a curve or hill when the view to the rear is not clear for at least 50 metres • in metered zones and where council car-parking time limits operate. Restriction by traffic signs Parking signs include: • ‘No Parking’, which means that a vehicle may not park except when actually picking up or setting down people or goods • ‘No Standing’, which means that a vehicle may not stop except when picking up or setting down people • ‘No Stopping’, which means that a vehicle may not wait at the kerb for any reason • ‘Clearway’, which means that a vehicle may not stop at the kerb for any reason, except that a bus, taxi or hire car may stop to pick up or set down passengers • ‘Loading Zone’, which means that a truck may stand for up to 30 minutes or a station wagon for 15 minutes when actually picking up or setting down goods.

Parking tickets Receiving a ticket Where a driver has overstayed in a parking area or parked in a restricted area (see above), a ticket may be issued in person, through the post or by being left on or attached to the offending vehicle. People who may issue parking tickets are:

• the police • a parking patrol officer (special constables employed by the Commissioner of Police) • a council ordinance inspector. The ticket will show a fine to be paid within 21 days. If the driver believes there was no offence A driver who believes that no parking offence was committed (for example, a driver who believes their car was parked in a two-hour zone for less than two hours but receives a ticket for overstaying) may contest the matter in the Local Court. Get legal advice! Challenging a parking ticket can be expensive and timeconsuming, and may expose the driver to higher penalties and costs if it is unsuccessful. It is advisable to obtain legal advice from a chamber magistrate or community legal centre before deciding to contest a parking ticket.

Reasons for contesting a parking ticket There may be a very good reason for contesting a parking ticket. In some cases, the matter may be quickly resolved. For example, if the offence occurred while the vehicle was stolen or being used illegally, and the theft or illegal use has been reported to police, a telephone call to the Infringement Processing Bureau is usually enough to end the matter. If no report was made, the reasons for this and the circumstances of the theft or illegal use must be set out in a statutory declaration. If the owner was not the driver If someone else was in charge of the vehicle when the ticket was received, and the owner wishes that person to pay the fine, the owner should send a statutory declaration to the Director, Infringement Processing Bureau, setting out the name and address of the person and the circumstances in which they came to be in charge of the vehicle. If the bureau rejects the explanation, the owner may challenge the ticket in the Local Court.

Contact points and internet resources for this chapter begin on page 565

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564 The Law Handbook

Common parking problems Blocked driveways It is an offence to park a vehicle in a way that obstructs traffic or ‘unreasonably’ inconveniences someone else. This includes parking across a driveway. A person whose driveway is blocked by a vehicle may report the matter to the police and request that a ticket be issued. Police have no power to remove the vehicle.

Difficulty parking near home If a person has difficulty parking close to their home, and this is due to an illegally parked vehicle blocking access, the vehicle should be reported (see Blocked driveways above). Residents’ parking schemes Some councils reserve street parking for local residents by restricting non-residential parking to certain times of the day, or limiting non-resident parking to one or two hours while residents have unlimited parking. In these areas, local residents can obtain a sticker to attach to their vehicle, indicating their right to unrestricted parking.

Proof of residence (such as a rates notice) and, usually, payment of a fee is required to obtain a sticker. If there is no residents’ parking scheme People having trouble parking in their street, especially in areas where there is little off-street parking, should contact the council and suggest that a residential parking scheme be set up, or their street be included in an existing scheme. It is often a good idea to join with other residents and make a joint submission to council.

Abandoned vehicles The Impounding Act 1993 gives wide powers to councils to deal with abandoned vehicles. If the vehicle appears to be unregistered and worth less than $500, the council may tow it away and destroy it. In other cases, the council may ask the police for the name and address of the last registered owner and then give that owner 28 days’ written notice to remove it. If the vehicle is not removed within 28 days, it may be impounded and sold at public auction, and council costs deducted from any money received.

24

e m p loy m e n t

NSW Industrial relations law The employment relationship Minimum conditions and entitlements Discrimination in employment Health and safety at work Unions Termination of employment Federal industrial relations law Workplace regulation Conditions and entitlements Termination of employment

LawHandbookPrelims.indd 24

586 586 587 595 596 597 599

604 604 605 608

9/06/09 2:31 PM

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586 The Law Handbook This chapter deals with the laws applying to the workplace in NSW under both federal and state legislation. Australian employees work within a sometimes complicated framework of formal industrial relations, and there can be an overlap of entitlements under federal and state laws. To work out what entitlements apply, an employee must establish whether they are covered by a federal or state award or agreement. On

27 March 2006 the Commonwealth Workplace Relations Amendment (Workchoices) Act 2006 took effect, significantly increasing the coverage of the federal industrial legislation. Information on whether the state or federal legislation applies to a particular employment relationship can be obtained by phoning the relevant department’s award line.

NSW industrial relations law There is no single law applying to workplaces in NSW. This section concentrates on the minimum conditions of employment under NSW laws.

Generally speaking, individual agreements, written or verbal, must improve on these minimum conditions.

The employment relationship Types of employment relationship There are many different types of employment relationships ranging from permanent employment (part-time or full-time) to temporary or fixed-term employment to casual employment, piecework, outwork and so on. The most common legal basis for working relationships is that of employee and employer, but there may be an employment relationship even where the person being employed is retained as an independent contractor. Other types of legal work relationship While most work is performed under an employment relationship, there are other types of legal working relationships. These generally involve rights and obligations different from those arising in an employment relationship. Examples of other working relationships include principal and contractor, bailor and bailee (for example, in the taxi industry), and voluntary work.

People deemed to be employees The NSW Industrial Relations Act 1996 deems some people to be employees who might otherwise not be regarded as such, including milk vendors,

bread vendors, cleaners, carpenters, joiners, bricklayers, painters, outworkers in the clothing trade, timber cutters and suppliers, plumbers, drainers, plasterers, blinds fitters, council swimming centre managers and supervisors, ready-mix concrete truck drivers and RTA truck drivers (Sch.1).

Rights and obligations The employment relationship sets up various rights and obligations. Many of these are fixed by laws and regulations; others have developed under the common law. This section outlines some of the basic rights and entitlements of employees in NSW, and how these can be protected under NSW industrial relations laws, primarily the Industrial Relations Act. Special provisions There are special laws covering: • workers in the public sector • apprentices and certain categories of trainees, and • employees unable to obtain work at the usual rate of pay (because of a disability, for example).

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24 Employment 587

Finding out about entitlements Copies of relevant industrial instruments and some work-related legislation are supposed to be displayed at all workplaces, or given to employees on request. These requirements are frequently ignored by employers. However, it is essential for employees to know what their entitlements are if there is a dispute.

Industrial instruments Industrial instruments can be purchased from the NSW Office of Industrial Relations, or accessed free of charge through its website.

Acts of parliament Copies of Acts of parliament may be viewed free of charge on www.austlii.edu.au.

Other sources of information Workers can also obtain information about industrial instruments from the Office of Industrial Relations award enquiry service, and through their union.

Victimisation is illegal It is illegal for employers to dismiss or victimise employees who question or raise complaints about their entitlements.

Minimum conditions and entitlements Industrial instruments Industrial instruments are legally binding agreements and decisions (such as awards and enterprise agreements) that set minimum wages and conditions for employees in particular industries, occupations and workplaces. The ‘no net detriment’ test Enterprise agreements struck in NSW must be approved by the NSW Industrial Relations Commission and must pass the ‘no net detriment’ test – that is, the commission must be satisfied that they: • do not make employees any worse off overall than under a comparable award, and • comply with anti-discrimination provisions.

Payment of wages Rights, obligations and remedies concerning the payment of wages are set out in industrial instruments and legislation. Some of the more important general obligations in NSW are discussed below. Common problems in this area are: • underpayment • illegal deductions by employers, and • different interpretations of entitlements. Pay-slips Under the Industrial Relations Act and the NSW Industrial Relations (General) Regulation 2001, employers must give employees written particulars about their pay, including: • the employee’s name • if the rate of pay is set by an industrial instrument, the employee’s classification under that instrument

• the date of the payment • the period of employment to which the payment relates • the gross amount of pay (including overtime and other payments) • the amount paid as overtime, or information that will enable the employee to calculate the amount paid as overtime • the amount deducted in tax • the amount deducted as employee contributions for superannuation • details of any other deductions • the net amount paid. Keeping records It is a good idea for employees to keep written records concerning wages, hours, pay-slips, and so on, in case a problem arises.

Employment records kept by employers Employers must keep accurate time sheets and pay sheets for at least six years. Access to records An employee may inspect these records only if: • the employer agrees, or • a court or industrial tribunal gives permission. Government inspectors and authorised union officials may inspect them, and can do so on the employee’s behalf. Union officials must normally give an employer 24 to 48 hours notice, although this requirement can be waived by the Industrial Relations Commission or Industrial Registrar.

Contact points and internet resources for this chapter begin on page 610

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588 The Law Handbook Minimum wages Minimum wages vary across industries and occupations. Wages rates are specified in the relevant industrial instrument, and it is illegal for employers to pay amounts below the minimum specified, even if the employee agrees. What form can payment take? Employees are entitled to be paid their full wages (including overtime, allowances, and so on) in money. Employers may not, for example, make payment, in whole or part, in company vouchers or store credits, or board and lodging. It is also illegal for employers, directly or indirectly, to require wages to be spent in a particular way.

have been contacted by a union or an Office of Industrial Relations inspector. Taking court action If the matter is not resolved in this way, the claim may be prosecuted before the appropriate court or tribunal. There is also a small claims procedure before the Chief Industrial Magistrate’s Court, which may be used by both individuals and unions. If the employee is represented by a union in proceedings before the Industrial Relations Commission (for example in an unfair dismissal claim), underpayments less than $20,000 may be dealt with in a fairly informal way under special small claims procedures (s.380).

How can payment be made? Payment can be made either: • by cheque, or • by electronic funds transfer into the employee’s account if the industrial instrument allows it (most do), or the employee gives written permission.

What can be recovered? At the very least, employees are entitled to recover the minimum wage specified in the relevant industrial agreement plus allowances, overtime, commissions and so on.

Stand-down without pay Generally, employees can be stood down without pay if this is authorised by an industrial tribunal (because, for example, it is satisfied that the person cannot usefully be employed due to a problem the employer is not responsible for).

It does not matter if the employee agreed to work for less than the minimum conditions contained in the industrial instrument, or was working illegally (for example, without a work permit or without paying tax), though there may be other implications for people in these situations and they should seek legal advice. Generally, all employees are legally entitled to receive the full relevant minimum wage.

Apprentices and trainees Apprentices and trainees cannot lawfully be stood down. Suspension without pay Employees cannot usually be suspended without pay (for example, for disciplinary reasons), although some awards permit this. Stand-down or suspension with pay Employees can be stood down or suspended with full pay at the employer’s discretion. The period of a stand-down or suspension does not break continuity of service, and usually counts towards accruing service-related benefits such as leave and superannuation. Underpayment Legally, underpayment of wages creates a debt. If underpayment is alleged, the employee has up to six years to take action to recover the money from the time the entitlement accrues. Employers often pay or repay proper entitlements without any formal legal action once they

What if the employee agreed?

Wages paid by a contractor If a contractor is responsible for paying wages, the person who engaged the contractor must obtain a signed statement to the effect that there are no wages due when the job is over, and that the contractor’s employees have been fully paid. Otherwise, the person who engaged the contractor is personally liable for unpaid wages. Deductions from wages In general, employers may legally deduct or withhold money from wages only: • where they have clear lawful authority to do so (for example, for PAYG tax or a garnishee – a court order requiring the employer to deduct money from wages for such things as child support or debt repayments), or • from an employee’s termination pay if the employee took paid leave in advance or resigned without giving the required notice.

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24 Employment 589

Deductions authorised by the employee Other deductions from wages can be made only with the employee’s written permission (for example, for union membership fees, credit union contributions and medical insurance schemes). The employee’s permission can be withdrawn in writing at any time. In any case, if the employee authorises deductions, they must not generally be for the employer’s benefit; for example, deductions cannot be made to compensate the employer for loss or property damage caused by the employee. Unlawful deductions If amounts are unlawfully withheld or deducted from wages, the employee can commence recovery proceedings in industrial tribunals and courts. Advice and assistance is available from the NSW Office of Industrial Relations, the federal Department of Employment and Workplace Relations, or the relevant union. Overpayments An employer who alleges that an employee has been overpaid cannot lawfully make deductions without the employee’s consent. If the overpayment is not disputed, it is usual for a fair system of repayments to be negotiated. If it is disputed, the employer must take legal proceedings for recovery through the courts. Late payment Employees are entitled to be paid on time and, generally, in working hours. If intervals are not specified in the industrial instrument, employees can legally demand to be paid at least fortnightly. Where payment is normally made in advance If by custom or agreement employees are entitled to be paid in advance, the employer may not withhold the advance or make deductions from it for any reason. Termination pay Generally, all termination pay should be paid before the employee leaves the job, or within a reasonable time (for example, on the next day wages are usually paid). If termination pay is not collected, it is the employer’s responsibility to send the money to the employee within 30 days. If the employer does not know where the employee is, the money must be paid to the NSW Treasury, which holds it in trust until it is claimed by the employee.

Where to get help An employee who has not been paid their wages, has been underpaid, has had unlawful deductions taken from their wages or has problems with late payments should contact the NSW Office of Industrial Relations or their union.

Hours of work Provisions concerning hours of work vary greatly in different industries and occupations. However, there are certain minimum conditions that must generally be observed by all employers. Ordinary full-time hours For most workers in NSW, maximum full-time hours are eight per day, and 38 per week. Full-time hours in industrial instruments usually range from 35 to 40 per week, with a standard of eight (or less) to 12 per day. These are called ordinary hours. Overtime or shift rates are usually payable for work outside ordinary hours. Part-time hours Industrial instruments always specify the terms and conditions attaching to part-time work, such as the spread of ordinary part-time hours, pro rata entitlements and overtime entitlements. Part-time work agreements People employed under an industrial instrument may agree to work under a part-time work agreement. Part-time work agreements must include: • the employee’s entitlement to work part-time • the number of hours to be worked, the days on which they will be worked, and starting and finishing times • the classification applying to the work, and • the employee’s entitlement (if any) to return to full-time employment. Part-time work agreements must also comply with certain minimum conditions determined by the NSW Industrial Relations Commission, including, in most cases: • a minimum of three continuous hours each time the employee works • maximum weekly hours that are less than ordinary full-time hours (where this is not specified in the industrial instrument, maximum part-time hours are 37 per week) • the same minimum ordinary hourly rate as full-time employees under the industrial instrument (both for work under the part-time work agreement and for any

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590 The Law Handbook additional hours the employee agrees to work) • where the employee agrees to work weekly hours only one hour less than full-time hours fixed by the industrial instrument, all the benefits to which full-time employees are entitled under the instrument. The employer must give the employee a copy of the agreement, and send a copy to the NSW Industrial Registrar. Pay and conditions under such agreements are enforced in the same way as those under any other industrial instrument, such as an award or enterprise agreement. Spread of hours Employers usually have the right to decide starting and finishing times (spread of hours) within the range of ordinary hours specified in the industrial instrument. For example, if ordinary hours are between 8 am and 6 pm, the employer may set working hours between 9 am and 5 pm, but cannot insist that work commence at 7.30 am without paying overtime. Overtime ‘Wage’ and ‘salary’ have different meanings, although they overlap. Employees paid under an industrial instrument usually get wages, and are entitled to overtime rates for work outside or in excess of ordinary hours, or time off instead of pay. Employees on salaries are less likely to be entitled to overtime payments, because salaries are usually intended to cover all hours worked. Requirement to work overtime Employees may usually be required to work ‘reasonable’ overtime. What is reasonable is not defined; but the employee’s other commitments and their health and safety should be considered, as well as the requirements of the employer. Payment for overtime Overtime is paid at a higher rate than ordinary hours – usually from one-and-a-quarter times to double the ordinary hourly rate of pay. The calculation of overtime rates does not usually include shift penalties or weekend penalty rates (higher rates to compensate employees for working outside ordinary hours). Casual employees’ overtime rates usually include the casual loading (see below). Time off in lieu Industrial instruments may also provide for time off in lieu of overtime payments – that is, the

employee gets additional paid leave rather than a higher rate. The industrial instrument usually requires the time to be taken within a certain period, or be forfeited. Casual loadings Casual employees get an additional payment (loading) to compensate them for the lack of benefits enjoyed by permanent employees such as paid sick leave and paid public holidays. The amount is usually between 15% and 33% on top of the ordinary hourly rate.

Rest periods and free time Industrial instruments always specify conditions applying to: • meal breaks • adequate rest periods between shifts, and • periodic days off work. Industrial instruments usually require breaks of eight to ten clear hours between the completion of a shift (or overtime) and the start of the next working period, and between the end of one shift and the commencement of the next. Employees are usually entitled to such breaks – without loss of pay – even if the employee starts the next working period later than usual. If employees are required to return without the minimum break, overtime rates are usually payable until a break is provided. Meal breaks Meal breaks of between 30 and 60 minutes must be given to employees who work a certain number of hours straight (usually five hours or more, excluding tea breaks). If an employee works more than those hours without a meal break, they are usually entitled to be paid overtime until the meal break is taken. Meal breaks during ordinary hours are not usually paid. If more than two hours’ overtime is worked, however, employees are usually entitled to a paid meal break of 20 to 30 minutes, plus a meal or dinner money. Flexitime Many industrial instruments provide for adjustable working hours (flexitime). A flexitime system, like a conventional system, requires that a certain number of hours be worked per week; within certain limits, however, employees can decide when they will work those hours.

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Rostered days off Flexitime systems may allow for a rostered day off at regular intervals (for example, employees work a 19-day month or nine-day fortnight). Employers can allocate the day off, unless the industrial instrument specifies a particular day. The industrial instrument should be checked for what happens if a rostered day off falls on a public holiday, or the employee is sick that day.

Leave entitlements Minimum entitlements Entitlement to paid and unpaid leave varies, but certain minimum conditions generally apply for: • annual leave • long service leave • sick leave • parental leave • family/carer’s leave. Further entitlements Many industrial instruments provide better conditions than the minimum provisions discussed in this section, as well as other entitlements such as: • study leave • leave to attend union training courses • leave to undertake union business • bereavement leave • leave for jury duty • leave to attend English language classes.

Annual leave The NSW Annual Holidays Act 1944 specifies a minimum annual leave entitlement of four weeks’ paid leave each year for most employees in NSW (there are exceptions, such as public sector employees and federal award employees). The leave becomes due on each anniversary of employment, when it is said to be fully accrued. Eligibility Annual leave entitlements apply to full-time and part-time employees, and employees who are employed for only a short period (in which case a pro rata payment must be made on termination). Entitlement Employees on annual leave are entitled to what the Act calls ordinary pay, which usually excludes such things as regular overtime or allowances. If there is no fixed rate, it is the average weekly wage over the immediately preceding 12 months.

When is the entitlement paid? Employees are entitled to receive their holiday pay before going on leave. Casual employees In NSW casual employees are entitled to annual leave benefits, usually a payment of an additional one-twelfth on top of the casual wage for each pay period. Once again, advice and assistance are available from your union and the Office of Industrial Relations.

Leave loading Under many industrial instruments holiday pay includes a leave loading of 17.5% or more on top of ordinary pay. This is intended to compensate for the lack of other earnings regularly received (like overtime and allowances). It is generally payable only on fully accrued leave, but not all employees are entitled to it. Payment in lieu of leave Payment instead of actually taking time off work is not allowed except on termination. Accumulated leave entitlements It is common for employees to delay taking leave, or accumulate it, with the employer’s agreement. Legally, however, fully accrued leave must be taken within six months, and may be postponed only with the Industrial Registrar’s permission. Employers can direct employees to take fully accumulated leave by giving a month’s notice. Leave in advance Employees may take leave in advance of their entitlement if the employer agrees. If the employee leaves before they have worked long enough to cover the leave, the employer may deduct the money from their termination pay. Effect of public holidays Annual leave is usually increased by one day for each public holiday (or other holiday specified in the relevant industrial instrument) occurring while the employee is on leave. Annual shut-downs Employers are allowed one annual shut-down per calendar year, provided they give at least one month’s notice. If this notice is given, employees may be required to use some or all of their leave entitlements during the shut-down. Payment on termination On termination of employment, all untaken annual leave must be paid out to the employee as a lump sum. This includes fully accrued leave and

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592 The Law Handbook any partially accrued amount. The proportional amount paid for an incomplete year is the equivalent of one-twelfth of the total ordinary pay for the period of employment (for example, if employment terminates after nine months in a job, the entitlement is three weeks’ pay). If the employee is entitled to leave loading, this is also paid out on termination. Long service leave Long service leave is paid leave legally required to be granted to employees after a certain amount of continuous service. The entitlement is usually available after ten years, but proportional payments may be available after five. The Long Service Leave Act 1955 specifies minimum entitlements for most employees in NSW. Industrial instruments or contracts may provide the same or better entitlements. Basis of entitlement Under the Act, employees are entitled to two months’ leave on ordinary pay after ten years’ continuous service with an employer. The entitlement after that is one month’s paid leave for each additional five years’ service. It is not necessary to work full-time to be entitled to long service leave; the entitlement arises whether the employee has worked full-time or part-time, or both. The payment is reduced to reflect periods of part-time work. In some circumstances, employees may also be entitled to a pro rata payment on termination if they have between five and ten years’ service. What is a month’s pay? A month’s pay is defined as payment due for four and one-third weeks’ work.

Payment in lieu of leave Payment instead of leave is not permitted, except on termination of employment. Part-time employees Part-time employees are entitled to long service leave on a pro rata basis. Casual employees Casual employees are also entitled to paid long service leave if continuous service can be established. However, casuals can only count service accrued after 9 May 1985.

Effect of public holidays Long service leave is increased by one day for each public holiday (or other holiday specified in the relevant instrument) occurring while on leave. When should leave be taken? Long service leave should be taken when it falls due, unless other arrangements have been agreed. It must be taken in one period unless the employer and employee agree otherwise. Employers can direct employees to take fully accumulated long service leave by giving one month’s notice. What is continuous service? Continuous service means working without a break for the same employer. However, the Act specifies a number of breaks that do not affect continuity of service for long service leave purposes, such as where: • an absence is caused by illness or injury • an absence is deliberately caused by the employer to fraudulently avoid paying long service leave, or • the break was caused by the employer and the employee returns to the service of the employer within two months of the date on which their service was interrupted. In some circumstances, an employee’s service is deemed to be continuous where the employer transmits (for example, sells) the business to someone else and the employee is retained by the new employer.

Payment on termination After ten years’ continuous service, an employee is unconditionally entitled to payment for untaken leave on termination. The payment is calculated on the basis of two months’ ordinary pay for ten years’ service and one month’s pay for each additional five years. Payment is made only for completed years of service. An employee who has between five and ten years’ continuous service as an adult is entitled to a pro rata payment if: • the employer terminates their employment for any reason except serious and wilful misconduct (in practice, it can be hard to prove that misconduct was both), or • the employee has to resign because of illness, incapacity, or some domestic or other pressing necessity (for example, to care for young children or a sick relative), or • the employee dies (in which case payment is made to their personal representative). Sick leave Minimum paid sick leave entitlements are usually specified in the relevant industrial instrument.

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Generally, a minimum qualifying period of service is expected before an employee can claim any entitlements; after that, leave accrues on a service-related basis. The minimum entitlement in most awards is one week of sick leave on full pay for each year of service. Many industrial instruments, particularly those for the public sector, provide far more favourable leave and accumulation entitlements. If sick leave entitlements are exhausted If all paid sick leave entitlements are exhausted, an employee may be eligible to apply for sickness benefits through Centrelink. Effect on continuity of service Absence from work on authorised sick leave (whether paid or unpaid) does not break the continuity of service. Notification A person should notify their employer as soon as possible if they cannot come to work due to illness or injury. Failure to do so within 24 hours (less in some circumstances) without reasonable cause may be grounds for dismissal. Medical certificates Employees must usually provide medical certificates for absences of two to three or more consecutive days. They are not usually required for single-day absences unless the employee has a ‘bad’ sick leave record, although some industrial instruments limit the number of single days that may be taken without a certificate. Many industrial instruments provide that an employee will not be paid for an absence immediately before or after a public holiday.

Employees’ responsibilities Employees should check the relevant industrial instrument to find out their obligations in relation to sick leave. Family/carer’s leave Industrial awards and agreements may provide for family/carer’s leave. In NSW most award-covered employees are entitled to use any available paid sick leave entitlements to provide care and support for family members. Family member is broadly defined, and includes a wide range of relatives, as well as de facto and same-sex partners. Parental leave The minimum parental leave entitlements (maternity leave, paternity leave and adoption leave) for employees in NSW are contained in Chapter 2 Pt 4 of the Industrial Relations Act. Payment Under the legislation, parental leave is unpaid. However, some employers (for example, in the public sector) grant some paid parental leave. Eligibility The employee must have had 12 months’ continuous service with the employer, and must give proper notice and documents (see below). It is not necessary to accrue further periods of service to be entitled to another period of leave. Parental leave applies to: • full-time and part-time employees, and • casuals who have been employed on a regular and systematic basis for at least 12 months, and have a reasonable expectation of continued employment. Employees do not have to be married, and any reference to a spouse includes a de facto spouse.

Notice requirements for parental leave The notice and the documents required for parental leave are set out in s.58 of the Industrial Relations Act.

Information required from the employer An employer who becomes aware that an employee (or their spouse or de facto spouse) is pregnant or adopting a child has a legal obligation to inform them of their parental leave entitlements, and their responsibilities for giving notice and providing documents. An employer who does not give an employee this information cannot use failure to give the required notice or documents as a reason to deny their entitlement to parental leave.

Notice and documents required All parental leave has similar written notice requirements for notifying and varying leave dates. A doctor’s certificate must accompany applications for maternity and paternity leave; official confirmation of placement is required for adoption leave. Employees must also give information in a statutory declaration about parental leave sought or taken by their spouse. Strict compliance with notice requirements is waived if, for example, the baby arrives early, or the adopted child is placed sooner than expected, or other compelling circumstances arise.

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594 The Law Handbook Return to work After returning from leave, employees are entitled to the job they held immediately before it (except for a ‘safe job’ to which a pregnant employee was transferred – see below). If the previous job no longer exists, the employee must be given a job as similar as possible in pay and status, if it is available and the employee is capable of doing it. The right to a safe work environment in pregnancy A woman who is pregnant or breastfeeding has a right to a safe workplace, and the employer must temporarily adjust her working conditions or hours of work if this is necessary to avoid exposing her to any risk. If this is not feasible, the employer must transfer her to other appropriate work that: • will not expose her to that risk, and • is, as far as possible, comparable in status and pay to her present position. If this is not feasible or cannot reasonably be required, the employer must grant maternity leave or any available paid sick leave for as long as is necessary to avoid the employee’s exposure to the risk, as certified by a doctor.

Amount of parental leave The maximum leave for each pregnancy or adoption is 52 weeks, available only for the first year after the birth or adoption. Maternity leave is taken in an unbroken period. Paternity leave consists of one or two periods, comprising: • an unbroken period of up to a week at the time of the birth or other termination of the pregnancy (short paternity leave), and • a further unbroken period to be the primary care-giver (extended paternity leave). Adoption leave Adoption leave may be taken by an employee (male or female) if the child is under five (and has not already lived with the employee for at least six months, or is not a child or step-child of the employee or their spouse). The leave consists of: • an unbroken period of up to three weeks when the child is placed (short adoption leave), and • a further unbroken period to be the primary care-giver. Special maternity and special adoption leave Employees are also entitled to: • special maternity leave to recover from a termination of pregnancy or an illness related to pregnancy, and • special adoption leave of up to two days for adoption agency interviews or examinations.

What if the employee’s spouse takes leave? Parental leave may not be taken by an employee and their spouse at the same time, apart from the week of short paternity leave at the time of birth. Adoption leave may not be taken by both spouses concurrently, apart from the three weeks’ short adoption leave at the time of placement. Effect of parental leave on employment Employees are not required to return to work after parental leave, and may resign by giving the usual notice. It is, however, an offence for an employer to dismiss an employee for taking or intending to take parental leave. Besides the provisions in the Act, remedies may be available for dismissal or discrimination under unfair dismissal and antidiscrimination laws. Breaking the period of leave The requirement concerning unbroken periods of leave can be varied by an agreement between employee and employer under which the employee may break the period of leave by returning to work for the employer, whether full-time, part-time or casual. If required by the employer, the employee must agree not to ‘engage in conduct inconsistent with the contract of employment’ while on parental leave (an example of this may be taking another job).

Employees covered by NSW awards Employees covered by NSW awards have a right to request that the employer allow the employee: • to extend the period of simultaneous unpaid parental leave use up to a maximum of eight weeks • to extend the period of unpaid parental leave for a further continuous period of leave not exceeding 12 months • to return from a period of parental leave on a parttime basis until the child reaches school age in order to assist the employee in reconciling work and parental responsibilities. The employer shall consider the request having regard to the employee’s circumstances and, provided the request is genuinely based on the employee’s parental responsibilities, may only refuse the request on reasonable grounds related to the effect on the workplace or the employer’s business.

Employment of children The Industrial Relations (Child Employment) Act 2006 regulates the employment of people under 18 in NSW, including those employed by constitutional corporations (see What is a constitutional corporation? on page 604).

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Wills Making a will Changing or revoking a will

1096 1096 1100

estates When someone dies Formal administration The intestacy rules Dealing with the estate Trustees Contesting the will Costs

1101 1101 1102 1104 1105 1108 1109 1111

funerals What must be done when someone dies Arranging a funeral Coroner’s cases

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1096 The Law Handbook

Wills A will is a written document that sets out how a person wants their assets (their estate) divided after their death. The law about wills affects people when they make their own will and when they are managing

the affairs of someone who has died. In both cases, there are many legal requirements to be met. This chapter is not detailed enough to be a do-it-yourself guide to will-making.

Making a will Legislation Like most other legislation in Australia, succession law differs from state to state. As part of a national trend to harmonise state laws, the NSW government enacted the Succession Act 2006 (‘the new Act’) which replaces the Wills, Probate and Administration Act 1898 (‘the old Act’) as it relates to wills. The new Act commenced on 1 March 2008. It is written in plainer English than the old Act and is in the form of question and answer. The old Act has been renamed the Probate and Administration Act 1898. The Probate and Administration Act continues to apply (with some exceptions) to wills made before 1 March 2008 and to the administration of estates. It is anticipated that the provisions relating to the administration of estates will be incorporated into the new Act over time. The Succession Amendment (Family Provision) Act 2008 commenced on 1 March 2009 (see Family Provision Orders on page 1110). The Succession Amendment (Intestacy) Bill 2009 was introduced into parliament on 1 May 2009 and it provides for major changes to the intestacy rules. It may commence on 1 March 2010. Details of the intestacy changes are not discussed in this edition.

Why make a will? Everyone over 18 should have a will. It is the only way to make sure that your estate is distributed in the way you would like, and that this is done as quickly and cheaply as possible. A will can also make life much easier for family and friends after your death. When someone dies,

all existing arrangements with or on behalf of that person – for example, withdrawals from accounts or payment of bills under a power of attorney – usually cease. Accounts in the person’s sole name are likely to be frozen on their death, except to allow payment of funeral expenses. A will may make it easier for beneficiaries to gain access to funds in an estate, particularly a small estate where Probate may not be required. Same-sex couples It is especially important for lesbians and gay men to have a will. Although recent legislative changes allow same-sex partners to share in the distribution of an estate where there is no will, it may still be difficult to prove that the relationship was a de facto relationship (see chapter 38, Same-sex couples and their families).

Who can make a will? A will made by a minor (a person under 18) is not valid unless: • it is made in contemplation of a marriage that takes place, or • the minor is married, or • the court has approved it under s.16 of the Succession Act. Mental capacity Will-makers must have the mental capacity to know what they are doing, and to distribute their property according to their own wishes. See chapter 18, Disability law, for more about will-making for people with intellectual disability or mental illness, and providing for a person with intellectual disability.

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Who can draft a will?

Requirements for a valid will

There are no formal requirements about who can draft a will. You can write one yourself (see Example of a simple will on page 1100). However, the will must be signed and witnessed properly, otherwise your executor may have difficulties when applying for probate (see Formal requirements on page 1097). In practice, most people consult lawyers about making wills and administering estates. Unless your will is very simple, it is best to use a lawyer, the Public Trustee or a private trustee company.

Formal requirements The formal requirements for a valid will are given in s.6 of the Succession Act. A will is not valid unless: • it is in writing and signed by the will-maker or some other person in the presence of, and at the direction of, the will-maker; and the signature is made or acknowledged by the will-maker in the presence of two or more witnesses present at the same time; and at least two of those witnesses sign the will in the presence of the will-maker (but not necessarily in the presence of each other) • the signature of the will-maker or of the other person signing in the presence of, and at the direction of, the will-maker must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will. These provisions do not apply to a will made by order of the court under s.18 of the Succession Act.

The Public Trustee The Public Trustee is a NSW government body set up under the Public Trustee Act 1913. Its main business is drafting wills and administering estates, and its staff has considerable expertise in this area. Drafting wills The Public Trustee will only draft your will if you appoint it to act as the executor of your estate. In this case, it will draft the will for free, though there is a charge for the administration of the estate. Administering estates The Public Trustee administers the estates of people who have: • made a will with it • left no will • chosen an executor who does not wish to act. Why use the Public Trustee? The Public Trustee is particularly useful if: • you do not have a close friend or relative who can be appointed as executor • the estate will require ongoing administration; for example, a life interest has been left or the will names minors (children under 18) as beneficiaries. The Public Trustee also has special powers under the Act, particularly in relation to small estates under $50,000. Private trustee companies Private trustee companies make wills and administer estates for a fee. They are listed in the Yellow Pages under ‘Trustee services’.

Attestation clauses An attestation clause in a will records that the formal requirements of making a will have been complied with. Attestation clauses are not essential. However, it is a good idea to include such a clause in the will to show that the formal requirements were complied with. Can a beneficiary be a witness? A beneficiary under a will should not witness the will. If they do, the beneficiary may lose their entitlement under the will (although s.10 of the Succession Act allows a beneficiary to be a witness in certain circumstances). Section 10 of the Succession Act allows the spouse of a beneficiary to be a witness. This is a significant change from the old Act. A person who is unable to see that a willmaker has signed a document cannot act as a witness to a will. That includes someone who is temporarily unable to see (Succession Act s.9). Wills made overseas A will made in another country will be accepted in NSW if it is valid under the law of that country.

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1098 The Law Handbook If the will is not written in English Wills can be written in any language, but when the will-maker dies a certified translation is required. If the will-maker does not speak English If the will is in English and the will-maker does not read or speak English, an interpreter should read it out in the appropriate language, and ask whether

the person understands and approves it. The details should be recorded either: • in an attestation clause (see Attestation clauses on page 1097) in the will, signed by the interpreter, or • in a statutory declaration by the interpreter, witnessed by a lawyer or justice of the peace.

Procedures for executing a valid will • The will-maker should read the will, and make sure they understand and are happy with everything in it. • There should be two adult witnesses who are not beneficiaries under the will. • The will-maker should date the will before signing. • In the presence of the witnesses, the will-maker should: – sign the will at the bottom of each page – sign the attestation clause, if there is one (see Attestation clauses on page 1097) – initial any alterations. • In the presence of the will-maker and each other, each witness should: – sign the will at the bottom of each page – sign the attestation clause, if there is one

– initial any alterations. The witnesses should print their names and addresses below their signatures. Copies of the will, with the names of the will-maker and the witnesses printed on them, should be made and marked ‘Copy: Original kept at …’.

Avoiding problems A document is recognised as being a will if the court is satisfied (on a range of evidence) that this is what the deceased person intended (see Informal wills on page 1102). To avoid problems, however, it is strongly recommended that when you make your will you comply with the formal requirements and follow the procedures in the box above.

What if a beneficiary dies first or within 30 days of your death? A major change under the Succession Act is s.35 which states that if a disposition is made to a person who dies within 30 days after the willmaker’s death, the will is to take effect as if the person died immediately before the will-maker. It is possible to exclude that provision from your will or to lengthen or shorten the 30-day period.

Other considerations

If you leave a specific legacy Generally, if you leave a specific legacy – for example, a sum of money or a particular asset – to a person who dies before you, or within 30 days, the legacy will lapse, and the asset will pass under the residuary clause in your will (see above).

Residuary clauses The residuary clause covers the distribution of your residuary estate, that is: • any assets not specifically mentioned in the will • any legacies that have lapsed (because, for example, the named beneficiary died before or within 30 days of the will-maker). It is extremely important to have a residuary clause in your will, otherwise your residuary estate will be administered under the intestacy rules (see The intestacy rules on page 1104) – which may not be what you want.

Points to note • Copies should not be signed or they may become ‘valid’ wills. • The will-maker and the witnesses should all use the same pen as evidence that they were all together when the will was signed. • No pins or paper clips should be attached. • No alterations should be made to the will after it has been signed.

If you leave a share of your residuary estate If you leave a share of your residuary estate to someone who dies before you, or within 30 days, and you have not named an alternative beneficiary, that person’s share will be distributed according to the intestacy rules (see The intestacy rules on page 1104). The only exception is if the beneficiary was a child of the will-maker who has living children, in which case the deceased child’s share will pass to his or her children under s.41 of the Succession

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Act, and not to the estate of the deceased person, as in the old Act. There is a new provision in the Succession Act, s.42 that states how a gift of residue will be construed. Legal advice should be sought if you have concerns about the wording of a residuary clause in a will. Property owned by joint tenants Property owned by the deceased and another person as joint tenants goes to the surviving coowner regardless of a will or the intestacy rules. If people die at the same time If two or more people die at the same time and their order of death cannot be determined, the law in NSW presumes that the oldest died first, and the estates are divided accordingly. Appointing a guardian for children A parent can nominate someone in their will as the guardian of their children under 18, although a surviving parent generally takes this role initially. If there is a dispute about who will be the guardian, the court makes the appointment. The court may consider what you put in your will. Ex-nuptial children The words ‘child’ or ‘children’ in a will include both nuptial children (the children of a marriage) and ex-nuptial children (children born outside a marriage). If a will-maker wants to exclude any children, this must be explicitly stated, for example by naming only the other children in the will. From 22 September 2008, where a child is born as a result of a fertilisation procedure to a woman in a de facto relationship with another woman: • the other woman is presumed to be a parent of the child if she had consented to the procedure, and • the woman who has become pregnant is presumed to be the child’s mother even if she did not provide the ovum. This change arises from the amendment of the Status of Children Act 1996 by the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008. It will not affect wills made prior to 22 September 2008. Half-sisters and brothers Reference to a sister or brother in a will generally includes half-sisters or half-brothers. (Where there is no will, half-sisters and half-brothers will inherit

only if there are no full sisters or brothers – see Order of distribution on page 1104.) Appointing an executor What do executors do? The executor of a will is responsible for: • seeing that its terms are carried out • applying for probate, if necessary (see Applying for a grant of probate on page 1102). Who can be an executor? You can choose anyone over 18 to be an executor. Usually one of the beneficiaries is nominated; otherwise it can be a lawyer or other trusted person, depending on the complexity of the estate. If no executor is named in the will, the court will appoint an administrator. Payment You may wish to leave your executor a cash legacy under your will as compensation for the time involved in being an executor. An executor may also apply to the court for payment from the estate for the work they have done. Where to keep a will Your will should be easy to find after you die, otherwise the court may presume that you destroyed it and you may die intestate. Your original will should be in a safe place (such as with your bank or a lawyer, a trustee company or the Public Trustee), and a copy kept at home among your personal papers with a note saying where the original is. You should also tell your executor where the original is kept. What to keep with the will It will make the executor’s or administrator’s task easier and quicker if you keep with your will: • a list of your assets, including details of where documents such as insurance policies, passbooks and title deeds can be found • a list of people, firms and organisations to be notified of your death (for example, particular relatives or friends, your superannuation fund, clubs you belong to, Centrelink, or the Department of Veterans Affairs). What is in a simple will? The sample will in the box below gives some idea of what could be in a straightforward will. Remember, unless your will is going to be very simple, it is always best to get legal help.

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1100 The Law Handbook

Example of a simple will This will dated Wednesday 10 December 2006 is made by me, Malcolm Smith, of 3 Brown Street, Jonesville, New South Wales. 1. I revoke all former wills and testamentary dispositions. 2. I appoint my wife Tamie Smith (‘Tamie’) executor of my will but if she is unable or unwilling to act I appoint my children Sue Brown (’Sue’), John Smith (’John’) and Sally Smith (’Sally’) in her place. 3. I give the whole of my estate to Tamie if she survives me by 30 days.

4. If Tamie does not survive me by 30 days I give my whole estate to those among Sue, John and Sally who survive me by 30 days and if more than one in equal shares. Signed by the testator . . . . . . . . . . . . . . [testator signs here] in our presence and attested by us . . . . . . . . . . . . . . . . . . . . . . [witnesses sign here, and print their names and addresses below their signatures] in the presence of the testator and each other.

Changing or revoking a will If the will has not been signed The will-maker can change the words of the will before it has been signed. The will-maker and witnesses must then sign or initial each change in the margin or near the alteration – otherwise the court may assume the alteration was made after the will was signed and it will not be effective.

If the will has been signed Once a will has been signed, it cannot be altered by crossing out clauses or writing in new ones. Such alterations will have no effect. The only way to update the will is by a codicil or a new will. Codicils A codicil is a written document added to a will, which must meet all the formal requirements of a will discussed earlier. It may be easier to make an entirely new will. The codicil must not contain a clause cancelling previous wills, otherwise it will cancel the will it is intended to update.

Revoking or cancelling a will Section 11 of the Succession Act now sets out an exhaustive and expanded list of the means by which a will or part of a will may be revoked. The means are: • a will made by order of the court under ss.16 and 18 (discussed later) • marriage to the extent set out in s.12 (see below)

• divorce or annulment of the marriage, but only to the extent set out in s.13 (see below) • making a new will • a declaration of intention to revoke a will, which must be witnessed in accordance with s.6 by the will-maker or someone in his or her presence and at his or her direction, dealing with the will in such a manner that the court is satisfied that the will-maker intended to revoke it. Marriage A will is automatically revoked when the willmaker marries, unless the will was made in anticipation of marriage (whether a particular marriage or marriage in general) (Succession Act s.12). There are new exceptions if you are married at your death to the person to whom you have made a disposition under your will. If you are making a will in anticipation of marriage, you should consult a lawyer. If you marry after making a will that was not made in anticipation of the marriage, you should make a new will, even if it is the same. Divorce A divorce will not revoke the whole will. It will revoke: • any gift to your former spouse • the appointment of your former spouse as an executor, trustee or guardian (Succession Act s.13) unless you express a contrary intention in your will. A divorced person should not rely on the partial revocation provisions, but make a new will.

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45 Wills, estates and funerals 1101

New provisions Court-authorised wills for people lacking testamentary capacity Under ss.18–26 of the Succession Act the court may, on the application of any person, authorise that a will be made, altered, or partially or fully revoked on behalf of a person lacking capacity either through immaturity, or a particular incapacity. The person on behalf of whom the application is made must be alive at the time the order is made. The will, when executed, must be deposited with

the Registrar, but a failure to do so will not invalidate the will. Wills for minors Section 16 of the Succession Act is not completely new, but extends the old power for the court to authorise the making of wills for minors to altering or revoking a will. The Registrar must be one of the witnesses to a court authorised will for a minor and it must be deposited with the Registrar after execution, but a failure to do so will not invalidate the will.

Providing for future incapacity A person may want to provide for the possibility that in the future they will be unable to make certain decisions for themselves; as the result of an incapacitating illness, for example.

Enduring Power of Attorney A Power of Attorney enables you (the Principal) to authorise someone else (the Attorney) to carry out financial transactions on your behalf. You must have mental capacity when you make the Power. You can make either a general Power of Attorney which will become invalid if you subsequently lose your mental capacity or an enduring Power of Attorney which will remain valid if you lose your mental capacity. The standard form is in Sch.2 of the Powers of Attorney Act 2003. The form is called ‘General Power of Attorney’. To make it an Enduring Power, cl.2 must be retained and your signature must be witnessed by a prescribed person such as a solicitor, barrister, registrar of the Local Court or a licensed conveyancer. For background and more extensive information you can refer to Power of Attorney in chapter 1, About the legal system.

Enduring guardianship The Guardianship Act 1987 allows a person to appoint someone to make decisions on their behalf about such matters as where they will live and what health care they will have, and to consent to medical or dental treatment. (A Power of Attorney covers only financial decisions.) Both the person making the appointment and the guardian must sign an appointment of enduring guardian form, and it must be witnessed by a solicitor, barrister or clerk of the Local Court.

Living wills People sometimes make written directions about their future treatment if they are incapacitated. Although such documents are often called living wills, they are not legally binding, and they have nothing to do with the sort of will being discussed in this section. They are more accurately called Advance Care Directives.

For more about enduring guardianship and living wills, see chapter 18, Disability law.

Estates When someone dies After someone dies, there are a number of enquiries family members or close friends should make in relation to the person’s estate.

Is there a will? One of the first things that must be done is locating the will. It may have been left with the Public

Trustee, a private trustee company, or the deceased’s lawyer or bank. A thorough search of the person’s home should be made if it is not easily located. If no will is found, it is usually presumed that the person died without a will (intestate).

Contact points and internet resources for this chapter begin on page 1119

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1102 The Law Handbook – the size of the estate. Most institutions will not release the funds without probate or administration if it is over a set amount.

Informal wills Under s.8 of the Succession Act a document that appears to contain the deceased person’s wishes, even if it is not a validly executed will, can be considered to be their will, or an amendment to or revocation of their will, if the court is satisfied that this is what the person intended. If you are not sure whether a document is a valid will, refer it to a lawyer.

Is formal administration required? If there is an estate, it must be decided whether formal administration of the estate is required. Where formal administration is not required Formal administration is not required if: • all assets are in joint names with someone else. In this case, the estate goes to that person • the institution holding the person’s funds does not require formal administration to release them. It will consider such things as: – who the beneficiary is – whether there is a will

Where formal administration is essential Formal administration is always required if real estate was held by the deceased in their own name or as a tenant-in-common with someone else.

Who makes the enquiries? As the person chosen by the deceased to administer the estate, the executor should make these enquiries and decisions. If there is no executor If there is no executor (whether there is a will or not), a family member or close friend may make enquiries. If formal administration is required, the court will appoint an administrator – normally the beneficiary with the largest entitlement to the estate.

Formal administration If there is a will and an executor If there is a will and an executor, formal administration involves the executor applying for a grant of probate from the Equity Division of the Supreme Court. What is probate? Probate is an order from the court stating that the will is valid and clearing the way for the executor to begin administering the estate.

Applying for a grant of probate Advertising the intention to apply Fourteen days before applying for a grant of probate, it is necessary to take out a newspaper advertisement indicating the intention to do so. Making the application To apply for the grant of probate, the executor (or their lawyer) should file certain documents with the court. The necessary documents are: • a summons, signed by the executor or their lawyer • an affidavit of executor • the original will.

The affidavit of executor This affidavit is made by the executor, and it should annex (have attached to it): • a statement as to whether the deceased person left any other document attempting to set out their testamentary intentions • the death certificate (see below) • a copy of the newspaper advertisement referred to in Advertising the intention to apply, above • a list of the person’s assets and liabilities. The affidavit must also state that: • the executor will administer the estate according to law, and • there is no reason why the executor should not be granted probate of the will. The death certificate A death certificate may be obtained for $39 from the Registry of Births, Deaths and Marriages. If it is required urgently, the fee is $59 (current at July 2008). The death certificate is often ordered by the funeral director.